Holding

The practice of excluding women between the ages of 10 and 50 from the Sabarimala temple is unconstitutional as it violates Article 25(1) of the Constitution and is not an essential religious practice; Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act and violative of Articles 25(1) and 15(1).

Summary

The Supreme Court of India, by a 4:1 majority, struck down the practice of excluding women aged 10 to 50 from the Sabarimala temple in Kerala. The Court held that the devotees of Lord Ayyappa do not constitute a separate religious denomination under Article 26 of the Constitution. The exclusionary practice was found not to be an essential religious practice under Article 25, as it lacked scriptural basis and was not followed with unhindered continuity. The practice was deemed violative of the fundamental rights of Hindu women under Article 25(1) and discriminatory under Article 15(1). Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, which protected the custom of excluding women, was declared ultra vires the parent Act and unconstitutional. The Court emphasized that constitutional morality overrides any custom or usage that violates fundamental rights, and that notions of purity and pollution associated with menstruation have no place in a constitutional order. Justice Indu Malhotra dissented, holding that the practice was an essential religious practice and that the temple constituted a religious denomination.

Issues considered

Whether the exclusionary practice based on a biological factor exclusive to women amounts to discrimination violating Articles 14, 15, and 17, and is not protected by 'morality' under Articles 25 and 26.
Whether the practice of excluding women constitutes an 'essential religious practice' under Article 25 and whether a religious institution can assert such a claim under Article 26(b).
Whether the Ayyappa Temple has a denominational character and if a religious denomination managed by a statutory board can indulge in practices violating constitutional principles.
Whether Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 permits a religious denomination to ban entry of women aged 10-50, and if so, whether it violates Articles 14 and 15(3).
Whether Rule 3(b) is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965, and if intra vires, whether it violates Part III of the Constitution.

Legislation cited

Constitution of Indias. 14, s. 15, s. 17, s. 25, s. 26, s. 32
Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965s. 3, s. 4, s. 5
Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965s. 3(b)

Subjects

constitutional lawfreedom of religionessential religious practicereligious denominationgender discriminationtemple entryArticle 25Article 26Sabarimalauntouchabilitymenstruationconstitutional morality

Judgment

INDIAN YOUNG LAWYERS
[2018] 9 S.C.R.
ASSN.561
v. STATE OF KERALA 561

INDIAN YOUNG LAWYERS ASSOCIATION & ORS. A
v.
THE STATE OF KERALA & ORS.
(Writ Petition (Civil) No. 373 of 2006)
SEPTEMBER 28, 2018 B
[DIPAK MISRA, CJI, R. F. NARIMAN,
A. M. KHANWILKAR, DR. D. Y. CHANDRACHUD AND
INDU MALHOTRA, JJ.]
Constitution of India:
C
Arts. 25, 26 and 15 –Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act, 1965 – ss. 3, 4 – Kerala Hindu Places
of Public Worship (Authorisation of Entry) Rules, 1965 – r. 3(b) –
Sabarimala temple wherein idol of Lord Ayyappa installed – r 3(b)
protecting custom and usage which prohibit entry of women between
the age of 10 to 50 years to Sabrimala temple, based upon a D
biological ground of menstruation – Validity of – Held: (Per Dipak
Misra, CJI) s. 3 being a non-obstante clause stipulates that every
place of public worship shall be open to all classes and sections of
Hindus, women being one of them, irrespective of any custom or
usage to the contrary – Language of both the s. 3 and the proviso
E
to s. 4(1) 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 u/Art.
25(1) – Thus, r. 3(b) is ultra vires the 1965 Act – Rule 3(b) is also F
ultra vires s. 4 of the 1965 Act as the proviso to s. 4(1) creates an
exception to the effect that the regulations/rules made u/s. 4(1) shall
not discriminate, in any manner whatsoever, against any Hindu on
the ground that he/she belongs to a particular section or class –
Said practise is violative of the fundamental right of Hindu women
G
to freely practise their religion under Art. 25(1) and exhibit their
devotion towards Lord Ayyappa – This denial denudes them of their
right to worship – Held: (Per Nariman, J.) Custom or usage of
prohibiting women between the ages of 10 to 50 years from entering
the Sabarimala temple is violative of Art. 25(1), and violative of the
H
561
562 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 1965 Act – r. 3(b) whereby women by custom and usage are not
allowed to enter a place of public worship, is unconstitutional being
violative of Art. 25(1) and Art. 15(1) – Practice or usage of keeping
out women is violative of s. 3 and is struck down – Since proviso to
the Section is not attracted on the facts of the case, and since the
said Act is clearly a measure enacted u/Art. 25(2)(b), any religious
B
right claimed on the basis of custom and usage as an essential matter
of religious practice u/Art. 25(1), will be subject to the law made u/
Art. 25(2)(b) – Held: (Per Chandrachud, J.) Notifications issued
by the Devaswom Board, prohibiting the entry of women between
the ages of ten and fifty, are ultra vires s. 3 of the 1965 Act and are
C even otherwise unconstitutional – Hindu women constitute a ‘section
or class’ of Hindus u/s. 2 – Rule 3(b) of enforces a custom contrary
to s. 3, which directly offends the right of temple entry established
by s. 3, thus, is ultra vires the 1965 Act – Claim for the exclusion of
women from religious worship, even if it be founded in religious
text, is subordinate to the constitutional values of liberty, dignity
D
and equality – Exclusionary practices are contrary to constitutional
morality – Practice of excluding women from the temple at
Sabarimala is not an essential religious practice – Social exclusion
of women, based on menstrual status, is a form of untouchability
which is an anathema to constitutional values – Held: (Per Indu
E Malhotra J.: Dissenting) Denial of entry of women in the age group
of 10 to 50 years in Sabarimala temple is not violative of Art. 14 –
Sabarimala temple constitutes a religious denomination – Practise
of restricting entry of women between the age group of 10 to 50
years is an essential religious practise of the devotees of Lord
Ayyappa at Sabarimala Temple – r.3(b) is a statutory recognition of
F
a pre-existing custom and usage being followed by this Temple – r.
3(b) is within the ambit of the proviso to s. 3.
Art. 26 – Religious denomination – Determination of –
Devotees of Lord Ayyappa, if constitute a religious denomination –
Held: (Per Dipak Misra, CJI) Devotees of Lord Ayyappa do not
G have an identified group or sect – They do not have common
religious tenets peculiar to themselves, which they regard as
conducive to their spiritual well–being, other than those which are
common to the Hindu religion – Thus, the devotees of Lord Ayyappa
are exclusively Hindus and do not constitute a separate religious
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 563

denomination – Held: (Per Nariman, J.) There is no distinctive name A
given to the worshippers of Sabrimala temple; there is no common
faith in the sense of a belief common to a particular religion or
section thereof; or common organization of the worshippers of the
Sabarimala temple so as to constitute the said temple into a religious
denomination – Also, there are over a thousand other Ayyappa
B
temples in which the deity is worshipped by practicing Hindus of
all kinds – Thus, Article 26 not attracted – (Per Chandrachud, J.)
Worship of the presiding deity is not confined to adherents of a
particular religion – Practices associated with the forms of worship
do not constitute the devotees into a religious denomination –
Considering the inability of the collective of individuals to satisfy C
the judicially-enunciated requirements, the set of individuals who
refer to themselves as “Ayyappans” or devotees of Lord Ayyappa
as a ‘religious denomination’ cannot be recognized – Held: (Per
Indu Malhotra J.: Dissenting) If there are clear attributes that there
exists a sect, which is identifiable as being distinct by its beliefs and
D
practices, and having a collection of followers who follow the same
faith, it would be identifiable as a religious denomination – On
facts, respondents have made out a strong and plausible case that
the worshippers of the Sabarimala Temple have the attributes of a
religious denomination, or sect thereof.
Arts. 25 and 26 – Essential Religious Practices under Art. 25 E
– Determination of – Practice of exclusion of women of the age
group of 10 to 50 years being followed at the Sabarimala Temple –
Held: (Per Dipak Misra, CJI) There seems to be no continuity in
the exclusionary practice followed at the Sabarimala temple and
thus, it cannot be treated as an essential practice – On the contrary, F
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 – Moreso, in the absence of any
scriptural or textual evidence, the exclusionary practice followed
at the Sabarimala temple, cannot be accorded the status of an
essential practice of Hindu religion – By allowing women to enter G
into the Sabarimala temple for offering prayers, it cannot be
imagined that the nature of Hindu religion would be fundamentally
altered or changed in any manner – Held: (Per Nariman, J.) Only
the essential part of religion, as distinguished from secular activities,
H
564 SUPREME COURT REPORTS [2018] 9 S.C.R.

A is the subject matter of the fundamental right – Matters essential to
religious faith and/or belief are to be judged on evidence before a
court of law by what the community professing the religion itself
has to say as to the essentiality of such belief – One test would be to
remove the particular belief stated to be an essential belief from the
religion, would the religion remain the same or would it be altered –
B
In case religious activities are mixed up with secular activities, the
dominant nature of activity test is to be applied – Court to take a
common sense view and be actuated by considerations of practical
necessity – Held: (Per Chandrachud, J.) In determining the
essentiality of a practice, it is to be considered whether the practice
C is prescribed to be of an obligatory nature – If a practice is optional,
it cannot be said to be ‘essential’ to a religion – 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
– Texts and tenets do not indicate that the practice of excluding
women is an essential part of the religion – Practice of excluding
D
women is not uniform and militates against a claim that such practice
is obligatory – Hence, no fundamental change in character of
religion – Essential religious practices test enables the Court to
adopt a reformist vision of religion even though it may conflict with
the views held by the religion – Competence of the Court to do so
E and the legitimacy of the assumption of that role may be questionable
– Test merits a closer look in future – Held: (Per Indu Malhotra J.:
Dissenting) ‘Essential practises test’ have to be determined by the
tenets of the religion itself – Practises followed since time immemorial,
which may have been scripted in the religious texts of this temple,
are to be regarded as “essential”, and afforded protection u/Art.
F
25 – Thus, the practise of restricting entry of women between the
age group of 10 to 50 years is an essential religious practise of the
devotees of Lord Ayyappa at Sabarimala Temple.
Art. 25(1) – Expression ‘all persons under’ – Meaning of –
Held:(Per Dipak Misra, CJI) Expression ‘all persons’, demonstrates
G that the freedom of conscience and the right to freely profess, practise
and propagate religion is available, though subject to the restrictions
delineated in Art. 25(1) itself, to every person including women –
Rights guaranteed u/Art. 25(1) has nothing to do with gender –
Held: (Per Nariman, J.) Art. 25 recognises a fundamental right in
H favour of “all persons” which has reference to natural persons –
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 565

Every member of a religious community has a right to practice the A
religion so long as he does not, in any way, interfere with the
corresponding right of his co-religionists to do the same.
Art. 25(1) – Expression – Held: (Per Chandrachud, J.] ‘all
persons under’ – By all persons, the Constitution means that every
individual in society without distinction of any kind is entitled to a B
freedom of conscience and to freely profess, protect and propogate
religion – Three defining features of clause (1) of Article 25 are,
first, the entitlement of all persons without exception; second, the
recognition of an equal entitlement; and third, the recognition both
of the freedom of conscience and the right freely to profess, practice
and propogate religion. C
Art. 17 – Untouchability– Denial of entry to women in the
age group of 10 to 50 in the Ayyappa temple at Sabarimala, if a
manifestation of “untouchability” and thus, violative of Art. 17 –
Held: (Per Chandrachud, J.) Art. 17 prohibits the practice of
“untouchability”, which is based on notions of purity and impurity, D
“in any form” – Notions of “purity and pollution”, which stigmatize
individuals, can have no place in a constitutional regime - Prejudice
against women based on notions of impurity and pollution
associated with menstruation is a symbol of social exclusion – It is
a form of untouchability which is an anathema to constitutional
E
values – Held: (Per Indu Malhotra J.: Dissenting) Limited
restriction on the entry of women during the notified age-group
does not fall within the purview of Art. 17 – Art. 17 refers to practice
of untouchability as committed in the Hindu community against
Harijans or people from depressed classes, and not women –
Restriction on women within a certain age-band, is based upon the F
historical origin and beliefs and practices of the sabrimala temple,
on the unique characteristic of the deity, and not founded on any
social exclusion – Women of the notified age group are allowed
entry into all other temples of Lord Ayyappa.
Art. 25(1) – Term ‘morality’ in Art. 25(1) – Held: (Per Dipak G
Misra, CJI) Cannot be viewed with a narrow lens so as to confine
the sphere of definition of morality to what an individual, a section
or religious sect may perceive the term to mean – Since the
Constitution has been adopted and given by the people of this
country to themselves, the term public morality in Art. 25 has to be
appositely understood as being synonymous with constitutional H
566 SUPREME COURT REPORTS [2018] 9 S.C.R.

A morality – 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.
B Art. 25(1) – Term ‘morality’ – Held: (Per Chandrachud, J.)
Popular notions about what is or is not moral may in fact be deeply
offensive to individual dignity and human rights – Individual dignity
cannot be allowed to be subordinate to the morality of the mob and
should not vary in accordance with the popular fashions of the day
– Overarching sense of constitutional morality with the quest for
C human dignity, liberty and equality must prevail.
Arts. 25(2)(b) and 26(b) – Right to manage its own affairs in
matters of religion under Art. 26 – Held: (Per Nariman, J.) Right
granted u/Art. 26 to be harmoniously construed with Art. 25(2)(b)
– Right to manage its own affairs in matters of religion granted by
D Art. 26(b), to be subject to laws made u/Art. 25(2)(b) which throw
open religious institutions of a public character to all classes and
sections of Hindus – Thus, even though the entry of persons into a
Hindu temple of a public character would pertain to management
of its own affairs in matters of religion, yet such temple entry would
be subject to a law throwing open a Hindu religious institution of a
E
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
F pass muster u/Art. 26(b).
Art. 25(2)(b) and 26(b) – Right to manage its own affairs in
matters of religion u/Art. 26 – Held: (Per Chandrachud, J.) Absence
of a clause of subjection in Article 26 does not lead to the conclusion
that the freedom of a religious denomination exists as a discrete
G element, divorced from the others freedoms – Article 26 is one among
a large cluster of freedoms which the Constitution has envisaged as
intrinsic to human liberty and dignity – Freedom of religious
denominations under Article 26 must be read in a manner which
preserves equally, other individual freedoms – Dignity of women
which an emanation of Article 15 and a reflection of Article 21
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 567

cannot be disassociated from the exercise of religious freedom under A
Article 26.
Art. 32 – Writ petition under – Issue that women who happen
to be between the ages of 10 and 50, not allowed entry into the
temple at Sabarimala – Plea raised that that the Court should not
decide this case without any evidence being led on both sides – B
Held: (Per Nariman, J.) Evidence is very much there, in the form of
the writ petition and the affidavits filed in the writ petition by the
petitioners as well as by the Board, and by the Thanthri – Writ petition
filed is itself not merely a pleading, but also evidence in the form of
affidavits that are sworn.
C
Arts. 25 and 26 – Engagement of essential religious practices
with constitutional values – Exclusion of women between the age
group ten and fifty from the Sabarimala temple – Held: (Per
Chandrachud, J.) Exclusion is destructive of dignity – To exclude a
woman from the might of worship is fundamentally at odds with
constitutional values – Physiological features of a woman have no D
significance to her equal entitlements under the Constitution –
Menstrual status of a woman cannot be a valid constitutional basis
to deny her the dignity of being and the autonomy of personhood –
Menstrual status of a woman is deeply personal and an intrinsic
part of her privacy – Constitution must treat it as a feature on the E
basis of which no exclusion can be practised and no denial can be
perpetrated.
Art. 13 – Term ‘laws in force’ – Custom or usage if falls within
the ambit of ‘laws in force’ u/Art.13(1) – Plea that the exclusion of
women from the Sabarimala temple constitutes a custom, independent F
of the Act and the 1965 Rules – Held: (Per Chandrachud, J.) Carving
out ‘custom or usage’ from constitutional scrutiny, denies the
constitutional vision of ensuring the primacy of individual dignity
– Decision in Narasu case that custom or usage not included in the
ambit of laws in force, is based on flawed premises – Custom or
usage cannot be excluded from ‘laws in force’– Decision in Narasu G
case, in immunizing uncodified personal law and construing the
same as distinct from custom, overlooked the wide ambit that was to
be attributed to the term ‘laws in force’.
Arts. 25 and 26 – Deity as a bearer of constitutional rights –
Held: (Per Chandrachud, J.) Word ‘persons’ in certain statutes have H
568 SUPREME COURT REPORTS [2018] 9 S.C.R.

A been interpreted to include idols – Merely because a deity has been
granted limited rights as juristic persons under statutory law does
not mean that the deity necessarily has constitutional rights – Deity
may be a juristic person for the purposes of religious law and
capable of asserting property rights – However, deity is not a
‘person’ for the purpose of Part III.
B
Arts. 32, 25 and 14 – PIL filed challenging the practise of
restricting the entry of women in the age group of 10 to 50 years in
the Sabarimala Temple – Maintainability and justiciability of – Held:
(Per Indu Malhotra J.: Dissenting) Right to move the Supreme
Court u/Art. 32 for violation of fundamental rights, must be based
C on a pleading that the petitioners’ personal rights to worship in this
Temple have been violated – This is an essential requirement to
maintain the challenge – Courts normally do not delve into issues
of religious practises, especially in the absence of an aggrieved
person from that particular religious faith, or sect – In matters of
D religion and religious practises, Art. 14 can be invoked only by
persons who are similarly situated, that is, persons belonging to the
same faith, creed, or sect – Petitioners–association/Intervenors do
not claim to be devotees of Lord Ayyappa in the Sabarimala Temple,
who are aggrieved by the practises followed in the Sabarimala
Temple.
E
Art. 14 – Matters of religion and religious practice –
Applicability of Art. 14 – Denial of entry to women in age group of
10 to 50 years in Sabrimala temple – Held: (Per Indu Malhotra J.:
Dissenting) Is not violative of Art. 14 – Religious customs and
practises cannot be solely tested on the touchstone of Article 14
F and the principles of rationality embedded therein – Religious
community is to decide as to what constitutes essential religious
practice – Equality in matters of religion to be viewed in the context
of the worshippers of the same faith – It is not for the courts to
determine which of these practises of a faith are to be struck down,
G except if they are pernicious, oppressive, or a social evil – 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.

H Art. 15 – Prohibition of discrimination on grounds of religion,
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 569

race, caste or sex – Applicability of Art. 15 – Submission that A
Sabrimala temple would be included in phrase ‘places of public
resort – Held: (Per Indu Malhotra J.: Dissenting) Cannot be
accepted – Conscious decision by the Constituent Assembly not to
include ‘places of worship’ or ‘temples’ within the ambit of draft
Article 9, to be given due consideration.
B
Kerala Hindu Places of Public Worship (Authorisation of
Entry) Rules, 1965:
r.3(b) – Kerala Hindu Places of Public Worship (Authorisation
of Entry) Act 1965 – s. 3 – r. 3(b) whereby women by custom and
usage not allowed to enter a place of public worship – r. 3(b) if C
ultra vires s. 3 of the 1965 Act, whereby places of worship to be
open to all section and classes of Hindus – Held: (Per Dipak Misra,
CJI) r. 3(b) is ultra vires the 1965 Act – Rule 3(b) is also ultra vires
s. 4 of the 1965 Act – Held: (Per Nariman, J.) Rule 3(b) is ultra
vires of s. 3 of the 1965 Act, and is hit by Art. 25(1) and by Art.15(1)
as this Rule discriminates against women on the basis of their sex D
only – Held: (Per Chandrachud, J.) Term ‘includes’ in s.2(c) has to
be given a broad interpretation – The expression ‘section or class’
includes women – Proviso to s.3 creates an exception – Lord Ayyappa
do not constitute a religious denomination and the Sabrimala temple
is not a denominational temple – Hence, notifications issued by the E
Board prohibiting the entry of woman between ages ten and
fifty-five, are ultra vires s.3 – Rule 3(b) gives precedence to customs
and usages which allow the exclusion of women “at such time during
which they are not allowed to enter a place of public worship” – In
laying down such a prescription, Rule 3(b) directly offends the right
of temple entry established by Section 3, thus, r. 3(b) is ultra vires F
the Act – Held: (Per Indu Malhotra J.: Dissenting) r. 3(b) is not
ultra vires s. 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
affairs in matters of religion – Declaration that places of public G
worship shall be open to Hindus of all sections and classes is not
absolute, but subject to the right of a religious denomination to
“manage its own affairs in matters of religion” – r.3(b) is a statutory
recognition of a pre-existing custom and usage being followed by
this Temple – r. 3(b) is within the ambit of the proviso to s. 3.
H
570 SUPREME COURT REPORTS [2018] 9 S.C.R.

A r. 3(b) whereby women not allowed to enter a place of worship
– Challenged to, as being violative of constitutional morality – Held:
(Per Indu Malhotra J.: Dissenting) Constitutional Morality in a
pluralistic society and secular polity would reflect that the followers
of various sects have the freedom to practise their faith in
accordance with the tenets of their religion – Equality and non-
B
discrimination are facet of Constitutional Morality, which cannot
be viewed in isolation – Balance is to be struck between the
principles of equality and non-discrimination on the one hand, and
the protection of the cherished liberties of faith, belief, and worship
guaranteed by Arts 25 and 26 to persons belonging to all religions
C in a secular polity, on the other hand – Constitutional morality
requires the harmonisation or balancing of all such rights, to ensure
that the religious beliefs of none are obliterated or undermined – It
is the Constitutional duty of the Court to harmonise these rights.
Judicial Review: Matters concerning religion and religious
D practice under the secular constitutional set up – Role of courts –
Held: (Per Indu Malhotra J.: Dissenting) Is to afford protection u/
Art. 25(1) to those practises which are regarded as “essential” or
“integral” by the devotees, or the religious community itself – Art.
25(2)(b) permits the State to redress social inequalities and injustices
by framing legislation –Art. 25(2) permits State made law on the
E grounds specified therein, and not judicial intervention – On facts,
practice of exclusion of women of the age group of 10 to 50 years
being followed at the Sabrimala temple are considered to be essential
or integral to that Temple – Any interference with the same would
conflict with their right guaranteed by Art. 25(1) to worship Lord
F Ayyappa in the form of a ‘Naishtik Brahmachari’ – Judicial review
of religious practises ought not to be undertaken, as the Court
cannot impose its morality or rationality with respect to the form of
worship of a deity – Doing so would negate the freedom to practise
one’s religion according to one’s faith and beliefs – It would amount
to rationalising religion, faith and beliefs, which is outside the ken
G of the courts.
Allowing the Writ Petition, the Court
HELD: Per Dipak Misra CJI (for himself and Khanwilkar
J.):
H Followers of Lord Ayyappa do not constitute a religious
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 571

denomination: A
1.1 In view of the law laid down by this Court in Shirur
Mutt’s case and S.P. Mittal’s case, the devotees of Lord Ayyappa
do not constitute a separate religious denomination. They do not
have common religious tenets peculiar to themselves, which they
regard as conducive to their spiritual well-being, other than those B
which are common to the Hindu religion. Therefore, the devotees
of Lord Ayyappa are exclusively Hindus and do not constitute a
separate religious denomination. [Para 144 (i)][673-D-E]
1.2 For any religious mutt, sect, body, sub-sect or any
section thereof to be designated as a religious denomination, it C
must be a collection of individuals having a collective common
faith, a common organization which adheres to the said common
faith, and last but not the least, the said collection of individuals
must be labeled, branded and identified by a distinct name. The
most important condition for a religious denomination, i.e., the
collection of individuals ought to have a system of beliefs or D
doctrines which they regard as conducive to their spiritual well-
being. For a religious denomination, there must be new
methodology provided for a religion. Mere observance of certain
practices, even though from a long time, does not make it a
distinct religion on that account. [Paras 94, 96][655-E-F; 656-A-C] E
1.3 The submission that the pilgrims coming to visit the
Sabarimala temple being devotees of Lord Ayyappa are addressed
as Ayyappans and, therefore, the third condition for a religious
denomination stands satisfied, is unacceptable. There is no
identified group called Ayyappans. Every Hindu devotee can go F
to the temple. There are other temples for Lord Ayyappa and
there is no such prohibition. Therefore, there is no identified
sect. Thus, the Sabarimala temple is a public religious endowment
and there are no exclusive identified followers of the cult. [Para
95][655-F-H]
G
S.P. Mittal v. Union of India and others (1983) 1 SCC
51 : [1983] 1 SCR 729; The Commissioner Hindu
Religious Endowments, Madras v. Shri Lakshmindra
Thritha Swaminar of Sri Shirur Mutt [1954] SCR 1005
– relied on.
H
572 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Nallor Marthandam Vellalar and others v.
Commissioner, Hindu Religious and Charitable
Endowment and others (2003) 10 SCC 712 : [2003]
1 Suppl. SCR 920 – referred to.
Enforceability of Fundamental Rights u/Art. 25(1) against
B the Devaswom Board
2.1 Having stated that the devotees of Lord Ayyappa do
not constitute a religious denomination within the meaning of
Article 26 and that Sabarimala Temple is a public temple by virtue
of the fact that Section 15 of the Travancore Cochin Hindu
C Religious Institutions Act, 1950 vests all powers of direction,
control and supervision over it in the Travancore Devaswom
Board which, has been unveiled as ‘other authority’ within the
meaning of Article 12, resultantly fundamental rights including
those guaranteed under Article 25(1) are enforceable against the
Travancore Devaswom Board and other incorporated Devaswoms
D including the Sabarimala Temple. [Para 97][656-D-E]
2.2 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
E every person including women. 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
F religious worship, rituals. The right guaranteed under Article
25(1) has nothing to do with gender or, for that matter, certain
physiological factors, specifically attributable to women. Women
of any age group have as much a right as men to visit and enter a
temple in order to freely practise a religion as guaranteed under
Article 25(1). [Paras 98, 99, 100][656-F-H; 657-B]
G
Rev. Stainislaus v. State of Madhya Pradesh and others
(1977) 1 SCC 677 : [1977] 2 SCR 611; The
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005 – referred to.
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 573

2.3 The practice of exclusion of women from entry into A
religious places 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 right
guaranteed under Article 25(1) is not only about inter-faith parity
B
but it is also about intra-faith parity. Therefore, the right to practise
religion under Article 25(1), in its broad contour, encompasses a
non-discriminatory right which is equally available to both men
and women of all age groups professing the same religion. [Paras
101][657-C-E]
Nar Hari Shastri and others v. Shri Badrinath Temple C
Committee AIR 1952 SC 245 : 1952 SCR 849; Acharya
Jagadishwarananda Avadhuta and others v.
Commissioner of Police, Calcutta (1983) 4 SCC 522 :
[1984] 1 SCR 447 – referred to.
2.4 The impugned Rule 3(b) of the Kerala Hindu Places of D
Public Worship (Authorisation of Entry) Rules, 1965, framed in
pursuance of the 1965 Act, stipulates exclusion of entry of women
of the age group of 10 to 50 years, 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) E
a dead letter. It is clear as crystal that as long as the devotees,
irrespective of their gender and/or age group, seeking entry to a
temple of any caste are Hindus, it is their legal right to enter into
a temple and offer prayers. 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 Sabarimala Temple as F
devotees of Lord Ayyappa and offer their prayers to the deity.
The said rule of exclusion cannot be justified on the ground that
allowing entry to women of the said age group would, in any way,
be harmful or would play a jeopardizing role to public order,
morality, health or, for that matter, any other provision/s of Part G
III of the Constitution, for it is to these precepts that the right
guaranteed under Article 25(1) has been made subject to. [Paras
104, 105][658-F-H; 659-A-B]
2.5 The term ‘morality’ occurring in Article 25(1) cannot
be viewed with a narrow lens so as to confine the sphere of H
574 SUPREME COURT REPORTS [2018] 9 S.C.R.

A definition of morality to what an individual, a section or religious
sect may perceive the term to mean. When there is a violation of
the fundamental rights, the term ‘morality’ naturally implies
constitutional morality and any view that is ultimately taken by
the Constitutional Courts must be in conformity with the principles
and basic tenets of the concept of this constitutional morality that
B
gets support from the Constitution. [Paras 106][659-C-D]
Manoj Narula v. Union of India (2014) 9 SCC 1 :
[2014] 9 SCR 965; Government of NCT of Delhi v.
Union of India and others (2018) 8 SCALE 72; Navtej
Singh Johar and others v. Union of India and others
C (2018) 10 SCALE 386 – referred to.
2.6 The right guaranteed under Article 25(1) has been made
subject to, by the opening words of the Article itself, public order,
morality, health and other provisions of Part III of the
Constitution. All the three words, that is, order, morality and health
D are qualified by the word ‘public’. Neither public order nor public
health will be at peril by allowing entry of women devotees of the
age group of 10 to 50 years into the Sabarimala temple for offering
their prayers. As regards public morality, it is made absolutely
clear that since the Constitution was not shoved, by any external
E 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. 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
F 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. [Paras 110, 111][661-A-D]
Whether exclusionary practice is an essential practice as
G per Hindu religion
3.1 In no scenario, it can be said that exclusion of women
of any age group could be regarded as an essential practice of
Hindu religion and on the contrary, it is an essential part of the
Hindu religion to allow Hindu women to enter into a temple as
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 575

devotees and followers of Hindu religion and offer their prayers A
to the deity. In the absence of any scriptural or textual evidence,
the exclusionary practice followed at the Sabarimala temple,
cannot be accorded the status of an essential practice of Hindu
religion. By allowing women to enter into the Sabarimala temple
for offering prayers, it cannot be imagined that the nature of Hindu
B
religion would be fundamentally altered 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),
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 C
survive. [Paras 122-123][665-D-G]
3.2 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 D
only be treated as mere embellishments to the non-essential part
or practices. [Para 124][665-G-H]
3.3 Where a practice changes with the efflux of time, such
a practice cannotbe regarded as a core upon which a religion is
formed. There has to be unhindered continuity in a practice for it E
to attain the status of essential practice. It is further discernible
from the judgment of the High Court in S. Mahendran’s case that
the Devaswom Board had accepted before the High Court that
female worshippers of the age group of 10 to 50 years used to
visit the temple and conducted poojas in every month for five
days for the first rice feeding ceremony of their children. The F
Devaswom Board also took a stand before the High Court that
restriction of entry for women was only during Mandalam,
Makaeavilakku and Vishnu days. The impugned exclusionary
practice in question is a ‘custom with some aberrations’ as prior
to the passing of the Notification in 1950, women of all age groups G
used to visit the Sabarimala temple for the first rice feeding
ceremony of their children. Therefore, there seems to be no
continuity in the exclusionary practice followed at the Sabarimala
temple and in view thereof, it cannot be treated as an essential
practice. [Paras 125, 126][666-A-D]
H
576 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 3.4 In view of the law laid down by this Court in the second
Ananda Marga case, the exclusionary practice being followed at
the Sabarimala Temple cannot be designated as one, the non-
observance of which will change or alter the nature of Hindu
religion. Besides, the exclusionary practice has not been
observed with unhindered continuity as the Devaswom Board
B
had accepted before the High Court that female worshippers of
the age group of 10 to 50 years used to visit the temple and
conducted poojas in every month for five days for the first rice
feeding ceremony of their children. [Para 144(viii)][674-F-H]
Commissioner of Police and others v Acharya
C Jagadishwarananda Avadhuta and another (2004) 12
SCC 770 : [2004] 2 SCR 1019 – relied on.
S. Mahendran v. The Secretary, Travancore Devaswom
Board, Thiruvananthpuram and others AIR 1993
Kerala 42 – approved.
D
John Vallamattom and another v. Union of India (2003)
6 SCC 611 : [2003] 1 Suppl. SCR 638; The
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005; Mohd. Hanif Quareshi v. State
E of Bihar AIR 1958 SC 731 : [1959] SCR 629; State
of West Bengal and others v. Ashutosh Lahiri and others
AIR 1995 SC 464 : [1994] 5 Suppl. SCR 515 ; Durgah
Committee, Ajmer and others v. Syed Hussain Ali and
others AIR 1961 SC 1402 : 1962 SCR 383; N.
F Adithayan v. Travancore Devaswom Board and others
(2002) 8 SCC 106 : [ 2002] 3 Suppl. SCR 76; Acharya
Jagadishwarananda Avadhuta and others v.
Commissioner of Police, Calcutta (1983) 4 SCC 522 :
[1984] 1 SCR 447 – referred to.

G Free Church of Scotland v. Overtoun (1904) AC 515 –
referred to.
Analysis of the 1965 Act and Rule 3(b) of the 1965 Rules
4.1 As per Section 2(a) of the 1965 Act, the term ‘Hindu’
includes a person professing Buddhist, Sikh or Jaina religion.
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 577

The word ‘person’ occurring therein for the pure and simple A
reason of logic, must include all genders.Clause (c) defines
‘section or class’ as any division, sub-division, caste, 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. [Para 128][666-E; 667-B-C]
B
4.2 Section 3 of the Act being a non-obstante clause declares
that every place of public worship which is open to Hindus
generally or to any section or class thereof shall be open to all
sections and classes of Hindus and no Hindu, of whatsoever
section or class, shall be prevented, obstructed or discouraged
from entering such place of public worship, or from worshipping, C
offering prayers or performing any religious service at such place
of public worship in the like manner and to the like extent as any
other Hindu of whatsoever section or class may so be eligible to
enter, worship, pray or perform. A careful dissection of Section 3
reveals that places of public worship in the State of Kerala, D
irrespective of any contrary law, custom, usage or instrument
having effect by virtue of any such law or any decree or order of
Court, shall be open to all sections and classes of Hindus. The
definition of ‘section or class’ and ‘Hindu’ has to be imported, for
the purposes of Section 3, from the definition clauses 2(a) and
2(c) which, includes all the genders, provided they are Hindus. E
The right provided under Section 3 due to its non-obstante nature
has to be given effect to regardless of any law, custom or usage
to the contrary. [Paras 130, 131][667-G-H; 668-A-D]
4.3 The proviso to Section 3 stipulates that in case the place
of public worship is a temple founded for the benefit of any F
religious denomination or section thereof, then the rights
warranted under Section 3 becomes subject to the right of that
religious denomination or section to manage its own affairs in
matters of religion. Having stated that devotees and followers of
Lord Ayyappa do not constitute a religious denomination and, G
therefore, the proviso to Section 3 cannot be resorted to in the
case at hand. [Para 132][668-D-E]
4.4 The importance and the gravity of the right stipulated
under Section 3 of this Act, for all sections and classes of Hindus
which include women, is very well manifest and evident from the H
578 SUPREME COURT REPORTS [2018] 9 S.C.R.

A fact that its violation has been made penal under Section 5 of the
1965 Act. Section 4 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.
The proviso to Section 4 being an exception to Section 4(1) is an
example where the exception is more important than the rule
B
itself. The language of the proviso to Section 4, in very clear and
simple terms, states that the regulations made under Section 4(1)
shall not discriminate against any Hindu on the ground that he/
she belongs to a particular section or class. A particular section
or class includes women of all age groups, for Hindu women of
C any age group also constitute a class or section of Hindus. [Paras
133-135][668-G-H; 669-B-C; 670-A-B]
4.5 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
D and no transgression of the same is permissible. The exclusionary
practice, which has been given the backing of a subordinate
legislation in the form of Rule 3(b), framed by the virtue of the
1965 Act, is neither an essential nor an integral part of the
religion.A cursory reading of Rule 3(b) divulges that it is ultravires
both Section 3 as well as Section 4, the reason being that Section
E 3 being a non-obstante provision clearly stipulates that every
place of public worship shall be open to all classes and sections
of Hindus, women being one of them, irrespective of any custom
or usage to the contrary. That apart, Rule 3(b) is also ultravires
Section 4 as the proviso to Section 4(1) creates an exception to
F the effect that the regulations/rules made under Section 4(1) shall
not discriminate, in any manner whatsoever, against any Hindu
on the ground that he/she belongs to a particular section or class.
[Paras 137, 141, 142, 144(ix)][670-F-G; 675-A; 672-F-G; 673-A]
Union of India and ors v. S. Srinivasan (2012) 7 SCC
G 683 : [2012] 6 SCR 34; General Officer Commanding-
in-Chief v. Dr. Subhash Chandra Yadav AIR 1988 SC
876 : [1988] 3 SCR 62; Kunj Behari Lai Butail and ors
v. State of H.P. AIR 2000 SC 1069 : [2000] 1 SCR
1054; Global Energy Limited and anr v. Central
Electricity Regulatory Commission (2009) 15 SCC 570
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 579

: [2009] 9 SCR 22; State of T.N. and anr v. P. A
Krishnamurthy and ors (2006) 4 SCC 517 : [2006] 3
SCR 396 – referred to.
4.6 The language of both the provisions, that is, Section 3
and the proviso to Section 4(1) of the 1965 Act, clearly indicates
that custom and usage must make space to the rights of all B
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). It is
clear as crystal that the provisions of the 1965 Act are liberal in
nature so as to allow entry to all sections and classes of Hindus C
including Scheduled Castes and Scheduled Tribes. But framing
of Rule 3(b) under the garb of Section 4(1) would violate the very
purpose of the 1965 Act. Thus, Rule 3(b) is ultra vires the 1965
Act. [Paras 143, 144(xii)][673-A-C; 675-F]
Indian Young Lawyers Association and others v. State D
of Kerala and others (2017) 10 SCC 689; Sardar
Syedna Taher Saifuddin Saheb v. State of Bombay
[1962] Suppl. 2 SCR 496; Raja Bira Kishore Deb v.
State of Orissa (1964) 7 SCR 32; Shastri
Yagnapurushadiji and others v. Muldas Bhundardas E
Vaishya and another (1966) 3 SCR 242 ; Durgah
Committee, Ajmer v. Syed Hussain Ali (1962) 1 SCR
383; Sri Venkatramana Devaru v. State of Mysore and
others [1958] SCR 895; Deepak Sibal v. Punjab
University and another (1989) 2 SCC 145 : [1989] 1
SCR 689; Shayara Bano v. Union of India and others F
(2017) 9 SCC 1 : [2017] 7 SCR 797; Anuj Garg and
others v. Hotel Association of India and others (2008)
3 SCC 1 : [2007] 12 SCR 991; Charu Khurana and
others v. Union of India and others (2015) 1 SCC 192
: [2014] 12 SCR 259; National Legal Services Authority G
v. Union of India and others (2014) 5 SCC 438; Justice
K. S. Puttaswamy and another v. Union of India and
others (2017) 10 SCC 1; Vishaka and others v. State of
Rajasthan and others (1997) 6 SCC 241 : [1997] 3
Suppl. SCR 404; Seshammal and others v. State of
H
580 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Tamil Nadu (1972) 2 SCC 11 : [1972] 3 SCR 815;
Adi Saiva Sivachariyargal Nala Sangam and others v.
Government of Tamil Nadu and others (2016) 2 SCC
725 : [2015] 11 SCR 1110; T.M.A. Pai Foundation and
others v. State of Karnataka and others (1995) 5 SCC
220 : [1995] 2 Suppl. SCR 608; Deoki Nandan v.
B
Murlidhar and others AIR 1957 SC 133 : [1956] SCR
756; Sri Radhakanta Deb and another v. Commissioner
of Hindu Religious Endowments, Orissa (1981) 2 SCC
226 : [1981] 2 SCR 826 – referred to.
Eyes and Ears 1813-1887 by Henry Ward Beecher–
C referred to.
Per R.F. Nariman, J. (Concurring):
1. The custom or usage of prohibiting women between the
ages of 10 to 50 years from entering the Sabarimala temple is
D 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; and 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. [Para 32][723-E-F]
E
2.1 Article 25 of the Constitution recognises a fundamental
right in favour of “all persons” which has reference to natural
persons. This fundamental right equally entitles all such persons
to the said fundamental right. Every member of a religious
community has a right to practice the religion so long as he does
F not, in any way, interfere with the corresponding right of his co-
religionists to do the same. The content of the fundamental right
is the fleshing out of what is stated in the Preamble to the
Constitution as “liberty of thought, belief, faith and worship”.
Thus, all persons are entitled to freedom of conscience and the
G right to freely profess, practice, and propagate religion. The right
to profess, practice, and propagate religion will include all acts
done in furtherance of thought, belief, faith, and worship. The
content of the right concerns itself with the word “religion”, which
would mean matters of faith with individuals or communities,
based on a system of beliefs or doctrines which conduce to spiritual
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 581

well-being. It does not have to be theistic but can include persons A
who are agnostics and atheists. [Paras 21.1-21.5][709-D-G]
2.2 It is only the essential part of religion, as distinguished
from secular activities, that is the subject matter of the
fundamental right. Superstitious beliefs which are extraneous,
unnecessary accretions to religion cannot be considered as B
essential parts of religion. Matters that are essential to religious
faith and/or belief are to be judged on evidence before a court of
law by what the community professing the religion itself has to
say as to the essentiality of such belief. One test that has been
evolved would be to remove the particular belief stated to be an
essential belief from the religion, would the religion remain the C
same or would it be altered. Equally, if different groups of a
religious community speak with different voices on the
essentiality aspect presented before the Court, the Court is then
to decide as to whether such matter is or is not essential. Religious
activities may also be mixed up with secular activities, in which D
case the dominant nature of the activity test is to be applied. The
Court should take a common-sense view and be actuated by
considerations of practical necessity. [Para 21.6][709-G-H; 710-
A-C]
2.3 The exceptions to the individual right are public order, E
morality, and health. “Public order” is to be distinguished from
“law and order”. “Public disorder” must affect the public at large
as opposed to certain individuals. A disturbance of public order
must cause a general disturbance of public tranquility. The term
“morality” is difficult to define. For the present, it refers to that
which is considered abhorrent to civilized society, given the F
mores of the time, by reason of harm caused by way, of exploitation
or degradation. Health would include noise pollution and the
control of disease. [Para 21.7][710-C-E]
2.4 Another exception to the fundamental right conferred
by Article 25(1) is the rights that are conferred on others by the G
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 H
582 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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 would spring
into action. Article 25(2) is also an exception to Article 25(1),
which speaks of the State making laws which may regulate or
restrict secular activity, which includes economic, financial or
B
political activity, which may be associated with religious practice.
Another exception is provided under Article 25(2)(b) which is in
two parts. Any law providing for social welfare and reform in a
religious community can also affect and/or take away the
fundamental right granted under Article 25(1). A further exception
C is provided only insofar as persons professing the Hindu religion
are concerned, which is to throw open all Hindu religious
institutions of a public character to all classes and sections of
Hindus. [Paras 21.8-21.10][710-E-F; 711-A-C]
2.5 Contrasted with the fundamental right in Article 25(1)
D is the fundamental right granted by Article 26. This fundamental
right is not granted to individuals but to religious denominations
or sections thereof. A religious denomination or section thereof
is to be determined on the basis of persons having a common
faith, a common organization, and designated by a distinct name
as a denomination or section thereof. Believers of a particular
E religion are to be distinguished from denominational worshippers.
Thus, Hindu believers of the Shaivite and Vaishnavite form of
worship are not denominational worshippers but part of the
general Hindu religious form of worship. [Para 21.11][711-D-E]
2.6 Four separate and distinct rights are given by Article
F 26 to religious denominations or sections thereof, namely to
establish and maintain institutions for religious and charitable
purposes; to manage its own affairs in matters of religion; to own
and acquire movable and immovable property; and to administer
such property in accordance with law.” In Article 25, only essential
G religious matters are protected. [Para 21.12][711-F-G; 712-A]
2.7The fundamental right granted under Article 26 is subject
to the exception of public order, morality, and health. However,
since the right granted under Article 26 is to be harmoniously
construed with Article 25(2)(b), the right to manage its own affairs
H in matters of religion granted by Article 26(b), in particular, will
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 583

be subject to laws made under Article 25(2)(b) which throw open A
religious institutions of a public character to all classes and
sections of Hindus. Thus, it is clear that even though the entry of
persons into a Hindu temple of a public character would pertain
to management of its own affairs in matters of religion, yet such
temple entry would be subject to a law throwing open a Hindu
B
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 u/Article 26(b). C
Examples 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.
[Paras 21.13, 21.14][712-A-E]
S. Mahendran v. The Secretary, Travancore Devaswom D
Board, Thiruvananthpuram and others AIR 1993
Kerala 42 – referred to.
2.8 All the older religions speak of the phenomenon of
menstruation in women as being impure, which therefore, forbids
their participation in religious activity.The reasons given for E
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. [Paras 24-25][715-G-H; 719-B-C]
Old Testament, in Chapter 15, Verse 19 Leviticus 15:19
(King James Version); Dharmasutras – The Law Codes F
Of Apastamba, Gautama, Baudhayana, And Vasistha
264 (Translation by Patrick Olivelle, Oxford
University Press, 1999); Srimad Bhagavatam – Sixth
Canto (Translation by A.C. Bhaktivedanta Swami
Prabhupada, The Bhaktivedanta Book Trust, 1976);
The Qur’an – with Annotated Interpretation in Modern G
English, 2:222 (Translation by Ali Ünal, Tughra Books
USA, 2015); Gospel of Mark 5.25-34 (King James
Version); 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 H
584 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Press, 1880, 1892, and 1897); 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); Sri Guru
Granth Sahib: English Translation of the Original Text
B
466-467, 975 (Translation by Dr. Gopal Singh, Allied
Publishers Pvt. Ltd., 2005) [which translates Raga
Asa, Shaloka Mehla 1 at p. 472, 1022 of the original
text of Sri Guru Granth Sahib]; Kitáb-i-Aqdas by
Bahá’u’lláh, note 106 at p. 122 (Translation by Shoghi
C Effendi, Bahá’í World Centre, 1992) – referred to.
2.9 As regards, the question that arises is whether the
Sabarimala temple can be said to be a religious denomination for
the purpose of Article 26, three things are necessary in order to
establish that a particular temple belongs to a religious
D 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, any answer
cannot be found. When asked whether all persons who visit the
Sabarimala temple have a common faith, the answer given was
E that all persons, regardless of caste or religion, are worshippers
at the said temple. From this, it is also clear that Hindus of all
kinds, Muslims, Christians etc., all visit the temple as
worshippers, without, in any manner, ceasing to be Hindus,
Christians or Muslims. They can therefore be regarded, as has
F been held in Sri Adi Visheshwara case, as Hindus who worship
the idol of Lord Ayyappa as part of the Hindu religious form of
worship but not as denominational worshippers. The same goes
for members of other religious communities. [Para 26][719-C-F]
Sri Adi Visheshwara of Kashi Vishwanath Temple,
G Varanasi and Ors. v. State of U.P. and Ors. (1997) 4
SCC 606 : [1997] 2 SCR 1086 – relied on.
Durgah Committee, Ajmer and others v. Syed Hussain
Ali and others AIR 1961 SC 1402 : 1962 SCR 383;
S.P. Mittal v. Union of India and others (1983) 1 SCC
H 51 : [1983] 1 SCR 729 – referred to.
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 585

2.10 There is no distinctive name given to the worshippers A
of this particular temple; there is no common faith in the sense of
a belief common to a particular religion or section thereof; or
common organization of the worshippers of the Sabarimala temple
so as to constitute the said temple into a religious denomination.
Also, there are over a thousand other Ayyappa temples in which
B
the deity is worshipped by practicing Hindus of all kinds.
Therefore, Article 26 does not get attracted.[Para 27][720-D-E]
2.11 Even if it is assumed 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 C
usage is clearly hit by Section 3 of the Kerala Hindu Places of
Public Worship (Authorisation of Entry) Act, 1965. Since the
proviso to the Section is not attracted on the facts of this case,
and since the said Act is clearly a measure enacted under Article
25(2)(b), any religious right claimed on the basis of custom and D
usage as an essential matter of religious practice under Article
25(1), will be subject to the law made under Article 25(2)(b). The
said custom or usage must therefore, be held to be violative of
Section 3 and hence, struck down. [Para 28][720-F-G; 721-C-D]
2.12 Even otherwise, the fundamental right of women E
between the ages of 10 and 50 to enter the Sabarimala temple is
undoubtedly recognized by Article 25(1). The fundamental right
claimed by the Thanthris and worshippers of the institution, based
on custom and usage under the selfsame Article 25(1), must
necessarily yield to the fundamental right of such women, as they
are equally entitled to the right to practice religion, which would F
be meaningless unless they were allowed to enter the temple at
Sabarimala to worship the idol of Lord Ayyappa. The submission
that all women are not prohibited from entering the temple can
be of no avail, as women between the age group of 10 to 50 are
excluded completely. Also, the submission that such women can G
worship at the other Ayyappa temples is no answer to the denial
of their fundamental right to practice religion as they see it, which
includes their right to worship at any temple of their choice. On
this ground also, the right to practice religion, as claimed by the
Thanthris and worshippers, must be balanced with and must yield
H
586 SUPREME COURT REPORTS [2018] 9 S.C.R.

A to the fundamental right of women between the ages of 10 and
50, who are completely barred from entering the temple at
Sabarimala, based on the biological ground of menstruation. Rule
3(b) of the Kerala Hindu Places of Public Worship (Authorisation
of Entry) Rules, 1965 is ultra vires of Section 3 of the Kerala
Hindu Places of Public Worship (Authorisation of Entry) Act, 1965,
B
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. [Para 29][721-D-H; 722-A, D]
2.13 The instant case raises grave issues relating to women
generally, who happen to be between the ages of 10 to 50, and
C are not allowed entry into the temple at Sabarimala on the ground
of a physiological or biological function which is common to all
women between those ages. Since this matter raises far-reaching
consequences relating to Articles 25 and 26 of the Constitution
of India, it is necessary to decide this matter on merits.
D Consequently, the technical plea that the instant 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 entry into the
temple as she is between the age of 10 to 50 cannot stand in the
way of a constitutional court applying constitutional principles to
E the case at hand. [Para 30][722-E, H; 723-A-B]
Adi Saiva Sivachariyargal Nala Sangam & Ors. v.
Government of Tamil Nadu & Anr. (2016) 2 SCC 725 :
[2015] 11 SCR 1110 – referred to.

F 2.14 A fervent plea was made by some of the counsels for
the Respondents that the Court should not decide this case
without any evidence being led on both sides. Evidence is very
much there, in the form of the writ petition and the affidavits that
have been filed in the writ petition, both by the Petitioners as
well as by the Board, and by the Thanthri’s affidavit. A writ petition
G filed under either Art. 32 or 226 is itself not merely a pleading,
but also evidence in the form of affidavits that are sworn. [Para
31][723-B-D]
Bharat Singh and Ors. v. State of Haryana and Ors.
[1988] Supp 2 SCR 1050 – relied on.
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 587

The Commissioner Hindu Religious Endowments, A
Madras v. Shri Lakshmindra Thritha Swaminar of Sri
Shirur Mutt [1954] SCR 1005; Ratilal Panachand
Gandhi v. The State of Bombay & Ors. [1954] SCR
1055; Sri Venkatramana Devaru v. State of Mysore and
others [1958] SCR 895; Sardar Syedna Taher Saifuddin
B
Saheb v. State of Bombay [1962] Suppl. 2 SCR 496;
Tilkayat Shri Govindlalji Maharaj etc. v. State of
Rajasthan & Ors. [1964] 1 SCR 561; Seshammal and
others v. State of Tamil Nadu (1972) 2 SCC 11 : [1972]
3 SCR 815; Rev. Stainislaus v. State of Madhya Pradesh
and others (1977) 1 SCC 677 : [1977] 2 SCR 611; C
Acharya Jagadishwarananda Avadhuta and others v.
Commissioner of Police, Calcutta (1983) 4 SCC 522 :
[1984] 1 SCR 447; Sri Adi Visheshwara of Kashi
Vishwanath Temple, Varanasi and Ors. v. State of U.P.
and Ors. (1997) 4 SCC 606 : [1997] 2 SCR 1086; N.
D
Adithayan v. Travancore Devaswom Board and others
(2002) 8 SCC 106 : [2002] 3 Suppl. SCR 76; Dr.
Subramanian Swamy v. State of T.N. & Ors. (2014) 5
SCC 75 : [2014] 1 SCR 308; Riju Prasad Sharma &
Ors. v. State of Assam & Ors. (2015) 9 SCC 461; Adi
Saiva Sivachariyargal Nala Sangam & Ors. v. E
Government of Tamil Nadu & Anr. (2016) 2 SCC 725 :
[2015] 11 SCR 1110 – referred to.
Per Dr. D Y Chandrachud, J. (Concurring):
1. The devotees of Lord Ayyappa do not satisfy the judicially
enunciated requirements to constitute a religious denomination F
under Article 26 of the Constitution. A claim for the exclusion of
women from religious worship, even if it be founded in religious
text, is subordinate to the constitutional values of liberty, dignity
and equality. Exclusionary practices are contrary to constitutional
morality. In any event, the practice of excluding women from the G
temple at Sabarimala is not an essential religious practice. The
Court must decline to grant constitutional legitimacy to practices
which derogate from the dignity of women and their entitlement
to an equal citizenship. The social exclusion of women, based on
menstrual status, is a form of untouchability which is an anathema
H
588 SUPREME COURT REPORTS [2018] 9 S.C.R.

A to constitutional values. Notions of “purity and pollution”, which
stigmatize individuals, have no place in a constitutional order.
The notifications issued by the Devaswom Board, prohibiting the
entry of women between the ages of ten and fifty, are ultra vires
Section 3 of the 1965 Act and are even otherwise unconstitutional.
Hindu women constitute a ‘section or class’ of Hindus under
B
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. This directly
offends the right of temple entry established by Section 3. Rule
3(b) is ultra vires the 1965 Act. [Para 119][839-E-H; 840-A-C]
2.1 The framers had before them the task of ensuring a
C 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
D social mechanism.’ 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
E individual. [Para 113][837-B-D]
2.2 Inhering in the right to religious freedom, is the equal
entitlement of all persons, without exception, to profess, practice
and propagate religion. Equal participation of women in exercising
their right to religious freedom is a recognition of this right. In
F protecting religious freedom, the framers subjected the right to
religious freedom to the overriding constitutional postulates of
equality, liberty and personal freedom in Part III. The dignity of
women cannot be disassociated from the exercise of religious
freedom. In the constitutional order of priorities, the right to
G religious freedom is to be exercised in a manner consonant with
the vision underlying the provisions of Part III. The equal
participation of women in worship inheres in the constitutional
vision of a just social order. [Para 114][837-D-F]
2.3 The discourse of freedom in the Constitution cannot
H be denuded of its context by construing an Article in Part III
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 589

detached from the part within which it is situated. Even the right A
of a religious denomination to manage its own affairs in matters
of religion cannot be exercised in isolation from Part III of the
Constitution. The primacy of the individual, is the thread that
runs through the guarantee of rights. In being located in Part III,
the exercise of denominational rights cannot override and render
B
meaningless constitutional protections which are informed by the
overarching values of a liberal Constitution. [Para 115][837-G-
H; 838-A]
2.4 The Constitution seeks to achieve a transformed society
based on equality and justice to those who are victims of
traditional belief systems founded in graded inequality. It reflects C
a guarantee to protect the dignity of all individuals who have faced
systematic discrimination, prejudice and social exclusion.
Construed in this context, the prohibition against untouchability
marks a powerful guarantee to remedy the stigmatization and
exclusion of individuals and groups based on hierarchies of the D
social structure. Notions of purity and pollution have been
employed to perpetuate discrimination and prejudice against
women. They have no place in a constitutional order. In
acknowledging the inalienable dignity and worth of every
individual, these notions are prohibited by the guarantee against
untouchability and by the freedoms that underlie the Constitution. E
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 F
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. [Para 116][838-
B-E] G

2.5 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
H
590 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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 exclude these
identities from participation in an equal life. An indispensable
B
facet of an equal life, is the equal participation of women in all
spheres of social activity. The quest for equality is denuded of its
content if practices that exclude women are treated to be
acceptable. The Constitution cannot allow practices, irrespective
of their source, which are derogatory to women. Religion cannot
C become a cover to exclude and to deny the right of every woman
to find fulfillment in worship. Sixty eight years after the advent of
the Constitution, it has been held that in providing equality in
matters of faith and worship, the Constitution does not allow the
exclusion of women. [Para 117][838-F-H; 839-A-C]
D 2.6 Liberty in matters of belief, faith and worship, must
produce a compassionate and humane society marked by the
equality of status of all its citizens. The Constitution sought to
break the shackles of social hierarchies. In doing so, it sought to
usher an era characterized by a commitment to freedom, equality
and justice. The liberal values of the Constitution secure to each
E individual an equal citizenship. This recognizes that the
Constitution exists not only to disenable entrenched structures
of discrimination and prejudice, but to empower those who
traditionally have been deprived of an equal citizenship. The equal
participation of women in every sphere of the life of the nation
F subserves that premise. [Para 118][839-C-E]
Essential Religious Practices
3.1 In its jurisprudence on religious freedom, this Court
has evolved a body of principles which define the freedom of
religion under Article 25 and Article 26 to practices ‘essential’
G to the religion. The Constitution has been held to protect not
only freedom of religious belief, but acts done in pursuance of
those beliefs. While the views of a religious denomination are to
be taken into consideration in determining whether a practice is
essential, those views are not determinative of its essentiality.
H The Court has assumed a central role in determining what is or
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 591

is not essential to religious belief. Intrinsic to the role which the A
Court has carved out, it has sought to distinguish between what
is religious and what is a secular practice, even if it is associated
with a religious activity. Going further, the Court has enquired
into whether a practice is essential to religion. Essentiality of the
practice would, as the Court has held depends on whether the
B
fundamental character of a religion would be altered, if it were
not observed. Above all, there is an emphasis on constitutional
legitimacy, which underscores the need to preserve the basic
constitutional values associated with the dignity of the individual.
The ephemeral distinction between religion and superstition
becomes more coherent in terms of the need to preserve C
fundamental constitutional values associated with human liberty.
[Para 47][768-G-H; 769-A-C]
3.2 In determining the essentiality of a practice, it is crucial
to consider whether the practice is prescribed to be of an
obligatory nature within that religion. If a practice is optional, it D
has been held that it cannot be said to be ‘essential’ to a religion.
A practice claimed to be essential must be such that the nature
of the religion would be altered in the absence of that practice. If
there is a fundamental change in the character of the religion,
only then can such a practice be claimed to be an ‘essential’ part
of that religion. [Para 48][769-C-E] E

3.3 Where the protection of denominational rights would
substantially reduce the right conferred by Article 25(2)(b), the
latter would prevail against the former. This ensures that the
constitutional guarantee under Article 25(2)(b) is not destroyed
by exclusionary claims which detract from individual dignity. That F
a practice claimed to be essential has been carried on since time
immemorial or is grounded in religious texts, does not lend to it
constitutional protection unless it passes the test of essentiality.
[Para 48][769-H; 770-A-B]
Durgah Committee, Ajmer and others v. Syed Hussain G
Ali and others AIR 1961 SC 1402 : [1962] SCR 383;
Sardar Syedna Taher Saifuddin Saheb v. State of
Bombay [1962] Suppl. 2 SCR 496; Tilkayat Shri
Govindlalji Maharaj etc. v. State of Rajasthan & Ors.
[1964] 1 SCR 561 – relied on. H
592 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005; Ratilal Panachand Gandhi v.
The State of Bombay & Ors. [1954] SCR 1055; Sri
Venkatramana Devaru v. State of Mysore and others
[1958] SCR 895; Mohd. Hanif Quareshi v. State of
B
Bihar AIR 1958 SC 731 : [1959] SCR 629; Shastri
Yagnapurushadiji v. Muldas Bhundardas Vaishya and
another (1966) 3 SCR 242; Acharya
Jagadishwarananda Avadhuta and others v.
Commissioner of Police, Calcutta (1983) 4 SCC 522 :
C [1984] 1 SCR 447; Sri Adi Visheshwara of Kashi
Vishwanath Temple, Varanasi and Ors. v. State of U.P.
and Ors. (1997) 4 SCC 606 : [1997] 2 SCR 1086; N.
Adithayan v. Travancore Devaswom Board and others
(2002) 8 SCC 106 : [2002] 3 Suppl. SCR 76;
Commissioner of Police and others v Acharya
D
Jagadishwarananda Avadhuta and another (2004) 12
SCC 770 : [2004] 2 SCR 1019; Adi Saiva
Sivachariyargal Nala Sangam and others v. Government
of Tamil Nadu and others (2016) 2 SCC 725 : [2015]
11 SCR 1110 ; Shayara Bano v. Union of India and
E others (2017) 9 SCC 1 : [2017] 7 SCR 797; Javed v
State of Haryana (2003) 8 SCC 369 : [2003] 1 Suppl.
SCR 947 – referred to.
Adelaide Company of Jehovah’s Witnesses Incorporated
v The Commonwealth of Australia [1943] HCA 12 –
F referred to.
The engagement of essential religious practices with
constitutional values
4.1 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
G
Constitution, it is inconceivable that age could be 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. The physiological
features of a woman have no significance to her equal entitlements
H under the Constitution. All women in the age group of ten and
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 593

fifty may not in any case fall in the ‘procreative age group’. But A
that is again not a matter of substance. The heart of the matter
lies in the ability of the Constitution to assert that the exclusion
of women from worship is incompatible with dignity, destructive
of liberty and a denial of the equality of all human beings. These
constitutional values stand above everything else as a principle
B
which brooks no exceptions, even when confronted with a claim
of religious belief. To exclude women is derogatory to an equal
citizenship. [Para 54][774-B-F]
4.2 There is an assumption which cannot stand
constitutional scrutiny. The assumption in such a claim is that a
deviation from the celibacy and austerity observed by the C
followers would be caused by the presence of women. Such a
claim cannot be sustained as a constitutionally sustainable
argument. Its effect is to impose the burden of a man’s celibacy
on a woman and construct her as a cause for deviation from
celibacy. This is then employed to deny access to spaces to which D
women are equally entitled. To suggest that women cannot keep
the Vratham is to stigmatize them and stereotype them as being
weak and lesser human beings. A constitutional court such as
this one, must refuse to recognize such claims. [Para 55][774-G-
H; 775-A-B]
4.3 Human dignity postulates an equality between persons. E
The equality of all human beings entails being free from the
restrictive and dehumanizing effect of stereotypes and being
equally entitled to the protection of law. Our Constitution has
willed that dignity, liberty and equality serve as a guiding light for
individuals, the state and this Court. Though the Constitution F
protects religious freedom and consequent rights and practices
essential to religion, this Court will be guided by the pursuit to
uphold the values of the Constitution, based in dignity, liberty
and equality. In a constitutional order of priorities, these are values
on which the edifice of the Constitution stands. They infuse
constitutional order with a vision for the future – of a just, equal G
and dignified society. Intrinsic to these values is the anti-exclusion
principle. Exclusion is destructive of dignity. To exclude a woman
from the might of worship is fundamentally at odds with
constitutional values. [Para 56][775-B-D]
H
594 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 4.4 The stigma around menstruation has been built up
around traditional beliefs regarding 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
B
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
C body or group can use it as barrier in a woman’s quest for
fulfilment, including in her finding solace in the connect with the
creator.[Para 57][775-E-G]
Government of NCT of Delhi v. Union of India and
others (2018) 8 SCALE 72; S. Mahendran v. The
D Secretary, Travancore Devaswom Board,
Thiruvananthpuram and others AIR 1993 Kerala 42;
Adi Saiva Sivachariyargal v. Government of Tamil Nadu
and others (2016) 2 SCC 725 : [2015] 11 SCR 1110;
Commissioner of Police and others v Acharya
Jagadishwarananda Avadhuta and another (2004) 12
E SCC 770 : [2004] 2 SCR 1019; Navtej Singh v. Union
of India and others (2018) 10 SCALE 386;
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005 - referred to.
F Religious Denominations
5. The ingredients for a set of individuals to be regarded as
a religious denomination are a common faith, a common
organisation and a distinctive name brought together under the
rubric of religion. A common thread which runs through them is
G the requirement of a religious identity, which is fundamental to
the character of a religious denomination.[Para 64][781-E-F]
Sri Venkatramana Devaru v. State of Mysore and others
[1958] SCR 895; Commissioner Hindu Religious
Endowments, Madras v. Shri Lakshmindra Thritha
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 595

Swaminar of Sri Shirur Mutt [1954] SCR 1005; S.P. A
Mittal v. Union of India and others (1983) 1 SCC 51 :
[1983] 1 SCR 729; Acharya Jagadishwarananda
Avadhuta and others v. Commissioner of Police, Calcutta
(1983) 4 SCC 522 : [1984] 1 SCR 447; Bramchari
Sidheswar Shai v State of West Bengal (1995) 4 SCC
B
646 : [1995] 1 Suppl. SCR 745; Nallor Marthandam
Vellalar and others v. Commissioner, Hindu Religious
and Charitable Endowment and others (2003) 10 SCC
712 : [2003] 1 Suppl. SCR 920 – referred to.
Do the devotees of Lord Ayyappa constitute a religious
denomination? C

6. Adherence to a ‘common faith’ would entail that a
common set of beliefs have been followed since the conception
of the particular sect or denomination. A distinctive feature of
the pilgrimage is that pilgrims of all religions participate in the
pilgrimage on an equal footing. Muslims and Christians undertake D
the pilgrimage. A member of any religion can be a part of the
collective of individuals who worship Lord Ayyappa. Religion is
not the basis of the collective of individuals who worship the deity.
Bereft of a religious identity, the collective cannot claim to be
regarded as a ‘religious denomination’. To be within the fold of E
Article 26, a denomination must be a religious sect or body.
Worship of the presiding deity is not confined to adherents of a
particular religion. Coupled with this is the absence of a common
spiritual organisation, which is a necessary element to constitute
a religious denomination. The temple at which worship is carried
out is dedicated to the public and represents truly, the plural F
character of society. Everyone, irrespective of religious belief,
can worship the deity. The practices associated with the forms of
worship do not constitute the devotees into a religious
denomination. Considering the inability of the collective of
individuals to satisfy the judicially-enunciated requirements, the G
set of individuals who refer to themselves as “Ayyappans” or
devotees of Lord Ayyappa as a ‘religious denomination’ cannot
be recognised. [Para 69][785-E-H; 786-A]
S. Mahendran v. The Secretary, Travancore Devaswom
Board, Thiruvananthpuram and others AIR 1993 H
596 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Kerala 42; Sardar Syedna Taher Saifuddin Saheb v.
State of Bombay [1962] Suppl. 2 SCR 496 – referred
to.
Free Church of Scotland v. Overtoun (1904) AC 515 –
referred to.
B Article 17, “Untouchability” and the notions of purity
7.1 The society is governed by the Constitution. The values
of constitutional morality are a non-derogable entitlement.
Notions of “purity and pollution”, which stigmatize individuals,
can have no place in a constitutional regime. Regarding
C menstruation as polluting or impure, and worse still, imposing
exclusionary disabilities on the basis of menstrual status, is
against the dignity of women which is guaranteed by the
Constitution. Practices which legitimise menstrual taboos, due
to notions of “purity and pollution”, limit the ability of
D 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
E 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
F practices in relation to lower castes, but it will also apply to the
systemic humiliation, exclusion and subjugation faced by
menstruating 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
G constitutional values. As an expression of the anti-exclusion
principle, Article 17 cannot be read to exclude women against
whom social exclusion of the worst kind has been practiced and
legitimized on notions of purity and pollution. Article 17 cannot
be read in a restricted manner. But even if Article 17 were to be
H read to reflect a particular form of untouchability, that article will
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 597

not exhaust the guarantee against other forms of social exclusion. A
The guarantee against social exclusion would emanate from other
provisions of Part III, including Articles 15(2) and 21. Exclusion
of women between the age groups of ten and fifty, based on their
menstrual status, from entering the temple in Sabarimala can have
no place in a constitutional order founded on liberty and dignity.
B
[Para 81][804-E-F; 805-A-E]
7.2 The issue for entry in a temple is not so much about the
right of menstruating women to practice their right to freedom of
religion, as about freedom from societal oppression, which comes
from a stigmatized understanding of menstruation, resulting in
“untouchability”. Article 25, which is subject to Part III provisions, C
is necessarily therefore subject to Article 17. To use the ideology
of “purity and pollution” is a violation of the constitutional right
against “untouchability”. [Para 82][805-F-G]
National Campaign for Dalit Human Rights v. Union of
India (2017) 2 SCC 432 : [2016] 9 SCR 122; D
Devarajiah v B Padmanna AIR 1958 Mys 84; Jai Singh
v Union of India AIR 1993 Raj 177; State of Karnataka
v Appa Balu Ingale (1995) Supp 4 SCC 469 : [1992] 3
Suppl. SCR 284; Adi Saiva Sivachariyargal Nala
Sangam and others v. Government of Tamil Nadu and E
others (2016) 2 SCC 725 :[2015] 11 SCR 1110; K.S.
Puttaswamy and another v. Union of India and others
(2017) 10 SCC 1 – referred to.
Granville Austin, The Indian Constitution: Cornerstone
of a Nation, Oxford University Press (1999), at pages F
xii-xiii; Politics and Ethics of the Indian Constitution
Rajeev Bhagava (ed.), Oxford University Press
(2008), at page 15; B Shiva Rao, The Framing of India’s
Constitution: A Study, Indian Institution of Public
Administration (1968), at page 202-205; Dr. Babasaheb
Ambedkar: Writings and Speeches, (Vasant Moon ed.) G
Government of Maharashtra, Vol. 1 (2014), at pages
39, Vol. 12 (2014), at pages 661-691, Vol. 5 (2014), at
pages 9-18, Vol. 1 (2014), at pages 5-6, Vol. 1 (2014),
at pages 23-96, (2014), Vol. 1, at pp 3-22; India
Dissents: 3,000 Years of Difference, Doubt and H
598 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Argument, (Ashok Vajpeyi ed.), Speaking Tiger
Publishing Private Limited (2017), at pages 86-88;
Sujatha Gidla, Ants among Elephants: An Untouchable
Family and the Making of Modern India, Harper
Collins (2017), at p 114; Diane Coffey and Dean
Spears, Where India Goes: Abandoned Toilets, Stunted
B
Development and the Costs of Caste, Harper Collins
(2017), at pp 74-79; Rajesh Ramachandran, Death for
Moustache, Outlook (16 October 2017) – referred to.
The ultra vires doctrine
C 8.1 The devotees of Lord Ayyappa do not constitute a
religious denomination and the Sabarimala temple is not a
denominational temple. The proviso to section 3 has no
application. The notifications which restrict the entry of women
between the ages of ten and fifty in the Sabarimala temple cannot
stand scrutiny and plainly infringe Section 3. They prevent any
D woman between the age of ten and fifty from entering the
Sabarimala temple and from offering prayers. Such a restriction
would infringe the rights of all Hindu women, recognized by
Section 3. The notifications issued by the Board prohibiting the
entry of women between ages ten and fifty-five, are ultra vires
E Section 3. [Para 87][810-E-G]
8.2 Hindu women constitute a ‘section or class’ of Hindus
under clauses (b) and (c) of Section 2 of the 1965 Act. The proviso
to Section 4(1) forbids any regulation which discriminates against
any Hindu on the ground of belonging to a particular section or
F class. The mandate of Section 3 is that if a place of public worship
is open to Hindus generally or to any section or class of Hindus,
it shall be open to all sections or classes of Hindus. The Sabarimala
temple is open to Hindus generally and in any case to a section
or class of Hindus. Hence, it has to be open to all sections or
classes of Hindus, including Hindu women. Rule 3(b) gives
G precedence to customs and usages which allow the exclusion of
women “at such time during which they are not… allowed to enter
a place of public worship”. In laying down such a prescription,
Rule 3(b) directly offends the right of temple entry established
by Section 3. Section 3 overrides any custom or usage to the
H contrary. But Rule 3 acknowledges, recognises and enforces a
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 599

custom or usage to exclude women. This is plainly ultra vires.The A
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
B
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. [Para 90][812-
F-G; 813-A-D]
Ardeshir H Bhiwandiwala v State of Bombay [1961] 3
SCR 592; CIT v Taj Mahal Hotel, Secunderabad (1971) C
3 SCC 550; Geeta Enterprises v State of U P (1983) 4
SCC 202 : [1983] 3 SCR 812; Gopal Krishna Agrawal
v State of U P (1982) All. L.J. 607; Regional Director,
ESIC v High Land Coffee Works of P.F.X. Saldanha &
Sons (1991) 3 SCC 617 : [1991] 3 SCR 307; Union of D
India v Elphinstone Spinning and Weaving Co Ltd.
(2001) 4 SCC 139 : [2001] 1 SCR 221; Additional
District Magistrate v Siri Ram (2000) 5 SCC 451 :
[2000] 3 SCR 1019; Maharashtra State Board of
Secondary and Higher Education v Paritosh
Bhupeshkumar Sheth, (1984) 4 SCC 27 – referred to. E

The ghost of Narasu
9.1 The decision in Narasu, in restricting the definition of
the term ‘laws in force’ detracts from the transformative vision
of the Constitution. Carving out ‘custom or usage’ from F
constitutional scrutiny, denies the constitutional vision of ensuring
the primacy of individual dignity. The decision in Narasu, is based
on flawed premises. Custom or usage cannot be excluded from
‘laws in force’. The decision also opined that personal law is
immune from constitutional scrutiny. This detracts from the notion
that no body of practices can claim supremacy over the G
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. The decision in
Narasu, in immunizing uncodified personal law and construing H
600 SUPREME COURT REPORTS [2018] 9 S.C.R.

A the same as distinct from custom, deserves detailed
reconsideration in an appropriate case.[Para 101][826-B-C, E]
The State of Bombay v Narasu Appa Mali AIR 1952
Bom 84 – disapproved.
9.2 In the quest towards ensuring the rights guaranteed to
B 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, it must seek to recognize and transform the underlying
social and legal structures that perpetuate practices against the
C constitutional vision. Subjecting personal laws to constitutional
scrutiny is an important step in this direction. In the denial of
equal access, the practice denies an equal citizenship and
substantive equality under the Constitution. The primacy of
individual dignity is the wind in the sails of the boat chartered on
the constitutional course of a just and egalitarian social order.
D [Para 102][826-F-G; 827-B-C]
A K Gopalan v State of Madras [1950] SCR 88; Rustom
Cavasjee Cooper v Union of India (1970) 1 SCC 248 :
[1970] 3 SCR 530; Rustom Cavasjee Cooper v. Union
of India (1970) 1 SCC 248 : [1970] 3 SCR 530;
E Maneka Gandhi v Union of India (1978) 1 SCC 248 :
[1978] 2 SCR 621; Special Courts Bill Reference (1979)
1 SCC 380 : [1979] 2 SCR 476; K.S. Puttaswamy and
another v. Union of India and others (2017) 10 SCC
1; The United Provinces v Mst. Atiqa Begum AIR 1941
F FC 16; Ardeshir H Bhiwandiwala v State of Bombay
[1961] 3 SCR 592; CIT v Taj Mahal Hotel,
Secunderabad (1971) 3 SCC 550; Geeta Enterprises v
State of U P (1983) 4 SCC 202 : [1983] 3 SCR 812;
Regional Director, ESIC v High Land Coffee Works of
P.F.X. Saldanha & Sons (1991) 3 SCC 617 : [1991] 3
G SCR 307; Sant Ram v Labh Singh [1964] 7 SCR 756;
Shayara Bano v. Union of India and others (2017) 9
SCC 1 : [2017] 7 SCR 797 – referred to.
Indira Jaisingh, ‘The Ghost of Narasu Appa Mali is
stalking the Supreme Court of India’, Law yers
H Collective, 28 May, 2018; Matrimonial Laws and the
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 601

Constitution by A M Bhattacharjee, Eastern Law House A
(1996) at p 32; Principles of Statutory Interpretation
by Justice G P Singh, Lexis Nexis (2016) at p 198;
The Framing of India’s Constitution by Shiva Rao,
Vol III, at pp 520, 521, Vol IV, at pages 26, 27 - referred
to.
B
Deity as a bearer of constitutional rights
10.1 The word ‘persons’ in certain statutes have been
interpreted to include idols. However, to claim that a deity is the
bearer of constitutional rights is a distinct issue, and does not
flow as a necessary consequence from the position of the deity as C
a juristic person for certain purposes. Merely because a deity
has been granted limited rights as juristic persons under statutory
law does not mean that the deity necessarily has constitutional
rights. [Para 105][828-D-E]
10.2 A religious denomination or any section thereof has a D
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 E
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 F
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. The deity may be a juristic
person for the purposes of religious law and capable of asserting
property rights. However, the deity is not a ‘person’ for the
purpose of Part III. The legal fiction which has led to the G
recognition of a deity as a juristic person cannot be extended to
the gamut of rights under Part III of the Constitution. [Para
106][829-F-H; 830-A-B]
10.3 In any case, the exclusion of women from the
Sabarimala temple affects both, the religious and civic rights of H
602 SUPREME COURT REPORTS [2018] 9 S.C.R.

A the individual. The anti-exclusion principle would disallow a claim
based on Article 25 and 26 which excludes women from the
Sabarimala Temple and hampers their exercise of religious
freedom. This is in keeping with the over-arching liberal values
of the Constitution and its vision of ensuring an equal citizenship.
[Para 106][830-B-C]
B
Pramatha Nath Mullick v Pradyumna Kumar Mullick
(1925) 27 Bom LR 1064; Yogendra Nath Naskar v
Commissioner of the Income-Tax, Calcutta (1969) 1
SCC 555 : [1969] 3 SCR 742; A S Narayana
Deekshitulu v State Of Andhra Pradesh 1996 9 SCC
C 548 : [1996] 3 SCR 543; Commissioner Hindu Religious
Endowments, Madras v. Shri Lakshmindra Thritha
Swaminar of Sri Shirur Mutt [1954] SCR 1005 –
referred to.
A road map for the future
D
11.1 By reserving to itself the authority to determine
practices which are essential or inessential to religion, the Court
assumed a reformatory role which would allow it to cleanse
religion of practices which were derogatory to individual dignity.
Exclusions from temple entry could be regarded as matters which
E were not integral to religion. While doing so, the Court would
set up a progressive view of religion. This approach is problematic.
The rationale for allowing a religious community to define what
constitutes an essential aspect of its religion is to protect the
autonomy of religions and religious denominations. Protecting
F that autonomy enhances the liberal values of the Constitution.
By entering upon doctrinal issues of what does or does not
constitute an essential part of religion, the Court has, as a
necessary consequence, been required to adopt a religious
mantle. The Court would determine as to whether a practice is
or is not an essential part of religion. This has enabled the Court
G to adopt a reformist vision of religion even though it may conflict
with the views held by the religion and by those who practice and
profess the faith. The competence of the Court to do so and the
legitimacy of the assumption of that role may be questionable.
The Court discharges a constitutional (as distinct from an
ecclesiastical) role in adjudication. Adjudicating on what does or
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 603

does not form an essential part of religion blurs the distinction A
between the religious-secular divide and the essential/inessential
approach. The former has a textual origin in Article 25(2)(a). The
latter is a judicial creation. [Para 108][831-D-H; 832-A-C]
11.2 The right to freedom of religion which is comprehended
in Articles 25-28 is not a stand alone right. These Articles are an B
integral element of the entire chapter on fundamental rights.
Constitutional articles which recognise fundamental rights have
to be understood as a seamless web. Together, they build the
edifice of constitutional liberty. Fundamental human freedoms in
Part III are not disjunctive or isolated. They exist together. It is
only in cohesion that they bring a realistic sense to the life of the C
individual as the focus of human freedoms. The right of a
denomination must then be balanced with the individual rights to
which each of its members has a protected entitlement in Part
III. [Para 109][832-E-G]
11.3 The co-existence of a group right in a chapter on D
fundamental rights which places the individual at the forefront of
its focus cannot be a matter without significance. It would be
impossible to conceive of the preservation of liberal constitutional
values while at the same time allowing group rights to defy those
values by practicing exclusion and through customs which are
derogatory to dignity. This apparent contradiction can be resolved E
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 F
to realize fulfilment and self-determination.[Para 110][833-C, D-F]
11.4 A deferential approach to what constitutes a part of
religious tenets would free the court from the unenviable task of
adjudicating upon religious texts and doctrines. The deference,
however, that is attributed to religion is subject to the fundamental
G
principles which emerge from the quest for liberty, equality and
dignity in Part III. Both Article 25(1) and Article 26 are subject
to public order, morality and health. Acting under the rubric of
these limitations even the religious freedom of a denomination
is subject to the anti-exclusion principle. The anti-exclusion
principle allows for due-deference to the ability of a religion to H
604 SUPREME COURT REPORTS [2018] 9 S.C.R.

A determine its own religious tenets and doctrines. At the same
time, the principle postulates that where a religious practice
causes the exclusion of individuals in a manner which impairs
their dignity or hampers their access to basic goods, the freedom
of religion must give way to the over-arching values of a liberal
constitution. The essential religious practices test should merit
B
a close look, in an appropriate case in the future. [Paras 111-
112][835-G; 836-A-B, D-F]
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005; Ratilal Panachand Gandhi v.
C The State of Bombay & Ors. [1954] SCR 1055; Durgah
Committee, Ajmer and others v. Syed Hussain Ali and
others AIR 1961 SC 1402 : [1962] SCR 383; Tilkayat
Shri Govindlalji Maharaj etc. v. State of Rajasthan &
Ors. [1964] 1 SCR 561; Sastri Yagnapurushadji v.
D MuldasBhudardas Vaishya [1966] 3 SCR 242;
Commissioner of Police and others v Acharya
Jagadishwarananda Avadhuta and another (2004) 12
SCC 770 : [2004] 2 SCR 1019 – referred to.
Freedom from community: Individual rights, group life,
state authority and religious freedom under the Indian
E Constitution by Gautam Bhatia, Global
Constitutionalism, Cambridge University Press (2016)
pp 374, 382; The Politics of Recognition in
Multiculturalism: Examining the Politics of Recognition
C Taylor, (A Gutmann ed.) Princeton University Press
F (1994); Introduction Multiculturalism in
Multiculturalism, Liberalism and Democracy R
Bhargava (R Bhargava et al. eds), Oxford University
Press (2007); Freedom of Religion in India: Current
Issues and Supreme Court Acting as Clergy by Faizan
Mustafa and Jagteshwar Singh Sohi Brigham Young
G University Review (2017); Definitional imbroglios: A
critique of the definition of religion and essential
practice tests in religious freedom adjudication Jaclyn
L Neo, International Journal of Constitutional Law,
Vol. 16 (2018) at pages 574-595 - referred to.
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 605

Per Indu Malhotra, J. (Dissenting): A
Maintainability and Justiciability
1.1 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. [Para
16(i)][897-D] B

1.2 The right to move the Supreme Court under Article 32
for violation of Fundamental Rights, must be based on a pleading
that the Petitioners’ personal rights to worship in this Temple
have been violated. The Petitioners do not claim to be devotees
of the Sabarimala Temple where Lord Ayyappa is believed to have C
manifested himself as a ‘Naishtik Brahmachari’. To determine
the validity of long-standing religious customs and usages of a
sect, at the instance of an association/Intervenors who are
“involved in social developmental activities especially activities
related to upliftment of women and helping them become aware of D
their rights”, would require this Court to decide religious
questions at the behest of persons who do not subscribe to this
faith. The right to worship, claimed by the Petitioners has to be
predicated on the basis of affirmation of a belief in the particular
manifestation of the deity in this Temple. [Para 7.2][856-C-E]
E
1.3 The absence of this bare minimum requirement must
not be viewed as a mere technicality, but an essential requirement
to maintain a challenge for impugning practises of any religious
sect, or denomination. Permitting PILs in religious matters would
open the floodgates to interlopers to question religious beliefs
and practises, even if the petitioner is not a believer of a particular F
religion, or a worshipper of a particular shrine. The perils are
even graver for religious minorities if such petitions are
entertained. [Para 7.3][856-E-F]
1.4 In matters of religion and religious practises, Article
14 can be invoked only by persons who are similarly situated, G
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
H
606 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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. [Para 7.4][857-A-B]
1.5 The right of an individual to worship a specific
manifestation of the deity, in accordance with the tenets of that
B faith or shrine, is protected by Article 25(1) of the Constitution.
If a person claims to have faith in a certain deity, the same has to
be articulated in accordance with the tenets of that faith. In the
instant case, the worshippers of this Temple believe in the
manifestation of the deity as a ‘Naishtik Brahmachari’. The
devotees of this Temple have not challenged the practises
C followed by this Temple, based on the essential characteristics
of the deity. [Para 7.5][857-C-D]
1.6 The right to practise one’s religion is a Fundamental
Right guaranteed by Part III of the Constitution, without reference
to whether religion or the religious practises are rational or not.
D Religious practises are Constitutionally protected under Articles
25 and 26(b). Courts normally do not delve into issues of religious
practises, especially in the absence of an aggrieved person from
that particular religious faith, or sect. [Para 7.6][857-E-F]
1.7 Precedents under Art. 25 have arisen against State action
E and not been rendered in PIL. [Para 7.7][858-A]
Hans Muller of Nurenburg v. Superintendent, Presidency
Jail, Calcutta & Ors. [1955] 1 SCR 1284; Commissioner
Hindu Religious Endowments, Madras v. Shri
Lakshmindra Thritha Swaminar of Sri Shirur Mutt
[1954] SCR 1005; Sri Venkatramana Devaru v. State
F of Mysore and others [1958] SCR 895; Mahant Moti
Das v. S.P. Sahi, The Special Officer In Charge of Hindu
Religious trust & Ors. [1959] Supp 2 SCR 563; Durgah
Committee, Ajmer v. Syed Hussain Ali [1962] 1 SCR
383; Sardar Syedna Taher Saifuddin Saheb v. State of
G Bombay [1962] Suppl. 2 SCR 496; Bijoe Emmanuel &
Ors. v. State of Kerala & Ors. (1986) 3 SCC 615 : [1986]
3 SCR 518 – referred to.
Constitutional Law of India : A Critical Commentaryby
H.M. Seervai Vol. II (4th Ed., Reprint 1999) - referred
to.
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 607

Applicability of Article 14 in matters of religion and religious A
practice
2.1 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. [Para B
16(ii)][897-E]
2.2 Religious customs and practises 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 practise their religion. C
Equal treatment under Article 25 is conditioned by the essential
beliefs and practises of any religion. Equality in matters of religion
must be viewed in the context of the worshippers of the same
faith. [Para 8.1][859-D-E]
2.3 The difficulty lies in applying the tests under Article 14 D
to religious practises which are also protected as Fundamental
Rights under our Constitution. The right to equality claimed by
the Petitioners under Article 14 conflicts with the rights of the
worshippers of this shrine which is also a Fundamental Right
guaranteed by Articles 25, and 26 of the Constitution. It would
compel the Court to undertake judicial review under Article 14 E
to delineate the rationality of the religious beliefs or practises,
which would be outside the ken of the Courts. It is not for the
courts to determine which of these practises of a faith are to be
struck down, except if they are pernicious, oppressive, or a social
evil, like Sati. [Para 8.2][859-G-H; 860-A] F
2.4 The submission of the petitioners and intervenors that
the age group of 10 to 50 years is arbitrary, and cannot stand the
rigours of Article 14, 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. [Para G
8.4][860-C]
2.5 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
H
608 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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. The prayers of the Petitioners if
acceded to, in its true effect, amounts to exercising powers of
judicial review in determining the validity of religious beliefs and
B
practises, which would be outside the ken of the courts. The issue
of what constitutes an essential religious practise is for the
religious community to decide. [Paras 8.5-8.6][860-D-F]
Applicability of Article 15
3. The submission that the Sabarimala Temple would be
C included in the phrase “places of public resort”, as it occurs in
Article 15(2)(b), cannot be accepted. The Constituent 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
D the Draft Article 9(1) has to be given due consideration. [Para
9.1-9.2][860-H; 862-C-D]
Draft Constitution of India, Drafting Committee of the
Constituent Assembly of India (Manager Government
of India Press, New Delhi, 1948); Statement of K.T.
Shah, Constituent Assembly Debates (November 29,
E 1948); Statement of Vice-President, Constituent
Assembly Debates (November 29, 1948); Statement
of Mr. Mohd. Tahir, Constituent Assembly Debates
(November 29, 1948) – referred to.
Role of Courts in matters concerning religion
F 4.1 The role of Courts in matters concerning religion and
religious practises under our secular Constitutional set up is to
afford protection under Article 25(1) to those practises which
are regarded as “essential” or “integral” by the devotees, or
the religious community itself. [Para 10.1][862-E]
4.2 The Constitution lays emphasis on social justice and
G
equality. It has specifically provided for social welfare and reform,
and throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus through the
process of legislation in Article 25(2)(b) of the Constitution.
Article 25(2)(b) is an enabling provision which permits the State
H to redress social inequalities and injustices by framing legislation.
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 609

It is therefore difficult to accept the contention that Article 25(2)(b) A
is capable of application without reference to an actual legislation.
What is permitted by Article 25(2) is State made law on the
grounds specified therein, and not judicial intervention. [Para
10.8][872-A-B]
4.3 The 1965 Act is a legislation framed in pursuance of B
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 C
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.
The Respondents claim the right to worship in the Sabarimala
Temple under Article 25(1) in accordance with their beliefs and D
practises as per the tenets of their religion. These practises are
considered to be essential or integral to that Temple. Any
interference with the same would conflict with their right
guaranteed by Article 25(1) to worship Lord Ayyappa in the form
of a ‘Naishtik Brahmachari’. In other jurisdictions also, where
State made laws were challenged on grounds of public morality, E
the Courts have refrained from striking down the same on the
ground that it is beyond the ken of the Courts.Judicial review of
religious practises ought not to be undertaken, as the Court
cannot impose its morality or rationality with respect to the form
of worship of a deity. Doing so would negate the freedom to
F
practise one’s religion according to one’s faith and beliefs. It would
amount to rationalising religion, faith and beliefs, which is outside
the ken of Courts.[Paras 10.9, 10.10, 10.11, 10.13][872-C-G; 873-
C-D]
Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (1986)
3 SCC 615: [1986] 3 SCR 518; Tilkayat Shri Govindlalji G
Maharaj etc. v. State of Rajasthan & Ors. (1964) 1 SCR
561; Durgah Committee, Ajmer v. Syed Hussain Ali
[1962] 1 SCR 383; Commissioner Hindu Religious
Endowments, Madras v. Shri Lakshmindra Thritha
Swaminar of Sri Shirur Mutt [1954] SCR 1005; Ratilal H
610 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Panachand Gandhi v. The State of Bombay & Ors. 1954
SCR 1055; Shayara Bano v. Union of India and others
(2017) 9 SCC 1 : [2017] 7 SCR 797; S.P. Mittal v. Union
of India and others (1983) 1 SCC 51 : [1983] 1 SCR
729- referred to.
B Adelaide Company of Jehovah’s Witnesses Incorporated
v. The Commonwealth 67 CLR 116; Regina v. Secretary
of State for Education and Employment & Ors. [2005]
UKHL 15; Eddie C. Thomas v. Review Board of the
Indiana Employment Security Division 450 U.S. 707
(1981); United Statesv. Edwin D. Lee 455 U.S. 252
C (1982); Robert L. Hernandez v. Commissioner of
Internal Revenue 490 U.S. 680 (1989); Employment
Division, Department of Human Resources of Oregon
v. Alfred L. Smith 494 U.S. 872 (1990); Church of
Lukumi Babalu Aye v. City of Hialeah 508 U.S. 520
D (1993) – referred to.
Constitutional law of India: A Critical Commentary by
H.M. Seervai; Religion, Law and the State in India by
J. Duncan M. Derett (1968) p. 447; Constitutional Law
of India: A Critical Commentaryby H.M. Seervai Vol.
E II (4th Ed., Reprint 1999) paragraph 12.18 at p. 1267-
1268– referred to.
Constitutional morality in matters of religion in a secular
polity
5. The concept of Constitutional Morality refers to the
F moral values underpinning the text of the Constitution, which
are instructive in ascertaining the true meaning of the
Constitution, and achieve the objects contemplated therein.
Constitutional Morality in a pluralistic society and secular polity
would reflect that the followers of various sects have the freedom
to practise their faith in accordance with the tenets of their
G
religion. It is irrelevant whether the practise is rational or logical.
Notions of rationality cannot be invoked in matters of religion by
courts. Equality and non-discrimination are certainly one facet of
Constitutional Morality. However, the concept of equality and
non-discrimination in matters of religion cannot be viewed in
H isolation. Under our Constitutional scheme, a balance is required
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 611

to be struck between the principles of equality and non- A
discrimination on the one hand, and the protection of the
cherished liberties of faith, belief, and worship guaranteed by
Articles 25 and 26 to persons belonging to all religions in a secular
polity, on the other hand. Constitutional Morality in a secular
polity would imply the harmonisation of the Fundamental Rights,
B
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, to ensure that the religious beliefs of none are
obliterated or undermined. It is the Constitutional duty of the
Court to harmonise the rights of all persons, religious C
denominations or sects thereof, to practise their religion according
to their beliefs and practises. [Paras 11.5-11.8][874-C-H; 875-F-
G]
Sahara India Real Estate Corporation Limited & Ors.
v. Securities and Exchange Board of India & Anr (2012) D
10 SCC 603 : [2012] 12 SCR 256; Subramaniam
Swamy v. Union of India, Ministry of Law & Ors. (2016)
7 SCC 221: [2016] 3 SCR 865; Acharya Maharajshri
Narendra Prasadji Anandprasadji Maharaj & Ors. v.
The State of Gujarat & Ors. (1975) 1 SCC 11 : [1975]
0 Suppl. SCR 145 – referred to. E

Religious denomination
6.1 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 F
denomination, or sect thereof, which is entitled to the protection
provided by Article 26. The issue whether the Sabarimala Temple
constitutes a ‘religious denomination’, or a sect thereof, is a mixed
question of fact and law. It is trite in law that a question of fact
should not be decided in writ proceedings. The proper forum to
ascertain whether a certain sect constitutes a religious G
denomination or not, would be more appropriately determined
by a civil court, where both parties are given the opportunity of
leading evidence to establish their case. [Para 12.10, 16(iv)][897-
G; 881-A-B]
H
612 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 6.2 Article 26 guarantees that every religious denomination,
or sect thereof, shall have the right inter alia to manage its own
affairs in matters of religion. This right is made subject to public
order, morality, and health. Article 26 refers not only to religious
denominations, but also to sects thereof. A religious denomination
or organisation enjoys complete autonomy in matters of deciding
B
what rites and ceremonies are essential according to the tenets
of that religion. The only restriction imposed is on the exercise
of the right being subject to public order, morality and health
under Article 26. [Paras 12.2-12.3][876-B-D]
Commissioner Hindu Religious Endowments, Madras
C v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005; S.P. Mittal v. Union of India
and others (1983) 1 SCC 51 : [1983] 1 SCR 729; Sardar
Syedna Taher Saifuddin Saheb v. State of Bombay
[1962] Suppl. 2 SCR 496 – referred to.
D 6.3 The meaning ascribed to religious denomination by this
Court in Shirur Mutt case and subsequent cases is not a strait-
jacket formula, but a working formula. It provides guidance to
ascertain whether a group would fall within a religious
denomination or not. If there are clear attributes that there exists
E a sect, which is identifiable as being distinct by its beliefs and
practices, and having a collection of followers who follow the same
faith, it would be identifiable as a religious denomination. [Para
12.7-12.8][878-C-D]
6.4 Respondents have made out a strong and plausible case
F that the worshippers of the Sabarimala Temple have the attributes
of a religious denomination, or sect thereof.The submission that
since the visitors to the temple are not only from the Hindu
religion, but also from other religions, the worshippers of this
Temple would not constitute a separate religious sect, cannot be
accepted since it is not uncommon for persons from different
G religious faiths to visit shrines of other religions. This by itself
would not take away the right of the worshippers of this Temple
who may constitute a religious denomination, or sect thereof.
The Constitution ensures a place for diverse religions, creeds,
denominations and sects thereof to co-exist in a secular society.
H It is necessary that the term ‘religious denomination’ should
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 613

receive an interpretation which is in furtherance of the A
Constitutional object of a pluralistic society. [Paras 12.9, 12.12-
12.13]879-D; 881-F-H; 882-A]
Arya Vyasa Sabha & Ors. v. Commissioner of Hindu
Charitable and Religious Institutions & Endowments,
Hyderabad & Ors. (1976) 1 SCC 292; Dr. Subramanian B
Swamy v. State of T.N. & Ors. (2014) 5 SCC 75 : [2014]
1 SCR 308 – referred to.
Essential Practises Doctrine
7.1 The ‘essential practises test’ in its application would
have to be determined by the tenets of the religion itself. The C
practises and beliefs which are considered to be integral by the
religious community are to be regarded as “essential”, and
afforded protection under Article 25. The only way to determine
the essential practises test would be with reference to the
practises followed since time immemorial, which may have been D
scripted in the religious texts of this temple. 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. The Temple Thanthri, the Travancore Devaswom
Board, and believers of Lord Ayyappa have submitted that the
limited restriction on access of women during the notified age of E
10 to 50 years, is a religious practise which is centralandintegral
to the tenets of this shrine, since the deity has manifested himself
in the form of a ‘Naishtik Brahmachari’. [Paras 13.6-13.7][886-
E-H]
7.2 The practise of celibacy and austerity is the unique F
characteristic of the deity in the Sabarimala Temple. Hindu deities
have both physical/temporal and philosophical form. The same
deity is capable of having different physical and spiritual forms or
manifestations. Worship of each of these forms is unique, and not
all forms are worshipped by all persons. The form of deity in any G
temple is of paramount importance. Worship has two elements –
the worshipper, and the worshipped. The right to worship under
Article 25 cannot be claimed in the absence of the deity in the
particular form in which he has manifested himself. Religion is a
matter of faith, and religious beliefs are held to be sacred by those
who share the same faith. Thought, faith and belief are internal, H
614 SUPREME COURT REPORTS [2018] 9 S.C.R.

A while expression and worship are external manifestations thereof.
In the case of the Sabarimala Temple, the manifestation is in the
form of a ‘Naishtik Brahmachari’. The belief in a deity, and the
form in which he has manifested himself is a fundamental right
protected by Article 25(1) of the Constitution. The phrase “equally
entitled to”, as it occurs in Article 25(1), must mean that each
B
devotee is equally entitled to profess, practise and propagate his
religion, as per the tenets of that religion. The celibate nature of
the deity at the Sabarimala Temple has been traced by the
Respondents to the SthalPurana of this Temple chronicled in the
‘Bhuthanatha Geetha’. Evidence of these practises are also
C documented in the Memoir of the Survey of the Travancore and
Cochin States written by Lieutenants Ward and Conner published
in two parts in 1893 and 1901. 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
D
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. [Paras 13.9-13.13][889-D-E; 890-A-E]
7.3 In the present case, the character of the temple at
Sabarimala is unique on the basis of centuries old religious
E practises followed to preserve the manifestation of the deity, and
the worship associated with it. Any interference with the mode
and manner of worship of this religious denomination, or sect,
would impact the character of the Temple, and affect the beliefs
and practises of the worshippers of this Temple. Based on the
F material adduced before this Court, the Respondents have
certainly made out a plausible case that the practise of restricting
entry of women between the age group of 10 to 50 years is an
essential religious practise of the devotees of Lord Ayyappa at
the Sabarimala Temple being followed since time immemorial.
[Paras 13.14-13.15][891-B-D]
G
Commissioner Hindu Religious Endowments, Madras
v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt [1954] SCR 1005; Durgah Committee, Ajmer v.
Syed Hussain Ali [1962] 1 SCR 383; Ratilal Panachand
Gandhi v. The State of Bombay & Ors. [1954] SCR
H 1055; Tilkayat Shri Govindlalji Maharaj etc. v. State
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 615

of Rajasthan & Ors. [1964] 1 SCR 561; Bijoe A
Emmanuel & Ors. v. State of Kerala & Ors. (1986) 3
SCC 615 : [1986] 3 SCR 518; S. Mahendran v. The
Secretary, Travancore Devaswom Board,
Thiruvananthpuram and others AIR 1993 Kerala 42;
Dr. Subramanian Swamy v. State of T.N. & Ors. (2014)
B
5 SCC 75 : [2014] 1 SCR 308; Daryao & Ors. v. State
of U.P. & Ors. [1962] 1 SCR 574 – referred to.
Adelaide Company of Jehovah’s Witnesses Incorporated
v. The Commonwealth 67 CLR 116; Carlos Frank v.
State of Alaska 604 P.2d 1068 (1979) – referred to.
Article 17 C
8.1 Article 17 refers to the practise of Untouchability as
committed in the Hindu community against Harijans or people
from depressed classes, and not women. The limited restriction
on the entry of women during the notified age-group does not fall
within the purview of Art. 17 of the Constitution. [Paras 14.5, D
16(v)][[893-E-F; 898-A]
8.2 All forms of exclusion would not amount to
untouchability. Article 17 pertains to untouchability based on caste
prejudice. Literally or historically, untouchability was never
understood to apply to women as a class. The restriction on women E
within a certain age-band, is based upon the historical origin and
beliefs and practices of the sabrimala temple. 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. F
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 G
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. [Paras 14.2-14.3][891-
E-F; 893-A-B] H
616 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Sri Venkatramana Devaru v. State of Mysore and others
[1958] SCR 895 – referred to.
Constitutional Law of India: A Critical Commentary by
H.M. SeervaiVol. II (4th Ed., Reprint 1999) para 9.418
at p 691; Indian Constitutional Lawby M.P. Jain (6 th
B Ed., Revised by Justice Ruma Pal and Samaraditya
Pal; 2010) at p. 1067 – referred to.
Rule 3(b) of the 1965 Rules is not ultra vires the Act
9.1 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
C case of public worship in a temple for the benefit of any religious
denomination or sect thereof, to manage their affairs in matters
of religion. [Para 16(vi)][893-A-B]
9.2 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. The proviso to Section 3 of
D the 1965 Act provides that no such regulation shall discriminate
in any manner whatsoever, against any Hindu on the ground that
he belongs to a particular section or class. [Para 15.1][895-G-H;
896-B]
9.3 Theproviso carves out an exception to the Section 3
E itself. The declaration that places of public worship shall be open
to Hindus of all sections and classes is not absolute, but subject
to the right of a religious denomination to “manage its own affairs
in matters of religion”. Section 3 must be viewed in the
Constitutional context where the legislature has framed an
enabling legislation under Article 25(2)(b) which has been made
F
expressly subject to religious practises peculiar to a denomination
under Article 26(b). [Para 15.2][896-C-D]
9.4 Rule 3(b) is within the ambit of the proviso to Section 3
of the 1965 Act, as it recognises pre-existing customs and usages
including past traditions which have been practised since time
G immemorial qua the Temple. The Travancore Devaswom Board
submits that these practises are integral and essential to the
Temple. [Para 15.3][896-D-E]
9.5 The Notification dated November 27, 1956 issued by
the Travancore Devaswom Board restricts the entry of women
H between the ages of 10 to 55 years as a custom and practise
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 617

integral to the sanctity of the Temple, and having the force of law A
under Article 13(3)(a) of the Constitution. 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. [Para 15.5][896-F;
897-A-B]
Raja Bira Kishore Deb Hereditary Superintendent, B
Jagannath Temple, P.O. and District Puriv. State of
Orissa (1964) 7 SCR 32; Bennett Coleman & Co. &
Ors. v. Union of India & Ors. (1972) 2 SCC 788: [1973]
2 SCR 757; Riju Prasad Sharma & Ors. v. State of
Assam & Ors. (2015) 9 SCC 461; Ewanlangki-E-
Rymbai v. Jaintia Hills District Council & Ors. (2006) C
4 SCC 748 : [2006] 3 SCR 497; Bhimashya & Ors. v.
Janabi (Smt) Alia Janawwa (2006) 13 SCC 627 :
[ 2006] 10 Suppl. SCR 628 ; Salekh Chand (Dead) by
LRs v. Satya Gupta & Ors. (2008) 13 SCC 119 : [2008]
3 SCR 833; Adi Saiva Sivachariyargal Nala Sangam D
& Ors. v. Government of Tamil Nadu & Anr. (2016) 2
SCC 725 : [2015] 11 SCR 1110 – referred to.
The Process of Pilgrimage: The Ayyappa Cultus and
Sabarimalai Yatra by Radhika Sekar (Faculty of
Graduate Studies, Department of Sociology and
Anthropology at Carleton University, Ottawa, E
Ontario; October 1987); Memoir of the Survey of the
Travancore and Cochin States by Lieutenants Ward
and Conner,(First Reprint 1994, Government of
Kerala) at p. 137 – referred to.
Case Law Reference F
In the judgment of Dipak Misra, J:
(2017) 10 SCC 689 referred to Para 6
AIR 1993 Kerala 42 approved Para 125
[1962] Suppl. 2 SCR 496 referred to Para 17
G
[1964] 7 SCR 32 referred to Para 17
[1966] 3 SCR 242 referred to Para 17
[1983] 1 SCR 729 relied on Paras 92,
144(i)
H
618 SUPREME COURT REPORTS [2018] 9 S.C.R.

A [1954] SCR 1005 relied on Paras 92,
144(i)
[1962] 1 SCR 383 referred to Para 21
[1958] SCR 895 referred to Para 25
[1989] 1 SCR 689 referred to Para 29
B [2017] 7 SCR 797 referred to Para 30
[2007] 12 SCR 991 referred to Para 31
[2014] 12 SCR 259 referred to Para 31
(2014) 5 SCC 438 referred to Para 33
C (2017) 10 SCC 1 referred to Para 33
[2004] 2 SCR 1019 relied on Para 125
[1997] 3 Suppl. SCR 404 referred to Para 38
[1972] 3 SCR 815 referred to Para 51
[2015] 11 SCR 1110 referred to Para 62
D [1995] 2 Suppl. SCR 608 referred to Para 65
[1956] SCR 756 referred to Para 67
[1981] 2 SCR 826 referred to Para 67
[2014] 9 SCR 965 referred to Para 74
[2003] 1 Suppl. SCR 920 referred to Para 93
E
[1977] 2 SCR 611 referred to Para 99
[1952] SCR 849 referred to Para 102
(2018) 8 SCALE 72 referred to Para 108
(2018) 10 SCALE 386 referred to Para 109
F [2003] 1 Suppl. SCR 638 referred to Para 112
[1959] SCR 629 referred to Para 115
[1994] 5 Suppl. SCR 515 referred to Para 116
[1962] SCR 383 referred to Para 117
[1984] 1 SCR 447 referred to Para 119
G
[2002] 3 Suppl. SCR 76 referred to Para 120
[2012] 6 SCR 34 referred to Para 137
[1988] 3 SCR 62 referred to Para 138
[2000] 1 SCR 1054 referred to Para 138
H [2009] 9 SCR 22 referred to Para 138
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 619

[2006] 3 SCR 396 referred to Para 140 A
In the judgment of Nariman, J.:
[1954] SCR 1005 referred to Para 4
[1954] SCR 1055 referred to Para 5
[1958] SCR 895 referred to Para 6
B
[1962] SCR 383 referred to Para 7
[1962] Suppl. 2 SCR 496 referred to Para 9
[1964] 1 SCR 561 referred to Para 11
[1972] 3 SCR 815 referred to Para 12
[1977] 2 SCR 611 referred to Para 13 C
[1983] 1 SCR 729 referred to Para 14
[1984] 1 SCR 447 referred to Para 15
[1997] 2 SCR 1086 relied on Para26
[2002] 3 Suppl. SCR 76 referred to Para 17
D
[2014] 1 SCR 308 referred to Para 18
(2015) 9 SCC 461 referred to Para 19
[2015] 11 SCR 1110 referred to Para 20
AIR 1993 Kerala 42 referred to Para 21
[1988] Supp 2 SCR 1050 relied on Para 31 E

In the judgment of Chandrachud, J.
[1970] 3 SCR 530 referred to Para 14
[1950] SCR 88 referred to Para 14
F
[1978] 2 SCR 621 referred to Para 14
AIR 1993 Kerala 42 referred to Para 27
[1954] SCR 1005 referred to Para 29
[1954] SCR 1055 referred to Para 30
G
[1958] SCR 895 referred to Para 31
[1959] SCR 629 referred to Para 33
[1962] SCR 383 relied on Para 34
[1962] Suppl. 2 SCR 496 relied on Para 36
[1964] 1 SCR 561 relied on Para 39 H
620 SUPREME COURT REPORTS [2018] 9 S.C.R.

A [1966] 3 SCR 242 referred to Para 40
[1984] 1 SCR 447 referred to Para 41
[1997] 2 SCR 1086 referred to Para 42
[2002] 3 Suppl. SCR 76 referred to Para 43
[2004] 2 SCR 1019 referred to Para 44
B
[2015] 11 SCR 1110 referred to Para 45
[2017] 7 SCR 797 referred to Para 46
[2003] 1 Suppl. SCR 947 referred to Para 46
(2018) 8 SCALE 72 referred to Para 49
C [2015] 11 SCR 1110 referred to Para 51
(2018) 10 SCALE 386 referred to Para 53
[1983] 1 SCR 729 referred to Para 62
[1995] 1 Suppl. SCR 745 referred to Para 63
[2003] 1 Suppl. SCR 920 referred to Para 63
D
AIR 1958 Mys 84 referred to Para 80
AIR 1993 Raj 177 referred to Para 80
[1992] 3 Suppl. SCR 284 referred to Para 80
[2015] 11 SCR 1110 referred to Para 80
E (2017) 10 SCC 1 referred to Paras 80, 94
[1961] 3 SCR 592 referred to Para 84
(1971) 3 SCC 550 referred to Para 84
[1983] 3 SCR 812 referred to Para 84
(1982) All. L.J. 607 referred to Para 84
F [1991] 3 SCR 307 referred to Para 84
[2000] 3 SCR 1019 referred to Para 89
(1984) 4 SCC 27 referred to Para 89
[1950] SCR 88 referred to Para 94
G [1970] 3 SCR 530 referred to Para 94
[1979] 2 SCR 476 referred to Para 94
[1961] 3 SCR 592 referred to Para 96
(1971) 3 SCC 550 referred to Para 96
[1983] 3 SCR 812 referred to Para 96
H [1991] 3 SCR 307 referred to Para 96
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 621

[1964] 7 SCR 756 referred to Para 97 A
AIR 1952 Bom 84 disapproved Para 101
(1925) 27 Bom LR 1064 referred to Para 104
[1969] 3 SCR 742 referred to Para 104
[1996] 3 SCR 543 referred to Para 105
B
In the judgment of Indu Malhotra, J:
[1958] SCR 895 referred to Para 2
[1962] Suppl. 2 SCR 496 referred to Para 2
[1964] 7 SCR 32 referred to Para 2
[1983] 1 SCR729 referred to Para 2 C
[1973] 2 SCR 757 referred to Para 2
AIR 1993 Kerala 42 referred to Para 4
(2015) 9 SCC 461 referred to Para 4
[2006] 3 SCR 497 referred to Para 5
D
[2006] 10 Suppl. SCR 628 referred to Para 5
[2008] 3 SCR 833 referred to Para 5
[1964] 1 SCR 561 referred to Para 5
[1954] SCR 1005 referred to Para 5
[1962] 1 SCR 383 referred to Para 5 E
[2014] 1 SCR 308 referred to Para 5
[2015] 11 SCR 1110 referred to Para 6
[1955] 1 SCR 1284 referred to Para 7
[1954] SCR 1005 referred to Para 7 F
[1958] SCR 895 referred to Para 7
[1959] Supp 2 SCR 563 referred to Para 7
[1962] 1 SCR 383 referred to Para 7
[1962] Suppl. 2 SCR 496 referred to Para 7 G
[1986] 3 SCR 518 referred to Para 7
[1954] SCR 1055 referred to Para 12
[2017] 7 SCR 797 referred to Para 10.6
[2012] 12 SCR 256 referred to Para 11.8 H
622 SUPREME COURT REPORTS [2018] 9 S.C.R.

A [2016] 3 SCR 865 referred to Para 11.8
[1975] 0 Suppl. SCR 145 referred to Para 11.8
[1962] Suppl. 2 SCR 496 referred to Para 12.3
(1976) 1 SCC 292 referred to Para 12.10
[1954] SCR 1055 referred to Para 13.2
B
[1962] 1 SCR 574 referred to Para 13.7
CIVIL ORIGINAL JURISDICTION: Writ Petition (Civil) No. 373
of 2006.
Under Article 32 of the Constitution of India.
C Raju Ramachandran (AC), Ms. Indira Jaising, Dr. K. P.
Kylasanatha Pillay, K. Ramamoorthy, P. V. Surendranath,
K. Radhakrishnan, Jaideep Gupta, V. Giri, K. Parasaran, Dr. Abhishek
Manu Singhvi, Sr. Advs., K. Parameshwar (AC), Ishwar Mohanty (AC),
Ms. Hansini Shankar (AC), R. P. Gupta, Dr. Laxmi Shastri, Ms. Prerna
Kumari, Ms. Bhawna Singh Dev, Bhakti Pasricha Sethi, Sunil Fernandes,
D Ms. Nehmat Kaur, Ms. Ajita Sharma, Paras Nath Singh, Ms. Nupur
Kumar, Ms. Anju Thomas, Ms. Astha Sharma, Ms. Priyansha Sharma,
A. Venayagam Balan, V. S. Lakshmi, Ms. Shoba Ramamoorthy,
Sri Ram J. Thalapathy, V. Adhimoolam, Shilp Vinod, Pushkin Rajkumar,
Ms. Reemitha R. Chandran, Ms. Lekha Sudhakaran, V. K. Sidharthan,
E P. V. Yogeswaran, Ashish Kr. Upadhyay, Bhuwan Jayant, Y. Lokesh,
Ms. V. Susheatha, Ms. Vanitha Chandrakant Giri, K. V. Jagdishvaran,
Ms. G. Indira, G. Prakash, Jishnu M. L., Mrs. Priyanka Prakash,
Mrs. Beena Prakash, Kunal Chatterjee, Sanand Ramakrishnan, Rajeev
Mishra, Madan Mohan Bora, K. V. Mohan, K. V. Balakrishnan,
Ms. Aditi Dani, Ms. Bina Madhavan, S. Udaya Kumar Sagar,
F Ms. Akanksha Mehra, PDT Achary, Nidhiram Sharma, Azeem Samuel,
Narinder Neel (For M/s. Lawyer S Knit & Co.), Sreegesh M. K., Bhavani
Shankar V. Gadnis, Vishwanath B. Gadnis, Ms. Radni V. Gadnis, Krishna
Kumar Singh, M/s. Ap & J Chambers, Shaijan C. George, Vaibhav Joshi,
Ramesh P., Suhaas Ratjna Joshi, V. K. Biju, Hiren Dasan, Chand Qureshi,
G Ankur Raghav, Abhay Pratap Singh, Vijay K. Verma, Tarun Verma,
V. K. Verma, P. V. Saravanaraja, Naresh Kumar, Gautam Talukdar,
Nishe Rajen Shonker, Anjani Kumar Mishra, Abhilash M. R., Simanta
Kumar, Sayooj Mohandas, Ranjan Kumar, Piyush Dwivedi, Manav Vohra,
Amith Krishnan, Krishna Dev Jagarlamudi, Svadha Shankar, Mohammed
Sadique T. A., Kuriakose Varghese, Ranjith Shankar, V. Shyamohan,
H Deepak Grover, Willa Mathews, Ginesh P., Devendra Kumar Tiwari,
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 623

Paul John Edison, Shaji Sebastian, Shree Pal Singh, J. Sai Deepak, Eshaan A
Ghosh, Suvidutt M. S., Avinash K. Sharma, Ashutosh Nagar, Ms. Anzu,
Yogmaya, K. V. Muthu Kumar, Amith J., Akshay R., Gopal
Sankaranarayanan, Ms. Usha Nandini V., Biju P. Raman, M. S. Vishnu
Sankar, Ravi Prakash Mehrotra, Ankit Agarwal, Advs. for the appearing
parties.
B
Swami Omji (Applicant-in-person).
Mukesh Jain (Applicant-in-person).
The Judgments of the Court were delivered by
DIPAK MISRA, CJI (FOR HIMSELF AND
A.M. KHANWILKAR, J.) C
Introduction
The irony that is nurtured by the society is to impose a rule,
however unjustified, and proffer explanation or justification to substantiate
the substratum of the said rule. Mankind, since time immemorial, has
been searching for explanation or justification to substantiate a point of D
view that hurts humanity. The theoretical human values remain on paper.
Historically, women have been treated with inequality and that is why,
many have fought for their rights. Susan B. Anthony, known for her
feminist activity, succinctly puts, “Men, their rights, and nothing more;
women, their rights, and nothing less.” It is a clear message.
2. Neither the said message nor any kind of philosophy has opened E
up the large populace of this country to accept women as partners in
their search for divinity and spirituality. In the theatre of life, it seems,
man has put the autograph and there is no space for a woman even to
put her signature. There is inequality on the path of approach to understand
the divinity. The attribute of devotion to divinity cannot be subjected to F
the rigidity and stereotypes of gender. The dualism that persists in religion
by glorifying and venerating women as goddesses on one hand and by
imposing rigorous sanctions on the other hand in matters of devotion has
to be abandoned. Such a dualistic approach and an entrenched mindset
results in indignity to women and degradation of their status. The society
has to undergo a perceptual shift from being the propagator of hegemonic G
patriarchal notions of demanding more exacting standards of purity and
chastity solely from women to be the cultivator of equality where the
woman is in no way considered frailer, lesser or inferior to man. The
law and the society are bestowed with the Herculean task to act as
levellers in this regard and for the same, one has to remember the wise H
624 SUPREME COURT REPORTS [2018] 9 S.C.R.

A saying of Henry Ward Beecher that deals with the changing perceptions
of the world in time. He says:
“Our days are a kaleidoscope. Every instant a change takes place
in the contents. New harmonies, new contrasts, new combinations
of every sort. Nothing ever happens twice alike. The most familiar
people stand each moment in some new relation to each other, to
B
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.”1
3. Any relationship with the Creator is a transcendental one
crossing all socially created artificial barriers and not a negotiated
C 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
D 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
implausible but can also never pass the muster of constitutionality.
E 4. It is a universal truth that faith and religion do not countenance
discrimination but religious practices are sometimes seen as perpetuating
patriarchy thereby negating the basic tenets of faith and of gender equality
and rights. The societal attitudes too centre and revolve around the
patriarchal mindset thereby derogating the status of women in the social
F and religious milieu. All religions are simply different paths to reach the
Universal One. Religion is basically a way of life to realize one’s identity
with the Divinity. However, certain dogmas and exclusionary practices
and rituals have resulted in incongruities between the true essence of
religion or faith and its practice that has come to be permeated with
patriarchal prejudices. Sometimes, in the name of essential and integral
G facet of the faith, such practices are zealously propagated.
The Reference
5. Having stated so, we will focus on the factual score. The instant
writ petition preferred under Article 32 of the Constitution seeks issuance
of directions against the Government of Kerala, Devaswom Board of
1
H Henry Ward Beecher, 1813-1887 - Eyes and Ears
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 625
[DIPAK MISRA, CJI]

Travancore, Chief Thanthri of Sabarimala Temple and the District A
Magistrate of Pathanamthitta to ensure entry of female devotees between
the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala
(Kerala) which has been denied to them on the basis of certain custom
and usage; to declare Rule 3(b) of the Kerala Hindu Places of Public
Worship (Authorisation of Entry) Rules, 1965 (for short, “the 1965
B
Rules”) framed in exercise of the powers conferred by Section 4 of the
Kerala Hindu Places of Public Worship (Authorisation of Entry) Act,
1965 (for brevity, “the 1965 Act”) as unconstitutional being violative of
Articles 14, 15, 25 and 51A(e) of the Constitution of India and further to
pass directions for the safety of women pilgrims.
6. The three-Judge Bench in Indian Young Lawyers Association C
and others v. State of Kerala and others2, keeping in view the gravity
of the issues involved, sought the assistance of Mr. Raju Ramachandran
and Mr. K. Ramamoorthy, learned senior counsel as Amicus Curiae.
Thereafter, the three-Judge Bench analyzed the decision and the reasons
ascribed by the Kerala High Court in S. Mahendran v. The Secretary,
D
Travancore Devaswom Board, Thiruvananthpuram and others 3
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 Amicus E
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 F
“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 G
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’
2
(2017) 10 SCC 689 H
3
AIR 1993 Kerala 42
626 SUPREME COURT REPORTS [2018] 9 S.C.R.

A managed by a statutory board and financed under Article 290-A
of the Constitution of India out of the Consolidated Fund of Kerala
and Tamil Nadu to indulge in such practices violating constitutional
principles/ morality embedded in Articles 14, 15(3), 39(a) and
51-A(e)?
B 4. Whether Rule 3 of the 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?
C 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?”
D 8. Because of the aforesaid reference, the matter has been placed
before us.
9. It is also worthy to note here that the Division Bench of the
High Court of Kerala, in S. Mahendran (supra), upheld the practice of
banning entry of women belonging to the age group of 10 to 50 years in
E the Sabarimala temple during any time of the year. The High Court
posed the following questions:
“(1) Whether woman of the age group 10 to 50 can be permitted
to enter the Sabarimala temple at any period of the year or during
any of the festivals or poojas conducted in the temple.
F (2) Whether the denial of entry of that class of woman amounts
to discrimination and violative of Articles 15, 25 and 26 of the
Constitution of India, and
(3) Whether directions can be issued by this Court to the
Devaswom Board and the Government of Kerala to restrict the
G entry of such woman to the temple?”
10. The High Court, after posing the aforesaid questions, observed
thus:
“40. The deity in Sabarimala temple is in the form of a Yogi or a
Bramchari according to the Thanthri of the temple. He stated
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 627
[DIPAK MISRA, CJI]

that there are Sasta temples at Achankovil, Aryankavu and A
Kulathupuzha, but the deities there are in different forms.
Puthumana Narayanan Namboodiri, a Thanthrimukhya recognised
by the Travancore Devaswom Board, while examined as C.W. 1
stated that God in Sabarimala is in the form of aNaisthikBramchari.
That, according to him, is the reason why young women are not
B
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.” C

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 D
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.”
E
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 F
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 G
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.”
H
628 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Submissions on behalf of the Petitioners
12. Learned counsel appearing for the petitioners have alluded to
the geographical location, historical aspect along with the Buddhist
connection of the Sabarimala temple and the religious history of Lord
Ayyappa. They have, for the purpose of appreciating the functioning of
B the Sabarimala temple, also taken us through the history of Devaswom
in Travancore. As regards the statutory backing of the Devaswom
Boards, the petitioners have drawn the attention of this Court to the
‘Travancore - Cochin Hindu Religious Institutions Act, 1950’, Section 4
of the said Act contemplates a Devaswom Board for bringing all
incorporated and unincorporated Devaswoms and other Hindu religious
C institutions except Sree Padmanabhaswamy Temple.
13. It has been put forth by them that the aforesaid enactment
has been subject to various amendments over a period of time, the last
amendment being made in the year 2007 vide Amending Act of 2007
[published under Notification No. 2988/Leg.A1/2007 in K.G. ext. No.
D 694 dated 12.04.2007] which led to the inclusion of women into the
management Board. The petitioners have also referred to Section 29A
of the said Act which stipulates that all appointments of officers and
employees in the Devaswom Administrative Service of the Board shall
be made from a select list of candidates furnished by the Kerala Public
E Service Commission. It has been submitted by the petitioners that after
the 1950 Act, no individual Devaswom Board can act differently both in
matters of religion and administration as they have lost their distinct
character and Sabarimala no more remained a temple of any religious
denomination after the take over of its management.

F 14. As far as the funding aspect is considered, it is contended that
prior to the adoption of the Constitution, both the Travancore and Tamil
Nadu Devaswom Boards were funded by the 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
G 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
H in case of Hindu temple as this constitutional amendment has been made
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 629
[DIPAK MISRA, CJI]

on the premise that no ill-practice shall be carried on in any temple which A
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 B
funding in 1971. It is propounded that for the purpose of constituting a
‘religious denomination; not only the practices followed by that
denomination should be different but its administration should also be
distinct and separate. Thus, even if some practices are distinct in temples
attached to statutory board, since its administration is centralized under
the Devaswom Board, it cannot attain a distinct identity of a separate C
religious denomination.
16. It is contended that in legal and constitutional parlance, for the
purpose of constituting a religious denomination, there has to be strong
bondage among the members of its denomination. Such denomination
must be clearly distinct following a particular set of rituals/practices/ D
usages having their own religious institutions including managing their
properties in accordance with law. Further, the petitioners have averred
that religious denomination which closely binds its members with certain
rituals/practices must also be owning some property with perpetual
succession which, as per the petitioners, the Constitution framers kept in E
mind while framing Article 26 of the Constitution and, accordingly,
religious denominations have been conferred four rights under clauses
(a) to (d) of Article 26. These rights, it is submitted, are not disjunctive
and exclusive in nature but are collectively conferred to establish their
identity. To buttress this view, the petitioners have placed reliance on the
views of H.M. Seervai4 wherein the learned author has stated that the F
right to acquire property is implicit in clause (a) as no religious institution
could be created without property and similarly, how one could manage
its own affairs in matters of religion under clause (b) if there is no religious
institution. Thus, for a religious denomination claiming separate and
distinct identity, it must own some property requiring constitutional G
protection.
17. The petitioners have pressed into service the decisions of this
Court in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay5,
4
Third Edition, Vol. 1, 1983 pg. 931
5
[1962] Suppl. 2 SCR 496 H
630 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Raja Bira Kishore Deb v. State of Orissa6, Shastri Yagnapurushadiji
and others v. Muldas Bhundardas Vaishya and another7 and S.P.
Mittal v. Union of India and others8 wherein the concept of religious
denomination was discussed by this Court. It is the stand of the petitioners
that some mere difference in practices carried out at Hindu Temples
cannot accord to them the status of separate religious denominations.
B
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
C 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.
D 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 Mutt9 wherein it was
observed thus:
“The contention formulated in such broad terms cannot, we think,
E 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 itself. If the tenets of any religious sect
of the Hindus prescribe that offerings of food should be given to
the idol at particular hours of the day, that periodical ceremonies
F should be performed in a certain way at certain periods of the
year or that there should be daily recital of sacred texts or ablations
to the sacred fire, all these would be regarded as parts of religion
and the mere fact that they involve expenditure of money or
employment of priests and servants or the use of marketable
commodities would not make them secular activities partaking of
G a commercial or economic character; all of them are religious
practices and should be regarded as matters of religion within the
meaning of article 26(b).”
6
(1964) 7 SCR 32
7
(1966) 3 SCR 242 : AIR 1966 SC 1119
8
(1983) 1 SCC 51
H 9
[1954] SCR 1005
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 631
[DIPAK MISRA, CJI]

20. As per the petitioners, this Court in Shirur Mutt (supra), A
while giving freedom under clauses (a) and (b) of Article 26, made it
clear that what is protected is only the ‘essential part’ of religion or, in
other words, the essence of ‘practice’ practised by a religious
denomination and, therefore, the petitioners submit that before any
religious practice is examined on the touchstone of constitutional principles,
B
it has to be ascertained positively whether the said practice is, in pith and
substance, really the ‘essence’ of the said religion.
21. The petitioners have also cited the judgment in Durgah
Committee, Ajmer v. Syed Hussain Ali10 wherein Gajendragadkar, J.
clarified that clauses (c) and (d) do not create any new right in favour of
religious denominations but only safeguard their rights. Similarly, in matters C
of religious affairs, it is observed that the same is also not sacrosanct as
there may be many ill-practices like superstitions which may, in due
course of time, become mere accretions to the basic theme of that
religious denomination. After so citing, the petitioners have submitted
that even if any accretion added for any historical reason has become D
an essence of the said religious denomination, the same shall not be
protected under Article 26(b) if it is so abhorring and is against the basic
concept of our Constitution.
22. It is also the case of the petitioners that discrimination in matters
of entry to temples is neither a ritual nor a ceremony associated with E
Hindu religion as this religion does not discriminate against women but,
on the contrary, Hindu religion accords 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 F
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 G
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.
10
(1962) 1 SCR 383 H
632 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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 averred by the petitioners that though no right is absolute,
B yet entry to temple may be regulated and there cannot be any absolute
prohibition or complete exclusionary rule from entry of women to a temple.
For substantiating this view, the petitioners have pressed into service the
judgment of this Court in Shirur Mutt (supra), the relevant portion of
which reads thus:
C “We agree, however, with the High Court in the view taken by it
about section 21. This section empowers the Commissioner and
his subordinate officers and also persons authorised by them to
enter the premises of any religious institution or place of worship
for the purpose of exercising any power conferred, or any duty
imposed by or under the Act. It is well known that there could be
D no such thing as an unregulated and unrestricted right of entry in
a public temple or other religious institution, for persons who are
not connected with the spiritual functions thereof. It is a traditional
custom universally observed not to allow access to any outsider
to the particularly sacred parts of a temple as for example, the
E place where the deity is located. There are also fixed hours of
worship and rest for the idol when no disturbance by any member
of the public is allowed. Section 21, it is to be noted, does not
confine the right of entry to the outer portion of the premises; it
does not even exclude the inner sanctuary the Holy of Holies” as
it is said, the sanctity of which is `zealously preserved. It does not
F say that the entry may be made after due notice to the head of the
institution and at such hours which would not interfere with the
due observance of the rites and ceremonies in the institution. We
think that as the section stands, it interferes with the fundamental
rights of the Mathadhipati and the denomination of which he is
G head guaranteed under articles 25 and 26 of the Constitution.”
25. The judgment of this Court in Sri Venkatramana Devaru v.
State of Mysore and others11 has been cited to submit that a religious
denomination cannot completely exclude or prohibit any class or section
for all times. All that a religious denomination may do is to restrict the
11
H (1958) SCR 895 : 1958 AIR 55
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 633
[DIPAK MISRA, CJI]

entry of a particular class or section in certain rituals. The relevant portion A
of Devaru (supra) reads as under:
“We have held that the right of a denomination to wholly exclude
members of the public from 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 B
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 C
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 D
rights must vanish. But where that is not the position, and after
giving effect to the rights of the denomination what is left to the
public of the right of worship is something substantial and not
merely the husk of it, there is no reason why we should not so
construe Art. 25(2)(b) as to give effect to Art. 26(b) and recognise
the rights of the denomination in respect of matters which are E
strictly denominational, leaving the rights of the public in other
respects unaffected.”
(Emphasis is ours)
26. After referring to Sections 3 and 4 of the Kerala Hindu Places F
of Public Worship (Authorization of Entry) Act, 1965 and Rule 3 (b)
framed thereunder, the petitioners have submitted that the expression
‘at any such time’ occurring in Rule 3(b) does not lead to complete
exclusion/prohibition of any woman. In other words, if at such time
during which, by any custom or usage, any woman was not allowed,
then the said custom or usage shall continue and to substantiate this G
claim, the petitioners have cited the example that if during late night, by
custom or usage, women are not allowed to enter temple, the said custom
or usage shall continue, however, it does not permit complete prohibition
on entry of women. Further, the petitioners have submitted that any
other interpretation of Rule 3(b) would render the said rule open to H
634 SUPREME COURT REPORTS [2018] 9 S.C.R.

A challenge as it would not only be violative of the Kerala Hindu Places of
Public Worship (Authorization of Entry) Rules, 1965 but also of Article
25(2)(b) of the Constitution read with Articles 14 and 15.
Submissions on behalf of Intervenor in I.A No. 10 of 2016
27. It has been submitted on behalf of the intervenor that the
B exclusionary practice of preventing women between the age of 10 to 50
years based on physiological factors exclusively to be found in female
gender violates Article 14 of the Constitution of India, for such a
classification does not have a constitutional object. It is also the case of
the applicant/intervenor that even if it is said that there is classification
C between men and women as separate classes, there cannot be any
further sub-classification among women on the basis of physiological
factors such as menstruation by which women below 10 years and above
50 years are allowed.
28. It has been averred by the applicant/intervenor that as per
D Article 14, any law being discriminatory in nature has to have the
existence of an intelligible differentia and the same must bear a rational
nexus with the object sought to be achieved. The object as has been
claimed is to prevent the deity from being polluted, which, in the view of
the applicant/intervenor, runs counter to the constitutional object of justice,
liberty, equality and fraternity as enshrined in the Preamble to our
E 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.
F Punjab University and another12, 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.
G 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 others13 as it is
solely based on physiological factors and, therefore, neither serves any
12
(1989) 2 SCC 145
13
(2017) 9 SCC 1
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 635
[DIPAK MISRA, CJI]

valid object nor satisfies the test of reasonable classification under Article A
14 of the Constitution.
31. It has also been put forth by the applicant/intervenor that the
exclusionary practice per se violates Article 15(1) of the Constitution
which amounts to discrimination on the basis of sex as the physiological
feature of menstruation is exclusive to females alone. In support of the B
said submission, the applicant/intervenor has placed reliance upon the
judgments of this Court in Anuj Garg and others v. Hotel Association
of India and others14 and Charu Khurana and others v. Union of
India and others15, to accentuate that gender bias in any form is opposed
to constitutional norms.
C
32. It is also the case of the applicant/intervenor that exclusionary
practice has the impact of casting a stigma on women of menstruating
age for it considers them polluted and thereby has a huge psychological
impact on them which resultantly leads to violation of Article 17 as the
expression ‘in any form’ in Article 17 includes untouchability based on
social factors and is wide enough to cover menstrual discrimination against D
women. It has further been submitted by applicant/intervenor that Article
17 applies to both State and non-State actors and has been made operative
through a Central legislation in the form of Protection of Civil Rights
Act, 1955. The judgment of the High Court in S. Mahendran (supra), in
the view of the applicant/intervenor, is not in consonance with the E
provisions of the 1955 Act.
33. Drawing support from the decisions of this Court in National
Legal Services Authority v. Union of India and others 16 and Justice
K.S. Puttaswamy and another v. Union of India and others17, the
applicant/intervenor has averred that the exclusionary practice pertaining F
to women is violative of Article 21 of the Constitution as it impacts the
ovulating and menstruating women to have a normal social day to day
rendezvous with the society including their family members and, thus,
undermines their dignity by violating Article 21 of the Constitution.
34. It has also been submitted that the exclusionary practice violates G
the rights of Hindu women under Article 25 of the Constitution as they
have the right to enter Hindu temples dedicated to the public. As per the
14
(2008) 3 SCC 1
15
(2015) 1 SCC 192
16
(2014) 5 SCC 438
17
(2017) 10 SCC 1 H
636 SUPREME COURT REPORTS [2018] 9 S.C.R.

A applicant/intervenor, there is a catena of judgments by this Court wherein
the rights of entry into temples of all castes have been upheld on the
premise that they are Hindus and similarly, 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
B 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
C 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
D 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).
36. It has been submitted by the applicant/intervenor that even if
E we assume that Sabarimala is a religious denomination, the exclusion of
women is not an essential practice as it does not satisfy the test of
essential practice as has been laid down by this Court in Commissioner
of Police and others v Acharya Jagadishwarananda Avadhuta and
another 18.

F 37. Referring to the judgment of this Court in Devaru (supra), the
applicant/intervenor has submitted that the right to manage its own affairs
conferred upon a religious denomination under Article 26(b) is subject to
be rights guaranteed to Hindu women under Article 25(2)(b). As per the
applicant/intervenor, a harmonious construction of Articles 25 and 26 of
the Constitution reveals that neither Article 26 enables the State to make
G a law excluding any women from the right to worship in any public
temple nor does it protect any custom that discriminates against women
and, thus, such exclusion amounts to destruction of the rights of women
to practise religion guaranteed under Article 25.
18
(2004) 12 SCC 770
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38. The applicant/intervenor has also drawn the attention of this A
Court to the Convention on Elimination of all forms of Discrimination
Against Women (CEDAW) and the fact that India is a party to this
Convention for emphasizing that it is the obligation of the State to eradicate
taboos relating to menstruation based on customs or traditions and further
the State should refrain from invoking the plea of custom or tradition to
B
avoid their obligation. The judgment of this Court in Vishaka and others
v. State of Rajasthan and others19 has been cited to submit that
international conventions must be followed when there is a void in the
domestic law or when there is any inconsistency in the norms for
construing the domestic law.
Submissions on behalf of Intervenor in I.A No. 34/2017 C

39. The intervenor, All India Democratic Women’s Association,
has filed I.A No. 34/2017 wherein it has submitted that the meaning of
the Constitution cannot be frozen and it must continuously evolve with
the changing times. Further, the applicant submits that merely because
Article 26 does not specify that it is subject to Part III or Article 25 of D
the Constitution, it cannot be said that it is insulated against Part III and
especially Articles 14, 15 19, 21 and 25 of the Constitution. To emphasize
the same, the applicant/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 E
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 F
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 G
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).
19
(1997) 6 SCC 241
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A Submissions on behalf of Respondent No. 1
40. The State of Kerala, the first respondent herein, as indicated
earlier, had taken contrary stands at different times. An affidavit was
filed on 13.11.2007 which indicated that the Government was not in
favour of discrimination towards any woman or any section of the society.
B The said stand was changed in the affidavit dated 5.2.2016 taking the
stand that the earlier affidavit was contrary to the judgment of the Kerala
High Court. On 7.11.2016 on a query being made by the Court, the
learned counsel for the State submitted that it wanted to place reliance
on the original affidavit dated 13.11.2007. It is contended by Mr. Jaideep
Gupta, learned senior counsel appearing for the State of Kerala, that the
C 1965 Act and the Rules framed thereunder are in consonance with Article
25(2)(b) of the Constitution. Reference has been made to Section 3 of
the Act, for the said provision deals with places of public worship to be
open to Hindus generally or any section or class thereof. The concept
of prohibition is not conceived of. It is urged by Mr. Gupta that there is
D no restriction in view of the legislation in the field. In essence, the stand
of the State is that it does not conceive of any discrimination as regards
the entry of women into the temple where male devotees can enter.
Submissions on behalf of Respondent No. 2
41. The respondent no. 2 has submitted that Sabarimala is a temple
E of great antiquity dedicated to Lord Ayyappa who the petitioner avers to
be a deity depicting “a hyper masculine God born out of the union of two
male Gods Shiva and Mohini, where Mohini is Vishnu in a female form.”
42. Thereafter, the respondent no. 2 reiterated the submissions of
the respondent no. 4 pertaining to the observance of 41 days ‘Vruthum’
F and the fact that the Sabarimala Temple is supposed to depict ‘Naishtika
Brahmacharya’. In addition to this, the respondent no. 2 has also referred
to a Ph.D thesis by Radhika Sekar in the Department of Sociology and
Anthropology at Carleton University, Ottawa, Ontario in October 1987
titled “The Process of Pilgrimage : The Ayyappa Cultus and Sabarimala
G Yatra” which has established the very raison d’etre for the existence
of the denominational Temple of Sabarimala based upon deep penance,
celibacy and abstinence by all visitors, male and female. The respondent
no. 2 has also drawn 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
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first five days of each Malayalam month which starts approximately in A
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 B
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. C
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 they recite and poojas they perform.
D
44. The respondent no. 4 has averred that the custom and usage
of young women (aged between 10 to 50 years) not being allowed to
enter the Sabarimala temple has its traces in the basic tenets of the
establishment of the temple, the deification of Lord Ayyappa and His
worship. As per the respondent no. 4, Ayyappa had explained the manner
in which the Sabarimala pilgrimage was to be undertaken emphasizing E
the importance of ‘Vrutham’ which are special observances that need
to be followed in order to achieve spiritual refinement, and that as a part
of the ‘Vruthum’, the person going on pilgrimage separates himself from
all family ties for 41 days and during the said period either the woman
leaves the house or the man resides elsewhere in order to separate F
himself from all family ties. Thereafter, the respondent no. 4 has pointed
out that the problem with women is that they cannot complete the 41
days Vruthum as their periods would eventually fall within the said period
and it is a custom among all Hindus that women do not go to temples or
participate in religious activities during periods and the same is
substantiated by the statement of the basic Thantric text of temple G
worshipping in Kerala Thantra Samuchayam, Chapter 10, Verse II.
45. The respondent no. 4 has emphasized that the observance of
41 days Vruthum is a condition precedent for the pilgrimage which has
been an age old custom and anyone who cannot fulfill the said Vruthum
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640 SUPREME COURT REPORTS [2018] 9 S.C.R.

A cannot enter the temple and, hence, women who have not attained puberty
and those who are in menopause alone can undertake the pilgrimage at
Sabarimala. The respondent no. 4 has also averred that the said condition
of observance of 41days Vruthum is not applicable to women alone and
even men who cannot observe the 41 days Vruthum due to births and
deaths in the family, which results in breaking of Vruthum, are also not
B
allowed to take the pilgrimage that year.
46. The respondent no. 4 has also drawn the attention of the Court
to the fact that religious customs as well as the traditional science of
Ayurveda consider menstrual period as an occasion for rest for women
and a period of uncleanliness of the body and during this period, women
C are affected by several discomforts and, hence, observance of intense
spiritual discipline for 41 days is not possible. The respondent no. 4 has
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
D 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.
E 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
F 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’ conducted in the past also reveal that the deity does
G not want young women to enter the precincts of the temple. As per the
respondent no. 4, the philosophy involved in evolving a particular aspect
of power in a temple is well reflected in the following mantra chanting
during the infusion of divine power:
“O the Supreme Lord! It is well known that You pervade
everything and everywhere’ yet I am invoking You in this
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INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 641
[DIPAK MISRA, CJI]

bimbhamvery much like a fan that gathers and activates the all- A
pervading air at a particular spot. At the fire latent in wood
expresses itself through friction, O Lord be specially active in this
bimbhamas a result of sacred act.”
50. The respondent no. 4 is of the view that it is the particular
characteristic of the field of power, its maintenance and impact which B
the ‘Devaprasanam’ deals with and ‘Devaprasanam’ confirms that the
practice of women of particular age group not participating in the temple
should be maintained.
51. To bolster his stand, the respondent no. 4 has also placed
reliance upon the decision of the Kerala High Court in S. Mahendran C
(supra) wherein the then Thantri Shri Neelakandaru had deposed as
C.W 6 and he stated that the present idol was installed by his paternal
uncle Kantaru Shankaru and he confirmed that women of age group 10
to 50 years were not allowed to enter the temple even before 1950s.
The said witness also deposed that his paternal uncle had instructed him
and the temple officials to follow the old customs and usages. D

52. The respondent no. 4 has also drawn the attention of the Court
to the opinion of this Court in Seshammal and others v. State of Tamil
Nadu20, wherein it was observed that on the consecration of the image
in the temple, the Hindu worshippers believe that the divine spirit has
descended into the image and from then on, the image of the deity is fit E
to be worshipped and the rules with regard to daily and periodical worship
have been laid down for securing the continuance of the divine spirit and
as per the Agamas, an image becomes defiled if there is any departure
or violation of any of the rules relating to worship.
53. The respondent no. 4 has also submitted that the deity at F
Sabarimala in the form of ‘Naishtik Brahmachari’ and that is also a
reason why young women are not allowed inside the temple so as to
prevent even the slightest deviation from celibacy and austerity observed
by the deity.
Submissions on behalf of Intervenor in I.A Nos. 12 and 13 G
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
20
(1972) 2 SCC 11
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642 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
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
C 14, 15 and 17 of the Constitution and it would also be well within the
ambit of Articles 25 and 26 of the Constitution.
Rejoinder Submissions on behalf of the Petitioners
55. In reply to the contention of the respondent no. 2-Devaswom
Board that the writ jurisdiction does not lie in the present matter, the
D petitioners submit that the validity of Section 3(b) could not have been
challenged in suit proceedings as the present writ petition has been filed
against the State authorities and the Chief Thantri who has been
impleaded as the respondent no. 4 is appointed by a Statutory Board;
and since now ‘custom and usage’ fall under the ambit of Article 13,
E they have become subject to the constitutional provisions contained in
Part III whose violation can only be challenged in writ jurisdiction.
56. Thereafter, the petitioners have submitted that the respondent
no. 2 has merely pressed the theory of intelligible differentia to justify
encircling of women of prohibited age without elaborating the object
F sought to be achieved and whether the differentia even has any nexus
with the object and the object of preventing deflecting of the idol from
the stage of celibacy cannot be achieved from the present classification.
57. Further, the petitioners have submitted that the respondent no.
2 has wrongly stated that the Sabarimala temple is a religious
G denomination, for any temple under a statutory board like a Devaswom
Board and financed out of the Consolidated Fund of Kerala and whose
employees are employed by the Kerala Service Commission cannot claim
to be an independent ‘religious denomination’.
58. Besides, the petitioners have contended that several ill-practices
in existence and falling within the ambit of religion as cited by the
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INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 643
[DIPAK MISRA, CJI]

respondent no. 2 may not be acceptable today and the said practices A
have not come up before this Court and should not be taken cognizance
of. Further, it is the view of the petitioners that the said practices cannot
be held to be the essence of religion as they had evolved out of
convenience and, in due course of time, have become crude accretions.
To prove its point, the petitioners have cited the examples of the practices
B
of dowry and restriction of women from entering mosques which,
although had come into existence due to certain factors existing at the
relevant time, no longer apply.
59. Thereafter, the petitioners have contended that if Sabarimala
does not come in the category of religious denomination, then it cannot
claim the right under Article 26 and it would come within the purview of C
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 D
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. E

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 F
to management of religious affairs. The former is governed by Article
25 and the latter is governed by Article 26. Further, the applicant/
intervenor has pointed out that even those institutions which are held to
be denominations and claim protection under Article 26 cannot deny
entry to any person for the purpose of darshan and the ex facie denial
of women between the age group of 10 to 50 years violates Articles 14, G
15, 21 and 25 of the Constitution.
61. Thereafter, the applicant/intervenor has averred that the
question whether Sabarimala is a denomination or not is irrelevant for

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644 SUPREME COURT REPORTS [2018] 9 S.C.R.

A the reason that even if it is concluded that Sabarimala is a denomination,
it can claim protection of only essential practices under Article 26(b)
and denial of entry to women between the age of 10 to 50 years cannot
be said to be an essential aspect of the Hindu religion. Further, the
applicant/intervenor has also averred that Sabarimala does not satisfy
the test of religious denomination as laid down in S.P. Mittal (supra).
B
62. The applicant/intervenor has also submitted that the
respondents, by referring to the practice as a custom with aberrations,
have themselves suggested that there has been no continuity in the
applicability of the said custom and that it has also been established in
the evidence before the High Court that women irrespective of their age
C were permitted to enter the Sabarimala for the first rice feeding ceremony
of their children and it is only since the last 60 years after the passing of
the Notification in 1955 that women between the age of 10 to 50 years
were prohibited from entering the temple. The applicant/intervenor has
also pointed out that even if the said practice is considered to be a custom,
D it has to still pass the test of constitutional morality and constitutional
legitimacy and the applicant/intervenor has relied upon the decision of
this Court in Adi Saiva Sivachariyargal Nala Sangam and others v.
Government of Tamil Nadu and others 21 wherein it was observed:
“48. Seshammal vs State of T.N., (1972) 2 SCC 11] is not an
E authority for any proposition as to what an Agama or a set of
Agamas governing a particular or group of temples lay down with
regard to the question that confronts the court, namely, whether
any particular denomination of worshippers or believers have an
exclusive right to be appointed as Archakas to perform the poojas.
Much less, has the judgment taken note of the particular class or
F caste to which the Archakas of a temple 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
G 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
21
(2016) 2 SCC 725
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 645
[DIPAK MISRA, CJI]

not be violated. What has been said in Seshammal [Seshammal v. A
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
B
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 supersede all religious
beliefs or practices.”
63. In reply to the contention of the respondents that the basis for
exclusion of women is that women cannot observe the 41 days Vruthum C
and also on the ground that Ayyappa is a celibate God, the applicant/
intervenor has submitted that the meaning of celibacy is the abstinence
from sex and the respondents by suggesting that women cannot practice
Vruthum which requires abstinence from sex are stigmatizing women
and stereotyping them as being weak and lesser human beings than D
men. Hence, the classification, in view of the applicant/intervenor, is not
based on intelligible differentia.
64. The applicant/intervenor has also submitted that menstruating
women and untouchables are being treated as similar in terms of entry
to temple and, hence, the custom in dispute amounts to ‘untouchability’. E
65. The applicant/intervenor has, thereafter, drawn the attention
of the Court to the fact that although the respondents aver that they do
not intend to discriminate on the basis of gender, yet the Court has to test
the violation of the fundamental rights not on the basis of intention but
the impact of the impugned action. The applicant/intervenor has stated F
that the respondents have wrongly placed reliance upon the decision in
T.M.A. Pai Foundation and others v. State of Karnataka and others 22
as in the present case, the issue is not one pertaining to the rights of
minorities but concerning the unconstitutional acts of the majority.
66. The applicant/intervenor has also submitted that the age-old G
practice of considering women as impure while they are menstruating
amounts to untouchability and stigmatizes them as lesser human beings
and is, therefore, violative of Articles14, 15, 17 and 21 of the Constitution.

22
(1995) 5 SCC 220
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646 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Submissions of learned Amicus Curiae, Sr. Advocate Mr.
Raju Ramchandran, assisted by Mr. K. Parameshwar
67. It is submitted on the behalf of learned Senior Advocate Mr.
Raju Ramchandran, that the Sabarimala Sree Dharma Sastha Temple,
Kerala is a public temple being used as a place of worship where members
B of the public are admitted as a matter of right and entry thereto is not
restricted to any particular denomination or part thereof. As per the
learned Amicus, the public character of the temple gives birth to the
right of the devotees to enter it for the purpose of darshan or worship
and this 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.
C To advance this view, the learned Amicus has relied upon the decisions
of this Court in Deoki Nandan v. Murlidhar and others23 and Sri
Radhakanta Deb and another v. Commissioner of Hindu Religious
Endowments, Orissa24.
68. As regards the nature of the right claimed by the petitioners
D 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
E 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
F significantly denuded. Article 25 pertinently declares that all persons are
‘equally’ entitled to freely practise religion. This, in view of the learned
Amicus, implies not just inter-faith but intra-faith parity. Therefore, the
primary right under Article 25(1) is a non-discriminatory right and is,
thus, available to men and women professing the same faith.

G 70. Further, it has been put forth that the constitutional intent in
keeping the understanding of untouchability in Article 17 open-textured
was to abolish all practices based on the notion of purity and pollution.
This Article proscribes untouchability ‘in any form’ as prohibited and the
23
AIR 1957 SC 133
24
(1981) 2 SCC 226
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[DIPAK MISRA, CJI]

exclusion of menstruating women from religious spaces and practices is A
no less a form of discrimination than the exclusion of oppressed castes.
After referring to Section 7(c) of the Civil Rights Act, 1955, which
criminalizes the encouragement and incitement to practise untouchability
in ‘any form whatsoever’ and the Explanation II appended to the said
Section, the learned Amicus has submitted that untouchability cannot be
B
understood in a pedantic sense but must be understood in the context of
the Civil Rights Act to include any exclusion based on the notions of
purity and pollution.
71. It is also the view of the learned Amicus that the phrase ‘equally
entitled to’ in Article 25(1) finds resonance in Section 3(a) of the Civil
Rights Act, 1955 which criminalizes exclusion of people to those places C
which are “open to other persons professing the same religion or any
section thereof, as such person” and prevention of worship “in the same
manner and to the same extent as is permissible to other persons
professing the same religion or any section thereof, as such persons”.
That apart, the learned Amicus has drawn our attention to Section 2(d) D
of the 1955 Act which defines ‘place of public worship’ to mean, inter
alia, ‘by whatever name belonging to any religious denomination or any
section thereof, for the performance of any religious service’ and,
therefore, the Amicus submits that a temple is a public temple and
irrespective of its denominational character, it cannot prevent the entry
of any devotee aspiring to enter and worship. E

72. After placing reliance on the decision of this Court in K.S.
Puttaswamy (supra), the Amicus has submitted that the exclusionary
practice in its implementation results in involuntary 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 F
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 G
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 H
648 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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’
B used in Article 25 or 26 is not an individualized or sectionalized sense of
morality subject to varying practices and ideals of every religion but it is
the morality informed by the constitutional vision. The judgments of this
Court in Adi Saiva Sivachariyargal Nala Sangam (supra), Manoj
Narula v. Union of India25 and National Legal Services Authority
(supra) have been pressed into service by the Amicus to accentuate that
C any subjective reading of the term ‘morality’ in the context of Article 25
would make the liberty of faith and worship otiose and the exclusion of
women as in the present case is a matter of institutional practice and not
morality.
75. The Amicus has also cited the judgments of this Court in
D Acharya Jagadishwarananda Avadhuta (supra) to submit that in order
to claim protection of the doctrine of essential religious practices, the
practice to exclude women from entry to the Sabarimala temple must be
shown by the respondents to be so fundamental to the religious belief
without which the religion will not survive. On the contrary, no scriptural
E evidence has been led by the respondents herein to demonstrate that the
exclusion of women is an essential part of their religion.
76. After referring to Section 3 of the Kerala Hindu Places of
Public Worship (Authorization of Entry) Act, 1965 which makes a place
of worship open to all sections and classes, Mr. Raju Ramchandran,
F learned senior counsel, is of the view that the said Section is nothing but
a statutory enunciation of rights embodied under Article 25(2)(b) and
similarly, the emphasis on the word ‘like’ in Section 3 is the statutory
reflection of the phrase ‘equally’ found in Article 25(1). That apart, it is
the case of the learned Amicus curiae that the expression ‘section’ or
‘class’ in Section 2(c) of the 1965 Act must necessarily include all sexes
G if Section 3 is to be in consonance with a woman’s right to worship
under Article 25 and in consonance with Article 15. As per the learned
Amicus, women between the age of 10 to 50 years are a section or
class of Hindus who are within the inclusive provision of Section 3 and
the proviso to Section 3 brings in the right conferred in Article 26, for the
25
H (2014) 9 SCC 1
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 649
[DIPAK MISRA, CJI]

inter-play between Section 3 and the proviso must be governed by how A
Articles 25(2)(b) and 26 are reconciled by the judgment of this Court in
Devaru (supra).
77. It have 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 B
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 C
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. D
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 writ petition, but in view of the
learned Amicus, this Rule 6(c) would also be unconstitutional for the E
same reason that Rule 3(b) is unconstitutional.
79. The burden to prove that the devotees of Lord Ayyappa form
a denomination within the meaning of Article 26, as per the learned
Amicus, is on the respondents, which they have failed to discharge as
none of the three tests for determination of denominational status, i.e., F
(i) common faith, (ii) common organization and (iii) designation by a
distinctive name, have been established by the respondents. Further, the
Amicus has submitted that the decision of the Kerala High Court in S.
Mahendran (supra) does not indicate finding of a denominational status.
80. It is also submitted by the learned Amicus that Devaswom G
Board in its counter affidavit before the Kerala High Court in S.
Mahendran (supra), had asserted, as is reflected vide para 7 of the
judgment, that there was no such prohibition against women entering the
temple and that there was no evidence to suggest any binding religious
practice and, likewise, the High Court, in its judgment vide para 34, found
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650 SUPREME COURT REPORTS [2018] 9 S.C.R.

A the exclusionary practice as just a usage and not a religious custom or
essential religious practice.
81. The learned Amicus also averred that even if we are to assume
that the devotees of Lord Ayyappa constitute a separate denomination,
the rights conferred under Article 26 being subject to the constitutional
B standard of morality, exclusion of women from entry would violate this
standard of morality for a denomination’s right to manage its affairs in
matters of religion under Article 26(b) is subject to Article 25(2)(b) as
has been succinctly explained by this Court in Devaru (supra) by
observing thus:
C “And lastly, it is argued that whereas Article 25 deals with the
rights of individuals, Article 26 protects the rights of denominations,
and that as what the appellants claim is the right of the Gowda
Saraswath Brahmins to exclude those who do not belong to that
denomination, that would remain unaffected by Article 25(2)(b).
This contention ignores the true nature of the right conferred by
D Article 25(2)(b). That is a right conferred on “all classes and
sections of Hindus” to enter into a public temple, and on the
unqualified terms of that Article, that right must be available,
whether it is sought to be exercised against an individual under
Article 25(1) or against a denomination under Article 26(b). The
E 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
F 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
G 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
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practice in Sabarimala temple is not a religious practice based on religious A
belief for several centuries, rather the petitioners have only argued that
such a practice is violative of Article 25 of the Constitution. It is also
submitted by Mr. K. Ramamoorthy that in any of the judgments cited by
the petitioners, the question never arose as to what the religious practice
on the basis of religious belief is and, accordingly, the question as to
B
whether religious practices based on religious beliefs in all prominent
temples in India are violative of Articles14, 15, 17, 21 and 25 of the
Constitution is to be considered herein.
84. It has been put forth by Mr. K. Ramamoorthy that the protection
of Articles 25 and 26 are not limited to the matters of doctrine or belief,
rather they extend to acts done in pursuance of religion and, therefore, C
contain a guarantee for rituals, observations, ceremonies and modes of
worship which are integral parts of religion. It has been submitted that
what constitutes an essential part of a religious practice is to be decided
with reference to the practices which are regarded by a large section of
the community for several centuries and, therefore, would have to be D
treated as a part of the religion.
85. It has also been averred that Ayyappa temple by itself is a
denomination as contemplated under Article 26 having regard to the
nature of worship and the practices followed by the temple and similarly,
the devotees of Ayyappa temple would also constitute a denomination E
who have accepted the impugned religious practice based on religious
belief which has been in vogue for several centuries unbroken and
accepted by all sections of Hindus.
86. It has been submitted that it is too late in the day to contend
that religious practice based on religious faith, adhered to and followed F
by millions of Hindus for so long in consonance with the natural rights of
men and women is violative of fundamental rights. It is also the case of
the Amicus Mr. K. Ramamoorthy that to project such a religious practice
as being contrary to natural law is a shock to the judgment of the
community, as calling such a religious practice contrary to fundamental
rights amounts to offending the common sense and wisdom of our G
ancestors in faithfully following the command of the divine. Further, no
group or individual can force other Hindus to follow their view in the
domain of religious faith.
87. As regards the challenge raised by the petitioners against Rule
3(b) of the Kerala Hindu Places of Public Worship (Authorization of H
652 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Entry) Rules, 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.
B 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
C 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
D 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 Math could come within this expression. The word
E “denomination” has been defined in the Oxford Dictionary to mean
‘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. It is well known that the
practice of setting up Maths as centres of the logical teaching
was started by Shri Sankaracharya and was followed by various
F teachers since then. After Sankara, came a galaxy of religious
teachers and philosophers who founded the different sects and
sub-sects of the Hindu religion that we find in India at the present
day. Each one of such sects or sub-sects can certainly be balled a
religious denomination, as it is designated by a distinctive name, -
G in many cases it is the name of the founder, -and has a common
faith and common spiritual organization. The followers of
Ramanuja, who are known by the name of Shri Vaishnabas,
undoubtedly constitute a religious denomination; and so do the
followers of Madhwacharya and other religious teachers. It is a
fact well established by tradition that the eight UdipiMaths were
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founded by Madhwacharya himself and the trustees and the A
beneficiaries of these Maths profess to be followers of that teacher.
The High Court has found that the Math in question is in charge
of the Sivalli Brahmins who constitute a section of the followers
of Madhwacharya. As article 26 contemplates not merely a
religious denomination but also a section thereof, the Math or the
B
spiritual fraternity represented by it can legitimately come within
the purview of this article.”
90. In S.P. Mittal (supra), the challenge was with regard to the
validity of the Auroville (Emergency) Provisions Act, 1980 as being
violative of Articles 25 and 26 of the Constitution. Sri Aurobindo postulated
the philosophy of cosmic salvation and along with the disciples found the C
Aurobindo Society for preaching and propagating the teachings of Sri
Aurobindo and The Mother through its centres in India as well as abroad.
After the death of Sri Aurobindo, the Mother proposed an international
cultural township, Auroville, in the then Pondicherry. The society received
funds as grants from the Central Government, State Government and D
other organizations in India as well as from outside India for development
of the township at Auroville. Upon the death of the Mother, the
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 E
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 F
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 G
Committee, will be member of the Society. The membership is
open to people everywhere without any distinction of nationality,
religion, caste, creed or sex.”

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654 SUPREME COURT REPORTS [2018] 9 S.C.R.

A After so referring, the Court opined thus:
“The only condition for membership is that the person seeking the
membership of the Society must subscribe to the aims and objects
of the Society. It was further urged that what is universal cannot
be a religious denomination. In order to constitute a separate
B denomination, there must be something distinct from another. A
denomination, argues the counsel, is one which is different from
the other and if the Society was a religious denomination, then the
person seeking admission to the institution would lose his previous
religion. He cannot be a member of two religions at one and the
same time. But this is not the position in becoming a member of
C the Society and Auroville. A religious denomination must necessarily
be a new one and new methodology must be provided for a religion.
Substantially, the view taken by Sri Aurobindo remains a part of
the Hindu philosophy. There may be certain innovations in his
philosophy but that would not make it a religion on that account.”
D 92. The Court in S.P Mittal (supra) reiterated and concurred
with the definition of ‘religious denomination’ which was also accepted
in Shirur Mutt (supra) and observed as under:
“The words ‘religious denomination’ in Article 26 of the Constitution
must take their colour from the word ‘religion’ and if this be so,
E 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;
F
(2) common organisation, and
(3) designation by a distinctive name.”
93. In the case of Nallor Marthandam Vellalar and others v.
Commissioner, Hindu Religious and Charitable Endowment and
G others26, the question that arose before the Court was whether the temple
at Nellor owned by the Vellala Community of Marthandam constituted a
‘religious denomination’ within the meaning of Article 26 of the
Constitution. It was argued in this case that the Vellala Community
observed special religious practices and beliefs which are integral part
26
(2003) 10 SCC 712
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of their religion and that the front mandappam of the sanctorium is open A
to access only to the members of their community and no one else and
outsiders can offer worship from the outer compound. The Court held
that the temple at Nellor owned by the Vellala Community of Marthandam
did not constitute a religious denomination as there was no evidence to
prove that the members of the Vellala Community had common religious
B
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
C
“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 D
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.” E
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 denomination, it must be a collection of individuals
having a collective common faith, a common organization which adheres
to the said common faith, and last but not the least, the said collection of F
individuals must be labeled, branded and identified by a distinct name.
95. Though, the respondents have urged that the pilgrims coming
to visit the Sabarimala temple being devotees of Lord Ayyappa are
addressed as Ayyappans and, therefore, the third condition for a religious
denomination stands satisfied, is unacceptable. There is no identified G
group called Ayyappans. Every Hindu devotee can go to the temple.
We have also been apprised that there are other temples for Lord
Ayyappa and there is no such prohibition. Therefore, there is no identified
sect. Accordingly, we hold, without any hesitation, that Sabarimala temple
is a public religious endowment and there are no exclusive identified
followers of the cult. H
656 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 96. Coming to the first and the most important condition for a
religious denomination, i.e., the collection of individuals ought to have a
system of beliefs or doctrines which they regard as conducive to their
spiritual well-being, there is nothing on record to show that the devotees
of Lord Ayyappa have any common religious tenets peculiar to
themselves, which they regard as conducive to their spiritual well-being,
B
other than those which are common to the Hindu religion. Therefore,
the devotees of Lord Ayyappa are just Hindus and do not constitute a
separate religious denomination. For a religious denomination, there must
be new methodology provided for a religion. Mere observance of certain
practices, even though from a long time, does not make it a distinct
C religion on that account.
Enforceability of Fundamental Rights under Article 25(1)
against the Travancore Devaswom Board
97. Having stated that the devotees of Lord Ayyappa do not
constitute a religious denomination within the meaning of Article 26 and
D that Sabarimala Temple is a public temple by virtue of the fact that
Section 15 of the 1950 Act vests all powers of direction, control and
supervision over it in the Travancore Devaswom Board which, in our
foregoing analysis, has been unveiled as ‘other authority’ within the
meaning of Article 12, resultantly fundamental rights including those
E guaranteed under Article 25(1) are enforceable against the Travancore
Devaswom Board and 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).
F
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
G 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,
H primarily, with religious worship, rituals and observations as held in Rev.
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 657
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Stainislaus v. State of Madhya Pradesh and others27. Further, it has A
been held in Shirur Mutt (supra) that the logic underlying the constitutional
guarantee regarding ‘practice’ of religion is that religious practices are
as such a part of religion as religious faith or doctrines.
100. The right guaranteed under Article 25(1) has nothing to do
with gender or, for that matter, certain physiological factors, specifically B
attributable to women. Women of any age group have as much a right
as men to visit and enter a temple in order to freely practise a religion as
guaranteed under Article 25(1). When we say so, we are absolutely
alive to the fact that whether any such proposed exclusion of women
from entry into religious places forms an essential part of a religion would
be examined at a subsequent stage. C

101. We have no hesitation to say 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. We concur with the view of the Amicus Curiae, learned senior D
counsel, Mr. Raju Ramachandran, that the right guaranteed under Article
25(1) is not only about inter-faith parity but it is also about intra-faith
parity. Therefore, the right to practise religion under Article 25(1), in its
broad contour, encompasses a non-discriminatory right which is equally
available to both men and women of all age groups professing the same E
religion.
102. Though not in reference to men or women, yet in the context
of any Hindu worshipper seeking entry in a temple which is a public
place of worship for Hindus, the observations of the Supreme Court in
Nar Hari Shastri and others v. Shri Badrinath Temple Committee28 F
are quite instructive wherein the Court opined thus:
“It seems to us that the approach of the court below to this aspect
of the case has not been quite proper, and, to avoid any possible
misconception, we would desire to state succinctly what the correct
legal position is. Once it is admitted, as in fact has been admitted G
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
27
(1977) 1 SCC 677
28
AIR 1952 SC 245 H
658 SUPREME COURT REPORTS [2018] 9 S.C.R.

A or immemorial usage need be asserted or proved…..”
And again:
“The true position, therefore, 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
B 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,
C 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:
D “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
E Constitution. This means the right to worship God according to
the dictates of one’s conscience. 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
F service and so on.”
104. Therefore, it can be said without any hesitation or reservation
that the impugned Rule 3(b) of the 1965 Rules, framed in pursuance of
the 1965 Act, that stipulates exclusion of entry of women of the age
group of 10 to 50 years, is a clear violation of the right of such women to
G practise their religious belief which, in consequence, makes their
fundamental right under Article 25(1) a dead letter. It is clear as crystal
that as long as the devotees, irrespective of their gender and/or age
group, seeking entry to a temple of any caste are Hindus, it is their legal
right to enter into a temple and offer prayers. The women, in the case at
hand, are also Hindus and so, there is neither any viable nor any legal
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limitation on their right to enter into the Sabarimala Temple as devotees A
of Lord Ayyappa and offer their prayers to the deity.
105. When we say so, we may also make it clear that the said
rule of exclusion cannot be justified on the ground that allowing entry to
women of the said age group would, in any way, be harmful or would
play a jeopardizing role to public order, morality, health or, for that matter, B
any other provision/s of Part III of the Constitution, for it is to these
precepts that the right guaranteed under Article 25(1) has been made
subject to.
106. The term ‘morality’ occurring in Article 25(1) of the
Constitution cannot be viewed with a narrow lens so as to confine the C
sphere of definition of morality to what an individual, a section or religious
sect may perceive the term to mean. We must remember that when
there is a violation of the fundamental rights, the term ‘morality’ naturally
implies constitutional morality and any view that is ultimately taken by
the Constitutional Courts must be in conformity with the principles and
basic tenets of the concept of this constitutional morality that gets support D
from the Constitution.
107. In Manoj Narula (supra), this Court has reflected upon the
predominant role that the concept of constitutional morality plays in a
democratic set-up and opined thus:
E
“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. F
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 G
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 others29, observed thus:
29
(2018) 8 SCALE 72 H
660 SUPREME COURT REPORTS [2018] 9 S.C.R.

A “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 an accompanying promise
which stipulates that every member of the country right from its
citizens to the high constitutional functionaries must idolize the
B
constitutional fundamentals. This duty imposed by the Constitution
stems from the fact that the Constitution is the indispensable
foundational base that functions as the guiding force to protect
and ensure that the democratic setup promised to the
citizenry remains unperturbed.”
C 109. Elaborating further, in Navtej Singh Johar and others v.
Union of India and others30, this Court observed:
“The concept of constitutional morality is not limited to the mere
observance of the core principles of constitutionalism as the
magnitude and sweep of constitutional morality is not confined to
D the provisions and literal text which a Constitution contains, rather
it embraces within itself virtues of a wide magnitude such as that
of ushering a pluralistic and inclusive society, while at the same
time adhering to the other principles of constitutionalism. It is
further the result of embodying constitutional morality that the
E values of constitutionalism trickle down and percolate through the
apparatus of the State for the betterment of each and every
individual citizen of the State.”
And again:
“115. The society as a whole or even a minuscule part of the
F society may aspire and prefer different things for themselves.
They are perfectly competent to have such a freedom to be
different, like different things, so on and so forth, provided that
their different tastes and liking remain within their legal framework
and neither violates any statute nor results in the abridgement of
G fundamental rights of any other citizen. The Preambular goals of
our Constitution which contain the noble objectives of Justice,
Liberty, Equality and Fraternity can only be achieved through the
commitment and loyalty of the organs of the State to the principle
of constitutional morality”
30
(2018) 10 SCALE 386
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110. The right guaranteed under Article 25(1) has been made A
subject to, by the opening words of the Article itself, public order, morality,
health and other provisions of Part III of the Constitution. All the three
words, that is, order, morality and health are qualified by the word ‘public’.
Neither public order nor public health will be at peril by allowing entry of
women devotees of the age group of 10 to 50 years into the Sabarimala
B
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. C
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 D
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 E
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 within the meaning of Article 26 of the
Constitution. This leads us to a mathematical certainty that the devotees
of Lord Ayyappa are the followers of Hindu religion. Now, what remains F
to be seen is whether the exclusion of women of the age group of 10 to
50 years is an essential practice under the Hindu religion in the backdrop
of the peculiar attending circumstances attributable to the Sabarimala
temple. For ascertaining the said question, we first need to understand
what constitutes an essential practice for a particular religion which has
been the subject matter of several decisions of this Court. Article 25 G
merely protects the freedom to practise rituals, ceremonies, etc. which
are an integral part of a religion as observed by this Court in John
Vallamattom and another v. Union of India31. While saying so, the
Court ruled that a disposition towards making gift for charitable or religious
31
(2003) 6 SCC 611 H
662 SUPREME COURT REPORTS [2018] 9 S.C.R.

A purpose can be designated as a pious act of a person, but the same
cannot be said to be an integral part of any religion.
113. The role of essential practices to a particular religion has
been well demonstrated by Lord Halsbury in Free Church of Scotland
v. Overtoun32 wherein it was observed:
B “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
C whole forming a but nominally united while really unconnected
mass; fraught with nothing but internal dissimilitude, and mutual
and reciprocal contradiction and dissension.”
114. This Court, in Shirur Mutt (supra), for the first time, held
that what constitutes an essential part of a religion will be ascertained
D with reference to the tenets and doctrines of that religion itself. The
Court had opined thus:
“In the first place, what constitutes the essential part of a religion
is primarily to be ascertained with reference to the doctrines of
that religion itself.”
E 115. In Mohd. Hanif Quareshi v. State of Bihar33, this Court
rejected the argument of the petitioner that sacrifice of cow on Bakr-id
was an essential practice of Mohammedan religion and ruled that it could
be prohibited by the State under Clause 2(a) of Article 25.
116. Similarly, in State of West Bengal and others v. Ashutosh
F Lahiri and others34, 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:
G
“...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
32
(1904) AC 515
33
AIR 1958 SC 731
H 34
AIR 1995 SC 464
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 663
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necessary to be granted for sub-serving an essential religious, A
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 B
Ali and others35, 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 sense, be extraneous and
unessential accretions to religion itself and unless such practices are
found to constitute an essential and integral part of a religion, their claim
for protection as essential practices may have to be carefully scrutinised; C
in other words, the protection must be confined to such religious practices
as are an essential and an integral part of the religion and no other.
118. The Court, in this case, has excluded such practices from
protection which, though may have acquired the characteristic of religious
practices, are found, on careful scrutiny, to be an outcome of some D
superstitious beliefs which may render them unessential and not an integral
part of the religion.
119. In Acharya Jagadishwarananda Avadhuta and others v.
Commissioner of Police, Calcutta36, popularly known as the first
Ananda Marga case, this Court held that Tandav dance in processions E
or at public places by the Ananda Margis carrying lethal weapons and
human skulls was not an essential religious rite of the followers of Ananda
Marga and, therefore, the order under Section 144 Cr.PC. prohibiting
such processions in the interest of public order and morality was not
violative of the rights of the Ananda Marga denomination under Articles F
25 and 26 of the Constitution more so when the order under Section 144
Cr.PC. did not completely ban the processions or gatherings at public
places but only prohibited carrying of daggers, trishuls and skulls which
posed danger to public order and morality.
120. In N. Adithayan v. Travancore Devaswom Board and G
others37, the Court very succinctly laid down as to what should be the
approach of the court for deciding what constitutes an essential practice
of a religion in the following words:
35
AIR 1961 SC 1402
36
(1983) 4 SCC 522
37
(2002) 8 SCC 106 H
664 SUPREME COURT REPORTS [2018] 9 S.C.R.

A “The legal position that the protection under Article 25 and 26
extend a guarantee for rituals and observances, ceremonies and
modes of worship which are integral parts of religion and as to
what really constitutes an essential part of religion or religious
practice has to be decided by the Courts with reference to the
doctrine of a particular religion or practices regarded as parts of
B
religion...”
(Emphasis is ours)
121. In Commissioner of Police and others v. Acharya
Jagadishwarananda Avadhuta and others (supra), being the second
C Ananda Marga case, the Court has elaborately discussed the true nature
of 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:
D “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
E 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 :
F [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 of a religion means
the core beliefs upon which a religion is founded. Essential practice
means those practices that are fundamental to follow a religious
G belief. It is upon the cornerstone of essential parts or practices
the superstructure of religion is built. Without which, a religion
will be no religion. Test to determine whether a part or practice is
essential to the religion is - to find out whether the nature of religion
will be changed without that part or practice. If the taking away
H of that part or practice could result in a fundamental change in the
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 665
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character of that religion or in its belief, then such part could be A
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 is what is protected by the
Constitution. Nobody can say that essential part or practice of
B
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.”
122. In the light of the above authorities, it has to be determined C
whether the practice of exclusion of women of the age group of 10 to 50
years is equivalent to a doctrine of Hindu religion or a practice that could
be regarded as an essential part of the Hindu religion and whether the
nature of Hindu religion would be altered without the said exclusionary
practice. The answer to these questions, in our considered opinion, is in D
the firm negative. In no scenario, it can be said that exclusion of women
of any age group could be regarded as an essential practice of Hindu
religion and on the contrary, it is an essential part of the Hindu religion to
allow Hindu women to enter into a temple as devotees and followers of
Hindu religion and offer their prayers to the deity. In the absence of any
scriptural or textual evidence, we cannot accord to the exclusionary E
practice followed at the Sabarimala temple the status of an essential
practice of Hindu religion.
123. By allowing women to enter into the Sabarimala temple for
offering prayers, it cannot be imagined that the nature of Hindu religion
would be fundamentally altered or changed in any manner. Therefore, F
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. G
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. H
666 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
Court in S. Mahendran (supra) that the Devaswom Board had accepted
before the High Court that female worshippers of the age group of 10 to
50 years used to visit the temple and conducted poojas in every month
for five days for the first rice feeding ceremony of their children. The
Devaswom Board also took a stand before the High Court that restriction
C of entry for women was only during Mandalam, Makaeavilakku and
Vishnu days. The same has also been pointed out by learned Senior
Counsel, Ms. Indira Jaising, that the impugned exclusionary practice in
question is a ‘custom with some aberrations’ as prior to the passing of
the Notification in 1950, women of all age groups used to visit the
Sabarimala temple for the first rice feeding ceremony of their children.
D
126. Therefore, there seems to be no continuity in the exclusionary
practice followed at the Sabarimala temple and in view of this, it cannot
be treated as an essential practice.
Analysis of the 1965 Act and Rule 3(b) of the 1965 Rules
E 127. We may presently deal with the statutory provisions of the
Kerala Hindu Places of Public Worship (Authorisation of Entry) Act,
1965. Section 2 of the said Act is the definition clause and reads as
under:
“2. Definitions.- In this Act, unless the context otherwise
F 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
G
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
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INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 667
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any sacred tanks, wells, springs and water courses the waters of A
which are worshipped or are used for bathing or for worship, but
does not include a “sreekoil”;
(c) “section or class” includes any division, sub-division, caste,
sub-caste, sect or denomination whatsoever. “
128. As per clause (a) of Section 2, the term ‘Hindu’ includes a B
person professing Buddhist, Sikh or Jaina religion. The word ‘person’
occurring in this clause, for the pure and simple reason of logic, must
include all genders. Clause (c) defines ‘section or class’ as any division,
sub-division, caste, sub-caste, sect or denomination whatsoever. Nowhere
the definition of section or class suggests being limited to male division, C
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 D
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; E
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: F
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. “ G
130. Section 3 of the Act being a non-obstante clause declares
that every place of public worship which is open to Hindus generally or
to any section or class thereof shall be open to all sections and classes of
Hindus and no Hindu, of whatsoever section or class, shall be prevented,
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668 SUPREME COURT REPORTS [2018] 9 S.C.R.

A obstructed or discouraged from entering such place of public worship,
or from worshipping, offering prayers or performing any religious service
at such place of public worship in the like manner and to the like extent
as any other Hindu of whatsoever section or class may so be eligible to
enter, worship, pray or perform.
B 131. A careful dissection of Section 3 reveals that places of public
worship in the State of Kerala, irrespective of any contrary law, custom,
usage or instrument having effect by virtue of any such law or any
decree or order of Court, shall be open to all sections and classes of
Hindus. The definition of ‘section or class’ and ‘Hindu’ has to be imported,
for the purposes of Section 3, from the definition clauses 2(a) and 2(c)
C which, as per our foregoing analysis, includes all the genders, provided
they are Hindus. It further needs to be accentuated that the right provided
under Section 3 due to its non-obstante nature has to be given effect to
regardless of any law, custom or usage to the contrary.
132. The proviso to Section 3 stipulates that in case the place of
D public worship is a temple founded for the benefit of any religious
denomination or section thereof, then the rights warranted under Section
3 becomes subject to the right of that religious denomination or section
to manage its own affairs in matters of religion. Having said so, we
have, in the earlier part of this judgment, categorically stated that devotees
E and followers of Lord Ayyappa do not constitute a religious denomination
and, therefore, the proviso to Section 3 cannot be resorted to in the case
at hand.
133. The importance and the gravity of the right stipulated under
Section 3 of this Act, for all sections and classes of Hindus which include
F women, is very well manifest and evident from the fact that its violation
has been made penal under Section 5 of the 1965 Act which reads as
under:
“Section 5 : Penalty
Whoever, in contravention of Section 3,-
G
(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

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INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 669
[DIPAK MISRA, CJI]

(b) obstructs, or causes or attempts to cause obstruction to, or by A
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, B
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: C
“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 trustee or any other person in charge of any place public
worship shall have power, subject to the control of the competent D
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 E
discriminate in any manner whatsoever, against any Hindu on the
ground that he belongs to a particular section or class.
(2) The competent authority referred to in sub-section (1) shall
be,-
F
(i) In relation to a place of public worship situated in any area to
which Part I of the Travancore-Cochin Hindu Religious Institutions
Act, 1950 (Travancore-Cochin Act XV of 1950), extends, the
Travancore Devaswom Board;
(ii) in relation to a place of public worship situated in any area to
which Part II of the said Act extends, the Cochin Devaswom G
Board; and
(iii) in relation to a place of public worship situated in any other
area in the State of Kerala, the Government.”

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670 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 135. The proviso to Section 4 being an exception to Section 4(1)
is a classic example of a situation where the exception is more important
than the rule itself. It needs to be borne in mind that the language of the
proviso to Section 4 of the 1965 Act, in very clear and simple terms,
states that the regulations made under clause (1) of Section 4 shall not
discriminate against any Hindu on the ground that he/she belongs to a
B
particular section or class. As stated earlier, a particular section or class
for the purposes of this Act includes women of all age groups, for Hindu
women of any age group also constitute a class or section of Hindus.
136. The State of Kerala, by virtue of clause (1) of Section 4, has
framed the Kerala Hindu Places of Public Worship (Authorisation of
C Entry) Rules, 1965. The relevant rule which is also the most prominent
bone of contention in the present case is Rule 3(b). The relevant part of
Rule 3 reads thus:
“Rule 3. The classes of persons mentioned here under shall not
be entitled to offer worship in any place of public worship or bath
D 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:
E 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”
F 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. Srinivasan38 wherein it has been
ruled:
G
“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
38
(2012) 7 SCC 683
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 671
[DIPAK MISRA, CJI]

been conferred, it becomes ultra vires. The basic test is to A
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 Yadav39, the Court held that for a rule to have the effect of a B
statutory provision, it must fulfill two conditions, firstly it must conform
to the provisions of the statute under which it is framed and secondly, it
must also come within the scope and purview of the rule making power
of the authority framing the rule and if either of these two conditions is
not fulfilled, the rule so framed would be void. In Kunj Behari Lai
Butail and others v. State of H.P. and others40, it has been laid down C
that for holding a rule to be valid, it must first be determined as to what
is the object of the enactment and then it has to be seen if the rules
framed satisfy the test of having been so framed as to fall within the
scope of such general power conferred and if the rule making power is
not expressed in such a usual general form, then it shall have to be seen D
if the rules made are protected by the limits prescribed by the parent
act. Another authority which defines the limits and confines within which
the rule-making authority shall exercise its delegating powers is Global
Energy Limited and another v. Central Electricity Regulatory
Commission41, where the question before the Court was regarding the
validity of clauses (b) and (f) of Regulation 6- A of the Central Electricity E
Regulatory Commission (Procedure, Terms and Conditions for Grant of
Trading Licence and other Related Matters) Regulations, 2004. The Court
gave the following opinion:
“It is now a well-settled principle of law that the rule-making power
“for carrying out the purpose of the Act” is a general delegation. F
Such a general delegation may not be held to be laying down any
guidelines. Thus, by reason of such a provision alone, the
Regulation-making power cannot be exercised so as to bring into
existence substantive rights or obligations or disabilities which are
not contemplated in terms of the provisions of the said Act.” G
139. It was clearly held in this case that the rule-making power,
which is provided under a statute with the aim of facilitating the
implementation of the statute, does not confer power on any authority to
39
AIR 1988 SC 876
40
AIR 2000 SC 1069
41
(2009) 15 SCC 570
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672 SUPREME COURT REPORTS [2018] 9 S.C.R.

A bring into existence substantive rights or obligations or disabilities which
are not contemplated in terms of the provisions of the said Act. The
Court, further, went on to hold that:
“The image of law which flows from this framework is its neutrality
and objectivity: the ability of law to put sphere of general decision-
B making 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 rule-making,
delegated legislation should establish the structural conditions within
which those processes can function effectively. The question
C 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.”
D 140. At this stage, we may also benefit from the observations
made in State of T.N. and another v. P. Krishnamurthy and others42
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
E violative of the provisions of the enabling statute, then the Courts need
not have to look in any other direction but declare the said rule as invalid
on the said ground alone.
141. Rule 3(b) seeks to protect custom and usage by not allowing
women, Hindu women to be specific, to enter a place of public worship
F at such times during which they are not so allowed to enter by the said
custom or usage. A cursory reading of Rule 3(b) divulges that it is ultra
vires both Section 3 as well as Section 4 of the 1965 Act, the reason
being that Section 3 being a non-obstante provision clearly stipulates
that every place of public worship shall be open to all classes and sections
of Hindus, women being one of them, irrespective of any custom or
G usage to the contrary.
142. That apart, Rule 3(b) is also ultra vires Section 4 of the 1965
Act as the proviso to Section 4(1) creates an exception to the effect that
the regulations/rules made under Section 4(1) shall not discriminate, in
42
(2006) 4 SCC 517
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any manner whatsoever, against any Hindu on the ground that he/she A
belongs to a particular section or class.
143. The language of both the provisions, that is, Section 3 and
the proviso to Section 4(1) of the 1965 Act, clearly indicates 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 B
to the contrary would annihilate the purpose of the 1965 Act and the
fundamental right to practise religion guaranteed under Article 25(1). It
is clear as crystal that the provisions of the 1965 Act are liberal in nature
so as to allow entry to all sections and classes of Hindus including
Scheduled Castes and Scheduled Tribes. But framing of Rule 3(b) of
the 1965 Rules under the garb of Section 4(1) would violate the very C
purpose of the 1965 Act.
Conclusions
144. In view of our aforesaid analysis, we record our conclusions
in seriatim: D
(i) In view of the law laid down by this Court in Shirur Mutt
(supra) and S.P. Mittal (supra), the devotees of Lord Ayyappa
do not constitute a separate religious denomination. They do
not have common religious tenets peculiar to themselves, which
they regard as conducive to their spiritual well-being, other E
than those which are common to the Hindu religion. Therefore,
the devotees of Lord Ayyappa are exclusively Hindus and do
not constitute a separate religious denomination.
(ii) Article 25(1), by employing the expression ‘all persons’,
demonstrates that the freedom of conscience and the right to F
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. G
(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
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674 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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 ‘morality’ occurring in Article 25(1) of the Constitution
C cannot be viewed with a narrow lens so as to confine the sphere
of definition of morality to what an individual, a section or
religious sect may perceive the term to mean. Since the
Constitution has been adopted and given by the people of this
country to themselves, the term public morality in Article 25
has to be appositely understood as being synonymous with
D constitutional morality.
(vi) 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
E enter and offer their prayers at the Sabarimala temple.
(vii) The practice of exclusion of women of the age group of 10 to
50 years being followed at the Sabarimala Temple cannot be
regarded as an essential practice as claimed by the respondent
Board.
F
(viii) In view of the law laid down by this Court in the second
Ananda Marga case, the exclusionary practice being followed
at the Sabarimala Temple cannot be designated as one, the
non-observance of which will change or alter the nature of
Hindu religion. Besides, the exclusionary practice has not been
G observed with unhindered continuity as the Devaswom Board
had accepted before the High Court that female worshippers
of the age group of 10 to 50 years used to visit the temple and
conducted poojas in every month for five days for the first rice
feeding ceremony of their children.
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INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 675

(ix) The exclusionary practice, which has been given the backing A
of a subordinate legislation in the form of Rule 3(b) of the 1965
Rules, framed by the virtue of the 1965 Act, is neither an
essential nor an integral part of the religion.
(x) A careful reading of Rule 3(b) of the 1965 Rules makes it
luculent that it is ultra vires both Section 3 as well as Section B
4 of the 1965 Act, for the simon pure reason that Section 3
being a non-obstante provision clearly stipulates that every place
of public worship shall be open to all classes and sections of
Hindus, women being one of them, irrespective of any custom
or usage to the contrary.
C
(xi) Rule 3(b) is also ultra vires Section 4 of the 1965 Act as the
proviso to Section 4(1) creates an exception to the effect that
the regulations/rules made under Section 4(1) shall not
discriminate, in any manner whatsoever, against any Hindu on
the ground that he/she belongs to a particular section or class.
D
(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 E
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. F
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 G
the Respondents, the said temple, though open to all members of the
public regardless of caste, creed, or religion, is a denominational temple
which claims the fundamental right to manage its own affairs in matters
relating to religion. The question that arises is whether the complete
exclusion of women between the ages of 10 and 50 from entry, and
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676 SUPREME COURT REPORTS [2018] 9 S.C.R.

A consequently, of worship in this temple, based upon a biological factor
which is exclusive to women only, and which is based upon custom
allegedly constituting an essential part of religion, can be said to be violative
of their rights under Article 25. Consequently, whether such women are
covered by Section 3 of the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act, 1965 and whether Rule 3(b) of the Kerala
B
Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is
violative of their fundamental right under Article 25(1) and Article 15(1),
and ultra vires the parent Act.
2. Before answering the question posed on the facts before us, it
is necessary to cover the ground that has been covered by our previous
C decisions on the scope and effect of religious freedom contained in
Articles 25 and 26.
3. In one of the earliest judgments dealing with religious freedom,
namely, Nar Hari Sastri and Ors. v. Shri Badrinath Temple
Committee, 1952 SCR 849, this Court was concerned with the temple
D at Badrinath, which is an ancient temple, being a public place of worship
for Hindus. A representative suit was filed under Order I Rule 8 of the
Code of Civil Procedure, 1908 on behalf of all Deoprayagi Pandas who,
as guides or escorts of pilgrims, sought a declaration that they cannot be
obstructed from entering the precincts of the temple along with their
E “clients” for darshan of the deities inside the temple. This Court held:
“It seems to us that the approach of the court below to this aspect
of the case has not been quite proper, and, to avoid any possible
misconception, we would desire to state succinctly what the correct
legal position is. Once it is admitted, as in fact has been admitted
F in the present case, that the temple is a public place of worship of
the Hindus, the right of entrance into the temple for purposes of
‘darshan’ or worship is a right which flows from the nature of the
institution itself, and for the acquisition of such rights, no custom
or immemorial usage need be asserted or proved. As the Panda
as well as his client are both Hindu worshippers, there can be
G nothing 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
H he renders, does not in any way affect the legal rights of either of
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 677
[R. F. NARIMAN, J.]

them. In law, it makes no difference whether one performs the A
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.
B
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 C
inner sanctuary or as it is said the ‘Holy of Holies’ where the
deity is actually located. Quite apart from these, it is always
competent to the temple authorities to make and enforce rules to
ensure good order and decency of worship and prevent
overcrowding in a temple. Good conduct or orderly behaviour is D
always an obligatory condition of admission into a temple
[Vide Kalidas Jivram v. Gor Parjaram, I.L.R. 15 Bom. p. 309;
Thackeray v. Harbhum, I.L.R. 8 Bom. p. 432], and this principle
has been accepted by and recognised in the Shri Badrinath Temple
Act, section 25 of which provides for framing of bye-laws by the
temple committee inter alia for maintenance of order inside the E
temple and regulating the entry of persons within it [Vide Section
25(1)(m)].
The true position, therefore, 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 F
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, G
the plaintiffs are entitled to a declaration in this form.”
(at pp. 860-862)
4. In chronological sequence, next comes the celebrated Shirur
Math case, viz., The Commissioner, Hindu Religious Endowments,
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678 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
1954 SCR 1005. This case concerned itself with the settlement of a
scheme in connection with a Math known as the Shirur Math, which,
legislation in the form of the Madras Hindu Religious and Charitable
Endowments Act, 1951, sought to interfere with. In history, the Shirur
Math is stated to be one of the eight Maths situated at Udipi in the
B
district of South Kanara and reputed to have been founded by Shri
Madhwacharya, the well-known exponent of dualistic theism in
Hinduism. This judgment being a seminal authority for a large number
of aspects covered under Articles 25 and 26 needs to be quoted in
extenso. The Court first dealt with the individual right contained in Article
C 25 as follows:
“We now come to Article 25 which, as its language indicates,
secures to every person, subject to public order, health and morality,
a freedom not only to entertain such religious belief, as may be
approved of by his judgment and conscience, but also to exhibit
D 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
E 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
F 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
G monastery, or in a temple or parlour meeting.”1
(emphasis supplied)
(at p. 1021)
1
In State Trading Corporation of India Ltd. v. Commercial Tax Officer and Ors.,
(1964) 4 SCR 99, a majority of 9 Judges held that the S.T.C., which is a company
H registered under the Indian Companies Act, 1956, is not a citizen within the meaning of
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 679
[R. F. NARIMAN, J.]

With regard to whether a Math could come within the expression A
“religious denomination” under Article 26, this Court laid down the
following tests:
“As regards Article 26, the first question is, what is the precise
meaning or connotation of the expression “religious denomination”
and whether a Math could come within this expression. The word
B
“denomination” has been defined in the Oxford Dictionary to mean
“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”.
It is well known that the practice of setting up Maths as centers
of theological teaching was started by Shri Sankaracharya and C
was followed by various teachers since then. After Sankara, came
a galaxy of religious teachers and philosophers who founded the
different sects and sub-sects of the Hindu religion that we find in
India at the present day. Each one of such sects or sub-sects can
certainly be called a religious denomination, as it is designated by
D
a distinctive name, — in many cases it is the name of the founder,
and has a common faith and common spiritual organization. The
followers of Ramanuja, who are known by the name of Shri
Vaishnabas, undoubtedly constitute a religious denomination; and
so do the followers of Madhwacharya and other religious teachers.
It is a fact well established by tradition that the eight Udipi Maths E
were founded by Madhwacharya himself and the trustees and
the beneficiaries of these Maths profess to be followers of that
teacher. The High Court has found that the Math in question is in
charge of the Sivalli Brahmins who constitute a section of the
followers of Madhwacharya. As Article 26 contemplates not
F
merely a religious denomination but also a section thereof, the
Math or the spiritual fraternity represented by it can legitimately
come within the purview of this article.”
(emphasis supplied)
(at pp. 1021-1022)
Article 19 of the Constitution of India. In a concurring judgment by Hidayatullah, J., G
the learned Judge, in arriving at this result, held that Articles 15, 16, 18 and 29(1) clearly
refer to natural persons, i.e., individuals (See p. 127). The learned Judge went on to hold
that in Articles 14, 20, 27 and 31, the word “person” would apply to individuals as well
as to corporations (See p. 147). What is conspicuous by its absence is Article 25(1),
which also uses the word “person”, which, as Shirur Math (supra) states above, can
apply only to natural persons. Consequently, the argument that an idol can exercise
fundamental rights contained in Article 25(1), as urged by some of the Respondents, H
must be rejected.
680 SUPREME COURT REPORTS [2018] 9 S.C.R.

A With regard to what constitutes “religion”, “religious practice”,
and “essential religious practices”, as opposed to “secular practices”,
this Court held:

“It will be seen that besides the right to manage its own affairs in
matters of religion, which is given by clause (b), the next two
B clauses of Article 26 guarantee to a religious denomination the
right to 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.
C 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?
D 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
E 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 above definition can be regarded as either precise
or adequate. Articles 25 and 26 of our Constitution are based for
the most part upon Article 44(2) of the Constitution of Eire and
F we have great doubt whether a definition of “religion” as given
above could have been in the minds of our Constitution-makers
when they framed the Constitution. Religion is certainly a matter
of faith with individuals or communities and it is not necessarily
theistic. There are well known religions in India like Buddhism
G and Jainism which do not believe in God or in any Intelligent First
Cause. A religion undoubtedly has its basis in a system of beliefs
or doctrines which are regarded by those who profess that religion
as conducive to their spiritual well being, but it would not be correct
to say that religion is nothing else but a doctrine or belief. A religion

H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 681
[R. F. NARIMAN, J.]

may not only lay down a code of ethical rules for its followers to A
accept, it might prescribe rituals and observances, ceremonies
and modes of worship which are regarded as integral parts of
religion, and these forms and observances might extend even to
matters of food and dress.
The guarantee under our Constitution not only protects the freedom B
of religious opinion but it protects also acts done in pursuance of a
religion and this is made clear by the use of the expression “practice
of religion” in Article 25. Latham, C.J. of the High Court of
Australia while dealing with the provision of section 116 of the
Australian Constitution which inter alia forbids the Commonwealth C
to prohibit the “free exercise of any religion” made the following
weighty observations [Vide Adelaide Company v.
Commonwealth, 67 C.L.R. 116, 127]:
“It is sometimes suggested in discussions on the subject of
freedom of religion that, though the civil Government should
D
not interfere with religious opinions, it nevertheless may deal
as it pleases with any acts which are done in pursuance of
religious belief without infringing the principle of freedom of
religion. It appears to me to be difficult to maintain this
distinction as relevant to the interpretation of section 116. The
section refers in express terms to the exercise of religion, and E
therefore it is intended to protect from the operation of any
Commonwealth laws acts which are done in the exercise of
religion. Thus the section goes far beyond protecting liberty of
opinion. It protects also acts done in pursuance of religious
belief as part of religion.”
F
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
G
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
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682 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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,
B 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 itself. If the tenets of any religious sect
of the Hindus prescribe that offerings of food should be given to
the idol at particular hours of the day, that periodical ceremonies
should be performed in a certain way at certain periods of the
C year or that there should be daily recital of sacred texts or oblations
to the sacred fire, all these would be regarded as parts of religion
and the mere fact that they involve expenditure of money or
employment of priests and servants or the use of marketable
commodities would not make them secular activities partaking of
D a commercial or economic character; all of them are religious
practices and should be regarded as matters of religion within the
meaning of Article 26(b). What Article 25(2)(a) contemplates is
not regulation by the State of religious practices as such, the
freedom of which is guaranteed by the Constitution except when
they run counter to public order, health and morality, but regulation
E of activities which are economic, commercial or political in their
character though they are associated with religious practices. We
may refer in this connection to a few American and Australian
cases, all of which arose out of the activities of persons connected
with the religious association known as “Jehovah’s Witnesses.”
F This association of persons loosely organised throughout Australia,
U.S.A. and other countries regard the literal interpretation of the
Bible as fundamental to proper religious beliefs. This belief in the
supreme authority of the Bible colours many of their political ideas.
They refuse to take oath of allegiance to the king or other
constituted human authority and even to show respect to the
G national flag, and they decry all wars between nations and all
kinds of war activities. In 1941 a company of “Jehovah’s
Witnesses” incorporated in Australia commenced proclaiming and
teaching matters which were prejudicial to war activities and the
defence of the Commonwealth and steps were taken against them
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 683
[R. F. NARIMAN, J.]

under the National Security Regulations of the State. The legality A
of the action of the Government was questioned by means of a
writ petition before the High Court and the High Court held that
the action of the Government was justified and that section 116,
which guaranteed freedom of religion under the Australian
Constitution, was not in any way infringed by the National Security
B
Regulations [Vide Adelaide Company 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 C
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) D
(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 E
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 authority has any jurisdiction to interfere with their decision F
in such matters. Of course, the scale of expenses to be incurred
in connection with these religious observances would be a matter
of administration of property belonging to the religious
denomination and can be controlled by secular authorities in
accordance with any law laid down by a competent legislature; G
for it could not be the injunction of any religion to destroy the
institution and its endowments by incurring wasteful expenditure
on rites and ceremonies. It should be noticed, however, that under
Article 26(d), it is the fundamental right of a religious denomination
or its representative to administer its properties in accordance
H
684 SUPREME COURT REPORTS [2018] 9 S.C.R.

A with law; and the law, therefore, must leave the right of
administration to the religious denomination itself subject to such
restrictions and regulations as it might choose to impose. A law
which takes away the right of administration from the hands of a
religious denomination altogether and vests it in any other authority
would amount to a violation of the right guaranteed under clause
B
(d) of Article 26.”
(at pp. 1028-1029)
5. Close on the heels of this judgment, followed the judgment in
Ratilal Panachand Gandhi v. State of Bombay and Ors., 1954 SCR
1055. In this case, two connected appeals – one by the manager of a
C Swetamber Jain public temple and one by the trustees of the Parsi
Punchayet, assailed the constitutional validity of the Bombay Public Trusts
Act, 1950. Dealing with the freedoms contained in Articles 25 and 26,
this Court held:
“Article 25 of the Constitution guarantees to every person and
D not merely to the citizens of India the freedom of conscience and
the right freely to profess, practise and propagate religion. This is
subject, in every case, to public order, health and morality. Further
exceptions are engrafted upon this right by clause (2) of the Article.
Sub-clause (a) of clause (2) saves the power of the State to make
E laws regulating or restricting any economic, financial, political or
other secular activity which may be associated with religious
practice; and sub-clause (b) reserves the State’s power to make
laws providing for social reform and social welfare even though
they might interfere with religious practices. Thus, subject to the
restrictions which this Article imposes, every person has a
F 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. It is immaterial
G 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
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 685
[R. F. NARIMAN, J.]

contemplates is not State regulation of the religious practices as A
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 B
of the subject of religious freedom. Under this article, any religious
denomination or a section of it has the guaranteed right to establish
and maintain institutions for religious and charitable purposes and
to manage in its own way all affairs in matters of religion. Rights
are also given to such denomination or a section of it to acquire
and own movable and immovable properties and to administer C
such properties in accordance with law. The language of the two
clauses (b) and (d) of Article 26 would at once bring out the
difference between the two. In regard to affairs in matters of
religion, the right of management given to a religious body is a
guaranteed fundamental right which no legislation can take away. D
On the other hand, as regards administration of property which a
religious denomination is entitled to own and acquire, it has
undoubtedly the right to administer such property but only in
accordance with law. This means that the State can regulate the
administration of trust properties by means of laws validly enacted;
but here again it should be remembered that under Article 26(d), E
it is the religious denomination itself which has been given the
right to administer its property in accordance with any law which
the State may validly impose. A law, which takes away the right
of administration altogether from the religious denomination and
vests it in any other or secular authority, would amount to violation F
of the right which is guaranteed by Article 26(d) of the Constitution.
The moot point for consideration, therefore, is where is the line to
be drawn between what are matters of religion and what are not?
Our Constitution-makers have made no attempt to define what
‘religion’ is and it is certainly not possible to frame an exhaustive G
definition of the word ‘religion’ which would be applicable to all
classes of persons. As has been indicated in the Madras case
referred to above, the definition of ‘religion’ given by Fields, J. in
the American case of Davis v. Beason [133 U.S. 333], does not
seem to us adequate or precise. “The term ‘religion’ “, thus
H
686 SUPREME COURT REPORTS [2018] 9 S.C.R.

A observed the learned Judge in the case mentioned above, “has
reference to one’s views of his relations to his Creator and to the
obligations they impose of reverence for His Being and character
and of obedience to His Will. It is often confounded with cultus
or form of worship of a particular sect, but is distinguishable from
the latter”. It may be noted that ‘religion’ is not necessarily theistic
B
and in fact there are well known religions in India 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
C 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
D
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
E 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
F distinction as relevant to the interpretation of section 116. The
section refers in express terms to the exercise of religion, and
therefore it is intended to protect from the operation of any
Commonwealth laws acts which are done in the exercise of
religion. Thus the section goes far beyond protecting liberty of
opinion. It protects also acts done in pursuance of religious
G belief as part of religion.”
In our opinion, as we have already said in the Madras case, these
observations apply fully to the provision regarding religious freedom
that is embodied in our Constitution.

H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 687
[R. F. NARIMAN, J.]

Religious practices or performances of acts in pursuance of A
religious belief are as much a part of religion as faith or belief in
particular doctrines. Thus if the tenets of the Jain or the Parsi
religion lay down that certain rites and ceremonies are to be
performed at certain times and in a particular manner, it cannot
be said that these are secular activities partaking of commercial
B
or economic character simply because they involve expenditure
of money or employment of priests or the use of marketable
commodities. No outside authority has any right to say that these
are not essential parts of religion and it is not open to the secular
authority of the State to restrict or prohibit them in any manner
they like under the guise of administering the trust estate. Of C
course, the scale of expenses to be incurred in connection with
these religious observances may be and is a matter of administration
of property belonging to religious institutions; and if the expenses
on these heads are likely to deplete the endowed properties or
affect the stability of the institution, proper control can certainly
D
be exercised by State agencies as the law provides. We may
refer in this connection to the observation of Davar, J. in the case
of Jamshed ji v. Soonabai [33 Bom. 122], and although they
were made in a case where the question was whether the bequest
of property by a Parsi testator for the purpose of perpetual
celebration of ceremonies like Muktad baj, Vyezashni, etc., which E
are sanctioned by the Zoroastrian religion were valid charitable
gifts, the observations, we think, are quite appropriate for our
present purpose. “If this is the belief of the community” thus
observed the learned Judge, “and it is proved undoubtedly to be
the belief of the Zoroastrian community,—a secular Judge is bound
F
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 G
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
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688 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
appellants.”
(at pp. 1062-1066)
6. We now come to the famous Mulki Temple case. In this
judgment, namely, Sri Venkataramana Devaru and Ors. v. State of
C Mysore and Ors., 1958 SCR 895, (“Sri Venkataramana Devaru”),
an ancient temple dedicated to Sri Venkataramana, renowned for its
sanctity, was before the Court in a challenge to the Madras Temple
Entry Authorisation Act (V of 1947). It was noticed that the trustees of
this temple were all members of a sect known as the Gowda Saraswath
Brahmins. Even though the temple had originally been founded for the
D benefit of certain immigrant families of the Gowda Saraswath Brahmins,
in the course of time, however, worshippers consisted of all classes of
Hindus. Finding that the said temple is a public temple, it was further
held that during certain religious ceremonies, persons other than Gowda
Saraswath Brahmins had been wholly excluded, as a result of which,
E the temple was held to be a religious denomination within the meaning of
Article 26. The Court then found that if an image becomes defiled or if
there is any departure or violation of any of the rules relating to worship,
as a result of entry of certain persons into the temple, an essential religious
practice can be said to have been affected. The Court held:

F “According to the Agamas, an image becomes defiled if there is
any departure or violation of any of the rules relating to worship,
and purificatory ceremonies (known as Samprokshana) have to
be performed for restoring the sanctity of the shrine. Vide judgment
of Sadasiva Aiyar, J., in Gopala Muppanar v. Subramania Aiyar
[(1914) 27 MLJ 253]. In Sankaralinga Nadan v. Raja
G Rajeswara Dorai [(1908) L.R. 35 I.A. 176], it was held by the
Privy Council affirming the judgment of the Madras High Court
that a trustee who agreed to admit into the temple persons who
were not entitled to worship therein, according to the Agamas
and the custom of the temple was guilty of breach of trust. Thus,
H under the ceremonial law pertaining to temples, who are entitled
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 689
[R. F. NARIMAN, J.]

to enter into them for worship and where they are entitled to A
stand and worship and how the worship is to be conducted are all
matters of religion. The conclusion is also implicit in Art. 25 which
after declaring that all persons are entitled freely to profess,
practice and propagate religion, enacts that this should not affect
the operation of any law throwing open Hindu religious institutions
B
of a public character to all classes and sections of Hindus. We
have dealt with this question at some length in view of the
argument of the 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 C
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 D
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. E
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 F
two provisions which cannot be reconciled with each other, they
should be so interpreted that, if possible, effect could be given to
both. This is what is known as the rule of harmonious construction.
Applying this rule, 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, G
the language of that Article includes them. On the other hand, if
the contention of the respondents is accepted, then full effect can
be given to Art. 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 Art. 25(2)(b) will prevail. While, in the H
690 SUPREME COURT REPORTS [2018] 9 S.C.R.

A former case, Art. 25(2)(b) will be put wholly out of operation, in
the latter, effect can be given to both that provision and Art. 26(b).
We must accordingly hold that Art. 26(b) must be read subject to
Art. 25(2)(b).”
(at pp. 917-918)
B When there is no general or total exclusion of members of the
public from worship in the temple, but exclusion from only certain religious
services, it was held:
“We have held that the right of a denomination to wholly exclude
members of the public from worshipping in the temple, though
C 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
D by the rules of the foundation to the members of the denomination,
then the question is not whether Art. 25(2)(b) overrides that right
so as extinguish it, but whether it is possible — so to regulate the
rights of the persons protected by Art. 25(2)(b) as to give effect
to both the rights. If the denominational rights are such that to
give effect to them would substantially reduce the right conferred
E 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
F husk of it, there is no reason why we should not so construe Art.
25(2)(b) as to give effect to Art. 26(b) and recognise the rights of
the denomination in respect of matters which are strictly
denominational, leaving the rights of the public in other respects
unaffected.”

G (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
H
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[R. F. NARIMAN, J.]

of Soofies. The argument that as people from all religious faiths came to A
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 B
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 C
the vires of the Act is a section or a religious denomination. This
position appears to have been assumed in the High Court and we
do not propose to make any departure in that behalf in dealing
with the present appeal.”
(emphasis supplied) D
(at p. 401)
8. The judgment in Shirur Math (supra) was followed, as was
Sri Venkataramana Devaru (supra), for the determining tests of what
would constitute a “religious denomination” and what could be said to be
essential and integral parts of religion as opposed to purely secular E
practices. An important sentence was added to what has already been
laid down in these two judgments:
“…… 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. ……” F
(at p. 412)
9. In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay,
1962 Supp. (2) SCR 496, this Court struck down the Bombay Prevention
of Excommunication Act, 1949, with Chief Justice Sinha dissenting.
Though the learned Chief Justice’s judgment is a dissenting judgment, G
some of the principles laid down by the learned Chief Justice, not
dissented from by the majority judgment, are apposite and are, therefore,
set out hereunder:-
“…… It is noteworthy that the right guaranteed by Art. 25 is an
individual right as distinguished from the right of an organised H
692 SUPREME COURT REPORTS [2018] 9 S.C.R.

A body like a religious denomination or any section thereof, dealt
with by Art. 26. Hence, every member of the community has the
right, so long as he does not in any way interfere with the
corresponding rights of others, to profess, practice and propagate
his religion, and everyone is guaranteed his freedom of conscience.
……… The Constitution has left every person free in the matter
B
of his relation to his Creator, if he believes in one. It is, thus, clear
that a person is left completely free to worship God according to
the dictates of his conscience, and that his right to worship as he
pleased is unfettered so long as it does not come into conflict with
any restraints, as aforesaid, imposed by the State in the interest of
C public order, etc. A person is not liable to answer for the verity of
his religious views, and he cannot be questioned as to his religious
beliefs, by the State or by any other person. Thus, though his
religious beliefs are entirely his own and his freedom to hold those
beliefs is absolute, he has not the absolute right to act in any way
he pleased in exercise of his religious beliefs. He has been
D
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
E 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 well-
being 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
F
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
G consent, that is to say, by a competent legislature. It was on such
humanitarian grounds, and for the purpose of social reform, that
so called religious practices like immolating a widow at the pyre
of her deceased husband, or of dedicating a virgin girl of tender
years to a God to function as a devadasi, or of ostracizing a person
from all social contacts and religious communion on account of
H
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[R. F. NARIMAN, J.]

his having eaten forbidden food or taboo, were stopped by A
legislation.”
(emphasis supplied)
(at pp. 518-520)
The learned Chief Justice upheld the said Act, stating that the Act
is aimed at fulfillment of the individual liberty of conscience guaranteed B
by Article 25(1) of the Constitution, and not in derogation of it. Also, the
learned Chief Justice stated that the Act really carried out the strict
injunction of Article 17 of the Constitution of India by which untouchability
has been abolished, and held that, as excommunication is a form of
untouchability, the Act is protected by Article 17 and must therefore be
upheld. C

The majority judgment, however, by K.C. Das Gupta, J. held the
Act to be constitutionally infirm as it was violative of Article 26(b) as
follows:
“Let us consider first whether the impugned Act contravenes the D
provisions of Art. 26(b). It is unnecessary for the purpose of the
present case to enter into the difficult question whether every
case of excommunication by the Dai on whatever grounds inflicted
is a matter of religion. What appears however to be clear is that
where an excommunication is itself based on religious grounds
such as lapse from the orthodox religious creed or doctrine (similar E
to what is considered heresy, apostasy or schism under the Canon
Law) or breach of some practice considered as an essential part
of the religion by the Dawoodi Bohras in general, excommunication
cannot but be held to be for the purpose of maintaining the strength
of the religion. It necessarily follows that the exercise of this power F
of excommunication on religious grounds forms part of the
management by the community, through its religious head, “of its
own affairs in matters of religion.” The impugned Act makes even
such excommunications invalid and takes away the power of the
Dai as the head of the community to excommunicate even on
religious grounds. It therefore, clearly interferes with the right of G
the Dawoodi Bohra community under clause (b) of Art. 26 of the
Constitution.”
(at p. 535)

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694 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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:-—
B “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;
C (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
D
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 religious grounds and
E that the Act prevents such loss, does not offer sufficient basis for
a conclusion that it is a law “providing for social welfare and
reform.” The barring of excommunication on grounds other than
religious grounds, say, on the breach of some obnoxious social
rule or practice might be a measure of social reform and a law
which bars such excommunication merely might conceivably come
F
within the saving provisions of clause 2(b) of Art. 25. But barring
of excommunication on religious grounds pure and simple, cannot
however be considered to promote social welfare and reform and
consequently the law insofar as it invalidates excommunication
on religious grounds and takes away the Dai’s power to impose
G such excommunication cannot reasonably be considered to be a
measure of social welfare and reform. As the Act invalidates
excommunication on any ground whatsoever, including religious
grounds, it must be held to be in clear violation of the right of the
Dawoodi Bohra community under Art. 26(b) of the Constitution.”
H (at pp. 536-537)
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 695
[R. F. NARIMAN, J.]

In an illuminating concurring judgment, N. Rajagopala Ayyangar, A
J. upheld the Act on the ground that excommunication is not so much a
punishment but is really used as a measure of discipline for the
maintenance of the integrity of the Dawoodi Bohra community. It therefore
violates the right to practice religion guaranteed by Articles 25(1) and 26
in that it interferes with the right of the religious head – the Dai – to
B
administer, as trustee, the property of the denomination so as to exclude
excommunicated persons. The learned Judge, however, drew a distinction
between the two parts of Article 25(2)(b), stating that the expression
“social welfare and reform” could not affect essential parts of religious
practice as follows:
“But very different considerations arise when one has to deal C
with legislation which is claimed to be merely a measure “providing
for social welfare and reform.” To start with, it has to be admitted
that this phrase is, as contrasted with the second portion of Art.
25(2)(b), far from precise and is flexible in its content. In this
connection it has to be borne in mind that limitations imposed on D
religious practices on the ground of public order, morality or health
have already been saved by the opening words of Art. 25(1) and
the saving would cover beliefs and practices even though
considered essential or vital by those professing the religion. I
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 E
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 F
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 G
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 legislature to “reform” H
696 SUPREME COURT REPORTS [2018] 9 S.C.R.

A a religion out of existence or identity. Art. 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
B
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).”
(at pp. 552-553)
C 10. As this view is the view of only one learned Judge, and as it
does not arise for decision in the present case, suffice it to say that this
view will need to be tested in some future case for its validity. It is
instructive to remember that Shirur Math (supra) specifically contained
a sentence which stated that there is a further right given to the State by
Article 25(2)(b) under which, the State can legislate for social welfare
D and reform “even though by so doing it might interfere with religious
practices”. We, therefore, leave this part of Article 25(2)(b) to be focused
and deliberated upon in some future case.
11. In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan
and Ors., (1964) 1 SCR 561, otherwise referred to as the Nathdwara
E Temple case, this Court was concerned with the validity of the
Nathdwara Temple Act, 1959. Referring to and following some of the
judgments that have already been referred, this Court held that the
Nathdwara temple was a public temple and that as the Act extinguished
the secular office of the Tilkayat by which he was managing the properties
F of the Temple, no right under Article 26 could be said to have been
effected. In an instructive passage, this Court laid down certain tests as
to what could be said to be an essential or integral part of religion as
opposed to purely secular practice, and laid down what is to be done to
separate what may not always be oil from water. The Court held as
follows:
G
“In deciding the question as to whether a given religious practice
is an integral part of the religion or not, the test always would be
whether it is regarded as such by the community following the
religion or not. This formula may in some cases present difficulties
in its operation. Take the case of a practice in relation to food or
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 697
[R. F. NARIMAN, J.]

dress. If in a given proceeding, one section of the community A
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
B
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 C
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
D
conscience of the community and the tenets of its religion. It is in
the light of this possible complication which may arise in some
cases that this Court struck a note of caution in the case of The
Durgah Committee Ajmer v. Syed Hussain Ali [(1962) 1 SCR
383, 411], and observed that in order that the practices in question
should be treated as a part of religion they must be regarded by E
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 Art. 25(1).
F
In this connection, it cannot be ignored that what is protected
under Arts. 25(1) and 26(b) respectively are the religious practices
and the right to manage affairs in matters of religion. If the practice
in question is purely secular or the affair which is controlled by
the statute is essentially and absolutely secular in character, it
cannot be urged that Art. 25(1) or Art. 26(b) has been contravened. G
The protection is given to the practice of religion and to the
denomination’s right to manage its own affairs in matters of religion.
Therefore, whenever a claim is made on behalf of an individual
citizen that the impugned statute contravenes his fundamental right
H
698 SUPREME COURT REPORTS [2018] 9 S.C.R.

A to practise religion or a claim is made on behalf of the denomination
that the fundamental right guaranteed to it to manage its own
affairs in matters of religion is contravened, it is necessary to
consider whether the practice in question is religious or the affairs
in respect of which the right of management is alleged to have
been contravened are affairs in matters of religion. If the practice
B
is a religious practice or the affairs are the affairs in matter of
religion, then, of course, the rights guaranteed by Art. 25(1) and
Art. 26(b) cannot be contravened.
It is true that the decision of the question as to whether a certain
practice is a religious practice or not, as well as the question as to
C whether an affair in question is an affair in matters of religion or
not, may present difficulties because sometimes practices, religious
and secular, are inextricably mixed up. This is more particularly
so in regard to Hindu religion because as is well known, under the
provisions of ancient Smritis, all human actions from birth to death
D and most of the individual actions 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).
E 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
F 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
G of religion, or if an obviously secular practice is alleged to be a
religious practice, the Court would be justified in rejecting the
claim because the protection guaranteed by Art. 25(1) and Art.
26(b) cannot be extended to secular practices and affairs in regard
to denominational matters which are not matters of religion, and
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 699
[R. F. NARIMAN, J.]

so, a claim made by a citizen that a purely secular matter amounts A
to a religious practice, or a similar claim made on behalf of the
denomination that a purely secular matter is an affair in matters
of religion, may have to be rejected on the ground that it is based
on irrational considerations and cannot attract the provisions of
Art. 25(1) or Art 26(b). This aspect of the matter must be borne
B
in mind in dealing with the true scope and effect of Art. 25(1) and
Art. 26(b).”
(at pp. 620-623)
12. In Seshammal and Ors. v. State of Tamil Nadu, (1972) 2
SCC 11, the validity of the Tamil Nadu Hindu Religious and Charitable C
Endowments (Amendment) Act, 1970 was questioned by hereditary
Archakas and Mathadhipatis of some ancient temples of Tamil Nadu, as
the Amendment Act did away with the hereditary right of succession to
the office of Archaka even if the Archaka was otherwise qualified. This
Court repelled such challenge but in doing so, spoke of the importance
of the consecration of an idol in a Hindu temple and the rituals connected D
therewith, as follows:
“11. ……… On the consecration of the image in the temple the
Hindu worshippers believe that the Divine Spirit has descended
into the image and from then on the image of the deity is fit to be
worshipped. Rules with regard to daily and periodical worship E
have been laid down for securing the continuance of the Divine
Spirit. The rituals have a two-fold object. One is to attract the lay
worshipper to participate in the worship carried on by the priest
or Archaka. It is believed that when a congregation of worshippers
participates in the worship a particular attitude of aspiration and F
devotion is developed and confers great spiritual benefit. The
second object is to preserve the image from pollution, defilement
or desecration. It is part of the religious belief of a Hindu worshipper
that when the image is polluted or defiled the Divine Spirit in the
image diminishes or even vanishes. That is a situation which every
devotee or worshipper looks upon with horror. Pollution or G
defilement may take place in a variety of ways. According to the
Agamas, an image becomes defiled if there is any departure or
violation of any of the rules relating to worship. In fact, purificatory
ceremonies have to be performed for restoring the sanctity of the
shrine [1958 SCR 895 (910)]. Worshippers lay great store by the H
700 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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.
B 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
C 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 include conversion. The Court
held:
D
“We have no doubt that it is in this sense that the word ‘propagate’
has been used in Article 25(1), for what the Article grants is not
the right to convert another person to one’s own religion, but to
transmit or spread one’s religion by an exposition of its tenets. It
has to be remembered that Article 25(1) guarantees “freedom of
E conscience” to every citizen, and not merely to the followers of
one particular religion, and that, in turn, postulates that there is no
fundamental right to convert another person to one’s own religion
because if a person purposely undertakes the conversion of another
person to his religion, as distinguished from his effort to transmit
F or spread the tenets of his religion, that would impinge on the
“freedom of conscience” guaranteed to all the citizens of the
country alike.
The meaning of guarantee under Article 25 of the Constitution
came up for consideration in this Court in Ratilal Panachand
G Gandhi v. The State of Bombay & Ors. [1954 SCR 1055, 1062-
63] and it was held as follows:
“Thus, 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
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 701
[R. F. NARIMAN, J.]

ideas in such overt acts as are enjoined or sanctioned by his A
religion and further to propagate his religious views for the
edification of others.”
This Court has given the correct meaning of the Article, and we
find no justification for the view that it grants a fundamental right
to convert persons to one’s own religion. It has to be appreciated B
that the freedom of religion enshrined in the Article is not guaranteed
in respect of one religion only, but covers all religions alike, and it
can be properly enjoyed by a person if he exercises his right in a
manner commensurate with the like freedom of persons following
the other religions. What is freedom for one, is freedom for the
other, in equal measure, and there can therefore be no such thing C
as a fundamental right to convert any person to one’s own
religion.”
(at pp. 616-617)
14. In S.P. Mittal v. Union of India and Ors., (1983) 1 SCC 51, D
(“S.P. Mittal”), this Court upheld the constitutional validity of the
Auroville (Emergency Provisions) Act, 1980. After referring to Shirur
Math (supra) and Durgah Committee (supra), the Court laid down
three tests for determining whether a temple could be considered to be
a religious denomination as follows:
E
“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 F
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 G
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: H
702 SUPREME COURT REPORTS [2018] 9 S.C.R.

A “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 organisation either in India or
abroad who subscribes to the aims and objects of the Society,
B 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.”
The only condition for membership is that the person seeking the
C membership of the Society must subscribe to the aims and objects
of the Society. It was further urged that what is universal cannot
be a religious denomination. In order to constitute a separate
denomination, there must be something distinct from another. A
denomination argues the counsel, is one which is different from
the other and if the Society was a religious denomination, then the
D person seeking admission to the institution would lose his previous
religion. He cannot be a member of two religions at one and the
same time. But this is not the position in becoming a member of
the Society and Auroville. A religious denomination must necessarily
be a new one and new methodology must be provided for a religion.
E Substantially, the view taken by Sri Aurobindo remains a part of
the Hindu philosophy. There may be certain innovations in his
philosophy but that would not make it a religion on that account.”
After referring to the arguments of both sides, the Court did not
answer the question as to whether the Sri Aurobindo Society was a
F religious denomination, but proceeded on the assumption that it was, and
then held that the Act did not violate either Article 25 or Article 26.
In a separate opinion by Chinnappa Reddy, J., without adverting
to the argument contained in paragraph 106 of Misra, J.’s judgment, the
learned Judge concluded that “Aurobindoism” could be classified as a
G new sect of Hinduism and the followers of Sri Aurobindo could, therefore,
be termed as a religious denomination. This was done despite the fact
that Sri Aurobindo himself disclaimed that he was founding a new religion
and that the Society had represented itself as a “non-political, non-religious
organization” and claimed exemption from income tax on the ground
that it was engaged in educational, cultural, and scientific research.
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15. We then come to Acharya Jagdishwaranand Avadhuta and A
Ors. v. Commissioner of Police, Calcutta and Anr., (1983) 4 SCC
522. This judgment concerned itself with whether “Ananda Marga” is a
separate religious denomination. After referring to the tests laid down in
Shirur Math (supra), Durgah Committee (supra), and S.P. Mittal
(supra), this Court held that Ananda Margis belong to the Hindu religion,
B
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 C
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 D
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 religious order is of recent origin and Tandava dance
as a part of religious rites of that order is still more recent. It is E
doubtful as to whether in such circumstances Tandava dance can
be taken as an essential religious rite of the Ananda Margis. Even
conceding that it is so, it is difficult to accept Mr. Tarkunde’s
argument that taking out religious processions with Tandava dance
is an essential religious rite of Ananda Margis. In paragraph 17 of F
the writ petition the petitioner pleaded that “Tandava dance lasts
for a few minutes where two or three persons dance by lifting
one leg to the level of the chest, bringing it down and lifting the
other”. In paragraph 18 it has been pleaded that “when the Ananda
Margis greet their spiritual preceptor at the airport, etc., they
arrange for a brief welcome dance of Tandava wherein one or G
two persons use the skull and symbolic knife and dance for two
or three minutes”. In paragraph 26 it has been pleaded that
“Tandava is a custom among the sect members and it is a customary
performance and its origin is over four thousand years old, hence
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A it is not a new invention of Ananda Margis”. On the basis of the
literature of the Ananda Marga denomination it has been contended
that there is prescription of the performance of Tandava dance
by every follower of Ananda Marga. Even conceding that Tandava
dance has been prescribed as a religious rite for every follower of
the Ananda Marga it does not follow as a necessary corollary
B
that Tandava dance to be performed in the public is a matter of
religious rite. In fact, there is no justification in any of the writings
of Sri Ananda Murti that Tandava dance must be performed in
public. At least none could be shown to us by Mr. Tarkunde despite
an enquiry by us in that behalf. We are, therefore, not in a position
C to accept the contention of Mr. Tarkunde that performance of
Tandava dance in a procession or at public places is an essential
religious rite to be performed by every Ananda Margi.”
16. In Sri Adi Visheshwara of Kashi Vishwanath Temple,
Varanasi and Ors. v. State of U.P. and Ors., (1997) 4 SCC 606, (“Sri
D Adi Visheshwara”), this Court upheld the constitutional validity of the
Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983. In so doing,
they referred to the tests of a religious denomination laid down in the
previous judgments of this Court, and then held:
“33. Thus, it could be seen that every Hindu whether a believer
E 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
F 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
G 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
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a religious denomination in the matter of management, A
administration and governance of the temples under the Act. The
Act, therefore, is not ultra vires Articles 25 and 26 of the
Constitution.”
(emphasis supplied)
17. In N. Adithayan v. Travancore Devaswom Board and B
Ors., (2002) 8 SCC 106, this Court held the appointment of a person
who is not a Malayala Brahmin as a Pujari or priest of a temple in
Kerala as constitutionally valid. After referring to various authorities of
this Court, this Court held:
“16. It is now well settled that Article 25 secures to every person, C
subject of course to public order, health and morality and other
provisions of Part III, including Article 17 freedom to entertain
and exhibit by outward acts as well as propagate and disseminate
such religious belief according to his judgment and conscience for
the edification of others. The right of the State to impose such D
restrictions as are desired or found necessary on grounds of public
order, health and morality is inbuilt in Articles 25 and 26 itself.
Article 25(2)(b) ensures the right of the State to make a law
providing for social welfare and reform besides throwing open of
Hindu religious institutions of a public character to all classes and
sections of Hindus and any such rights of the State or of the E
communities or classes of society were also considered to need
due regulation in the process of harmonizing the various rights.
The vision of the founding fathers of the Constitution to liberate
the society from blind and ritualistic adherence to mere traditional
superstitious beliefs sans reason or rational basis has found F
expression in the form of Article 17. The legal position that the
protection under Articles 25 and 26 extends a guarantee for rituals
and observances, ceremonies and modes of worship which are
integral parts of religion and as to what really constitutes an essential
part of religion or religious practice has to be decided by the courts
with reference to the doctrine of a particular religion or practices G
regarded as parts of religion, came to be equally firmly laid down.
17. Where a temple has been constructed and consecrated as
per Agamas, it is considered necessary to perform the daily rituals,
poojas and recitations as required to maintain the sanctity of the
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A idol and it is not that in respect of any and every temple any such
uniform rigour of rituals can be sought to be enforced, dehors its
origin, the manner of construction or method of consecration. No
doubt only a qualified person well versed and 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
B
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
C 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
D
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 or performance
of rituals and wearing sacred thread by getting initiated into the
E order and thereby acquire the right to perform homa and ritualistic
forms of worship in public or private temples. Consequently, there
is no justification to insist that a Brahmin or Malayala Brahmin in
this case, alone can perform the rites and rituals in the temple, as
part of the rights and freedom guaranteed under Article 25 of the
Constitution and further claim that any deviation would tantamount
F
to violation of any such guarantee under the Constitution. There
can be no claim based upon Article 26 so far as the Temple under
our consideration is concerned. Apart from this principle
enunciated above, as long as anyone well versed and properly
trained and qualified to perform the pooja in a manner conducive
G and appropriate to the worship of the particular deity, is appointed
as Santhikaran dehors his pedigree based on caste, no valid or
legally justifiable grievance can be made in a court of law. There
has been no proper plea or sufficient proof also in this case of any
specific custom or usage specially created by the founder of the
Temple or those who have the exclusive right to administer the
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INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 707
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affairs — religious or secular of the Temple in question, leave A
alone the legality, propriety and validity of the same in the changed
legal position brought about by the Constitution and the law enacted
by Parliament. The Temple also does not belong to any
denominational category with any specialized form of worship
peculiar to such denomination or to its credit. For the said reason,
B
it becomes, in a sense, even unnecessary to pronounce upon the
invalidity of any such practice being violative of the constitutional
mandate contained in Articles 14 to 17 and 21 of the Constitution
of India.”
Finally, this Court held:
C
“18. ……… Any custom or usage irrespective of even any proof
of their existence in pre-constitutional days cannot be countenanced
as a source of law to claim any rights when it is found to violate
human rights, dignity, social equality and the specific mandate of
the Constitution and law made by Parliament. No usage which is
found to be pernicious and considered to be in derogation of the D
law of the land or opposed to public policy or social decency can
be accepted or upheld by courts in the country.”
18. In Dr. Subramanian Swamy v. State of Tamil Nadu and
Ors., (2014) 5 SCC 75, this Court dealt with the claim by Podhu Dikshitars
(Smarthi Brahmins) to administer the properties of a temple dedicated E
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 F
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 G
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.
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708 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 19. In Riju Prasad Sarma and Ors. v. State of Assam and
Ors., (2015) 9 SCC 461, this Court dealt with customs based on religious
faith which dealt with families of priests of a temple called the Maa
Kamakhya Temple. After discussing some of the judgments of this Court,
a Division Bench of this Court held:
B “61. There is no need to go into all the case laws in respect of
Articles 25 and 26 because by now it is well settled that Article
25(2)(a) and Article 26(b) guaranteeing the right to every religious
denomination to manage its own affairs in matters of religion are
subject to and can be controlled by a law contemplated under
Article 25(2)(b) as both the Articles are required to be read
C harmoniously. It is also well established that social reforms or the
need for regulations contemplated by Article 25(2) cannot obliterate
essential religious practices or their performances and what would
constitute the essential part of a religion can be ascertained with
reference to the doctrine of that religion itself. In support of the
D aforesaid established propositions, the respondents have referred
to and relied upon the judgment in Commr., Hindu Religious
Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt [AIR 1954 SC 282 : 1954 SCR 1005] and also upon Sri
Venkataramana Devaru v. State of Mysore [AIR 1958 SC 255
: 1958 SCR 895].”
E
The observation that regulations contemplated by Article 25 cannot
obliterate essential religious practices is understandable as regulations
are not restrictions. However, social reform legislation, as has been seen
above, may go to the extent of trumping religious practice, if so found on
the facts of a given case. Equally, the task of carrying out reform affecting
F religious belief is left by Article 25(2) in the hands of the State (See
paragraph 66).
20. In Adi Saiva Sivachariyargal Nala Sangam and Ors. v.
Government of Tamil Nadu and Anr., (2016) 2 SCC 725, (“Adi Saiva
Sivachariyargal Nala Sangam”), this Court was concerned with a
G Government Order issued by the Government of Tamil Nadu, which
stated that any person who is a Hindu and possesses the requisite
qualification and training, can be appointed as an Archaka in Hindu
temples. The Court referred to Article 16(5) of the Constitution, stating
that the exception carved out of the equality principle would cover an
H office of the temple, which also requires performance of religious
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 709
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functions. Therefore, an Archaka may, by law, be a person professing a 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
B
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 C
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 D
persons” which has reference to natural persons.
21.2. This fundamental right equally entitles all such persons to
the said fundamental right. Every member of a religious community has
a right to practice the religion so long as he does not, in any way, interfere
with the -----corresponding right of his co-religionists to do the same. E

21.3. The content of the fundamental right is the fleshing out of
what is stated in the Preamble to the Constitution as “liberty of thought,
belief, faith and worship”. Thus, all persons are entitled to freedom of
conscience and the right to freely profess, practice, and propagate religion.
F
21.4. The right to profess, practice, and propagate religion will
include all acts done in furtherance of thought, belief, faith, and worship.
21.5. The content of the right concerns itself with the word
“religion”. “Religion” in this Article would mean matters of faith with
individuals or communities, based on a system of beliefs or doctrines
G
which conduce to spiritual well-being. The aforesaid does not have to be
theistic but can include persons who are agnostics and atheists.
21.6. It is only the essential part of religion, as distinguished from
secular activities, that is the subject matter of the fundamental right.
Superstitious beliefs which are extraneous, unnecessary accretions to
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710 SUPREME COURT REPORTS [2018] 9 S.C.R.

A religion cannot be considered as essential parts of religion. Matters that
are essential to religious faith and/or belief are to be judged on evidence
before a court of law by what the community professing the religion
itself has to say as to the essentiality of such belief. One test that has
been evolved would be to remove the particular belief stated to be an
essential belief from the religion – would the religion remain the same or
B
would it be altered? Equally, if different groups of a religious community
speak with different voices on the essentiality aspect presented before
the Court, the Court is then to decide as to whether such matter is or is
not essential. Religious activities may also be mixed up with secular
activities, in which case the dominant nature of the activity test is to be
C applied. The Court should take a common-sense view and be actuated
by considerations of practical necessity.
21.7. The exceptions to this individual right are public order,
morality, and health. “Public order” is to be distinguished from “law and
order”. “Public disorder” must affect the public at large as opposed to
D 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.
E
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
F 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
2
We were invited by the learned Amicus Curiae, Shri Raju Ramachandran, to read the
word “morality” as being “constitutional morality” as has been explained in some of
our recent judgments. If so read, it cannot be forgotten that this would bring in, through
the back door, the other provisions of Part III of the Constitution, which Article 26 is
G not subject to, in contrast with Article 25(1). In any case, the fundamental right under
Article 26 will have to be balanced with the rights of others contained in Part III as a
matter of harmonious construction of these rights as was held in Sri Venkataramana
Devaru (supra). But this would only be on a case to case basis, without necessarily
subjecting the fundamental right under Article 26 to other fundamental rights contained
in Part III.
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would spring into action. Where the practice of religion is interfered A
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 making laws which may regulate or restrict secular
activity, which includes economic, financial or political activity, which B
may be associated with religious practice – see Article 25(2)(a).
21.10. Another exception is provided under Article 25(2)(b) which
is in two parts. Any law providing for social welfare and reform in a
religious community can also affect and/or take away the fundamental
right granted under Article 25(1). A further exception is provided only C
insofar as persons professing the Hindu religion are concerned, which is
to throw open all Hindu religious institutions of a public character to all
classes and sections of Hindus.
21.11. Contrasted with the fundamental right in Article 25(1) is
the fundamental right granted by Article 26. This fundamental right is D
not granted to individuals but to religious denominations or sections thereof.
A religious denomination or section thereof is to be determined on the
basis of persons having a common faith, a common organization, and
designated by a distinct name as a denomination or section thereof.
Believers of a particular religion are to be distinguished from
denominational worshippers. Thus, Hindu believers of the Shaivite and E
Vaishnavite form of worship are not denominational worshippers but
part of the general Hindu religious form of worship.
21.12. Four separate and distinct rights are given by Article 26 to
religious denominations or sections thereof, namely:
F
“(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.” G
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.
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712 SUPREME COURT REPORTS [2018] 9 S.C.R.

A As in Article 25, it is only essential religious matters which are
protected by this Article.
21.13. The fundamental right granted under Article 26 is subject
to the exception of public order, morality, and health. However, since the
right granted under Article 26 is to be harmoniously construed with Article
B 25(2)(b), the right to manage its own affairs in matters of religion granted
by Article 26(b), in particular, will be subject to laws made under Article
25(2)(b) which throw open religious institutions of a public character to
all classes and sections of Hindus.
21.14. Thus, it is clear that even though the entry of persons into
a Hindu temple of a public character would pertain to management of its
C 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
D 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.
E
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
F young women offering prayers at the Sabarimala Temple. The Division
Bench set out three questions that arose, as follows:
“12. The questions which require answers in this original petition
are:
(1) Whether woman [sic women] of the age group 10 to 50
G can be permitted to enter the Sabarimala temple at any period
of the year or during any of the festivals or poojas conducted
in the temple.
(2) Whether the denial of entry of that class of woman [sic
women] amounts to discrimination and [sic is] violative of
H Articles 15, 25 and 26 of the Constitution of India, and
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 713
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(3) Whether directions can be issued by this Court to the A
Devaswom Board and the Government of Kerala to restrict
the entry of such woman [sic women] to the temple?”
The Division Bench referred to the all-important “Vratham” (41-
day penance), which, according to the Division Bench, ladies between
the ages of 10 and 50 would not be physically capable of observing. In B
paragraph 7, the Division Bench stated that while the old customs
prevailed, women did visit the temple, though rarely, as a result of which,
there was no prohibition. The affidavit filed on behalf of the Travancore
Devaswom Board stated that, even in recent years, many female
worshippers in the age group of 10 to 50 had gone to the temple for the
first rice-feeding ceremony of their children. The Board, in fact, used to C
issue receipts on such occasions on payment of the prescribed charge.
However, on the advice of the priest i.e. the Thanthri, changes were
effected in order to preserve the temple’s sanctity. The Division Bench
found that women, irrespective of their age, were allowed to visit the
temple when it opens for monthly poojas, but were not permitted to D
enter the temple during Mandalam, Makaravilakku, and Vishu seasons.
After examining the evidence of one Thanthri, the Secretary of the
Ayyappa Seva Sangham, and a 75-year old man who had personal
knowledge of worshipping at the temple, the Division Bench stated that
the usage of not permitting women between the age group of 10 to 50 to
worship in the temple had been established. This was further sanctified E
by Devaprasnams conducted at Sabarimala by astrologers, who reported
that the deity does not like young ladies entering the precincts of the
temple. It was then held in paragraph 38 that since women of the age
group of 10 to 50 years would not be able to observe Vratham for a
period of 41 days due to physiological reasons, they were not permitted F
to go on a pilgrimage of Sabarimala. It was also held that the deity is in
the form of a Naisthik Brahmachari, as a result of which, young women
should not offer worship in the temple, so that even the 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: G

“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
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714 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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
C and not women as a class.”
23. In the present writ petition filed before this Court, an affidavit
filed by a Thanthri of the Sabarimala temple dated 23.04.2016 makes
interesting reading. According to the affidavit, two Brahmin brothers
from Andhra Pradesh were tested by Sage Parasuram and were named
D “Tharanam” and “Thazhamon”. The present Thanthri is a descendant
of the Thazhamon brother, who is authorized to perform rituals in Sastha
temples. The affidavit then refers to the Sabarimala Temple, which is
dedicated to Lord Ayyappa, as a prominent temple in Kerala which is
visited by over twenty million pilgrims and devotees every year. The
temple is only open during the first five days of every Malayalam month,
E and during the festivals of Mandalam, Makaravilakku, and Vishu.
Significantly, no daily poojas are performed in the said temple. It is stated
in the affidavit that Lord Ayyappa had himself explained that the
pilgrimage to Sabarimala can be undertaken only by the performance of
Vratham, which are religious austerities that train man for evolution to
F spiritual consciousness.
Paragraph 10 of the affidavit is important and states as follows:-
“10. I submit that as part of observing “vrutham”, the person
going on pilgrimage to Sabarimala separates himself from all family
ties and becomes a student celibate who is under Shastras banned
G any contact with females of the fertile age group. Everywhere
when somebody takes on the “vrutham”, either the women leave
the house and take up residence elsewhere or the men separate
themselves from the family so that normal Asauchas in the house
do not affect his “vrutham”. The problem with women is that
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they cannot complete the 41 days vrutham because the Asaucham A
of periods will surely fall within the 41 days. It is not a mere
physiological phenomenon. It is the custom among all Hindus
that women during periods do not go to Temples or participate in
religious activity. This is as per the statement of the basic Thantric
text of Temple worshipping in Kerala Thanthra Samuchayam,
B
Chapter 10, Verse II. A true copy of the relevant page of Thanthra
Samuchchaya is attached herewith and marked as Annexure A-1
(Pages 30-31).”
The affidavit then goes on to state that the Shastras forbid religious
austerity by menstruating women, which is why women above the age
of 10 and below the age of 50 are not allowed entering into the temple. C
The affidavit then states, in paragraph 15:
“15. ……… During this period, many women are affected by
physical discomforts like headache, body pain, vomiting sensation
etc. In such circumstances, intense and chaste spiritual disciplines
for forty-one days are not possible. It is for the sake of pilgrims D
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:
E
“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. ………”
F
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. G
24. All the older religions speak of the phenomenon of menstruation
in women as being impure, which therefore, forbids their participation in
religious activity. Thus, in the Old Testament, in Chapter 15, Verse 19 of
the book of Leviticus, it is stated:
H
716 SUPREME COURT REPORTS [2018] 9 S.C.R.

A “19. And if a woman have an issue, and her issue in her flesh be
blood, she shall be put apart seven days: and whosoever toucheth
her shall be unclean until the even.”4
Similarly, in the Dharmasutra of Vasistha, an interesting legend
of how women were made to menstruate is stated as follows:
B “A menstruating woman remains impure for three days. She should
not apply collyrium on her eyes or oil on her body, or bathe in
water; she should sleep on the floor and not sleep during the day;
she should not touch the fire, make a rope, brush her teeth, eat
meat, or look at the planets; she should not laugh, do any work, or
C run; and she should drink out of a large pot or from her cupped
hands or a copper vessel. For it is stated: ‘Indra, after he had
killed the three-headed son of Tvastr, was seized by sin, and he
regarded himself in this manner: “An exceedingly great guilt
attaches to me”. And all creatures railed against him: “Brahmin-
killer! Brahmin-killer!” He ran to the women and said: “Take over
D one-third of this my guilt of killing a Brahmin.” They asked: “What
will we get?” He replied: “Make a wish.” They said: “Let us
obtain offspring during our season, and let us enjoy sexual
intercourse freely until we give birth.” He replied: “So be it!” And
they took the guilt upon themselves. That guilt of killing a Brahmin
E manifests itself every month. Therefore, one should not eat the
food of a menstruating woman, for such a woman has put on the
aspect of the guilt of killing a Brahmin’.”5
To similar effect are Chapters 9 and 13 of Canto 6 of the
Bhagavata Purana which read as follows:
F “6.9.9. In return for Lord Indra’s benediction that they would be
able to enjoy lusty desires continuously, even during pregnancy
for as long as sex is not injurious to the embryo, women accepted
one fourth of the sinful reactions. As a result of those reactions,
women manifest the signs of menstruation every month.”6
G “6.13.5. King Indra replied: When I killed Visvarupa, I received
extensive sinful reactions, but I was favored by the women, land,
4
Leviticus 15:19 (King James Version).
5
DHARMASUTRAS – THE LAW CODES OF APASTAMBA, GAUTAMA, BAUDHAYANA, AND VASISTHA
264 (Translation by Patrick Olivelle, Oxford University Press, 1999).
6
S RIMAD BHAGAVATAM – SIXTH CANTO (Translation by A.C. Bhaktivedanta Swami
H Prabhupada, The Bhaktivedanta Book Trust, 1976).
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 717
[R. F. NARIMAN, J.]

trees and water, and therefore I was able to divide the sin among A
them. But now if I kill Vrtrasura, another brahmana, how shall I
free myself from the sinful reactions?”7
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 B
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 C
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: D
“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, E
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 of her blood was dried up; and F
she felt in her body that she was healed of that plague.
30. And Jesus, immediately knowing in himself that virtue had
gone out of him, turned him about in the press, and said, Who
touched my clothes?
31. And his disciples said unto him, Thou seest the multitude G
thronging thee, and sayest thou, Who touched me?
32. And he looked round about to see her that had done this thing.
7
Id.
8
THE QUR’AN – WITH ANNOTATED INTERPRETATION IN MODERN ENGLISH, 2:222 (Translation
by Ali Ünal, Tughra Books USA, 2015). H
718 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 33. But the woman fearing and trembling, knowing what was
done in her, came and fell down before him, and told him all the
truth.
34. And he said unto her, Daughter, thy faith hath made thee whole;
go in peace, and be whole of thy plague.”9
B One may immediately notice that the woman touching Jesus was
without Jesus’s knowledge, for upon coming to know of the woman’s
touch, Jesus “knew in himself that virtue had gone out of him”.
Equally, in the Bundahishn, a text relating to creation in
Zoroastrianism, it is stated that a primeval prostitute call Jeh, because of
C her misdeeds, brought upon herself, menstruation. Chapter 3, Verses 6
to 8 of the Bundahishn are as follows:
“6. And, again, the wicked Jeh shouted thus: ‘Rise up, thou father
of us! for in that conflict I will shed thus much vexation on the
righteous man and the laboring ox that, through my deeds, life will
not be wanted, and I will destroy their living souls (nismo); I will
D vex the water, I will vex the plants, I will vex the fire of Ohrmazd,
I will make the whole creation of Ohrmazd vexed.’
7. And she so recounted those evil deeds a second time, that the
evil spirit was delighted and started up from that confusion; and
he kissed Jeh upon the head, and the pollution which they call
E menstruation became apparent in Jeh.
8. He shouted to Jeh thus: ‘What is thy wish? so that I may give
it thee.’ And Jeh shouted to the evil spirit thus: ‘A man is the wish,
so give it to me.’”10
In the selections of Zadspram, Chapter 34, Verse 31, it is stated:
F “31. And [the demon Whore] of evil religion joined herself [to the
Blessed Man]; for the defilement of females she joined herself to
him, that she might defile females; and the females, because they
were defiled, might defile the males, and (the males) would turn
aside from their proper work.”11
G 9
Mark 5:25-34 (King James Version).
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).
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 719
[R. F. NARIMAN, J.]

However, in the more recent religions such as Sikhism and the A
Bahá’í Faith, a more pragmatic view of menstruation is taken, making it
clear that no ritualistic impurity is involved. The Sri Guru Granth Sahib
deems menstruation as a natural process – free from impurity12 and
essential to procreation.13 Similarly, in the Bahá’í Faith, the concept of
ritual uncleanness has been abolished by Bahá’u’lláh.14
B
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 C
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 D
question whether Thanthris and worshippers alike are designated by a
distinct name, we were unable to find any answer. When asked whether
all persons who visit the Sabarimala temple have a common faith, the
answer given was that all persons, regardless of caste or religion, are
worshippers at the said temple. From this, it is also clear that Hindus of E
all kinds, Muslims, Christians etc., all visit the temple as worshippers,
without, in any manner, ceasing to be Hindus, Christians or Muslims.
They can therefore be regarded, as has been held in Sri Adi Visheshwara
(supra), as Hindus who worship the idol of Lord Ayyappa as part of the
Hindu religious form of worship but not as denominational worshippers.
The same goes for members of other religious communities. We may F
remember that in Durgah Committee (supra), this Court had held that
since persons of all religious faiths visit the Durgah as a place of
pilgrimage, it may not be easy to hold that they constitute a religious
denomination or a section thereof. However, for the purpose of the
12
2 SRI GURU GRANTH SAHIB : ENGLISH TRANSLATION OF THE ORIGINAL TEXT 466-467 G
(Translation by Dr. Gopal Singh, Allied Publishers Pvt. Ltd., 2005) [which translates
Raga Asa, Shaloka Mehla 1 at p. 472 of the original text of Sri Guru Granth Sahib].
13
4 SRI GURU GRANTH SAHIB: ENGLISH TRANSLATION OF THE ORIGINAL TEXT 975 (Translation
by Dr. Gopal Singh, Allied Publishers Pvt. Ltd., 2005) [which translates Raga Maru,
Mehla 1 at p.1022 of the original text of Sri Guru Granth Sahib].
14
KITÁB-I-AQDAS BY BAHÁ ’U’LLÁH , note 106 at p. 122 (Translation by Shoghi Effendi,
Bahá’í World Centre, 1992). H
720 SUPREME COURT REPORTS [2018] 9 S.C.R.

A appeal, they proposed to deal with the dispute between the parties on
the basis that the Chishtia sect, whom the respondents represented, were
a separate religious denomination, being a sub-sect of Soofies. We may
hasten to add that we find no such thing here. We may also add that in
S.P. Mittal (supra), the majority judgment did not hold, and therefore,
assumed that “Aurobindoism” was a religious denomination, given the
B
fact that the Auroville Foundation Society claimed exemption from income
tax on the footing that it was a charitable, and not a religious organization,
and held itself out to be a non-religious organization. Also, the powerful
argument addressed, noticed at paragraph 106 of the majority judgment,
that persons who joined the Auroville Society did not give up their religion,
C also added great substance to the fact that the Auroville Society could
not be regarded as a religious denomination for the purpose of Article
26. Chinnappa Reddy, J. alone, in dissent, held the Auroville Society to
be a religious denomination, without adverting to the fact that persons
who are a part of the Society continued to adhere to their religion.
D 27. In these circumstances, we are clearly of the view that there
is no distinctive name given to the worshippers of this particular temple;
there is no common faith in the sense of a belief common to a particular
religion or section thereof; or common organization of the worshippers
of the Sabarimala temple so as to constitute the said temple into a religious
denomination. Also, there are over a thousand other Ayyappa temples in
E 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
F 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
G 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
H class thereof, shall be open to all sections and classes of Hindus;
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 721
[R. F. NARIMAN, J.]

and no Hindu of whatsoever section or class shall, in any manner, A
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 enter, worship, pray or perform:
B
Provided that in the case of a public 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.”
C
Since the proviso to the Section is not attracted on the facts of
this case, and since the said Act is clearly a measure enacted under
Article 25(2)(b), any religious right claimed on the basis of custom and
usage as an essential matter of religious practice under Article 25(1),
will be subject to the aforesaid law made under Article 25(2)(b). The
said custom or usage must therefore, be held to be violative of Section 3 D
and hence, struck down.
29. Even otherwise, the fundamental right of women between
the ages of 10 and 50 to enter the Sabarimala temple is undoubtedly
recognized by Article 25(1). The fundamental right claimed by the
Thanthris and worshippers of the institution, based on custom and usage E
under the selfsame Article 25(1), must necessarily yield to the fundamental
right of such women, as they are equally entitled to the right to practice
religion, which would be meaningless unless they were allowed to enter
the temple at Sabarimala to worship the idol of Lord Ayyappa. The
argument that all women are not prohibited from entering the temple F
can be of no avail, as women between the age group of 10 to 50 are
excluded completely. Also, the argument that such women can worship
at the other Ayyappa temples is no answer to the denial of their
fundamental right to practice religion as they see it, which includes their
right to worship at any temple of their choice. On this ground also, the
right to practice religion, as claimed by the Thanthris and worshippers, G
must be balanced with and must yield to the fundamental right of women
between the ages of 10 and 50, who are completely barred from entering
the temple at Sabarimala, based on the biological ground of menstruation.

H
722 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Rule 3(b) of the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Rules, 1965 states as follows:
“3. The classes of persons mentioned here under shall not be
entitled to offer worship in any place of public worship or bath in
or use of water of any sacred tank, well, spring or water course
B 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
C (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
D 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
E
a plea that she has been discriminated against by not allowing her entry
into the temple as she is between the age of 10 to 50. A similar argument
was raised in Adi Saiva Sivachariyargal Nala Sangam (supra) which
was repelled in the following terms:
“12. ……… The argument that the present writ petition is founded
F
on a cause relating to appointment in a public office and hence
not entertainable as a public interest litigation would be too simplistic
a solution to adopt to answer the issues that have been highlighted
which concerns the religious faith and practice of a large number
of citizens of the country and raises claims of century-old traditions
G and usage having the force of law. The above is the second ground,
namely, the gravity of the issues that arise, that impel us to make
an attempt to answer the issues raised and arising in the writ
petitions for determination on the merits thereof.”
The present case raises grave issues relating to women generally,
H who happen to be between the ages of 10 to 50, and are not allowed
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 723

entry into the temple at Sabarimala on the ground of a physiological or A
biological function which is common to all women between those ages.
Since this matter raises far-reaching consequences relating to Articles
25 and 26 of the Constitution of India, we have found it necessary to
decide this matter on merits. Consequently, this technical plea cannot
stand in the way of a constitutional court applying constitutional principles
B
to the case at hand.
31. A fervent plea was made by some of the counsels for the
Respondents that the Court should not decide this case without any
evidence being led on both sides. Evidence is very much there, in the
form of the writ petition and the affidavits that have been filed in the writ
petition, both by the Petitioners as well as by the Board, and by the C
Thanthri’s affidavit referred to supra. It must not be forgotten that a writ
petition filed under either Article 32 or Article 226 is itself not merely a
pleading, but also evidence in the form of affidavits that are sworn. (See
Bharat Singh and Ors. v. State of Haryana and Ors., 1988 Supp (2)
SCR 1050 at 1059). D
32. The facts, as they emerge from the writ petition and the
aforesaid affidavits, are sufficient for us to dispose of this writ petition
on the points raised before us. I, therefore, concur in the judgment of the
learned Chief Justice of India in allowing the writ petition, and declare
that the custom or usage of prohibiting women between the ages of 10 E
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 F
Constitution of India.
DR DHANANJAYA Y CHANDRACHUD, J.
INDEX
A Conversation within the Constitution: religion, dignity and morality G
B History: Lord Ayyappa and the Sabarimala Temple
C Temple entry and the exclusion of women
D The reference
H
724 SUPREME COURT REPORTS [2018] 9 S.C.R.

A E Submissions
F Essential Religious Practices
G The engagement of essential religious practices with constitutional
values
H Religious Denominations
B
H.1 Do the devotees of Lord Ayyappa constitute a religious
denomination?
I Article 17, “Untouchability” and the notions of purity
J The ultra vires doctrine
C K The ghost of Narasu
L Deity as a bearer of constitutional rights
M A road map for the future
N Conclusion
A Conversation within the Constitution: religion, dignity
D
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
E Constitution was amended to accommodate a specific reference to its
secular fabric in the Preamble.1 Arguably, this was only a formal
recognition of a concept which found expression in diverse facets, as
they were crafted at the birth of the Constitution. Secularism was not a
new idea but a formal reiteration of what the Constitution always respected
F and accepted: the equality of all faiths. Besides incorporating a specific
reference to a secular republic, the Preamble divulges the position held
by the framers on the interface of religion and the fundamental values of
a constitutional order. The Constitution is not – as it could not have been
- oblivious to religion. Religiosity has moved hearts and minds in the
history of modern India. Hence, in defining the content of liberty, the
G Preamble has spoken of the liberty of thought, expression, belief, faith
and worship. While recognising and protecting individual liberty, the
Preamble underscores the importance of equality, both in terms of status
and opportunity. Above all, it seeks to promote among all citizens
fraternity which would assure the dignity of the individual.
1
H The Constitution (Forty-second) Amendment, 1976
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 725
[DR. DHANANJAYA Y CHANDRACHUD, J.]

2. The significance of the Preamble lies both in its setting forth A
the founding principles of the Constitution as well as in the broad sweep
of their content. The Constitution was brought into existence to oversee
a radical transformation. There would be a transformation of political
power from a colonial regime. There was to be a transformation in the
structure of governance. Above all the Constitution envisages a
B
transformation in the position of the individual, as a focal point of a just
society. The institutions through which the nation would be governed
would be subsumed in a democratic polity where real power both in
legal and political terms would be entrusted to the people. The purpose
of adopting a democratic Constitution was to allow a peaceful transition
from a colonial power to home rule. In understanding the fundamental C
principles of the Constitution which find reflection in the Preamble, it is
crucial to notice that the transfer of political power from a colonial regime
was but one of the purposes which the framers sought to achieve. The
transfer of political power furnished the imperative for drafting a
fundamental text of governance. But the task which the framers assumed
D
was infinitely more sensitive. They took upon themselves above all, the
task to transform Indian society by remedying centuries of discrimination
against Dalits, women and the marginalised. They sought to provide
them a voice by creating a culture of rights and a political environment
to assert freedom. Above all, placing those who were denuded of their
human rights before the advent of the Constitution – whether in the E
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
F
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 than the sum total of its parts. The
Constitution cannot be understood without perceiving the complex G
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
H
726 SUPREME COURT REPORTS [2018] 9 S.C.R.

A prayer has to be fulfilled in the context of a society which does not
discriminate between its citizens. Their equality in all matters of status
and opportunity gives true meaning to the liberty of belief, faith and
worship. Equality between citizens is after all, a powerful safeguard to
preserve a common universe of liberties between citizens, including in
matters of religion. Combined together, individual liberty, equality and
B
fraternity among citizens are indispensable to a social and political ordering
in which the dignity of the individual is realised. Our understanding of
the Constitution can be complete only if we acknowledge the complex
relationship between the pursuit of justice, the protection of liberty,
realisation of equality and the assurance of fraternity. Securing the worth
C of the individual is crucial to a humane society.
4. The Constitution as a fundamental document of governance
has sought to achieve a transformation of society. In giving meaning to
its provisions and in finding solutions to the intractable problems of the
present, it is well to remind ourselves on each occasion that the purpose
D of this basic document which governs our society is to bring about a
constitutional transformation. In a constitutional transformation, the means
are as significant as are our ends. The means ensure that the process is
guided by values. The ends, or the transformation, underlie the vision of
the Constitution. It is by being rooted in the Constitution’s quest for
transforming Indian society that we can search for answers to the binaries
E which have polarised our society. The conflict in this case between
religious practices and the claim of dignity for women in matters of faith
and worship, is essentially about resolving those polarities.
5. Essentially, the significance of this case lies in the issues which
it poses to the adjudicatory role of this Court in defining the boundaries
F of religion in a dialogue about our public spaces. Does the Constitution,
in the protection which it grants to religious faith, allow the exclusion of
women of a particular age group from a temple dedicated to the public?
Will the quest for human dignity be incomplete or remain but a writ in
sand if the Constitution accepts the exclusion of women from worship in
G a public temple? Will the quest for equality and fraternity be denuded of
its content where women continue to be treated as children of a lesser
god in exercising their liberties in matters of belief, faith and worship?
Will the pursuit of individual dignity be capable of being achieved if we
deny to women equal rights in matters of faith and worship, on the basis
of a physiological aspect of their existence? These questions are central
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 727
[DR. DHANANJAYA Y CHANDRACHUD, J.]

to understanding the purpose of the Constitution, as they are to defining A
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 B
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 C
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 restricting any economic, financial, political or D
other secular activity which may be associated with religious
practice;
(b) providing for social welfare and reform or the throwing open
of Hindu religious institutions of a public character to all classes
and sections of Hindus.
E
Explanation I.—The wearing and carrying of kirpans shall be
deemed to be included in the profession of the Sikh religion.
Explanation II.—In sub-clause (b) of clause (2), the reference to
Hindus shall be construed as including a reference to persons
professing the Sikh, Jaina or Buddhist religion, and the reference F
to Hindu religious institutions shall be construed accordingly.”
In clause (1), Article 25 protects the equal entitlement of all
persons to a freedom of conscience and to freely profess, protect and
propagate religion. By conferring this right on all persons, the Constitution
emphasises the universal nature of the right. By all persons, the G
Constitution means exactly what it says : every individual in society
without distinction of any kind whatsoever is entitled to the right. By
speaking of an equal entitlement, the Constitution places every individual
on an even platform. Having guaranteed equality before the law and
the equal protection of laws in Article 14, the draftspersons specifically
H
728 SUPREME COURT REPORTS [2018] 9 S.C.R.

A continued the theme of an equal entitlement as an intrinsic element of
the freedom of conscience and of the right to profess, practice and
propagate religion. There are three defining features of clause (1) of
Article 25: first, the entitlement of all persons without exception, second,
the recognition of an equal entitlement; and third, the recognition both
of the freedom of conscience and the right freely to profess, practice
B
and propagate religion. The right under Article 25(1) is evidently an
individual right for, it is in the individual that a conscience inheres.
Moreover, it is the individual who professes, practices and propagates
religion. Freedom of religion in Article 25(1) is a right which the
Constitution recognises as dwelling in each individual or natural person.
C
7. Yet, the right to the freedom of religion is not absolute. For the
Constitution has expressly made it subject to public order, morality and
health on one hand and to the other provisions of Part III, on the other.
The subjection of the individual right to the freedom of religion to the
other provisions of the Part is a nuanced departure from the position
D 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
E
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
F 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 categories consists
G of laws regulating or restricting economic, financial, political or other
secular activities which may be associated with religious practices. Thus,
in sub-clause (a) of Article 25 (2), the Constitution has segregated matters
of religious practice from secular activities, including those of an
economic, financial or political nature. The expression “other secular
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 729
[DR. DHANANJAYA Y CHANDRACHUD, J.]

activity” which follows upon the expression “economic, financial, political” A
indicates that matters of a secular nature may be regulated or restricted
by law. The fact that these secular activities are associated with or, in
other words, carried out in conjunction with religious practice, would not
put them beyond the pale of legislative regulation. The second category
consists of laws providing for (i) social welfare and reform; or (ii) throwing
B
open of Hindu religious institutions of a public character to all classes
and sections of Hindus. The expression “social welfare and reform” is
not confined to matters only of the Hindu religion. However, in matters
of temple entry, the Constitution recognised the disabilities which Hindu
religion had imposed over the centuries which restricted the rights of
access to dalits and to various groups within Hindu society. The effect C
of clause (2) of Article 25 is to protect the ability of the state to enact
laws, and to save existing laws on matters governed by sub-clauses (a)
and (b). Clause (2) of Article 25 is clarificatory of the regulatory power
of the state over matters of public order, morality and health which already
stand recognised in clause (1). Clause 1 makes the right conferred subject
D
to public order, morality and health. Clause 2 does not circumscribe the
ambit of the ‘subject to public order, morality or health’ stipulation in
clause 1. What clause 2 indicates is that the authority of the state to
enact laws on the categories is not trammelled by Article 25.
9. Article 26, as its marginal note indicates, deals with the “freedom
E
to manage religious affairs”:
“26. Subject to public order, morality and health, every religious
denomination or any section thereof shall have the right—
(a) to establish and maintain institutions for religious and charitable
purposes; F
(b) to manage its own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.”
Article 26 confers rights on religious denominations and their G
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
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730 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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 the right of religious
C denominations, morality has an overarching position similar to public order
and health because the rights recognised by both the Articles are subject
to those stipulations. Article 25(2) contemplates that the Article will neither
affect the operation of existing law or prevent the state from enacting a
law for the purposes stipulated in sub-clauses (a) and (b).
D 11. In defining the content of morality, did the draftspersons engage
with prevailing morality in society? Or does the reference to morality
refer to something more fundamental? Morality for the purposes of
Articles 25 and 26 cannot have an ephemeral existence. Popular notions
about what is moral and what is not are transient and fleeting. Popular
E notions about what is or is not moral may in fact be deeply offensive to
individual dignity and human rights. Individual dignity cannot be allowed
to be subordinate to the morality of the mob. Nor can the intolerance of
society operate as a marauding morality to control individual self-
expression in its manifest form. The Constitution would not render the
existence of rights so precarious by subjecting them to passing fancies
F or to the aberrations of a morality of popular opinion. The draftspersons
of the Constitution would not have meant that the content of morality
should vary in accordance with the popular fashions of the day. The
expression has been adopted in a constitutional text and it would be
inappropriate to give it a content which is momentary or impermanent.
G Then again, the expression ‘morality’ cannot be equated with prevailing
social conceptions or those which may be subsumed within mainstream
thinking in society at a given time. The Constitution has been adopted
for a society of plural cultures and if its provisions are any indication, it is
evident that the text does not pursue either a religious theocracy or a
dominant ideology. In adopting a democratic Constitution, the framers
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 731
[DR. DHANANJAYA Y CHANDRACHUD, J.]

would have been conscious of the fact that governance by a majority is A
all about the accumulation of political power. Constitutional democracies
do not necessarily result in constitutional liberalism. While our Constitution
has adopted a democratic form of governance it has at the same time
adopted values based on constitutional liberalism. Central to those values
is the position of the individual. The fundamental freedoms which Part
B
III confers are central to the constitutional purpose of overseeing a
transformation of a society based on dignity, liberty and equality. Hence,
morality for the purposes of Articles 25 and 26 must mean that which is
governed by fundamental 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 C
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 D
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 is the E
belief that it is in the dignity of each individual that the pursuit of happiness
is founded. Individual dignity can be achieved only in a regime which
recognises liberty as inhering in each individual as a natural right. Human
dignity postulates an equality between persons. Equality necessarily is
an equality between sexes and genders. Equality postulates a right to be F
free from discrimination and to have the protection of the law in the
same manner as is available to every citizen. Equality above all is a
protective shield against the arbitrariness of any form of authority. These
founding principles must govern our constitutional notions of morality.
Constitutional morality must have a value of permanence which is not
subject to the fleeting fancies of every time and age. If the vision which G
the founders of the Constitution adopted has to survive, constitutional
morality must have a content which is firmly rooted in the fundamental
postulates of human liberty, equality, fraternity and dignity. These are
the means to secure justice in all its dimensions to the individual citizen.
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732 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Once these postulates are accepted, the necessary consequence is that
the freedom of religion and, likewise, the freedom to manage the affairs
of a religious denomination is subject to and must yield to these
fundamental notions of constitutional morality. In the public law
conversations between religion and morality, it is the overarching sense
of constitutional morality which has to prevail. While the Constitution
B
recognises religious beliefs and faiths, its purpose is to ensure a wider
acceptance of human dignity and liberty as the ultimate founding faith of
the fundamental text of our governance. Where a conflict arises, the
quest for human dignity, liberty and equality must prevail. These, above
everything else, are matters on which the Constitution has willed that its
C values must reign supreme.
13. The expression “subject to” is in the nature of a condition or
proviso. Making a provision subject to another may indicate that the
former is controlled by or is subordinate to the other. In making clause
1 of Article 25 subject to the other provisions of Part III without
D introducing a similar limitation in Article 26, the Constitution should not
readily be assumed to have intended the same result. Evidently the
individual right under Article 25(1) is not only subject to public order,
morality and health, but it is also subordinate to the other freedoms that
are guaranteed by Part III. In omitting the additional stipulation in Article
26, the Constitution has consciously not used words that would indicate
E 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
F 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
G of words of subjection does not necessarily attribute to the provision a
status independent of a cluster of other entitlements, particularly those
based on individual freedoms. Even where one provision is not subject
to another there would still be a ground to read both together so that they
exist in harmony. Constitutional interpretation is all about bringing a
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 733
[DR. DHANANJAYA Y CHANDRACHUD, J.]

sense of equilibrium, a balance, so that read individually and together the A
provisions of the Constitution exist in contemporaneous accord. Unless
such an effort were to be made, the synchrony between different parts
of the Constitution would not be preserved. In interpreting a segment of
the Constitution devoted exclusively to fundamental rights one must
eschew an approach which would result in asynchrony. Co-existence
B
of freedoms is crucial, in the ultimate analysis, to a constitutional order
which guarantees them and seeks to elevate them to a platform on which
every individual without distinction can reap their fruit without a bar to
access. Thus, the absence of words in Article 26 which would make its
provisions subordinate to the other fundamental freedoms neither gives
the right conferred upon religious denominations a priority which overrides C
other freedoms nor does it allow the freedom of a religious denomination
to exist in an isolated silo. In real life it is difficult to replicate the conditions
of a controlled experiment in a laboratory. Real life is all about
complexities and uncertainties arising out of the assertions of entitlements
and conflicts of interests among groups of different hues in society. The
D
freedoms which find an elaboration in Part III are exercised within a
society which is networked. The freedoms themselves have linkages
which cannot be ignored. There is, therefore, a convincing reason not to
allow the provisions of Article 26 to tread in isolation. Article 26 is one
among a large cluster of freedoms which the Constitution has envisaged
as intrinsic to human liberty and dignity. In locating the freedom under E
Article 26 within a group – the religious denomination – the text in fact
allows us to regard the fundamental right recognised in it as one facet of
the overall components of liberty in a free society.
14. This approach to constitutional interpretation which I propose
and follow is acceptable for another reason, as a matter of constitutional F
doctrine. Since the decision of eleven judges in Rustom Cavasjee
Cooper v Union of India2, it is now settled doctrine that the fundamental
rights contained in Part III are not, as it has been said, water-tight
compartments. Evolving away from the earlier jurisprudence in A K
Gopalan v State of Madras3 our interpretation of the freedoms is now
governed by a sense of realism which notices their open-textured content G
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
2
(1970) 1 SCC 248
3
1950 SCR 88 H
734 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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 India4, (“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
B
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
15 in outlawing discrimination on grounds of religion, race, caste, sex
C and place of birth is but a manifestation of equality. Equality in matters
of public employment under Article 16 is a facet of the basic postulate of
equality. Article 17 gives expression to equality in abolishing
untouchability: a practice fundamentally at odds to the notion of an equal
society. Titles which place some citizens above others are abolished by
Article 18 in manifesting yet another aspect of equality. As we have
D
seen, a fundamental notion of equality is embodied in Article 25(1) itself
when it speaks of an equal entitlement to freely practice, profess and
propagate religion. This sense of equality permeates the other guarantees
of fundamental freedoms as well. Article 19 recognises six freedoms as
an entitlement “of all citizens”. Recognizing that a right inheres in all
E citizens is a constitutional affirmation that every citizen, without exception
or discrimination of any kind is entitled to those freedoms. Then again,
the restrictions on the freedoms contemplated by Articles 19(2) to (6)
have to be reasonable. Reasonableness is a facet of equality. The equal
application of law to persons similarly circumstanced is a fundamental
postulate of the protections which are conferred by Articles 20, 21 and
F
22. Thus the principle which has become an entrenched part of our
constitutional doctrine after the decision in Bank Nationalization is
based on a sure foundation. The freedoms which we possess and those
which we exercise are not disjunctive parts, separate from each other.
Individuals in society exercise not one but many of the freedoms. An
G individual exercises a multitude of freedoms as a composite part of the
human personality. A single act embodies within it the exercise of many
choices reflecting the assertion of manifold freedoms. From this
perspective, it is but a short step to hold that all freedoms exist in harmony.
Our freedoms are enveloped in the womb created by the Constitution
4
H (1978) 1 SCC 248
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 735
[DR. DHANANJAYA Y CHANDRACHUD, J.]

for the survival of liberty. Hence, the absence of a clause of subjection A
in Article 26 does not lead to the conclusion that the freedom of a religious
denomination exists as a discrete element, divorced from the others.
This approach is quite independent of the consideration that even Article
26 like Article 25(1) is subject to public order, morality and health. Once
we hold, following the line which is now part of conventional doctrine,
B
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. C
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 D
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
E
critical choices for the exercise of liberty. A liberal Constitution such as
ours recognizes a wide range of rights to inhere in each individual. Without
freedom, the individual would be bereft of her individuality. Anything
that is destructive of individual dignity is anachronistic to our constitutional
ethos. The equality between sexes and equal protection of gender is an
emanation of Article 15. Whether or not Article 15 is attracted to a F
particular source of the invasion of rights is not of overarching importance
for the simple reason that the fundamental principles which emerge from
the Preamble, as we have noticed earlier, infuse constitutional morality
into its content. In our public discourse of individual rights, neither religious
freedom nor organized religion can be heard to assert an immunity to
G
adhere to fundamental constitutional precepts grounded in dignity and
human liberty. The postulate of equality is that human beings are created
equal. The postulate is not that all men are created equal but that all
individuals are created equal. To exclude women from worship by allowing
the right to worship to men is to place women in a position of subordination.
H
736 SUPREME COURT REPORTS [2018] 9 S.C.R.

A The Constitution, should not become an instrument for the perpetuation
of patriarchy. The freedom to believe, the freedom to be a person of
faith and the freedom of worship, are attributes of human liberty. Facets
of that liberty find protection in Article 25. Religion then cannot become
a cover to exclude and to deny the basic right to find fulfilment in worship
to women. Nor can a physiological feature associated with a woman
B
provide a constitutional rationale to deny to her the right to worship which
is available to others. Birth marks and physiology are irrelevant to
constitutional entitlements which are provided to every individual. To
exclude from worship, is to deny one of the most basic postulates of
human dignity to women. Neither can the Constitution countenance such
C an exclusion nor can a free society accept it under the veneer of religious
beliefs.
16. Much of our jurisprudence on religion has evolved, as we
shall see, around what constitutes an essential religious practice. At a
certain level an adjudication of what is a religious practice seems to
D have emerged from the distinction made in clause 2(a) of Article 25
between a religious practice and economic, financial, political or other
secular activities which are associated with religious practices. Where
the state has enacted a law by which it claims to have regulated a secular
activity associated with a religious practice, but not the religious practice,
it becomes necessary to decide the issue, where the validity of the law is
E
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
F 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
G superstition and dogma. Separating the grain from the chaff involves a
complex adjudicatory function. Decisions of the Court have attempted
to bring in a measure of objectivity by holding that the Court has been
called upon to decide on the basis of the tenets of the religion itself. But
even that is not a consistent norm.
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 737
[DR. DHANANJAYA Y CHANDRACHUD, J.]

17. Our conversations with the Constitution must be restructured A
to evolve both with the broadening of the content of liberty and dignity
and the role of the Court as an enforcer of constitutional doctrine. The
basic principle which must guide any analysis in this area is the dominance
of the values of liberty, equality and fraternity as instruments in achieving
individual dignity. Once individual dignity assumes the character of a
B
shining star in the constellation of fundamental rights, the place of religion
in public places must be conditioned by India’s unwavering commitment
to a constitutional order based on human dignity. Practices which are
destructive of liberty and those which make some citizens less equal
than others can simply not be countenanced. To treat women as children
of a lesser god is to blink at the Constitution itself. Among the fundamental C
duties of every citizen recognized by the Constitution is “to renounce
practices derogatory to the dignity of women”.5 In speaking to the equality
between individuals in matters of livelihood, health and remuneration for
work, the Directive Principles speak to the conscience of the Constitution.
To allow practices derogatory to the dignity of a woman in matters of
D
faith and worship would permit a conscious breach of the fundamental
duties of every citizen. We cannot adopt an interpretation of the
Constitution which has such an effect. Our inability to state this as a
matter of constitutional doctrine is liable to lead us to positions of pretence
or, worse still, hypocrisy. Both are willing allies to push critical issues
under the carpet. If we are truly to emerge out of the grim shadows of E
a society which has subjugated groups of our citizens under the weight
of discrimination for centuries, it is time that the Constitution is allowed
to speak as it can only do: in a forthright manner as a compact of
governance, for today and the future.
18. Now it is in this background that it would be necessary to F
explore the principles which emerge from the precedents of this Court
which explain the content of Article 25(1) and Article 26.
B History: Lord Ayyappa and the Sabarimala Temple
Origins
19. The Sabarimala Temple, devoted to Lord Ayyappa is a temple G
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
5
Article 51A(e), The Constitution of India H
738 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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.
B 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.
C The birth of Lord Ayyappa is described as arising from the union
of Lord Shiva and Lord Vishnu (the form of Mohini). The divine beings
left the boy in a forest near River Pampa. The Pandalam King,
Rajasekara, while on a hunting trip in the forest along the banks of the
River Pampa, heard the cries of a child. The King reached the banks of
the river and found the child Ayyappa. The King took the child in and
D took him to the Palace, where the King briefed the Queen about the
incident. The couple as well as the people of the Kingdom were happy
by the arrival of the new child. Ayyappa, also called ‘Manikanta’ grew
up in the palace and was trained in the martial arts and Vedas. The Guru
responsible for Manikanta’s education concluded that the this was not
E an ordinary child, but a divine power.
Meanwhile, the Queen gave birth to a male child named Raja
Rajan. Impressed with the talents of Manikanta, King Rajasekara decided
to crown him, treating him as the elder child. He ordered the Minister to
make arrangements for the coronation. However, the Minister, desiring
F the throne for himself, attempted to execute plans to prevent the
coronation, all of which failed. Having failed, the Minister approached
the Queen to persuade her to ensure that her own biological child was
crowned King. The Minister suggested that the Queen pretend that she
was suffering from a severe headache, whereupon he would make the
physician prescribe that the milk of a tigress be brought to cure her. To
G achieve this, he suggested that Manikanta should be sent to the forest.
21. Manikanta soon left for the forest after promising the King
that he would return with the milk of a tigress. Manikanta set out on his
6
Written Submissions by: Learned Senior Counsel Shri K. Parasaran, Learned Senior
Counsel Dr. Abhishek Manu Singhvi for the Respondents; Non-Case Law Convenience
H Compilation filed by Advocate for Respondent No. 2; Learned Senior Counsel Indira
Jaisingh and Learned Counsel R.P. Gupta for the Petitioners
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 739
[DR. DHANANJAYA Y CHANDRACHUD, J.]

journey after having refused an escort of men that the King had desired A
to accompanying him. The King had sent with Manikanta food and
coconuts with three eyes, in the remembrance of Lord Shiva. In the
forest, Lord Shiva appeared before Manikanta and told him that though
he had done his duty towards the devas, he was left with the task to
ensure the King’s comfort. Lord Shiva told Manikanta that he could go
B
back to the Palace with Lord Indra in the form of a tiger.
When Manikanta was seated on the tiger, and all the female devatas
in the disguise of tigresses started their journey to the palace, the schemers
were frightened into confessing their plot. They were convinced of his
divine origins and prayed for their own salvation and for the safety of
the Kingdom. Manikanta disappeared. The King refused to eat anything C
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 D
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.
E
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 F
secured a promise from the Lord that on thai pongal on January 14,
every year, his personal jewelry will be adorned on his deity at Sabarimala.
The Pilgrimage
23. Sabarimala follows the system of being open for: G
1. The month of Mandalam viz. 17 November to 26 December of
the normal calendar years of each year;
2. For the first five days of each Malayalam month which
communes approximately in the middle of each calendar month;
and H
740 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 3. For the period of Makar Sankranti, viz. approximately from
January to mid January each year.
The followers of Lord Ayyappa undertake a holy Pilgrimage which
culminates in a prayer at the holy shrine. The pilgrimage takes place in
four stages. First, there is a formal initiation ceremony that begins a
B forty-one day Vratham. This is followed by another formal ceremony at
the end of the Vratham period, called the Irumuti Kattal (tying of bundle),
after which the pilgrims set off for their yatra to the Ayyappa Temple at
Sabarimala. This stage includes the physical travel to the pilgrimage site,
bathing in the holy river Pampa at the foot of Mount Sabari and the
climb up Mount Sabari. This involves a trek from the Pampa river, climbing
C 3000 feet to the Sannidhanam, which is a trek of around 13 Kms, or
through forests which is a trek of 41 Kms. It ends with the pilgrim’s
ascending the sacred” eighteen steps to the shrine for the first darshan
or glimpse of the deity. The fourth stage is the return journey and the
final incorporation back into life.
D Modern communications have made the task less arduous. In
1960, an access road was constructed for vehicles, so that a pilgrim can
drive right up to the foot of Sabarimala. From here, the holy summit is
just 8 kms away. The Kerala State Transport Corporation runs special
buses during the season of pilgrimage. The buses connect Pampa directly
E with almost all the main cities in Kerala, Tamil Nadu and Karnataka.
24. The pilgrimage has three distinctive features: (i) It is almost
exclusively a male-centric pilgrimage that bars women between the ages
of ten and fifty from participating in the rituals; (ii) Though the worshippers
of Lord Ayyappa fall broadly within the Hindu tradition, yet males of all
F ages may participate on an equal footing, regardless of caste, creed or
religion. Muslims and Christians are also known to undertake this
pilgrimage, enjoying the same equality; and (iii) The actual journey to the
pilgrimage site is preceded by a preparatory period of forty-one days.
During this period, pilgrims are obliged to wear black clothes and the
‘mala’ with which they are initiated, and they must observe celibacy,
G 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
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 741
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Vratham is a sathvic lifestyle and brahmacharya. This is believed to A
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;
B
(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;
C
(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) Partaking of one meal a day; and D

(ix) Walking barefoot.
The penance is to be carried out in the manner prescribed.
Maintaining oneself as ‘pure and unpolluted’, it is believed, would lead to
the path towards attaining Godhead or to be one with Lord Ayyappa. E
C Temple entry and the exclusion of women
Before proceeding to analyse the questions in this reference, it
would be necessary to outline the history of the case bearing upon the
controversy.
F
26. Two notifications were issued by the Travancore Devaswom
Board which read as follows:
Notification dated 21 October 1955
“In accordance with the fundamental principle underlying
the prathishta (installation) of the venerable, holy and ancient G
temple of Sabarimala, Ayyappans who had not observed
the usual vows as well as women who had attained maturity
were not in the habit of entering the above mentioned temple
for Darshan (worship) by stepping the Pathinettampadi. But
of late, there seems to have been a deviation from this custom
H
742 SUPREME COURT REPORTS [2018] 9 S.C.R.

A and practice. In order to maintain the sanctity and dignity
of this great temple and keep up the past traditions, it is
hereby notified that Ayyappans who do not observe the usual
Vrithams are prohibited from entering the temple by stepping
the Pathinettampadi and women between the ages of ten
and fifty-five are forbidden from entering the temple.”7
B
Notification dated 27 November 1956
“In accordance with the fundamental principle underlying
the prathishta (installation) of the venerable, holy and ancient
temple of Sabarimala, Ayyappans who had not observed
C the usual vows as well as women who had attained maturity
were not in the habit of entering the above-mentioned temple
for Darshan (worship) by stepping the Pathinettampadi. But
of late, there seems to have been a deviation from this custom
and practice. In order to maintain the sanctity and dignity
of this great temple and keep up the past traditions, it is
D hereby notified that Ayyappans who do not observe the usual
Vritham (vows) are prohibited from entering the temple by
stepping the pathinettampadi and women between the ages
of ten and fifty five are forbidden from entering the temple.”
In 1965, the Kerala Hindu Places of Public Worship (Authorization
E of Entry) Act 19658 was enacted. The preamble to the Act lays down
that the Act has been enacted to make better provisions for entry of all
classes and sections of Hindu into places of public worship. Section 2
contains definitions:
“Section 2. Definitions:- In this Act, unless the context otherwise
F 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
G
the benefit of, or is used generally by, Hindus or any section or
7
The Kerala High Court in S Mahendran v The Secretary, Travancore Devaswom
Board, Thiruvananthapuram, recorded that women between ten and fifty were excluded
from the Sabarimala temple. The Petitioners and Respondents in the present case
accept that women between the age of ten and fifty are excluded.
8
H The “1965 Act”
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 743
[DR. DHANANJAYA Y CHANDRACHUD, J.]

class thereof, for the performance of any religious service or for A
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
B
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: C
“Section 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 D
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 E
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 enter, worship,
pray or perform:
Provided that in the case of a place of public worship which is a F
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.”
Section 4 deals with the power to make regulations:
G
“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 trustee or any other person in charge of any place public
worship shall have power, subject to the control of the competent H
744 SUPREME COURT REPORTS [2018] 9 S.C.R.

A authority and any rules which may be made by that authority, to
make regulations for the maintenance of order and the 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
B discriminate in any manner whatsoever, against any Hindu on the
ground that he belongs to a particular section or class.
(2) The competent authority referred to in sub-section (1) shall
be,-
(i) in relation to a place of public worship situated in any area to
C which Part I of the Travancore-Cochin Hindu Religious Institutions
Act, 1950 (Travancore-Cochin Act XV of 1930), extends, the
Travancore Devaswom Board;
(ii) in relation to a place of public worship situated in any area to
which Part II of the said Act extends, the Cochin Devaswom
D Board; and
(iii) in relation to a place of public worship situated in any other
area in the State of Kerala, the Government.”
The State of Kerala in exercise of the power under Section 4
framed the Kerala Hindu Places of Public Worship (Authorization of
E
Entry) Rules 1965.9 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
F
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.
G (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.
9
The “1965 Rules”
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 745
[DR. DHANANJAYA Y CHANDRACHUD, J.]

(d) Drunken or disorderly persons. A
(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.
B
(g) Professional beggars when their entry is solely for the purpose
of begging.”
(Emphasis Supplied)
27. The legality of banning the entry of women above the age of
ten and below the age of fifty to offer worship at Sabarimala shrine was C
sought to be answered in 1992 by a Division Bench of the High Court of
Kerala in S Mahendran v The Secretary, Travancore Devaswom
Board, Thiruvananthapuram (“Mahendran”).10 A public interest
litigation was entertained by the High Court on the basis of a petition
addressed by one S. Mahendran. Upholding the exclusion of women D
from the ceremonies and prayer at the shrine, the High Court concluded:
“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 E
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 F
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.” 11
The High Court issued the following directions:- G
“In the light of the aforesaid conclusions we direct the first
respondent, the Travancore Devaswom Board, not to permit
women above the age of 10 and below the age of 50 to trek the
10
AIR 1993 Ker 42
11
Ibid, at page 57 H
746 SUPREME COURT REPORTS [2018] 9 S.C.R.

A holy hills of Sabarimala in connection with the pilgrimage to the
Sabarimala temple and from offering worship at Sabarimala Shrine
during any period of the year. We also direct the 3rd respondent,
Government of Kerala, to render all necessary assistance inclusive
of police and to see that the direction which we have issued to the
Devaswom Board is implemented and complied with.”
B
D The reference
28. When the present case came up before a three judge Bench
of this Court, by an order dated 13 October 2017, the following questions
were referred to a larger bench:
C “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
D “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,
E 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)?
F
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?
G
5. Whether Rule 3(b) of 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?”
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 747
[DR. DHANANJAYA Y CHANDRACHUD, J.]

It is these questions that we have been called upon to answer. A
E Submissions
The Petitioners challenge the exclusion of women between the
age group ten and fifty from the Sabarimala Temple as unconstitutional.
Mr Ravi Prakash Gupta,12 learned Counsel submitted that the B
exclusion of women between the age group of ten and fifty from the
Sabarimala Temple is unconstitutional on the following grounds:
i. The devotees of Lord Ayyappa do not constitute a religious
denomination under Article 26 of the Constitution;
ii.The restriction of entry of women into Sabarimala temple does C
not constitute an Essential Religious Practice;
iii. The right under Article 26 and Article 25 must be read
harmoniously as laid down in Devaru; and
iv. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act
D
and Article 14 and 15 of the Constitution.
Ms Indira Jaising,13 learned Senior Counsel, submits that the
exclusion from the Sabarimala temple is unconstitutional:
i. The exclusionary practice is based on physiological factors
exclusive to the female gender and this violates Articles 14, 15 E
and 21 of the Constitution;
ii.The practice of exclusion based on menstruation constitutes a
form of untouchability and is prohibited by Article 17 of the
Constitution;
iii. The devotees of Lord Ayyappa do not constitute a religious F
denomination under Article 26 of the Constitution;
iv. The practice of excluding women from the Sabarimala temple
does not constitute an Essential Religious Practice;
v.That the impugned custom of excluding women falls within the
G
ambit of ‘laws in force’ in Article 13 and is constitutionally
invalid; and
vi. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act.
12
Appearing for the Petitioners – Indian Young Lawyer’s Association
13
Appearing for the Intervenors – Nikita Azad Arora and Sukhjeet Singh
H
748 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Mr Raju Ramachandran, learned Senior Counsel who has
assisted the Court as Amicus Curiae made the following submissions:
i. That the right of a woman to worship is an essential aspect of
her right to worship under Article 25;
ii. That the exclusion of women from Sabarimala temple amounts
B to discrimination prohibited under Article 15(1) of the
Constitution;
iii. That compulsory disclosure of menstrual status by women is a
violation of their right to privacy under Article 21 of the
Constitution;
C
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
D 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
E
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
F High Court in Mahendran are sufficient.
Mr P V Surendranath,14 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 14, 15, 25 and 51 of
G
the Constitution; and
iii. In the case of a conflict between fundamental rights and
customs, the former would prevail in accordance with Article
13 of the Constitution.
14
Appearing for the Intervenors – All India Democratic Women’s Association
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 749
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Mr Jaideep Gupta,15 learned Senior Counsel submitted: A
i. The State Government of Kerala stands by the affidavit filed
on 13 November 2007 wherein the State Government was
not in favour of any discrimination against women;
ii. That women fall within the ambit of ‘section or class’ in Section
3 of the 1965 Act; B

iii. Article 17 must be given a broad interpretation which prohibits
the exclusion of women;
iv. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act;
v. The devotees of Lord Ayyappa do not constitute a religious C
denomination under Article 26 of the Constitution;
vi. The practice of excluding women from the Sabarimala temple
does not constitute an Essential Religious Practice; and
vii. That the impugned custom of excluding women falls within
D
the ambit of Article 13 and is constitutionally invalid.
The Respondents submitted that the practice of excluding women
between the age group of ten and fifty from the Sabarimala temple is
constitutionally permissible.
Dr.Abhishek Manu Singhvi,16 learned Senior Counsel submitted E
that the practice of excluding women between the age group of ten and
fifty from the Sabarimala temple is constitutional and valid:
i. The exclusion of women is not based on gender and satisfies
the test of intelligible differentia and nexus to the object sought
to be achieved; F
ii.That Article 17 is inapplicable to the case at hand as the Article
is restricted to prohibiting caste and religion-based untouchability;
iii. The Sabarimala temple is a denominational temple and the
exclusion of women is in exercise of denomination rights under
Article 26 of the Constitution; G
iv. Articles 25 and 26 of the Constitution protect religious matters
including ceremonial issues and the exclusion of women is an
exercise of this right;
15
Appearing for the State of Kerala
16
Appearing on behalf of the Respondent – Travancore Devaswom Board H
750 SUPREME COURT REPORTS [2018] 9 S.C.R.

A v. That Article 13 of the Constitution does not apply to the present
case; and
vi. That a separate trial would be required for the determination
of facts.

B Shri K Parasaran,17 learned Senior Counsel submitted that the
exclusion from the Sabarimala temple is constitutionally permissible:
i. There exists an independent custom that permits the exclusion
of women from the Sabarimala temple;
ii.The right to exclude women of a particular age group from the
C 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

D 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:
E
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.
F Mr K Radhakrishnan,18 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

G ii. The prohibition of untouchability enshrined in Article 17 is
inapplicable.
Mr V Giri,19 learned Senior Counsel submitted thus:
17
Appearing on behalf of the Respondent – Nair Service Society
18
Appearing on behalf of the Intervenor – Raja of Pandalam
19
Appearing on behalf of the Respondent – the Thantri
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 751
[DR. DHANANJAYA Y CHANDRACHUD, J.]

i. The exclusion of women constitutes an Essential Religious A
Practice and is in accordance with character of the deity as a
Naishtika Brahmacharya.
Mr J Sai Deepak,20 learned Counsel submitted that the deity has
constitutional rights and that the practice of excluding women between
the age group of ten and fifty from worship at the Sabarimala temple is B
constitutional and permissible:
i. The impugned practice is based on the character of the deity
as a Naishtika Brahmacharya;
ii. Given the form of the deity, the practice constitutes an Essential
Religious Practice; C
iii.The devotees of Lord Ayyappa constitute a religious
denomination under Article 26 of the Constitution;
iv.That the presiding deity of Sabarimala Temple is a bearer of
constitutional rights under Articles 21 and 25 of the Constitution;
v.Article 17 of the Constitution has no applicability as it applies D
only to untouchability based on caste and religion; and
vi.The impugned Rules and Act flow from the right of the
denomination under Article 26 and are constitutionally valid.
Mr V K Biju,21 learned Counsel submitted that the exclusion is
constitutionally permissible: E
i. That the right of the deity as a juristic person sitting as a Naishtika
Brahmacharya cannot be questioned;
ii.That the exclusion is protected under Article 25 and 26 of the
Constitution; and
iii. The issue at hand cannot be decided without a determination F
of facts that would take place at trial.
Mr Gopal Sankaranarayanan,22 learned Counsel made the
following submissions:
i. That Article 25 is not applicable to the present case;
ii. That the devotees of Lord Ayyappa constitute a religious G
denomination under Article 26 of the Constitution; and

20
Appearing on behalf of K K Sabu and People for Dharma
21
Appearing on behalf of the Lord Ayyappa Devotees
22
Appearing for Intervenor – Usha Nandini
H
752 SUPREME COURT REPORTS [2018] 9 S.C.R.

A iii. The 1965 Act does not apply to the Sabarimala temple; In any
case, the proviso to Rule 3 of the 1965 Rules protects the
rights of religious denominations.
F Essential Religious Practices
29. The doctrine of essential religious practices was first articulated
B in 1954, in Commissioner, Hindu Religious Endowments, Madras
v Sri Lakshmindra Thirtha Swamiar of Shirur Mutt23 (“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
C 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.
D 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
E 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?”

F (Emphasis supplied)
The Court cited with approval the judgment of the High Court of
Australia in Adelaide Company of Jehovah’s Witnesses
Incorporated v The Commonwealth of Australia24, which held that
the Constitution protected not only “liberty of opinion” but also “acts
done in pursuance of religious belief as part of religion.” The court noted
G
the importance of both religious belief and the practice that stems from
it, and provided an expansive definition of ‘religion’:
“A religion undoubtedly has its basis in a system of beliefs or
doctrines which are regarded by those who profess that religion
23
1954 SCR 1005
H 24
[1943] HCA 12
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 753
[DR. DHANANJAYA Y CHANDRACHUD, J.]

as conducive to their spiritual well-being, but it would not be correct A
to say that religion is nothing else but a doctrine or belief...The
guarantee under our Constitution not only protects the
freedom of religious opinion but it protects also acts done
in pursuance of a religion and this is made clear by the use
of the expression “practice of religion” in article 25.”
B
(Emphasis supplied)
Drawing a distinction between religious and secular practices,
the court held that:
“...What constitutes the essential part of a religion is
primarily to be ascertained with reference to the doctrines C
of that religion itself. If the tenets of any religious sect of the
Hindus prescribe that offerings of food should be given to the idol
at particular hours of the day…all these would be regarded as
parts of religion and the mere fact that they involve expenditure
of money or employment of priests and servants or the use of
marketable commodities would not make them secular activities D
partaking of a commercial or economic character; all of them are
religious practices and should be regarded as matters of religion
within the meaning of Article 26(b).”
(Emphasis supplied)
The Court ruled that the freedom of religion guaranteed by the E
Constitution applied to freedom of both religious belief and practice. To
distinguish between the religious and the secular, the Court looked to the
religion itself, and noted that the views of adherents were crucial to the
analysis of what constituted ‘essential’ aspects of religion.
30. This approach was followed in Ratilal Panachand Gandhi v F
State of Bombay25 (“Ratilal”), where a Constitution Bench of this Court
considered the constitutionality of the Bombay Public Trusts Act, 1950.
The Act sought to regulate and make provisions for the administration of
public and religious trusts in the State of Bombay. The Petitioners
challenged the validity of the Act on the grounds that it interfered with G
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:
25
1954 SCR 1055 H
754 SUPREME COURT REPORTS [2018] 9 S.C.R.

A “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.”
B
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:
C “Religious practices or performances of acts in pursuance of
religious beliefs are as much a part of religion as faith or belief in
particular doctrines …
23…No outside authority has any right to say that these are not
essential parts of religion and it is not open to the secular authority
D of the State to restrict or prohibit them in any manner they like
under the guise of administering the trust estate.”
The Court, however, recognized the limited role of the Court in
the determination of such a question:
“The distinction between matters of religion and those of secular
E administration of religious properties may, at times, appear to be a
thin one. But in cases of doubt …the court should take a
common sense view and be actuated by considerations of
practical necessity.” (Emphasis supplied)
31. The late 1950s witnessed two cases that were central to the
F evolution of the essential practices doctrine. In Sri Venkataramana
Devaru v State of Mysore26(“Devaru”), a Constitution Bench of this
Court considered the constitutionality of the Madras Temple Entry
Authorisation Act, 1947, which sought to reform the practice of religious
exclusion of Dalits from a denominational temple founded by the Gowda
Saraswat Brahmins. The Court accepted the claim that the temple was
G
a denominational temple founded for the benefit of the Gowda Saraswats,
and proceeded to examine whether exercising the right of a religious
denomination under Article 26(b), they were ‘entitled to exclude other
communities from entering into it for worship on the ground that it was a
matter of religion.’
H 26
(1958) SCR 895
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 755
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Rather than allowing the religious denomination ‘complete A
autonomy in the matter of deciding as to what rites and ceremonies are
essential’, the Court examined scripture and precedent to determine
whether the exclusion of a person from entering into a temple for worship
was a matter of religion under Hindu Ceremonial Law. Justice
Venkatarama Aiyar reviewed ancient literature, the practice of Hindus,
B
and the role of temples in that practice, and concluded on behalf of the
Court that:
“18…Thus, under the ceremonial law pertaining to temples,
who are entitled to enter them for worship and where they are
entitled to stand and worship and how the worship is to be
conducted are all matters of religion.” (Emphasis supplied) C

This firmly established the Court’s role in determining what
constituted ‘essential’ religious practices. However, the matter did not
end here. The Gowda Saraswats claimed their right to manage their
own religious affairs under Article 26(b), whereas the State claimed that
it had a constitutional mandate to throw open Hindu temples ‘to all classes D
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 E
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 F
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 therein. The language of the Article being plain and G
unambiguous, it is not open to us to read into it limitations which
are not there, based on a priori reasoning as to the probable
intention of the Legislature. Such intention can be gathered only
from the words actually used in the statute; and in a Court of law,
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756 SUPREME COURT REPORTS [2018] 9 S.C.R.

A what is unexpressed has the same value as what is unintended.
We must therefore hold that denominational institutions are within
Art. 25(2)(b).”
Applying the doctrine of harmonious construction, the Court held
that the protection under Article 25(2)(b) vanishes in its entirety if it is
B held that Article 26(b) allows no exceptions or is not subject to Article
25(2)(b):
“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
C where that is not the position, and after giving effect to the rights
of the denomination what is left to the public of the right of worship
is something substantial and not merely the husk of it, there is no
reason why we should not so construe Art. 25(2)(b) as to give
effect to Art. 26(b) and recognise the rights of the denomination
D in respect of matters which are strictly denominational, leaving
the rights of the public in other respects unaffected.”
32. This case marked a nuance of the essential practices doctrine
laid down in Shirur Mutt, where a denomination was granted ‘complete
autonomy’ to determine which practices it considered to be essential. In
E Shirur Mutt, the autonomy to decide what is essential to religion was
coupled with the definition of religion itself, which was to comprehend
belief and practice. In Devaru, the Court laid down a crucial precedent
in carving out its role in examining the essentiality of such practices.
While the Court would take into consideration the views of a religious
community in determining whether a practice qualified as essential, this
F would not be determinative.
Prior to Devaru, this Court used the word ‘essential’ to distinguish
between religious and secular practices in order to circumscribe the
extent of state intervention in religious matters. The shift in judicial
approach took place when ‘essentially religious’ (as distinct from the
G secular) became conflated with ‘essential to religion.’ The Court’s enquiry
into the essentiality of the practice in question represented a shift in the
test, which now enjoined upon the Court the duty to decide which religious
practices would be afforded constitutional protection, based on the
determination of what constitutes an essential religious practice.

H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 757
[DR. DHANANJAYA Y CHANDRACHUD, J.]

33. In Mohd. Hanif Quareshi v State of Bihar27 (“Qureshi”), A
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
B
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 C
the Lord and make sacrifice...It is therefore, optional for a Muslim
to sacrifice a goat for one person or a cow or a camel for seven
persons. It does not appear to be obligatory that a person
must sacrifice a cow. The very fact of an option seems to
run counter to the notion of an obligatory duty…” D
(Emphasis supplied)
In response to the claim that Muslims had been sacrificing cows
since time immemorial and that this practice was sanctioned by their
religion and was therefore protected by Article 25, the Court observed
that:
E
“13…It is part of the known history of India that the Moghul
Emperor Babar saw the wisdom of prohibiting the slaughter of
cows as and by way of religious sacrifice and directed his son
Humayun to follow this example...We have, however, no
material on the record before us which will enable us to
say, in the face of the foregoing facts, that the sacrifice of a F
cow on that day is an obligatory overt act for a Mussalman
to exhibit his religious belief and idea. In the premises, it is
not possible for us to uphold this claim of the petitioners.”
(Emphasis supplied)
The Court looked to the texts and scriptures of the religious G
community to conclude that the practice claimed to be essential was not
supported by religious tenets.
34. In Durgah Committee, Ajmer v Syed Hussain Ali 28
(“Durgah Committee”), a Constitution Bench of this Court considered
27
(1959) SCR 629
28
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(1962) 1 SCR 383
758 SUPREME COURT REPORTS [2018] 9 S.C.R.

A a challenge to the Durgah Khawaja Saheb Act, 1955, which provided
for the constitution of a Committee to manage a Muslim Durgah. The
Respondents, who were khadims29 of the Durgah, contended that the
Act barred them from managing the Durgah and receiving offerings
from pilgrims, and hence infringed upon their rights under Article 26 as
Muslims belonging to the Soofi Chishtia Order. Rather than making a
B
reference to scriptures, Justice Gajendragadkar, writing for the Court,
considered the history of the Ajmer shrine to determine that the right to
administer the property never vested in the Respondents:
“22. Thus it would be clear that from the middle of the 16th Century
to the middle of the 20th Century the administration and
C management of the Durgah Endowment has been true to the same
pattern. The said administration has been treated as a matter with
which the State is concerned and it has been left in charge of the
Mutawallis who were appointed from time to time by the State
and even removed when they were found to be guilty of misconduct
or when it was felt that their work was unsatisfactory.”
D
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
E 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
F 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
G essential and an integral part of it and no other.”
(Emphasis supplied)
29
According to the khadims, they were descendants of two followers of the twelfth
century Sufi saint Khwaja Moinuddin Chisti, whose tomb at Ajmer is known as the
Durgah Khwaja Saheb. The khadims also claimed they belonged to a religious
denomination known as the Chishtia Sufis.
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 759
[DR. DHANANJAYA Y CHANDRACHUD, J.]

35. This statement pushed the essential religious practices doctrine A
in a new direction. The Court distinguished, for the first time, between
‘superstitious beliefs’ and religious practice. Apart from engaging in a
judicial enquiry to determine whether a practice claimed to be essential
was in fact grounded in religious scriptures, beliefs, and tenets, the Court
would ‘carefully scrutinize’ that the practice claiming constitutional
B
protection does not claim superstition as its base. This was considered a
necessary safeguard to ensure that superstitious beliefs would not be
afforded constitutional protection in the garb of an essential religious
practice. The Court also emphasized that purely secular matters clothed
with a religious form do not enjoy protection as an essential part of
religion. C
36. The test was narrowed down further in Sardar Syedna Taher
Saifuddin Saheb v State of Bombay (“Saifuddin”),30 where this Court,
by a 4-1 majority, struck down the Bombay Prevention of
Excommunication Act, 1949, which prohibited the practice of
excommunication within religious communities. The Court held that the D
practice of excommunication within the Dawoodi Bohra faith on religious
grounds fell within ‘matters of religion’ under Article 26(b) and was thus
constitutionally protected. Justice Das Gupta, writing for the majority,
emphasized that the practice claimed to be essential must be based strictly
on religious grounds in order to claim constitutional protection:
E
“43…The barring of excommunication on grounds other than
religious grounds say, on the breach of some obnoxious
social rule or practice might be a measure of social reform
and a law which bars such excommunication merely might
conceivably come within the saving provisions of clause
2(b) of Art. 25. But barring of excommunication on religious F
grounds pure and simple, cannot however be considered to
promote social welfare and reform and consequently the law in
so far as it invalidates excommunication on religious grounds and
takes away the Dai’s power to impose such excommunication
cannot reasonably be considered to be a measure of social welfare G
and reform.” (Emphasis supplied)
The Court, therefore, enquired into the basis of excommunication:
if its basis was strictly religious, the practice would warrant constitutional
30
1962 Supp (2) SCR 496
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760 SUPREME COURT REPORTS [2018] 9 S.C.R.

A protection. If, however, the practice was based on any other ground, it
would be open to the Legislature to prohibit such a practice.
37. In a strong dissent, Chief Justice Sinha concluded that the
matter of excommunication was not purely of a religious nature. Clarifying
that his analysis was confined to the civil rights of the members of the
B 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
C 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
D 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
E attached to infringement of those rules, managing property owned
and possessed by the religious community, etc., etc. We have
therefore, to draw a line of demarcation between practises
consisting of rites and ceremonies connected with the particular
kind of worship, which is the tenet of the religious community, and
practises in other matters which may touch the religious institutions
F at several points, but which are not intimately concerned with
rites and ceremonies the performance of which is an essential
part of the religion.”
Justice Sinha noticed the extreme consequences that follow
excommunication:
G
“24. On the social aspect of excommunication, one is inclined to
think that the position of an excommunicated person becomes
that of an untouchable in his community, and if that is so, the Act
in declaring such practises to be void has only carried out the
strict injunction of Art. 17 of the Constitution, by which
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INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 761
[DR. DHANANJAYA Y CHANDRACHUD, J.]

untouchability has been abolished and its practice in any form A
forbidden. The Article further provides that the enforcement of
any disability arising out of untouchability shall be an offence
punishable in accordance with law. The Act, in this sense, is its
logical corollary and must, therefore, be upheld.”
The decision in Saifuddin is presently pending consideration before B
a larger bench.
38. Durgah Committee and Saifuddin established the role of
this Court in scrutinizing claims of practices essential to religion in order
to deny constitutional protection to those practices that were not strictly
based in religion. Ascertaining what was “essential” to a religious C
denomination “according to its own tenets” required a scrutiny of its
religious texts. Durgah Committee laid down that the court would
‘carefully scrutinize’ claims to deny constitutional protection to those
claims which are religious but spring from superstitious beliefs and are
not essential to religion. Saifuddin laid down that a practice grounded
on an obnoxious social rule or practice may be within the ambit of social D
reform that the State may carry out. This view infuses the doctrine with
a safeguard against claims by religious denominations that any practice
with a religious undertone would fall within the protection afforded by
Article 26(b) to them to ‘manage its own affairs in matters of religion.’
39. In Tilkayat Shri Govindlalji Maharaj v State of Rajasthan E
(“Tilkayat”)31, a Constitution Bench of this Court dealt with a challenge
to Nathdwara Temple Act 1959, which provides for the appointment of
a board to manage the affairs of the temple and its property. The
Petitioner, the spiritual head of the temple, claimed that the temple and
its properties were private and that the State legislature was not competent F
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 G
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:
31
(1964) 1 SCR 561
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762 SUPREME COURT REPORTS [2018] 9 S.C.R.

A “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 rival contentions as to competing religious practices
B
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. The question will always have to be decided
C by the Court…”
In this regard, the Court noted that:
“58...What is protected under Articles 25(1) and 26(b) respectively
are the religious practices and the right to manage affairs in matters
of religion. If the practice in question is purely secular or the affair
D which is controlled by the statute is essentially and absolutely
secular in character, it cannot be urged that Article 25(1) or Article
26(b) has been contravened.”
Tilkayat set forth an important qualification to the proposition
laid down in Shirur Mutt, which held that adherents themselves must
E be allowed to determine what was essential to their religion. The Court
observed that where ‘conflicting evidence is produced in respect of rival
contentions as to competing religious practices,’ a ‘blind application’ of
the Shirur Mutt formula may not resolve a dispute, because persons
within a community may have diverse and contrasting conceptions of
F what is essential to their religion. It was therefore held to be incumbent
upon the Court to determine not only whether a practice was religious in
character, but also whether it could be considered an essential part of
religion. Beginning with the Shirur Mutt formulation that what is essential
to religion would be determined by the adherents to the faith, the Court
moved towards a doctrine that what is essential “will always have to be
G decided by the Court.” In fact, the Court would determine whether a
statute sought to regulate what is “essentially and absolutely secular.”
What is religious and what is secular and the boundaries of both were
then to be adjudicated by the Court.

H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 763
[DR. DHANANJAYA Y CHANDRACHUD, J.]

40. In Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya32 A
(“Sastri Yagnapurushadji”), a Constitution Bench of this Court was
seized with the issue of whether the Swaminarayan sect could be
exempted from the application of the Bombay Hindu Places of Public
Worship (Entry Authorization) Act, 1956, which allowed Dalits to worship
in all temples to which the Act applied. The Petitioners, who were
B
members of the Swaminarayan sect, contended that by virtue of being a
non-Hindu creed, temples belonging to the sect did not fall within the
ambit of the Act. Justice Gajendragadkar, writing for the Court, rejected
this claim:
“55.It may be conceded that the genesis of the suit is the genuine
apprehension entertained by the appellants, but as often happens C
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) D

Quoting Tilak, Justice Gajendragadkar then expounded the
distinctive features of Hinduism:
“40.Tilak faced this complex and difficult problem of defining or E
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 F
the distinguishing feature of Hindu religion.”
(Emphasis supplied)
41. In Acharya Jagdishwaranand Avadhuta v. Commissioner
of Police, Calcutta33(“Avadhuta I”), a three judge Bench of this Court
considered whether the police could prevent the Ananda Margis from G
performing the ‘tandava dance’ in public, in which adherents dance in a
public procession carrying knives, live snakes, tridents, and skulls. The
Court enquired ‘whether performance of Tandava dance is a religious
32
(1966) 3 SCR 242
33
(1983) 4 SCC 522
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764 SUPREME COURT REPORTS [2018] 9 S.C.R.

A rite or practice essential to the tenets of the religious faith of the Ananda
Margis.’ Justice Ranganath Misra, writing for the Court, held that since
the Ananda Margis were a recent religious order, and the tandava dance
an even more recent innovation, it could not be considered an essential
religious practice:
B “14.Ananda Marga as a religious order is of recent origin and
tandava dance as a part of religious rites of that order is still more
recent. It is doubtful as to whether in such circumstances tandava
dance can be taken as an essential religious rite of the Ananda
Margis.
“Even conceding that Tandava dance has been prescribed as a
C religious rite for every follower of Ananda Margis it does not
follow as a necessary corollary that Tandava dance to be
performed in the public is a matter of religious rite. In fact, there
is no justification in any of the writings of Shri Ananda Murti that
tandava dance must be performed in public.”34
D 42. In Sri Adi Visheshwara of Kashi Vishwanath Temple,
Varanasi v State of Uttar Pradesh35 (“Adi Visheshwara”), a three
judge Bench of this Court dealt with a challenge to the Uttar Pradesh Sri
Kashi Vishwanath Temple Act, 1983, which entrusted the State with the
management of the temple as opposed to the Pandas (priests). The priests
E contended that this violated their right under Article 25(1) and Article
26(b) and (d) of the Constitution. Rejecting that the claim and holding
that the management of a temple is a secular activity, this Court held
that the Sri Vishwanath Temple is not a denominational temple and that
the Appellants are not denominational worshippers. In a view similar to
that taken by Justice Gajendragadkar in Tilkayat, the Court cautioned
F against extending constitutional protection to purely secular practices
clothed with a religious form:
“28…Sometimes, practices, religious or secular, are
inextricably mixed up. This is more particularly so in regard to
Hindu religion because under the provisions of the ancient Smriti,
G 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
34
Ibid, at pages 532-533
H 35
(1997) 4 SCC 606
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 765
[DR. DHANANJAYA Y CHANDRACHUD, J.]

and another diametrically more on traditional point of view. The A
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.”36(Emphasis supplied)
B
43. In N Adithayan v Travancore Devaswom Board 37
(“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 C
Brahmins were entitled to serve as priests. Rejecting the claim that Shirur
Mutt laid down the proposition that all practices arising out of religion
are afforded constitutional protection, the Court held:
“18…The attempted exercise by the learned Senior Counsel for
the appellant to read into the decisions of this Court in Shirur D
Mutt’s case (supra) and others something more than what it actually
purports to lay down as if they lend support to assert or protect
any and everything claimed as being part of the religious rituals,
rites, observances and method of worship and make such claims
immutable from any restriction or regulation based on the other
provisions of the Constitution or the law enacted to implement E
such constitutional mandate, deserves only to be rejected as merely
a superficial approach by purporting to deride what otherwise has
to have really an overriding effect, in the scheme of rights declared
and guaranteed under Part III of the Constitution of India. Any
custom or usage irrespective of even any proof of their F
existence in pre constitutional days cannot be countenanced
as a source of law to claim any rights when it is found to
violate human rights, dignity, social equality and the specific
mandate of the Constitution and law made by Parliament.
No usage which is found to be pernicious and considered
to be in derogation of the law of the land or opposed to G
public policy or social decency can be accepted or upheld
by courts in the country.”38 (Emphasis supplied)
36
Ibid, at page 630
37
(2002) 8 SCC 106
38
Ibid, at pages 124-125 H
766 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 44. The question of the essential religious nature of the Tandava
dance was considered again in 2004, in Commissioner of Police v.
Acharya Jagdishwarananda Avadhuta 39(“Avadhuta II”). After
Avadhuta I, the religious book of the Anand Margis, the Carya-
Carya,was revised to prescribe the Anand Tandava as an essential
religious practice. Laying emphasis on the ‘essential’ nature of the practice
B
claimed, the majority, in a 2-1 split verdict, held that the practice must be
of such a nature that its absence would result in a fundamental change
in the character of that religion:
“9.Essential part of a religion means the core beliefs upon which
a religion is founded. Essential practice means those practices
C that are fundamental to follow a religious belief. It is upon the
cornerstone of essential parts or practices that the superstructure
of a religion is built, without which a religion will be no religion.
Test to determine whether a part or practice is essential to
a religion is to find out whether the nature of the religion
D 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
E
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
F mere embellishments to the non-essential part or
practices.” 40
(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
G the fundamental nature of the religion, the practice itself is not essential.
Rejecting the claim of the Anand Margis, the majority held that
the Ananda Margi order was in existence (1955-66) even without the
practice of the Tandava dance. Hence, such a practice would not
39
(2004) 12 SCC 770
40
Ibid, at pages 782-783
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 767
[DR. DHANANJAYA Y CHANDRACHUD, J.]

constitute the ‘core’ of the religion. Further, religious groups could not A
be permitted to alter their religious doctrine to recognize certain religious
practices, in order to afford them constitutional protection.
45. In Adi Saiva Sivachariyargal Nala Sangam v. Government
of Tamil Nadu41 (“Adi Saiva”), a two judge Bench of this Court
considered a challenge to a Government Order issued by the State of B
Tamil Nadu which permitted ‘any qualified Hindu’ to be appointed as
the Archaka of a temple. The Petitioners challenged the Government
Order on the grounds that it violated their right to appoint Archakas from
their own denomination in accordance with the Agamas. In determining
the constitutional validity of the Government Order, this Court held that
any religious belief or practice must pass constitutional muster in order C
to be afforded constitutional protection:
“48.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 D
supersede all religious beliefs or practices.”42
(Emphasis supplied)
46. In Shayara Bano v Union of India43 (“Shayara Bano”), a
Constitution Bench of this Court considered whether the practice of
triple talaq was an essential practice to the Hanafi school of Sunni E
Muslims. Based on an examination of Islamic jurisprudence which
established that triple talaq constitutes an irregular practice of divorce,
the majority opinion, in a 3-2 split, held that triple talaq was not an essential
practice. Justice Nariman, speaking for himself and Justice Lalit, noted
that “a practice does not acquire the sanction of religion simply because F
it is permitted” and applied the essential religious practices test set out in
Javed v State of Haryana44 and Avadhuta II to the practice of triple
talaq:
“54...It is clear that Triple Talaq is only a form of Talaq which is
permissible in law, but at the same time, stated to be sinful by the G
very Hanafi school which tolerates it. According to Javed (supra),
therefore, this would not form part of any essential religious
41
(2016) 2 SCC 725
42
Ibid, at page 755
43
(2017) 9 SCC 1
44
(2003) 8 SCC 369 H
768 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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.”45
Justice Kurian Joseph, concurring with Justices Nariman and Lalit,
B 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.”
C 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,
D 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 “is considered
E as irreligious within the religious denomination in which the practice
is prevalent, yet the denomination considers it valid in law.”
While the majority based its conclusion on an examination of the
substantive doctrines of Islam and the theological sanctity of triple talaq,
the minority relied on the widespread practice of triple talaq to determine
F its essentiality. The majority and minority concurred, however, that the
belief of a religious denomination claiming a particular practice to be
essential must be taken into consideration in the determination of the
essentiality of that practice.
47. In its jurisprudence on religious freedom, this Court has evolved
a body of principles which define the freedom of religion under Article
G
25 and Article 26 to practices ‘essential’ to the religion. The Constitution
has been held to protect not only freedom of religious belief, but acts
done in pursuance of those beliefs. While the views of a religious
denomination are to be taken into consideration in determining whether
a practice is essential, those views are not determinative of its essentiality.
H 45
Ibid, at page 69
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 769
[DR. DHANANJAYA Y CHANDRACHUD, J.]

The Court has assumed a central role in determining what is or is not A
essential to religious belief. Intrinsic to the role which the Court has
carved out, it has sought to distinguish between what is religious and
what is a secular practice, even if it is associated with a religious activity.
Going further, the Court has enquired into whether a practice is essential
to religion. Essentiality of the practice would, as the Court as held depends
B
on whether the fundamental character of a religion would be altered. if
it were not observed. Above all, there is an emphasis on constitutional
legitimacy, which underscores the need to preserve the basic constitutional
values associated with the dignity of the individual. The ephemeral
distinction between religion and superstition becomes more coherent in
terms of the need to preserve fundamental constitutional values associated C
with human liberty.
48. In determining the essentiality of a practice, it is crucial to
consider whether the practice is prescribed to be of an obligatory nature
within that religion. If a practice is optional, it has been held that it cannot
be said to be ‘essential’ to a religion. A practice claimed to be essential D
must be such that the nature of the religion would be altered in the
absence of that practice. If there is a fundamental change in the character
of the religion, only then can such a practice be claimed to be an ‘essential’
part of that religion.
In Tilkayat, this Court noted that ‘whether an affair in question is E
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 F
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. G
Of crucial importance are the observations in Devaru, where the
Court harmonized the inherent tension between the individual right under
Article 25(2)(b) and the denominational right under Article 26(b). Where
the protection of denominational rights would substantially reduce the
right conferred by Article 25(2)(b), the latter would prevail against the H
770 SUPREME COURT REPORTS [2018] 9 S.C.R.

A former. This ensures that the constitutional guarantee under Article
25(2)(b) is not destroyed by exclusionary claims which detract from
individual dignity. That a practice claimed to be essential has been carried
on since time immemorial or is grounded in religious texts, does not lend
to it constitutional protection unless it passes the test of essentiality.
B G The engagement of essential religious practices with
constitutional values
49. For decades, this Court has witnessed claims resting on the
essentiality of a practice that militate against the constitutional protection
of dignity and individual freedom under the Constitution. It is the duty of
C the courts to ensure that what is protected is in conformity with
fundamental constitutional values and guarantees and accords with
constitutional morality. While the Constitution is solicitous in its protection
of religious freedom as well as denominational rights, it must be
understood that dignity, liberty and equality constitute the trinity which
defines the faith of the Constitution. Together, these three values combine
D to define a constitutional order of priorities. Practices or beliefs which
detract from these foundational values cannot claim legitimacy. In
Government of NCT of Delhi v Union of India 46 , one of us
(Chandrachud J), observed the importance of constitutional morality as
a governing ideal:
E “Constitutional morality highlights the need to preserve the trust
of the people in institutions of democracy. It encompasses not just
the forms and procedures of the Constitution, but provides an
“enabling framework that allows a society the possibilities of self-
renewal”. It is the governing ideal of institutions of democracy
F which allows people to cooperate and coordinate to pursue
constitutional aspirations that cannot be achieved single-handedly.”
Our Constitution places the individual at the heart of the discourse
on rights. In a constitutional order characterized by the Rule of Law, the
constitutional commitment to egalitarianism and the dignity of every
G individual enjoins upon the Court a duty to resolve the inherent tensions
between the constitutional guarantee of religious freedom afforded to
religious denominations and constitutional guarantees of dignity and
equality afforded to individuals. There are a multiplicity of intersecting
constitutional values and interests involved in determining the essentiality
46
(2018) 8 SCALE 72
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 771
[DR. DHANANJAYA Y CHANDRACHUD, J.]

of religious practices. In order to achieve a balance between competing A
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 B
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.
C
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 the Kerala High Court in Mahendran. The High Court
recorded findings on the pilgrimage, the inconsistent practice of prohibiting
women between the age group of ten and fifty, and the collection of D
individuals that offer prayer at the Sabarimala temple. Relying on the
findings of fact recorded in Mahendran and taking note of the
submissions of the Respondents herein, the question of remanding the
case to a trial in this case does not arise.
In regard to the maintainability of the present public interest E
litigation, this issue stands answered by the judgment of this Court in Adi
Saiva Sivachariyargal v Government of Tamil Nadu,47 :
“12…The argument that the present writ petition is founded on a
cause relating to appointment in a public office and hence not
entertainable as a public interest litigation would be too simplistic F
a solution to adopt to answer the issues that have been
highlighted which concerns the religious faith and practice
of a large number of citizens of the country and raises claims
of century-old traditions and usage having the force of law.
The above is the second ground, namely, the gravity of the issues G
that arise, that impel us to make an attempt to answer the
issues raised and arising in the writ petitions for
determination on the merits thereof.” (Emphasis supplied)
47
(2016) 2 SCC 725
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772 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Of importance are some of the observations of the Kerala High
Court in Mahendran The High Court noted that even when old customs
prevailed, women were allowed to visit the Temple.48 It noted an incident
where the Maharaja of Travancore, accompanied by the Maharani and
the Divan, had visited the Temple in 1115 M.E. The High Court noted
that the Temple has seen the presence of women worshippers between
B
the ages of ten and fifty for the first rice-feeding ceremony of their
children.49 The Secretary of the Ayyappa Seva Sangham had deposed
that young women were seen in Sabarimala during the previous ten to
fifteen years.50 A former Devaswom Commissioner admitted that the
first rice-feeding ceremony of her grandchild was conducted at the
C Sabarimala Temple. The High Court found that during the twenty years
preceding the decision, women irrespective of age were allowed to visit
the temple when it opened for monthly poojas,51 but were prohibited
from entering the temple only during Mandalam, Makaravilakku and
Vishu seasons.52
D 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
E 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 practice53.
This followed the dictum in Shirur Mutt, without taking note of evolution
F 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
G an enquiry into its basis in religious text or whether the practice claiming
48
Ibid, at para 7
49
Ibid
50
Ibid, at para 32
51
Ibid, at paras 8, 10
52
Ibid, at para 43
53
Ibid, at para 22
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 773
[DR. DHANANJAYA Y CHANDRACHUD, J.]

constitutional protection fulfilled the other guidelines laid down by this A
Court. Such an approach militates against the fundamental role of the
constitutional Court as a guardian of fundamental rights. Merely
establishing a usage54 will not afford it constitutional protection as an
essential religious practice.It must be proved that the practice is ‘essential’
to religion and inextricably connected with its fundamental character.
B
This has not been proved.
This is sufficient reason to hold that the practice of excluding
women from Sabarimala does not constitute an essential religious practice.
However, since the claim in this case has a significant bearing on the
dignity and fundamental rights of women, an issue of principle must be
analysed. C

53. It was brought to the notice of this Court that in earlier days,
the prohibition on women was because of non-religious factors.55 The
‘main reason’ as observed by the High Court in Mahendran, is the
arduous nature of the journey56 which according to the Court could not
be completed by women for physiological reasons. This claim falls foul D
of the requirement that the practice claiming constitutional protection
must be on strictly religious grounds. Of significant importance, is that
such a claim is deeply rooted in a stereotypical (and constitutionally
flawed) notion that women are the ‘weaker’ sex and may not undertake
tasks that are ‘too arduous’ for them. This paternalistic approach is E
contrary to the constitutional guarantee of equality and dignity to women.
Interpreting the Constitution in accordance with the values that infuse it
requires that the dignity of women, which is an emanation of Article 15
and founded in Article 21, cannot be disassociated from the exercise of
religious freedom. Holding that stereotypical understandings of sex hold
no legitimate claim under our Constitution, one of us (Chandrachud J) in F
Navtej Singh v Union of India,57 held:
“A discriminatory act will be tested against constitutional
values. A discrimination will not survive constitutional scrutiny
when it is grounded in and perpetuates stereotypes about a
class constituted by the grounds prohibited in Article 15(1). G
If any ground of discrimination, whether direct or indirect is
54
Ibid, at para 37
55
Ibid, at para 7
56
Ibid, at paras 38, 43
57
Writ Petition (Criminal) No. 76 of 2016 H
774 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
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
C 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
D subject her to exclusion from religious worship? The physiological features
of a woman have no significance to her equal entitlements under the
Constitution. All women in the age group of ten and fifty may not in any
case fall in the ‘procreative age group’. But that to my mind is again not
a matter of substance. The heart of the matter lies in the ability of the
Constitution to assert that the exclusion of women from worship is
E incompatible with dignity, destructive of liberty and a denial of the equality
of all human beings. These constitutional values stand above everything
else as a principle which brooks no exceptions, even when confronted
with a claim of religious belief. To exclude women is derogatory to an
equal citizenship.
F 55. The Respondents submitted that the deity at Sabarimala is in
the form of a Naishtika Brahmacharya: Lord Ayyappa is celibate. It
was submitted that since celibacy is the foremost requirement for all the
followers, women between the ages of ten and fifty must not be allowed
in Sabarimala. There is an assumption here, which cannot stand
G constitutional scrutiny. The assumption in such a claim is that a deviation
from the celibacy and austerity observed by the followers would be
caused by the presence of women. Such a claim cannot be sustained as
a constitutionally sustainable argument. Its effect is to impose the burden
of a man’s celibacy on a woman and construct her as a cause for deviation
from celibacy. This is then employed to deny access to spaces to which
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 775
[DR. DHANANJAYA Y CHANDRACHUD, J.]

women are equally entitled. To suggest that women cannot keep the A
Vratham is to stigmatize them and stereotype them as being weak and
lesser human beings. A constitutional court such as this one, must refuse
to recognize such claims.
56. Human dignity postulates an equality between persons. The
equality of all human beings entails being free from the restrictive and B
dehumanizing effect of stereotypes and being equally entitled to the
protection of law. Our Constitution has willed that dignity, liberty and
equality serve as a guiding light for individuals, the state and this Court.
Though our Constitution protects religious freedom and consequent rights
and practices essential to religion, this Court will be guided by the pursuit
to uphold the values of the Constitution, based in dignity, liberty and C
equality. In a constitutional order of priorities, these are values on which
the edifice of the Constitution stands. They infuse our constitutional order
with a vision for the future – of a just, equal and dignified society. Intrinsic
to these values is the anti-exclusion principle. Exclusion is destructive of
dignity. To exclude a woman from the might of worship is fundamentally D
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 E
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 F
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 creator.
H Religious Denominations G
58. One of the major planks of the response to the petition is that
Sabarimala is a denominational temple and is entitled to the rights granted
to ‘religious denominations’ by Article 26 of the Constitution.

H
776 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 59. The rights conferred by Article 26 are not unqualified. Besides
this, they are distinct from the rights guaranteed by Article 25. In Devaru,
this Court elucidated on the application of such a right and held that
where the denominational rights would substantially diminish Article
25(2)(b), the former must yield to the latter. However, when the ambit
of Article 25(2)(b) is not substantially affected, the rights of a
B
“denomination” as distinct “from the rights of the public” may be given
effect to. However, such rights must be “strictly” denominational in nature.
Over the years, criteria have emerged from judicial
pronouncements of this Court on whether a collective of individuals
qualifies as a ‘religious denomination’. In making the determination,
C benches of this Court have referred to the history and organisation of
the collective seeking denominational status.
60. Shirur Mutt dealt with the status of one of the eight Maths
founded by Shri Madhavacharya, an exponent of dualist theism in Hindu
religion. Justice B K Mukherjea undertook an enquiry into the precise
D meaning of the expression “religious denomination” and whether a
“Math” is covered by the expression:
“15… The word “denomination” has been defined in the Oxford
Dictionary to mean “a collection of individuals classed together
under the same name: a religious sect or body having a common
E faith and organisation and designated by a distinctive name”.
A three fold test emerges from the above observations: (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;
and (iii) the existence of a distinctive name.
F
The Court held that the “spiritual fraternity” represented by
followers of Shri Madhavacharya, constitute a religious denomination:
“15.It is well known that the practice of setting up Maths as centres
of theological teaching was started by Shri Sankaracharya and
was followed by various teachers since then. After Sankara, came
G
a galaxy of religious teachers and philosophers who founded the
different sects and sub-sects of the Hindu religion that we find in
India at the present day. Each one of such sects or sub-sects
can certainly be called a religious denomination, as it is
designated by a distinctive name, — in many cases it is the
H name of the founder, — and has a common faith and common
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 777
[DR. DHANANJAYA Y CHANDRACHUD, J.]

spiritual organisation. The followers of Ramanuja, who are A
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
B
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:
C
“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 were installed therein. We are therefore concerned with
the Gowda Saraswath Brahmins not as a section of a D
community but as a sect associated with the foundation and
maintenance of the Sri Venkataramana Temple, in other
words, not as a mere denomination, but as a religious
denomination. From the evidence of PW 1, it appears that the
Gowda Saraswath Brahmins have three Gurus, that those in E
Moolky Petah are followers of the head of the Kashi Mutt, and
that it is he that performs some of the important ceremonies in the
temple. Exhibit A is a document of the year 1826-27. That shows
that the head of the Kashi Mutt settled the disputes among the
Archakas, and that they agreed to do the puja under his orders.
The uncontradicted evidence of PW 1 also shows that during F
certain religious ceremonies, persons other than Gowda
Saraswath Brahmins have been wholly excluded. This
evidence leads irresistibly to the conclusion that the temple
is a denominational one, as contended for by the
appellants.” (Emphasis supplied) G
This was, in other words, not just a sect associated with the
community but one associated with the foundation and maintenance of
the temple. This was coupled with a spiritual head who was responsible
for the performance of religious worship.
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778 SUPREME COURT REPORTS [2018] 9 S.C.R.

A The Court noted that a deed of endowment proved that the temple
was founded for the benefit of the Gowda Saraswath community, and
concluded that the Sri Venkateshwara Temple qualified as a
denominational temple.
“15... When there is a question as to the nature and extent of a
B dedication of a temple, that has to be determined on the terms of
the deed of endowment if that is available, and where it is not, on
other materials legally admissible; and proof of long and
uninterrupted user would be cogent evidence of the terms thereof.
Where, therefore, the original deed of endowment is not available
and it is found that all persons are freely worshipping in the temple
C without let or hindrance, it would be a proper inference to make
that they do so as a matter of right, and that the original foundation
was for their benefit as well. But where it is proved by production
of the deed, of endowment or otherwise that the original dedication
was for the benefit of a particular community, the fact that
D members of other communities were allowed freely to worship
cannot lead to the inference that the dedication was for their benefit
as well.…On the findings of the Court below that the foundation
was originally for the benefit of the Gowda Saraswath Brahmin
community, the fact that other classes of Hindus were admitted
freely into the temple would not have the effect of enlarging the
E 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…”
F 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”)58, Justice
Ranganath Misra who delivered the opinion of the Court, held that the
G 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
58
H 1983 1 SCC 51
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 779
[DR. DHANANJAYA Y CHANDRACHUD, J.]

this be so, the expression “religious denomination” must also satisfy A
three conditions:
“(1) It must be a collection of individuals who have a system of
beliefs or doctrines which they regard as conducive to their spiritual
well-being, that is, a common faith;
(2) common organisation; and B

(3) designation by a distinctive name.”59
These tests, as we have seen, are a re-statement of the Shirur
Mutt formulation.
The Court dwelt on the organisation and activities of the Aurobindo C
Society and emphasised that a collective seeking the status of a religious
denomination must be a religious institution:
“120. It was further contended that a religious denomination must
be professed by that body but from the very beginning the Society
has eschewed the word “religion” in its constitution. The Society D
professed to be a scientific research organisation to the donors
and got income tax exemption on the footing that it was not a
religious institution. The Society has claimed exemption from
income tax under Section 80 for the donors and under Section 35
for itself on that ground. Ashram Trust was different from Auroville
E
Ashram. The Ashram Trust also applied for income tax exemption
and got it on that very ground. So also Aurobindo Society claimed
exemption on the footing that it was not a religious institution and
got it. They professed to the Government also that they were not
a religious institution in their application for financial assistance
under the Central Scheme of Assistance to voluntary Hindu F
organisations.60
121. On the basis of the materials placed before us viz. the
Memorandum of Association of the Society, the several applications
made by the Society claiming exemption under Section 35 and
Section 80 of the Income Tax Act, the repeated utterings of Sri G
Aurobindo and the Mother that the Society and Auroville were
not religious institutions and host of other documents there is no
room for doubt that neither the Society nor Auroville constitute a
59
Ibid, at page 85
60
Ibid, at page 98
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780 SUPREME COURT REPORTS [2018] 9 S.C.R.

A religious denomination and the teachings of Sri Aurobindo only
represented his philosophy and not a religion.”61
The sect was based on a shared philosophy and not on a common
set of religious beliefs or faith. Hence, the sect was held not to qualify to
be a religious denomination.
B 63. The above tests have been followed in other decisions. In
Avadhuta I, a three judge bench of this Court held that the Ananda
Margis of West Bengal constitute a religious denomination under Article
26, as they satisfy all the three conditions:
“11. Ananda Marga appears to satisfy all the three conditions viz.
C 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…”62
D In Bramchari Sidheswar Shai v State of West Bengal63, 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
E 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 to their spiritual
F well-being as the principles of highest Vedanta which surpassed
the principles of Vedanta conceived and propagated by
Sankaracharya, Madhavacharya and Ramanujacharya, who were
earlier exponents of Hinduism. Hence, as rightly held by the
Division Bench of the High Court, followers of Ramakrishna,
who are a collection of individuals, who adhere to a system
G of beliefs as conducive to their spiritual well-being, who
have organised themselves collectively and who have an

61
Ibid, at pages 98-99
62
Ibid, at page 530
63
(1995) 4 SCC 646
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organisation of definite name as Ramakrishna Math or A
Ramakrishna Mission could,in our view, be regarded as a
religious denomination within Hindu religion...”64
(Emphasis supplied)
In Nallor Marthandam Vellalar v Commissioner, Hindu
Religious and Charitable Endowments65 a two judge Bench held B
that the Vellala community in Tamil Nadu does not constitute a religious
denomination. Justice Shivraj Patil emphasised that the common faith of
the community must find its basis in “religion”:
“7. It is settled position in law, having regard to the various decisions
of this Court that the words “religious denomination” take their C
colour from the word “religion”. The expression “religious
denomination” must satisfy three requirements: (1) it must be a
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 D
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…” 66 (Emphasis supplied) E
Though formulated as a three-pronged test, a fourth element
emerges from the narrative. That is the position of a common set of
religious tenets. Religion is what binds a religious denomination. Caste,
community and social status do not bring into being a religious
denomination. F
64. These precedents indicate the ingredients which must be
present for a set of individuals to be regarded as a religious denomination.
These are a common faith, a common organisation and a distinctive
name brought together under the rubric of religion. A common thread
which runs through them is the requirement of a religious identity, which G
is fundamental to the character of a religious denomination.

64
Ibid, at pages 648-649
65
(2003) 10 SCC 712
66
Ibid, at page 716
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782 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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
C 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
D would be included as members of the denomination. However, it is unclear
as to how they may be considered as members of a denomination that
seeks their exclusion. The judgements of this Court lay down that the
collective of individuals must have a common faith and set of beliefs that
aid their spiritual well-being. It is implausible that women should leave
E the membership of a common faith, which is meant to be conducive to
their spiritual growth for a period of forty years and resume membership
at the age of fifty. Such a requirement takes away from the spiritual
character of the denomination.
66. The decision of the Kerala High Court in Mahendran brought
F on the record several facets which would in fact establish that Ayyappans
do not constitute a religious denomination. While it is stated in the
impugned notification that women between the age of ten and fifty five
are forbidden from entering the temple as a matter of custom followed
since time immemorial, the stand taken by the Respondent before the
Kerala High Court differs to a great extent. The Board had submitted
G before the High Court:
“7. In olden days worshippers visit the temple only after observing
penance for 41 days. Since pilgrims to Sabarimala temple ought
to undergo ‘Vrathams’ or penance for 41 days, usually ladies
between the age of 10 and 50 will not be physically capable of
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 783
[DR. DHANANJAYA Y CHANDRACHUD, J.]

observing vratham for 41 days on physiological grounds. The A
religious practices and customs followed earlier had changed during
the last 40 years particularly from 1950, the year in which the
renovation of the temple took place after the “fire disaster”. Even
while the old customs prevailed, women used to visit the
temple though very rarely. The Maharaja of Travancore
B
accompanied by the Maharani and the Divan had visited
the temple in 1115 M.E. There was thus no prohibition for
women to enter the Sabarimala temple in olden days, but
women in large number were not visiting the temple. That
was not because of any prohibition imposed by Hindu
religion but because of other non-religious factors. In recent C
years, many worshippers had gone to the temple with lady
worshippers within the age group 10 to 50 for the first rice-
feeding ceremony of their children (Chottoonu). The Board
used to issue receipts on such occasions on payment of the
prescribed charges. A change in the old custom and practice
D
was brought about by installing a flag staff (Dhwajam) in
1969. Another change was brought about by the introduction
of Padipooja. These were done on the advice of the Thanthri.
Changes were also effected in other practices. The practice
of breaking coconuts on the 18 steps was discontinued and
worshippers were allowed to crack the coconuts only on a E
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.”67
(Emphasis supplied)
According to the above extract, in the “olden days” there was no F
‘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.
G
“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
67
Ibid, at page 45
H
784 SUPREME COURT REPORTS [2018] 9 S.C.R.

A during these seasons no woman who is aged more than 10 and
less than 50 shall enter the temple is scrupulously followed.68
9. The second respondent, former Devaswom Commissioner Smt.
S. Chandrika in her counter-affidavit admitted that the first rice-
feeding ceremony of her grandchild was conducted on the 1st of
B Chingam 1166 at Sabarimala temple while she was holding the
post of Devaswom Commissioner…The restriction regarding the
entry of women in the age group 10 to 50 is there only during
Mandalam, Makaravilakku and Vishu. As per the stipulations made
by the Devaswom Board there is no restriction during the
remaining period. When monthly poojas are conducted, women
C of all age groups used to visit Sabarimala. On the 1st of Chingam
1166 the first rice-feeding ceremony of other children were also
conducted at the temple. No V.I.P. treatment was given to her
grandchild on that day. The same facility was afforded to others
also. Her daughter got married on 13-7-1984 and was not begetting
D a child for a considerably long time. She took a vow that the first
rice-feeding ceremony would be performed at Sabarimala in case
she begets a child. Hence the reason why the first rice-feeding
ceremony of the child delivered by her was performed at that
temple. The entry of young ladies in the temple during monthly
poojas is not against the customs and practices followed in the
E temple…”69 (Emphasis supplied)
67. The stand of the Board demonstrates that the practice of
excluding women of a particular age group has not been consistently
followed. The basis of the claim that there exists a religious denomination
of Ayyapans is that the presiding deity is celibate and a strict regime of
F forty one days is prescribed for worship. Women between the age groups
of ten and fifty would not for physiological reasons (it is asserted) be
able to perform the penance associated with worship and hence their
exclusion is intrinsic to a common faith. As indicated earlier, the exclusion
of women between the ages of ten and fifty has not been shown to be a
G uniform practice or tenet. The material before the Kerala High Court in
Mahendran in fact indicates that there was no such uniform tenet, down
the ages. Therefore, the claim that the exclusion of women is part of a
common set of religious beliefs held by those who worship the deity is
68
Ibid, at page 45
69
Ibid, at pages 45-46
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 785
[DR. DHANANJAYA Y CHANDRACHUD, J.]

not established. Above all, what is crucial to a religious denomination is A
a religious sect or body. A common faith and spiritual organisation must
be the chord which unites the adherents together.
68. Justice Rajagopala Ayyangar in his concurring judgement
inSaifuddin, emphasised the necessity of an identity of doctrines, creeds
and tenets in a ‘religious denomination’: B
“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.” C
The judgement cited the ruling of Lord Halsbury in Free Church
of Scotlandv Overtoun70 :
“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, D
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.” E
69. Adherence to a ‘common faith’ would entail that a common
set of beliefs have been followed since the conception of the particular
sect or denomination. A distinctive feature of the pilgrimage is that pilgrims
of all religions participate in the pilgrimage on an equal footing. Muslims
and Christians undertake the pilgrimage. A member of any religion can F
be a part of the collective of individuals who worship Lord Ayyappa.
Religion is not the basis of the collective of individuals who worship the
deity. Bereft of a religious identity, the collective cannot claim to be
regarded as a ‘religious denomination’. To be within the fold of Article
26, a denomination must be a religious sect or body. Worship of the
presiding deity is not confined to adherents of a particular religion. Coupled G
with this is the absence of a common spiritual organisation, which is a
necessary element to constitute a religious denomination. The temple at
which worship is carried out is dedicated to the public and represents
truly, the plural character of society. Everyone, irrespective of religious
70
(1904) AC 515, at page 616 H
786 SUPREME COURT REPORTS [2018] 9 S.C.R.

A belief, can worship the deity. The practices associated with the forms of
worship do not constitute the devotees into a religious denomination.
Considering the inability of the collective of individuals to satisfy
the judicially-enunciated requirements, we cannot recognise the set of
individuals who refer to themselves as “Ayyappans” or devotees of Lord
B Ayyappa as a ‘religious denomination’.
I Article 17, “Untouchability” and the notions of purity
70. The petitioners and the learned Amicus Curiae Mr. Raju
Ramachandran urge that the denial of entry to women in the Ayyappa
temple at Sabarimala, on the basis of customs, is a manifestation of
C “untouchability” and is hence violative of Article 17 of the Constitution.
The contention has been countered by the argument that Article 17 is
specifically limited to caste-based untouchability and cannot be expanded
to include gender-based exclusion. Understanding these rival positions
requires the Court to contemplate on the historical background behind
D the insertion of Article 17 into the Constitution and the intent of the
framers.
71. Article 17 occupies a unique position in our constitutional
scheme. The Article, which prohibits a social practice, is located in the
chapter on fundamental rights. The framers introduced Article 17, which
E prohibits a discriminatory and inhuman social practice, in addition to
Articles 14 and 15, which provide for equality and non-discrimination.
While there has been little discussion about Article 17 in textbooks on
constitutional law, it is a provision which has a paramount social
significance both in terms of acknowledging the past and in defining the
vision of the Constitution for the present and for the future. Article 17
F 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.”
G
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,
H individuals and groups that would otherwise have remained at society’s
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 787
[DR. DHANANJAYA Y CHANDRACHUD, J.]

bottom or at its edges”71. Article 17 is the constitutional promise of A
equality and justice to those who have remained at the lowest rung of a
traditional belief system founded in graded inequality. Article 17 is
enforceable against everyone – the State, groups, individuals, legal
persons, entities and organised religion – and embodies an enforceable
constitutional mandate. It has been placed on a constitutional pedestal of
B
enforceable fundamental rights, beyond being only a directive principle,
for two reasons. First, “untouchability” is violative of the basic rights of
socially backward individuals and their dignity. Second, the framers
believed that the abolition of “untouchability” is a constitutional imperative
to establish an equal social order. Its presence together and on an equal
footing with other fundamental rights, was designed to “give vulnerable C
people the power to achieve collective good”72. Article 17 is a reflection
of the transformative ideal of the Constitution, which gives expression to
the aspirations of socially disempowered individuals and communities,
and provides a moral framework for radical social transformation. Article
17, along with other constitutional provisions73, must be seen as the
D
recognition and endorsement of a hope for a better future for marginalized
communities and individuals, who have had their destinies crushed by a
feudal and caste-based social order.
72. The framers of the Constitution left the term “untouchability”
undefined. The proceedings of the Constituent Assembly suggest that
this was deliberate. B Shiva Rao has recounted74 the proceedings of the E
Sub-Committee on Fundamental Rights, which was undertaking the task
of preparing the draft provisions on fundamental rights. A clause providing
for the abolition of “untouchability” was contained in K M Munshi’s
draft of Fundamental Rights. Clause 4(a) of Article III of his draft provided:
“Untouchability is abolished and the practice thereof is punishable F
by the law of the Union.”
Clause 1 of Article II of Dr Ambedkar’s draft provided that:
“any privilege or disability arising out of rank, birth, person, family,
religion or religious usage and custom is abolished.” G
71
Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University
Press (1999), at pages xii-xiii
72
Politics and Ethics of the Indian Constitution Rajeev Bhagava (ed.), Oxford University
Press (2008), at page 15
73
Articles 15(2) and 23, The Constitution of India
74
B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968), at page 202 H
788 SUPREME COURT REPORTS [2018] 9 S.C.R.

A While discussing the clause on “untouchability” on 29 March 1947,
the Sub-Committee on Fundamental Rights accepted Munshi’s draft with
a verbal modification that the words “is punishable by the law of the
Union” be substituted by the expression “shall be an offence”.75
Reflecting on the draft, the constitutional advisor, B N Rau, remarked
that the meaning of “untouchability” would have to be defined in the law
B
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”]
C comprehensive”76.
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
D 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
E various communities”77. In the proceedings, K M Panikkar elaborated
the point by observing that the clause intended to abolish various
disabilities arising out of untouchability, irrespective of religion.78 He
remarked:
“If somebody says that he is not going to touch me, that is not a
F civil right which I can enforce in a court of law. There are certain
complex of disabilities that arise from the practice of untouchability
in India. Those disabilities are in the nature of civil obligations or
civil disabilities and what we have attempted to provide for is that
75
Ibid
76
G B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968), at page 202
77
B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968), at page 202
78
B Shiva Rao has remarked that Panikkar’s reference was to the depressed classes
who had been converted to Christianity in Travancore-Cochin and Malabar. See B
Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public
H Administration (1968), at page 202
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 789
[DR. DHANANJAYA Y CHANDRACHUD, J.]

these disabilities that exist in regard to the individual, whether he A
be a Christian, Muslim or anybody else, if he suffers from these
disabilities, they should be eradicated through the process of law.”79
Rajagopalachari suggested a minor amendment of the clause, which
sought to make “the imposition of any disability of any kind or any such
custom of ‘untouchability’” an offence. Taking note of the suggestions B
and views expressed, the clause was redrafted as clause 6 in the Interim
Report of the Advisory Committee as follows:
“”Untouchability” in any form is abolished and the imposition of
any disability on that account shall be an offence.”
The Interim Report was moved before the Constituent Assembly C
by Vallabhbhai Patel on 29 April 1947. Commenting on Clause 6, one
member, Promatha Ranjan Thakur, observed that “untouchability” cannot
be abolished without abolishing the caste system, since “untouchability”
is its symptom. Srijut Rohini Kumar Chaudhury, SC Banerjee and
Dhirendra Nath Datta sought a clarification on the definition of the term D
“untouchability”. Chaudhary even suggested the following amendment
to define the term “untouchability”:
“‘Untouchability’ means any act committed in exercise of
discrimination on, grounds of religion, caste or lawful vocation of
life mentioned in clause 4.” E
Opposing the amendment, K M Munshi stated that the word
“untouchability” has been “put purposely within inverted commas in order
to indicate that the Union legislature when it defines ‘untouchability’ will
be able to deal with it in the sense in which it is normally understood”80.
Subsequently, only three amendments were moved. H V Kamath sought F
to insert the word “unapproachability” after the term “untouchability”
and the words “and every” after the word “any”. S. Nagappa wanted to
substitute the words “imposition of any disability” with the words
“observance of any disability”. P Kunhiraman wanted to add the words
“punishable by law” after the word “offence”. Vallabhbhai Patel, who
had moved the clause, considered the amendments to be unnecessary G
and observed:
79
B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968), at page 203
80
Constituent Assembly Debates (29 April 1947)
H
790 SUPREME COURT REPORTS [2018] 9 S.C.R.

A “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.
B
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
C 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 ‘punishable by law’. We have provided
D that imposition of untouchability shall be an offence. Perhaps his
idea is that an offence could be excusable, or sometimes an offence
may be rewarded. Offence is an offence; it is not necessary to
provide that offence should be punishable by law. Sir, I do not
accept this amendment either.
E Then, it was proposed that for the words ‘any form’, the words
‘all forms’ be substituted. Untouchability in any form is a legal
phraseology, and no more addition is necessary.”81
After Patel’s explanation, HV Kamath and P Kunhiraman
withdrew their amendments, while the amendment moved by Nagappan
was rejected. Clause 6 was adopted by the Constituent Assembly.
F
However, in the Draft Constitution (dated October 1947) prepared by
the constitutional advisor, B N Rau, the third amendment moved by
Kunhiraman was adopted in effect and after the word “offence” the
words “which shall be punishable in accordance with law” were
inserted.82 On 30-31 October 1947, the Drafting Committee considered
G the “untouchability” provision and redrafted it as article 11. It was
proposed83 by Dr Ambedkar before the Constituent Assembly as follows:
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
H Public Administration (1968), at page 205
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 791
[DR. DHANANJAYA Y CHANDRACHUD, J.]

“”Untouchability” is abolished and its practice in any form is A
forbidden. The enforcement of any disability arising out of
“untouchability” shall be an offence punishable in accordance with
law.”
In response to comments and representations received on the
Draft Constitution, B N Rau reiterated that Parliament would have to B
enact legislation, which would provide a definition of “untouchability”.84
When the draft Article 11 came for discussion before the Constituent
Assembly on 29 November 1948, one member, Naziruddin Ahmad, sought
to substitute it by the following Article:
“No one shall on account of his religion or caste be treated or C
regarded as an ‘untouchable’; and its observance in any form
may be made punishable by law.”85
The amendment proposed would obviously restrict untouchability
to its religious and caste-based manifestations. Naziruddin Ahmad
supported his contention by observing that draft Article 11 prepared by D
the Drafting Committee was vague, as it provides no legal meaning of
the term “untouchability”. Stressing that the term was “rather loose”,
Ahmad wanted the draft Article to be given “a better shape”. Professor
KT Shah had a similar concern. He observed:
“… I would like to point out that the term ‘untouchability’ is E
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 F
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 G
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.
84
B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of
Public Administration (1968), at page 204
85
Ibid, at page 205 H
792 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
inflict a lecture upon this House on anthropological or connected
matters; but I would like it to be brought to the notice that the
B
lack of any definition of the term ‘untouchability’ makes it
open for busy bodies and lawyers to make capital out of a
clause like this, which I am sure was not the intention of
the Drafting Committee to make.”86
(Emphasis supplied)
C Dr Ambedkar neither accepted Naziruddin Ahmad’s amendment
nor replied to the points raised by KT Shah. The amendment proposed
by Ahmad was negatived by the Constituent Assembly and the draft
Article as proposed by Dr Ambedkar was adopted. Draft Article 11 has
been renumbered as the current Article 17 of the Constitution.
D The refusal of the Constituent Assembly to provide any definite
meaning to “untouchability” (despite specific amendments and proposals
voicing the need for a definition) indicates that the framers did not wish
to make the term restrictive. The addition of the words “in any form” in
the initial draft prepared by the Sub-Committee on Fundamental Rights
E is an unambiguous statement to the effect that the draftspersons wanted
to give the term “untouchability” a broad scope. A reconstruction of the
proceedings of the Constituent Assembly suggests that the members
agreed to the Constitutional Advisor’s insistence that the law which is to
be enacted for implementing the provision on “untouchability” would
provide a definition of the term. The rejection of Naziruddin Ahmad’s
F amendment by the members of the Constituent Assembly reflects a
conscious effort not to limit the scope of the legislation to be enacted.
73. In order to fully understand the constitutional philosophy
underlying the insertion of Article 17, this Court must also deal with one
specific instance during the proceedings of the Constituent Assembly.
G As mentioned above, while Professor KT Shah gave specific examples
of acts of “untouchability”, including that of women being considered
untouchables “in certain periods”, and argued for a specific definition,
Dr Ambedkar furnished no reply. This raises the question as to why Dr
Ambedkar did not accept Naziruddin Ahmad’s amendment and refused
86
Constituent Assembly Debates (29 November 1948)
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 793
[DR. DHANANJAYA Y CHANDRACHUD, J.]

to reply to KT Shah’s remarks. One member of the Constituent Assembly, A
Monomohan Das, remarked during the debate on the draft Article on
“untouchability”:
“…It is an irony of fate that the man who was driven from one
school to another, who was forced to take his lessons outside the
class room, has been entrusted with this great job of framing the B
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.”87
The answers lie in the struggle for social emancipation and justice
which was the defining symbol of the age, together with the movement C
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 D
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 righting
fundamental wrongs with fundamental rights. The Constitution of India E
is the end product of both these struggles. It is the foundational document,
which in text and spirit, aims at social transformation namely, the creation
and preservation of an equal social order. The Constitution represents
the aspirations of those, who were denied the basic ingredients of a
dignified existence. It contains a vision of social justice and lays down a F
roadmap for successive governments to achieve that vision. The
document sets out a moral trajectory, which citizens must pursue for the
realization of the values of liberty, equality, fraternity and justice. It is an
assurance to the marginalized to be able to rise to the challenges of
human existence. The Constituent Assembly was enriched by the shared
wisdom and experiences gathered by its members from the ongoing G
social struggle for equality and justice. In particular, as the Chairman of
the Drafting Committee, Dr Ambedkar brought with himself ideas, values
and scholarship, which were derived from the experiences and struggles
which singularly were his own. He drew as well from other social
87
Constituent Assembly Debates (29 November 1948) H
794 SUPREME COURT REPORTS [2018] 9 S.C.R.

A reformers in their movements against social injustice. Some of these
experiences and literature ought to be discussed in order to understand
the vision behind the philosophy of the Constitution and, particularly,
Article 17.
Having himself faced discrimination and stigmatization, Dr
B Ambedkar had launched an active movement against “untouchability”.
In 1924, he founded the Bahishkrut Hitkarani Sabha, aimed at advancing
the rights of those who were neglected by society. Over the following
years, Dr Ambedkar organised marches demanding rights for
untouchables to drinking water from public resources, and their right to
enter temples. These movements were part of the larger demand of
C equality for the untouchables.
In his profound work, “Annihilation of Caste”, while advocating
the destruction of the caste system, Dr Ambedkar recorded some of the
“untouchability” practices by which the Untouchables were subjected
to inhuman treatment:
D
“Under the rule of the Peshwas in the Maratha country, the
Untouchable was not allowed to use the public streets if a Hindu
was coming along, lest he should pollute the Hindu by his shadow.
The Untouchable was required to have a black thread either on
his wrist or around his neck, as a sign or a mark to prevent the
E 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
F 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
G on his own experiences with “untouchability”. Dr Ambedkar mentions
several experiences from his childhood. No barber would consent to
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
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 795
[DR. DHANANJAYA Y CHANDRACHUD, J.]

shave an untouchable. During his days as an Officer in Baroda State, he A
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 B
sacrificed people… To put it in simple language the Untouchables
have been completely overtaken by a sense of utter frustration.
As Mathew Arnold says “life consists in the effort to affirm one’s
own essence; meaning by this, to develop one’s own existence
fully and freely... Failure to affirm ones own essence is simply
another name for frustration… “ Many people suffer such C
frustrations in their history. But they soon recover from the blight
and rise to glory again with new vibrations. The case of the
Untouchables stands on a different footing. Their frustration is
frustration for ever. It is unrelieved by space or time. In this respect
the story of the Untouchables stands in strange contrast with that D
of the Jews.”90
In his writing titled “Slaves and Untouchables”91, he described
“untouchability” to be worse than slavery. In his words:
“.. untouchability is obligatory. A person is permitted to hold another
as his slave. There is no compulsion on him if he does not want to. E
But an Untouchable has no option. Once he is born an Untouchable,
he is subject to all the disabilities of an Untouchable…
[U]ntouchability is an indirect and therefore the worst form of
slavery… It is enslavement without making the Untouchables
conscious of their enslavement.”92 F
Dr Ambedkar’s thoughts and ideas bear an impact of other social
reformers who preceded him, in particular Jyotirao Phule and Savitribai
Phule. In 1873, in the preface to his book titled “Gulamgiri” (Slavery),
Jyotirao Phule made a stinging critique on the cause of “untouchability”:
“[The] Sudras and Atisudras were regarded with supreme hatred G
and contempt, and the commonest rights of humanity were denied
90
Ibid, at pages 733-735
91
Dr Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of
Maharashtra, Vol. 5 (2014), at pages 9-18
92
Ibid, at page 15
H
796 SUPREME COURT REPORTS [2018] 9 S.C.R.

A [to] them. Their touch, nay, even their shadow, is deemed a
pollution. They are considered as mere chattels, and their life of
no more value than that of meanest reptile… How far the Brahmins
have succeeded in their endeavours to enslave the minds of the
Sudras and Atisudras... For generations past [the Sudras and
Atisudras] have borne these chains of slavery and bondage…
B
This system of slavery, to which the Brahmins reduced the lower
classes is in no respect inferior to that which obtained a few years
ago in America. In the days of rigid Brahmin dominancy, so lately
as that of the time of the Peshwa, my Sudra brethren had even
greater hardships and oppression practiced upon them than what
C even the slaves in America had to suffer. To this system of selfish
superstition and bigotry, we are to attribute the stagnation and all
the evils under which India has been groaning for many centuries
past.” 93
Savitribai Phule expresses the feeling of resentment among the
D marginalized in form of a poem:
“Arise brothers, lowest of low shudras
wake up, arise.
Rise and throw off the shackles
E put by custom upon us.
Brothers, arise and learn…
We will educate our children
and teach ourselves as well.
F We will acquire knowledge
of religion and righteousness.
Let the thirst for books and learning
dance in our every vein.
G
Let each one struggle and forever erase
our low-caste stain.”94
93
India Dissents: 3,000 Years of Difference, Doubt and Argument, (Ashok Vajpeyi
ed.), Speaking Tiger Publishing Private Limited (2017), at pages 86-88
94
Ibid, at page 88
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 797
[DR. DHANANJAYA Y CHANDRACHUD, J.]

75. The consistent discourse flowing through these writings reflects A
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
B
in the face of historic horrors. It is an attempt to make reparations to
those, whose identity was subjugated by society. Article 17 is a revolt
against social norms, which subjugated individuals into stigmatised
hierarchies. By abolishing “untouchability”, Article 17 protects them from
a repetition of history in a free nation. The background of Article 17 thus
lies in protecting the dignity of those who have been victims of C
discrimination, prejudice and social exclusion.
Article 17 must be construed from the perspective of its position
as a powerful guarantee to preserve human dignity and against the
stigmatization and exclusion of individuals and groups on the basis of
social hierarchism. Article 17 and Articles 15(2) and 23, provide the D
supporting foundation for the arc of social justice. Locating the basis of
Article 17 in the protection of dignity and preventing stigmatization and
social exclusion, would perhaps be the apt answer to Professor KT Shah’s
unanswered queries. The Constitution has designedly left untouchability
undefined. Any form of stigmatization which leads to social exclusion is
violative of human dignity and would constitute a form of “untouchability”. E
The Drafting Committee did not restrict the scope of Article 17. The
prohibition of “untouchability”, as part of the process of protecting dignity
and preventing stigmatization and exclusion, is the broader notion, which
this Court seeks to adopt, as underlying the framework of these articles.
76. The practice of “untouchability”, as pointed out by the members F
of the Constituent Assembly, is a symptom of the caste system. The root
cause of “untouchability” is the caste system. 95 The caste system
represents a hierarchical order of purity and pollution enforced by social
95
In his paper on “Castes in India: Their Mechanism, Genesis and Development”
(1916) presented at the Columbia University, Dr Ambedkar wrote: “The caste problem G
is a vast one, both theoretically and practically. Practically, it is an institution that
portends tremendous consequences. It is a local problem, but one capable of much
wider mischief, for as long as caste in India does exist, Hindus will hardly intermarry or
have any social intercourse with outsiders; and if Hindus migrate to other regions on
earth, Indian caste would become a world problem”. See Dr. Babasaheb Ambedkar:
Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 1 (2014),
at pages 5-6 H
798 SUPREME COURT REPORTS [2018] 9 S.C.R.

A compulsion. Purity and pollution constitute the core of caste. While the
top of the caste pyramid is considered pure and enjoys entitlements, the
bottom is considered polluted and has no entitlements. Ideas of “purity
and pollution” are used to justify this distinction which is self-perpetuality.
The upper castes perform rituals that, they believe, assert and maintain
their purity over lower castes. Rules of purity and pollution are used to
B
reinforce caste hierarchies.96 The notion of “purity and pollution”
influences who people associate with, and how they treat and are treated
by other people. Dr Ambedkar’s rejection of privileges associated with
caste, in “Annihilation of Caste”97, is hence a battle for human dignity.
Dr Ambedkar perceived the caste system to be violative of individual
C dignity.98In 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
D
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
E 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 prejudices which Dalits
face continue to haunt their lives. Seventy years after independence, a
F section of Dalits has been forced to continue with the indignity of manual
scavenging. In a recent work, “Ants Among Elephants: An Untouchable
Family and the Making of Modern India”, Sujatha Gidla describes the
indignified life of a manual scavenger:
“As their brooms wear down, they have to bend their backs lower
and lower to sweep. When their baskets start to leak, the [human]
G 96
Diane Coffey and Dean Spears, Where India Goes: Abandoned Toilets, Stunted
Development and the Costs of Caste, Harper Collins (2017), at pages 74-79
97
See Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government
of Maharashtra, Vol. 1 (2014), at pages 23-96
98
See Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government
of Maharashtra, Vol. 12 (2014), at pages 661-691.
H 99
Constituent Assembly Debates (25 November 1949)
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 799
[DR. DHANANJAYA Y CHANDRACHUD, J.]

shit drips down their faces. In the rainy season, the filth runs all A
over these people, onto their hair, their noses, their moths.
Tuberculosis and infectious diseases are endemic among them.”100
The demeaning life of manual scavengers is narrated by Diane
Coffey and Dean Spears in “Where India Goes: Abandoned Toilets,
Stunted Development and the Costs of Caste”101. The social reality of B
India is that manual scavenging castes face a two-fold discrimination-
one, by society, and other, within the Dalits:
“[M]anual scavengers are considered the lowest-ranking among
the Dalit castes. The discrimination they face is generally even
worse than that which Dalits from non-scavenging castes face.”102 C
Manual scavengers have been the worst victims of the system of
“purity and pollution”. Article 17 was a promise to lower castes that
they will be free from social oppression. Yet for the marginalized
communities, little has changed. The list of the daily atrocities committed
against Dalits is endless. Dalits are being killed for growing a moustache, D
daring to watch upper-caste folk dances, allegedly for owning and riding
a horse and for all kinds of defiance of a social order that deprives them
of essential humanity.103The Dalits and other oppressed sections of
society have been waiting long years to see the quest for dignity fulfilled.
Security from oppression and an opportunity to lead a dignified life is an
issue of existence for Dalits and the other marginalized. Post- E
independence, Parliament enacted legislations104 to undo the injustice
done to oppressed social groups. Yet the poor implementation105 of law
results in a continued denial which the law attempted to remedy.
78. Article 17 is a social revolutionary provision. It has certain
features. The first is that the Article abolishes “untouchability”. In F
abolishing it, the Constitution strikes at the root of the institution of
100
Sujatha Gidla, Ants among Elephants: An Untouchable Family and the Making of
Modern India, Harper Collins (2017), at page 114
101
Diane Coffey and Dean Spears, Where India Goes: Abandoned Toilets, Stunted
Development and the Costs of Caste, Harper Collins (2017), at pages 74-79 G
102
Ibid, at page 78
103
Rajesh Ramachandran, Death for Moustache, Outlook (16 October 2017), available
at https://www.outlookindia.com/magazine/story/death-for-moustache/299405
104
Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989;
Prohibition of Manual Scavenging Act, 2013
105
As observed in National Campaign for Dalit Human Rights v. Union of India, (2017)
2 SCC 432 H
800 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
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
C 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 punishable in accordance with law. The long arms
D
of the criminal law will lend teeth to the enforcement of the prohibition.
79. The Constitution has carefully eschewed a definition of
“untouchability”. The draftspersons realized that even a broadly couched
definition may be restrictive. A definition would become restrictive if the
words used or the instances depicted are not adequate to cover the
E manifold complexities of our social life through which prejudice and
discrimination is manifest. Hence, even though the attention of the
framers was drawn to the fact that “untouchability” is not a practice
referable only to the lowest in the caste ordering but also was practiced
against women (and in the absence of a definition, the prohibition would
F cover all its forms), the expression was designedly left undefined. The
Constitution uses the expression “untouchability” in inverted comas. The
use of a punctuation mark cannot be construed as intent to circumscribe
the constitutional width of the expression. The historical backdrop to the
inclusion of the provision was provided by centuries of subjugation,
discrimination and social exclusion. Article 17 is an intrinsic part of the
G social transformation which the Constitution seeks to achieve. Hence in
construing it, the language of the Constitution should not be ascribed a
curtailed meaning which will obliterate its true purpose. “Untouchability”
in any form is forbidden. The operation of the words used by the
Constitution cannot be confined to a particular form or manifestation of
H “untouchability”. The Constitution as a constantly evolving instrument
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 801
[DR. DHANANJAYA Y CHANDRACHUD, J.]

has to be flexible to reach out to injustice based on untouchability, in any A
of its forms or manifestations. Article 17 is a powerful guarantee against
exclusion. As an expression of the anti-exclusion principle, it cannot be
read to exclude women against whom social exclusion of the worst kind
has been practiced and legitimized on notions of purity and pollution.
80. The provisions of Article 17 have been adverted to in judicial B
decisions. In Devarajiah v B Padmanna106, a learned single judge of
the Mysore High Court observed that the absence of a definition of the
expression “untouchability in the Constitution and the use of inverted
commas indicated that “the subject-matter of that Article is not
untouchability in its literal or grammatical sense but the practice as it had
developed historically in this country”. The learned single judge held : C

“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 D
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.”107
In Jai Singh v Union of India108,a Full Bench of the Rajasthan E
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 Ingale109, a two judge Bench
of this Court traced the origins of untouchability. The court held that F
“untouchability is an indirect form of slavery and only an extension of
caste system”. The court held:
“36. The thrust of Article 17 and the Act is to liberate the society
from blind and ritualistic adherence and traditional beliefs which
lost all legal or moral base. It seeks to establish a new ideal for G
society – equality to the Dalits, on a par with general public, absence
106
AIR 1958 Mys 84
107
Ibid, at page 85
108
AIR 1993 Raj 177
109
1995 Supp (4) SCC 469 H
802 SUPREME COURT REPORTS [2018] 9 S.C.R.

A of disabilities, restrictions or prohibitions on grounds of caste or
religion, availability of opportunities and a sense of being a
participant in the mainstream of national life.”110
In a more recent decision in Adi Saiva Sivachariyargal Nala
Sangam v Government of Tamil Nadu111,a two judge Bench construed
B Article 17 in the context of exclusionary caste based practices:
“47.The issue of untouchability raised on the anvil of Article 17 of
the Constitution stands at the extreme opposite end of the pendulum.
Article 17 of the Constitution strikes at caste-based practices built
on superstitions and beliefs that have no rationale or logic…”
C While these judgments focus on “untouchability” arising out of
caste based practices, it is important to note that the provisions of Article
17 were enforced by means of the Protection of Civil Rights Act 1955
[earlier known as the Untouchability (Offences) Act]. Clauses (a) and
(b) of Section 3 penalise the act of preventing any person from entering
D a place of public worship and from worshiping or offering prayers in
such a place. Section 3 reads thus:
“Section 3 - Punishment for enforcing religious disabilities:
Whoever on the ground of “untouchability” prevents any
person—
E
(a) from entering any place of public worship which is open
to other persons professing the same religion of any section
thereof, as such person; or
(b) from worshipping or offering prayers or performing any
religious service in any place of public worship, or bathing in,
F
or using the waters of, any sacred tank, well, spring or water-
course [river or lake or bathing at any ghat of such tank, water-
course, river or lake] in the same manner and to the same
extent as is permissible to the other persons professing
the same religion or any section thereof, as such person,
G [shall be punishable with imprisonment for a term of not less than
one month and not more than six months and also with fine which
shall be not less than one hundred rupees and not more than five
hundred rupees].
110
Ibid, at page 486
H 111
(2016) 2 SCC 725
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 803
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Explanation: For the purposes of this section and section 4 persons A
professing the Buddhist, Sikh or Jaina religion or persons professing
the Hindu religion in any of its forms or developments including
Virashaivas, Lingayats, Adivasis, followers of Brahmo, Prarthana,
Arya Samaj and the Swaminarayan Sampraday shall be deemed
to be Hindus.”
B
(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— C

(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
D
(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
E
“untouchability”.].”
(Emphasis supplied)
Section 7 provides for punishment for other offences arising out
of untouchability. Section 7(1)(c) criminalises the encouragement and
incitement to the practice of untouchability in “any form whatsoever”. F
Explanation II stipulates that:
“[Explanation II.—For the purpose of clause (c) a person shall be
deemed to incite or encourage the practice of “untouchability”—
(i) if he, directly or indirectly, preaches “untouchability” or its
practice in any form; or G

(ii) if he justifies, whether on historical, philosophical or
religious grounds or on the ground of any tradition of
the caste system or on any other ground, the practice of
“untouchability” in any form.]”
(Emphasis supplied) H
804 SUPREME COURT REPORTS [2018] 9 S.C.R.

A “Untouchability” as such is not defined. Hence, a reference to
“untouchability” must be construed in the context of the provisions of
the Civil Rights Act to include social exclusions based on notions of
“purity and pollution”. In the context of political freedom, Articles 14, 19
and 21 represent as it were, a golden triangle of liberty. On a different
plane, in facing up to the struggle against exclusion or discrimination in
B
public places of worship, Articles 15(2)(b), 17 and 25(2)(b) constitute
the foundation. The guarantee against social exclusion based on notions
of “purity and pollution” is an acknowledgment of the inalienable dignity
of every individual. Dignity as a facet of Article 21 is firmly entrenched
after the decision of nine Judges in K S Puttaswamy v Union of India
C (“Puttaswamy”)112.
81. The caste system has been powered by specific forms of
subjugation of women.113 The notion of “purity and pollution” stigmatizes
the menstruation of women in Indian society. In the ancient religious
texts114 and customs, menstruating women have been considered as
D polluting the surroundings. Irrespective of the status of a woman,
menstruation has been equated with impurity, and the idea of impurity is
then used to justify their exclusion from key social activities.
Our society is governed by the Constitution. The values of
constitutional morality are a non-derogable entitlement. Notions of “purity
E and pollution”, which stigmatize individuals, can have no place in a
constitutional regime. Regarding menstruation as polluting or impure,
and worse still, imposing exclusionary disabilities on the basis of menstrual
status, is against the dignity of women which is guaranteed by the
Constitution. Practices which legitimise menstrual taboos, due to notions
of “purity and pollution”, limit the ability of menstruating women to attain
F the freedom of movement, the right to education and the right of entry to
112
(2017) 10 SCC 1
113
In his 1916 paper, “Castes in India: Their Mechanism, Genesis and Development”,
Dr Ambedkar speaks about the practice of subjugating and humiliating women for the
purpose of reinforcement of the caste system. He advances that women have been used
as a medium to perpetuate caste system by citing the specific examples of Sati (the
G practice of burning of the widow on the funeral pyre of her deceased husband), enforced
widowhood by which a widow is not allowed to remarry, and pre-pubertal marriage 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. SeeDr. Babasaheb
Ambedkar: Writings and Speeches, (Vasant Moon ed.), Government of Maharashtra
(2014), Vol. 1, at pages 3-22
114
Manusmriti
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 805
[DR. DHANANJAYA Y CHANDRACHUD, J.]

places of worship and, eventually, their access to the public sphere. A
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.
B
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 C
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 women against whom social exclusion of the worst kind has
been practiced and legitimized on notions of purity and pollution. Article
D
17 cannot be read in a restricted manner. But even if Article 17 were to
be read to reflect a particular form of untouchability, that article will not
exhaust the guarantee against other forms of social exclusion. The
guarantee against social exclusion would emanate from other provisions
of Part III, including Articles 15(2) and 21.Exclusion of women between
the age groups of ten and fifty, based on their menstrual status, from E
entering the temple in Sabarimala can have no place in a constitutional
order founded on liberty and dignity.
82. The issue for entry in a temple is not so much about the right
of menstruating women to practice their right to freedom of religion, as
about freedom from societal oppression, which comes from a stigmatized F
understanding of menstruation, resulting in “untouchability”. Article 25,
which is subject to Part III provisions, is necessarily therefore subject to
Article 17. To use the ideology of “purity and pollution” is a violation of
the constitutional right against “untouchability”.
J The ultra vires doctrine
G
83. Section 2 of the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act 1965 provides thus:
“2. Definitions – In this Act, unless the context otherwise requires,-
(a) “Hindu” includes a person professing the Buddhist, Sikh or
Jaina religion; H
806 SUPREME COURT REPORTS [2018] 9 S.C.R.

A (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
B
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-
C caste, sect or denomination whatsoever.”
Section 2(c) provides an inclusive definition of the expression
“section or class”. As a principle of statutory interpretation, the term
“includes” is used to expand the scope of the words or phrases which
accompany. When “includes” is employed in a definition clause, the
D 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,115 a
Constitution Bench of this Court considered whether the Petitioner’s
E 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:
F “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
G 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.”
(Emphasis supplied)
115
(1961) 3 SCR 592
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 807
[DR. DHANANJAYA Y CHANDRACHUD, J.]

In CIT v Taj Mahal Hotel, Secunderabad116 a two judge Bench A
of this Court considered whether sanitary and pipeline fittings would fall
within the definition of ‘plant’ under Section 10(5) of the Income Tax
Act, 1922. Section 10(5) of the Act provided inter alia that in Section
10(2) the word “plant” includes “vehicles, books, scientific apparatus
and surgical equipment purchased for the purpose of the business,
B
profession or vocation”. While answering the above question in the
affirmative, this Court held that:
“6.The word “includes” is often used in interpretation
clauses in order to enlarge the meaning of the words or
phrases occurring in the body of the statute. When it is so
used, those words and phrases must be construed as C
comprehending not only such things as they signify according to
their nature and import but also those things which the interpretation
clause declares that they shall include.”117 (Emphasis supplied)
In Geeta Enterprises v State of U P,118 a three judge Bench of
this Court considered whether Section 2(3) of the United Provinces D
Entertainment and Betting Tax Act, 1937 which provided that
“entertainment includes any exhibitional performance, amusement, game
or sport to which persons are admitted for payment”, would include
video shows which were being played on video machines at the premises
of the Petitioner. Affirming the above position, this Court cited with E
approval, the following interpretation of the word “includes” by the
Allahabad High Court in Gopal Krishna Agrawal v State of U P119:
“The context in which the word ‘includes’ has been used in the
definition clauses of the Act does not indicate that the legislature
intended to put a restriction or a limitation on words like F
‘entertainment’ or ‘admission to an entertainment’ or ‘payment
for admission’.”
The same view was expressed by a three judge Bench in Regional
Director, ESIC v High Land Coffee Works of P.F.X. Saldanha &
Sons 120. G
116
(1971) 3 SCC 550
117
Ibid, at pages 552-553
118
(1983) 4 SCC 202
119
(1982) All. L.J. 607
120
(1991) 3 SCC 617
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808 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 85. The use of the term ‘includes’ in Section 2(c) indicates that
the scope of the words ‘section or class’ cannot be confined only to
‘division’, ‘sub-division’, ‘caste’, ‘sub-caste’, ‘sect’ or ‘denomination’.
‘Section or class’, would be susceptible to a broad interpretation that
includes ‘women’ within its ambit. Section 2(b) uses the expression
“Hindus or any section or class thereof”. Plainly, individuals who profess
B
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,
C sub-division, 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.
D 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
E legislature endeavoured to strike at the heart of the social evil of exclusion
and sought to give another layer of recognition and protection to the
fundamental right of every person to freely profess, practice and
propagate religion under Article 25. Inclusion of women in the definition
of ‘section and class’ in Section 2(c) furthers the object of the law, and
F recognizes the right of every Hindu to enter and worship in a temple. It
is an attempt to pierce through imaginary social constructs formed around
the practice of worship, whose ultimate effect is exclusion. A just and
proper construction of Section 2(c) requires that women be included
within the definition of ‘section or class’.
G 86. The notifications dated 21 October 1955 and 27 November
1956 were issued by the Travancore Devaswom Board before the 1965
Act was enacted. The notifications were issued by the Board under
Section 31 of the Travancore-Cochin Hindu Religious Institutions Act
1950 (“1950 Act”). Section 31 of the 1950 Act reads:
121
H Union of India v Elphinstone Spinning and Weaving Co Ltd, (2001) 4 SCC 139
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 809
[DR. DHANANJAYA Y CHANDRACHUD, J.]

“Management of Devaswoms.- Subject to the provisions of this A
Part and the rules made thereunder the Board shall manage the
properties and affairs of the Devaswoms, both incorporated and
unincorporated, as heretofore, and arrange for the conduct of the
daily worship and ceremonies and of the festivals in every temple
according to its usage.”
B
Both the notifications dated 21 October 1955 and 27 November
1956 have the same effect, which is the total prohibition on the entry of
women between the ages of ten and fifty into the Sabarimala temple.
According to the notifications, the entry of women between the ages of
ten and fifty is in contravention of the customs and practice of the temple.
C
Section 3 throws open places of public worship to all sections and
classes of Hindus:
“3. Places of public worship to be open to all sections and classes
of Hindus –
Notwithstanding anything to the contrary contained in any D
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 E
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: F
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.” G
(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 H
810 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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 generally have to be open to all sections and classes of Hindus
B
(including women). Hindu women constitute a ‘section or class’ under
Section 2(c).
The proviso to Section 3 creates an exception by providing that if
the place of public worship is a temple which is founded for the benefit
of any religious denomination or section thereof, Section 3 would be
C subject to the right of that religious denomination or section to manage
its own affairs in matters of religion. The proviso recognises the
entitlement of a religious denomination to manage its own affairs in
matters of religion. However, the proviso is attracted only if the following
conditions are satisfied:
D (i) The place of public worship is a temple; and
(ii) The temple has been founded for the benefit of any religious
denomination or section thereof.
87. We have held that the devotees of Lord Ayyappa do not
E constitute a religious denomination and the Sabarimala temple is not a
denominational temple. The proviso has no application. The notifications
which restrict the entry of women between the ages of ten and fifty in
the Sabarimala temple cannot stand scrutiny and plainly infringe Section
3. They prevent any woman between the age of ten and fifty from
entering the Sabarimala temple and from offering prayers. Such a
F restriction would infringe the rights of all Hindu women which are
recognized by Section 3. The notifications issued by the Board prohibiting
the entry of women between ages ten and fifty-five, are ultra vires
Section 3.
88. The next question is whether Rule 3(b) of the 1965 Rules is
G ultra vires the 1965 Act. Rule 3 provides:
“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
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 811
[DR. DHANANJAYA Y CHANDRACHUD, J.]

outside precincts thereof, or any sacred place including a hill or A
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. B

(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. C
(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
D
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 E
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 F
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 G
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
discriminate in any manner whatsoever, against any Hindu on the
ground that he belongs to a particular section or class.
H
812 SUPREME COURT REPORTS [2018] 9 S.C.R.

A (2) The competent authority referred to in sub-section (1) shall
be,-
(i) In relation to a place of public worship situated in any area to
which Part I of the Travancore-Cochin Hindu Religious Institutions
Act, 1950 (Travancore-Cochin Act XV of 1950), extends, the
B Travancore Devaswom Board;
(ii) in relation to a place of public worship situated in any area to
which Part II of the said Act extends, the Cochin Devaswom
Board; and
(iii) in relation to a place of public worship situated in any other
C area in the State of Kerala, the Government.”
Section 4(1) empowers the trustee or a person in charge of a
place of public worship to make regulations for maintenance of order
and decorum and for observance of rites and ceremonies in places of
public worship. The regulation making power is not absolute. The proviso
D to Section 4(1) prohibits discrimination against any Hindu in any manner
whatsoever on the ground that he or she belongs to a particular section
or class.
89. When the rule-making power is conferred by legislation on a
delegate, the latter cannot make a rule contrary to the provisions of the
E parent legislation. The rule-making authority does not have the power to
make a rule beyond the scope of the enabling law or inconsistent with
the law.122 Whether delegated legislation is in excess of the power
conferred on the delegate is determined with reference to the specific
provisions of the statute conferring the power and the object of the Act
F as gathered from its provisions.123
90. Hindu women constitute a ‘section or class’ of Hindus under
clauses b and c of Section 2 of the 1965 Act. The proviso to Section
4(1) forbids any regulation which discriminates against any Hindu on the
ground of belonging to a particular section or class. Above all, the mandate
of Section 3 is that if a place of public worship is open to Hindus generally
G
or to any section or class of Hindus, it shall be open to all sections or
classes of Hindus. The Sabarimala temple is open to Hindus generally
and in any case to a section or class of Hindus. Hence it has to be open
122
Additional District Magistrate v Siri Ram, (2000) 5 SCC 451
123
Maharashtra State Board of Secondary and Higher Education v Paritosh
H Bhupeshkumar Sheth, (1984) 4 SCC 27
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 813
[DR. DHANANJAYA Y CHANDRACHUD, J.]

to all sections or classes of Hindus, including Hindu women. Rule 3(b) A
gives precedence to customs and usages which allow the exclusion of
women “at such time during which they are not… allowed to enter a
place of public worship”. In laying down such a prescription, Rule 3(b)
directly offends the right of temple entry established by Section 3. Section
3 overrides any custom or usage to the contrary. But Rule 3
B
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 C
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 Narasu124 D

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
Naishtika Brahmachari. During the proceedings, a submission was E
addressed on the ambit of Article 13 and the definition of ‘laws in force’
in clause 1 of that Article.
Article 13 of the Constitution reads thus:
“13. (1) All laws in force in the territory of India immediately F
before the commencement of this Constitution, in so far as they
are inconsistent with the provisions of this Part, shall, to the extent
of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges
the rights conferred by this Part and any law made in contravention
G
of this clause shall, to the extent of the contravention, be void.
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
H
814 SUPREME COURT REPORTS [2018] 9 S.C.R.

A (3) In this article, unless the context otherwise requires,—
(a) “law” includes any Ordinance, order, bye-law, rule, regulation,
notification, custom or usage having in the territory of India the
force of law;
(b) “laws in force” includes laws passed or made by a Legislature
B or other competent authority in the territory of India before the
commencement of this Constitution and not previously repealed,
notwithstanding that any such law or any part thereof may not be
then in operation either at all or in particular areas.
(4) Nothing in this article shall apply to any amendment of this
C Constitution made under article 368.”
92. A Division Bench of the Bombay High Court in The State of
Bombay v Narasu Appa Mali (“Narasu”),126 considered the ambit of
Article 13, particularly in the context of custom, usage and personal law.
The constitutional validity of the Bombay Prevention of Hindu Bigamous
D Marriages Act 1946 was considered. It was contended that a provision
of personal law which permits polygamy violates the guarantee of non-
discrimination under Article 15, and that such a practice had become
void under Article 13(1) after the Constitution came into force. The
Bombay High Court considered the question of “whether in the expression
E ‘all laws in force’ appearing in Article 13(1) ‘personal laws’ were
included”. Chief Justice Chagla opined that ‘custom or usage’ would be
included in the definition of ‘laws in force’ in Article 13(1). The learned
Chief Justice held:
“15…The Solicitor General’s contention is that this definition of
F “law” only applies to Article 13(2) and not to Article 13(1).
According to him it is only the definition of “laws in force” that
applies to Article 13(1). That contention is difficult to accept
because custom or usage would have no meaning if it were applied
to the expression “law” in Article 13(2). The State cannot make
any custom or usage. Therefore, that part of the definition can
G 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.”
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
H Act 1946 was held invalid. The cases arise from these proceedings
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 815
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Hence, the validity of a custom or usage could be tested for its A
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 B
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).” C
93. Justice Gajendragadkar (as the learned Judge then was)
differed with the Chief Justice’s view that custom or usage falls within
the ambit of Article 13(1). According to Justice Gajendragadkar, ‘custom
or usage’ does not fall within the expression ‘laws in force’ in Article
13(1): D
“26…If custom or usage having the force of law was really
included in the expression “laws in force,” I am unable to see
why it was necessary to provide for the abolition of untouchability
expressly and specifically by Article 17. This article abolishes
untouchability and forbids its practice in any form. It also lays E
down that the enforcement of any disability arising out of
untouchability shall be an offence punishable in accordance with
law. Untouchability as it was practised amongst the Hindus owed
its origin to custom and usage, and there can be no doubt whatever
that in theory and in practice it discriminated against a large section
of Hindus only on the ground of birth. If untouchability thus clearly F
offended against the provisions of Article 15(1) and if it was
included in the expression “laws in force”, it would have been
void under Article 13(1). In that view it would have been wholly
unnecessary to provide for its abolition by Article 17. That is why
I find it difficult to accept the argument that custom or usage G
having the force of law should be deemed to be included in the
expression “laws in force.””
The learned Judge opined that the practice of untouchability owed
its origins to custom and usage. If it was intended to include ‘custom or
usage’ in the definition of ‘laws in force’ in Article 13(3)(b), the custom
H
816 SUPREME COURT REPORTS [2018] 9 S.C.R.

A of untouchability would offend the non-discrimination guarantee under
Article 15 and be void under Article 13(1). The learned Judge concluded
that this renders Article 17 obsolete. The learned Judge concluded that it
was thus not intended to include ‘custom or usage’ within the ambit of
‘laws in force’ in Article 13(1) read with Article 13(3)(b).
B Justice Gajendragadkar held that “even if this view is wrong, it
does not follow that personal laws are included in the expression “laws
in force””:
“26…It seems to me impossible to hold that either the Hindu or
the Mahomedan law is based on custom or usage having the force
C of law.”
The learned Judge read in a statutory requirement for ‘laws in
force’ under Article 13(1):
“23…There can be no doubt that the personal laws are in force in
a general sense; they are in fact administered by the Courts in
D India in matters falling within their purview. But the expression
“laws in force” is, in my opinion, used in Article 13(1) not in that
general sense. This expression refers to what may compendiously
be described as statutory laws. There is no doubt that laws which
are included in this expression must have been passed or made by
E 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
F 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,127 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
G
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
dissent adopted the view that the fundamental rights are not isolated and
separate but protect a common thread of liberty and freedom:
H 127
1950 SCR 88
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 817
[DR. DHANANJAYA Y CHANDRACHUD, J.]

“58.To my mind, the scheme of the Chapter dealing with A
the fundamental rights does not contemplate what is
attributed to it, namely, that each Article is a code by itself
and is independent of the others. In my opinion, it cannot
be said that Articles 19, 20, 21 and 22 do not to some extent
overlap each other. The case of a person who is convicted of
B
an offence will come under Articles 20 and 21 and also under
Article 22 so far as his arrest and detention in custody before trial
are concerned. Preventive detention, which is dealt with in Article
22, also amounts to deprivation of personal liberty which is referred
to in Article 21, and is a violation of the right of freedom of
movement dealt with in Article 19(1)(d)...” C
(Emphasis supplied)
The view adopted in Justice Fazl Ali’s dissent was endorsed in
Rustom Cavasjee Cooper v Union of India.128 An eleven judge Bench
dealt with the question whether the Banking Companies (Acquisition
and Transfer of Undertakings) Ordinance, 1969, and the Banking D
Companies (Acquisition and Transfer of Undertakings) Act, 1969
impaired the Petitioner’s rights under Articles 14, 19 and 31 of the
Constitution. Holding the Act to be unconstitutional, Justice J C Shah
held:
“52…The enunciation of rights either express or by implication E
does not follow a uniform pattern. But one thread runs through
them: they seek to protect the rights of the individual or groups of
individuals against infringement of those rights within specific limits.
Part III of the Constitution weaves a pattern of guarantees on the
texture of basic human rights. The guarantees delimit the protection
of those rights in their allotted fields: they do not attempt to enunciate F
distinct rights.”129
Similarly, in Maneka,a seven judge Bench was faced with a
constitutional challenge to Section 10(3)(c) of the Passports Act 1967.
Striking the section down as violating Article 14 of the Constitution, Justice
P N Bhagwati held: G
“5…It is said that the freedom to move freely is carved out of
personal liberty and, therefore, the expression ‘personal liberty’ in
Article 21 excludes that attribute. In our view, this is not a
128
(1970) 1 SCC 248
129
Ibid, at page 289 H
818 SUPREME COURT REPORTS [2018] 9 S.C.R.

A correct approach. Both are independent fundamental rights,
though there is overlapping. There is no question of one
being carved out of another. The fundamental right of life and
personal liberty has many attributes and some of them are found
in Article 19. If a person’s fundamental right under Article 21 is
infringed, the State can rely upon a law to sustain the action, but
B
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.”130 (Emphasis supplied)
In the Special Courts Bill Reference,131 a seven judge Bench
of this Court, considered a reference under Article 143(1) on the question
C 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
D superfluous.” The learned Judge held:
“49…Some amount of repetitiveness or overlapping is inevitable
in a Constitution like ours which, unlike the American Constitution,
is drawn elaborately and runs into minute details. There is,
therefore, all the greater reason why, while construing our
E Constitution, care must be taken to see that powers conferred by
its different provisions are permitted their full play and any one
provision is not, by construction, treated as nullifying the existence
and effect of another.”132
In Puttaswamy, a unanimous verdict by a nine judge Bench
F declared privacy to be constitutionally protected, as a facet of liberty,
dignity and individual autonomy. The Court held that privacy traces itself
to the guarantee of life and personal liberty in Article 21 of the Constitution
as well as to other facets of freedom and dignity recognized and
guaranteed by the fundamental rights contained in Part III. The judgment
of four judges held thus:
G
“259…The coalescence of Articles 14, 19 and 21 has brought
into being a jurisprudence which recognises the inter-relationship
130
Ibid, at page 279
131
(1979) 1 SCC 380
132
Ibid, at page 413
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 819
[DR. DHANANJAYA Y CHANDRACHUD, J.]

between rights. That is how the requirements of fairness and non- A
discrimination animate both the substantive and procedural aspects
of Article 21…133
260…At a substantive level, the constitutional values underlying
each Article in the Chapter on fundamental rights animate the
meaning of the others. This development of the law has followed B
a natural evolution. The basis of this development after all is that
every aspect of the diverse guarantees of fundamental rights deals
with human beings. Every element together with others contributes
in the composition of the human personality. In the very nature of
things, no element can be read in a manner disjunctive from the
composite whole.”134 C

Responding to the reasoning employed in Narasu, A M
Bhattacharjee in his work ‘Matrimonial Laws and the Constitution’,135
writes:
“…the provisions of Article 15(3) may also appear to be D
unnecessary to the extent that it refers to “children”. Article 15(1)
prohibiting discrimination on the ground of religion, race, caste,
sex or place of birth does not prohibit any differential treatment
on the ground of age. And, therefore, if age is thus not a prohibited
basis for differentiation, it was not necessary to provide any
express saving clause in Article 15(3) to the effect that “nothing E
in this Article shall prevent the State from making any special
provisions for children,” because nothing in Article 15(1) or Article
15(2) would forbid such special provision…There, the mere fact
that some matter has been specifically dealt with by one or more
Articles in Part III or anywhere else, would not, by itself, warrant F
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 G
a degree of overlap in the Articles of the Constitution which recognize
fundamental human freedoms and they must be construed in the widest
133
Ibid, at page 477
134
Ibid, at page 478
135
A M Bhattacharjee, Matrimonial Laws and the Constitution, Eastern Law House
(1996) at page 32 H
820 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
the role of the Constitution to bring justice to the oppressed and
marginalized. The penumbra of a particular article in Part III which
deals with a specific facet of freedom may exist elsewhere in Part III.
That is because all freedoms share an inseparable connect. They exist
together and it is in their co-existence that the vision of dignity, liberty
C and equality is realized. As noted in Puttaswamy, “the Constituent
Assembly thought it fit that some aspects of liberty require a more
emphatic declaration so as to restrict the authority of the State to abridge
or curtail them”. The rationale adopted by Justice Gajendragadkar in
Narasu for excluding custom and usage from ‘laws in force’ under
Article 13(1) read with Article 13(3)(b) is unsustainable both doctrinally
D
and from the perspective of the precedent of this Court.
96. Both Judges in Narasu relied on the phraseology of Section
112 of the Government of India Act 1915 which enjoined the High Courts
in Calcutta, Madras, and Bombay to decide certain matters in the exercise
of their original jurisdiction in accordance with the personal law or custom
E of the parties to the suit, and of the defendant, where the plaintiff and
defendant are subject to different personal laws or custom:
“112. The High Courts at Calcutta, Madras and Bombay, in the
exercise of their original jurisdiction in suits against inhabitants of
Calcutta, Madras or Bombay, as the case may be, shall, in matters
F of inheritance and succession to lands, rents and goods, and in
matters of contract and dealing between party and party, when
both parties are subject to the same personal law or custom
having the force of law, decide according to that personal law
or custom, and when the parties are subject to different personal
G laws or custom having the force of law, decide according to
the law or custom to which the defendant is subject.”
(Emphasis supplied)
Relying on the disjunctive use of ‘personal law’ and ‘custom having
the force of law’ (separated by the use of the word ‘or’), Chief Justice
H Chagla opined that despite the legislative precedent of the 1915 Act, the
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 821
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Constituent Assembly deliberately omitted a reference to ‘personal law’ A
in Article 13. Chief Justice Chagla held that this “is a very clear pointer
to the intention of the Constitution making body to exclude personal law
from the purview of Article 13.”
The Constituent Assembly also had a legislative precedent of the
Government of India Act 1935, from which several provisions of the B
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 C
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 D
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 TheUnited Provinces v Mst.Atiqa Begum.136 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 E
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 cannot help saying that there appears to be no
adequate reason why the power to give retrospective effect to a F
new legislation should be curtailed, limited or minimized, particularly
when S. 292 applies not only to statutory enactments then in force,
but to all laws, including even personal laws, customary laws,
and common laws.”137
(Emphasis supplied) G
The definitional terms ‘law’ and ‘laws in force’ in Article 13(3)(a)
and 13(3)(b) have an inclusive definition. It is a settled position of statutory
interpretation, that use of the word ‘includes’ enlarges the meaning of
136
AIR 1941 FC 16
137
Ibid, at page 31
H
822 SUPREME COURT REPORTS [2018] 9 S.C.R.

A the words or phrases used.138 In his seminal work, ‘Principles of Statutory
Interpretation’, Justice G P Singh writes that: “where the word defined
is declared to ‘include’ such and such, the definition is prima facie
extensive.”139
97. In Sant Ram v Labh Singh140, a Constitution Bench of this
B Court dealt with whether ‘after coming into operation of the Constitution,
the right of pre-emption is contrary to the provisions of Art. 19(1)(f)
read with Art. 13 of the Constitution’. It was contended that the terms
‘law’ and ‘laws in force’ were defined separately and ‘custom or usage’
in the definition of ‘law’ cannot be included in the definition of ‘laws in
force’. Rejecting this contention, the Court relied on the expansive
C meaning imported by the use of ‘includes’ in the definition clauses:
“4…The question is whether by defining the composite phrase
“laws in force” the intention is to exclude the first definition. The
definition of the phrase “laws in force” is an inclusive definition
and is intended to include laws passed or made by a Legislature
D or other competent authority before the commencement of the
Constitution irrespective of the fact that the law or any part thereof
was not in operation in particular areas or at all. In other words,
laws, which were not in operation, though on the statute book,
were included in the phrase “laws in force”. But the second
E definition does not in any way restrict the ambit of the word “law”
in the first clause as extended by the definition of that word. It
merely seeks to amplify it by including something which, but for
the second definition, would not be included by the first
definition…Custom and usage having in the territory of India the
force of the law must be held to be contemplated by the expression
F “all laws in force.”
The use of the term ‘includes’ in the definition of the expression
‘law’ and ‘laws in force’ thus imports a wide meaning to both. Practices
having the force of law in the territory of India are comprehended within
“laws in force.” Prior to the adoption of Article 13 in the present form,
G 138
Ardeshir H Bhiwandiwala v State of Bombay (1961) 3 SCR 592; CIT v Taj Mahal
Hotel, Secunderabad (1971) 3 SCC 550; Geeta Enterprises v State of U P (1983) 4 SCC
202; Regional Director, ESIC v High Land Coffee Works of P.F.X. Saldanha & Sons
(1991) 3 SCC 617
139
Justice G P Singh, Principles of Statutory Interpretation, Lexis Nexis (2016) at page
198
140
(1964) 7 SCR 756
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 823
[DR. DHANANJAYA Y CHANDRACHUD, J.]

draft Article 8 included only a definition of ‘law’.141 In October 1948, A
the Drafting Committee brought in the definition of ‘laws in force’. The
reason for proposing this amendment emerges from the note142 of the
Drafting Committee:
“The expression “laws in force” has been used in clause (1) of 8,
but it is not clear if a law which has been passed by the Legislature B
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.”
C
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 or in particular areas would
attract the operation of Article 13(1). Justice Gajendragadkar, however,
held that ‘laws in force’ in Article 13(1) is a compendious expression for
statutory laws. In doing so, the learned Judge overlooked the wide ambit D
that was to be attributed to the term ‘laws in force’, by reason of the
inclusive definition. The decision of the Constitution Bench in Sant Ram
emphasizes precisely this facet. Hence, the view of Justice
Gajendragadkar as a judge of the Bombay High Court in Narasu cannot
be held to be correct. E
98. Recently, in Shayara Bano, a Constitution Bench considered
whether talaq – ul – biddat or ‘triple talaq’, which authorised a Muslim
man to divorce his wife by pronouncing the word “talaq” thrice, was
141
Shiva Rao, The Framing of India’s Constitution, Vol III, at pages 520, 521. Draft
Article 8 reads: F
“8(1) All laws in force immediately before the commencement of this
Constitution in the territory of India, in so far as they are inconsistent with the provisions
of this Part, shall, to the extent of such inconsistency, be void.
(2) The State shall not make any law which takes away or abridges the rights
conferred by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void:
*Provided that nothing in this clause shall prevent the State from making any G
law for the removal of any inequality, disparity, disadvantage or discrimination arising
out of any existing law.
(3) In this article, the expression “law” includes any ordinance, order, bye-
law, rule, regulation, notification, custom or usage having the force of law in the territory
of India or any part thereof.”
142
Shiva Rao, The Framing of India’s Constitution, Vol IV, at pages 26, 27
H
824 SUPREME COURT REPORTS [2018] 9 S.C.R.

A legally invalid. In a 3-2 verdict, the majority ruled that triple talaq is not
legally valid. Justice Rohinton Fali Nariman (writing for himself and
Justice Lalit) held that the Muslim Personal Law (Shariat) Application
Act, 1937 codified the practice of Triple Talaq. The learned Judge
proceeded to examine whether this violated the Constitution:
B “47.It is, therefore, clear that all forms of Talaq recognized and
enforced by Muslim personal law are recognized and enforced
by the 1937 Act. This would necessarily include Triple Talaq when
it comes to the Muslim personal law applicable to Sunnis in
India…143
C 48.As we have concluded that the 1937 Act is a law made by the
legislature before the Constitution came into force, it would fall
squarely within the expression “laws in force” in Article 13(3)(b)
and would be hit by Article 13(1) if found to be inconsistent with
the provisions of Part III of the Constitution, to the extent of such
inconsistency.”144
D
Having concluded that the 1937 Act codified the practice of triple
talaq and that the legislation would consequently fall within the ambit of
‘laws in force’ in Article 13(1) of the Constitution, it was held that it was
“unnecessary…to decide whether the judgment in Narasu Appa (supra)
is good law.”145 Justice Nariman, however, doubted the correctness of
E Narasu in the following observation:
“However, in a suitable case, it may be necessary to have a re-
look at this judgment in that the definition of “law and “laws in
force” are both inclusive definitions, and that at least one part of
the judgment of P.B. Gajendragadkar, J., (para 26) in which the
F 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
G 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.
143
Ibid, at page 65
144
Ibid, at page 65
H 145
Ibid, at para 51
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 825
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Our Constitution marks a vision of social transformation. It marks A
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
B
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 achieving equality within this transformation
project involves the eradication of systemic forms of domination
and material disadvantage based on race, gender, class and other C
grounds of inequality. It also entails the development of
opportunities which allow people to realise their full human potential
within positive social relationships.”146
100. The Indian Constitution is marked by a transformative vision.
Its transformative potential lies in recognizing its supremacy over all D
bodies of law and practices that claim the continuation of a past which
militates against its vision of a just society. At the heart of transformative
constitutionalism, is a recognition of change. What transformation in social
relations did the Constitution seek to achieve? What vision of society
does the Constitution envisage? The answer to these questions lies in
E
the recognition of the individual as the basic unit of the Constitution. This
view demands that existing structures and laws be viewed from the
prism of individual dignity.
Did the Constitution intend to exclude any practice from its
scrutiny? Did it intend that practices that speak against its vision of dignity,
equality and liberty of the individual be granted immunity from scrutiny? F
Was it intended that practices that detract from the transformative vision
of the Constitution be granted supremacy over it? To my mind, the answer
to all these, is in the negative.
The individual, as the basic unit, is at the heart of the Constitution.
All rights and guarantees of the Constitution are operationalized and are G
aimed towards the self-realization of the individual. This makes the anti-
exclusion principle firmly rooted in the transformative vision of the
Constitution, and at the heart of judicial enquiry. Irrespective of the
146
Cathi Albertyn and Beth Goldblatt, Facing the Challenge of Transformation:
Difficulties in the Development of an Indigenous Jurisprudence of Equality, Vol. 14,
South African Journal of Human Rights (1988), at page 249 H
826 SUPREME COURT REPORTS [2018] 9 S.C.R.

A source from which a practice claims legitimacy, this principle enjoins
the Court to deny protection to practices that detract from the
constitutional vision of an equal citizenship.
101. The decision in Narasu, in restricting the definition of the
term ‘laws in force’ detracts from the transformative vision of the
B Constitution. Carving out ‘custom or usage’ from constitutional scrutiny,
denies the constitutional vision of ensuring the primacy of individual dignity.
The decision in Narasu, is based on flawed premises. Custom or usage
cannot be excluded from ‘laws in force’. The decision in Narasu also
opined that personal law is immune from constitutional scrutiny. This
detracts from the notion that no body of practices can claim supremacy
C over the Constitution and its vision of ensuring the sanctity of dignity,
liberty and equality. This also overlooks the wide ambit that was to be
attributed to the term ‘laws in force’ having regard to its inclusive definition
and constitutional history. As H M Seervai notes147:
“there is no difference between the expression “existing law”
D 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
E 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
F instances that arise before the Court. In addition, it must seek to recognize
and transform the underlying social and legal structures that perpetuate
practices against the constitutional vision. Subjecting personal laws to
constitutional scrutiny is an important step in this direction. Speaking of
the true purpose of liberty, Dr B R Ambedkar stated:
G “What are we having this liberty for? We are having this liberty in
order to reform our social system, which is so full of inequities, so
full of inequalities, discriminations and other things, which conflict
with our fundamental rights.”148
147
H M Seervai, Constitutional Law of India, Vol. I, at page 677
148
Parliament of India, Constituent Assembly Debates, Vol. VII, at page 781
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 827
[DR. DHANANJAYA Y CHANDRACHUD, J.]

Practices, that perpetuate discrimination on the grounds of A
characteristics that have historically been the basis of discrimination,
must not be viewed as part of a seemingly neutral legal background.
They have to be used as intrinsic to, and not extraneous to, the interpretive
enquiry.
The case before us has raised the question of whether it is B
constitutionally permissible to exclude women between the ages of ten
and fifty from the Sabarimala Temple. In the denial of equal access, the
practice denies an equal citizenship and substantive equality under the
Constitution. The primacy of individual dignity is the wind in the sails of
the boat chartered on the constitutional course of a just and egalitarian
social order. C

L Deity as a bearer of constitutional rights
103. Mr J Sai Deepak, learned Counsel, urged that the presiding
deity of the Sabarimala Temple, Lord Ayyappa, is a bearer of constitutional
rights under Part III of the Constitution. It was submitted that the right D
to preserve the celibacy of the deity is a protected constitutional right
and extends to excluding women from entering and praying at the
Sabarimala Temple. It was urged that the right of the deity to follow his
Dharma flows from Article 25(1) and Article 26 of the Constitution and
any alteration in the practice followed would have an adverse effect on
the fundamental rights of the deity. E

104. The law recognizes an idol or deity as a juristic persons which
can own property and can sue and be sued in the Court of law. In
Pramatha Nath Mullick v Pradyumna Kumar Mullick149, the Privy
Council dealt with the nature of an idol and services due to the idol.
Speaking for the Court, Lord Shaw held thus: F
“A Hindu idol is, according to long established authority, founded
upon the religious customs of the Hindus, and the recognition thereof
by Courts of law, a “juristic entity.” It has a juridical status with
the power of suing and being sued.”150
G
In Yogendra Nath Naskar v Commissioner of the Income-
Tax, Calcutta151, this Court held thus:
149
(1925) 27 Bom LR 1064
150
Ibid, at page 250
151
(1969) 1 SCC 555
H
828 SUPREME COURT REPORTS [2018] 9 S.C.R.

A “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
B
sense and to sue for the property, to realize rent and to defend
such property…in the ideal sense.”152
B K Mukherjea in his seminal work ‘The Hindu Law of Religious
and Charitable Trusts’ writes thus:
C “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 institute a
suit for the protection of its interest.”153
D
105. The word ‘persons’ in certain statutes have been interpreted
to include idols. However, to claim that a deity is the bearer of
constitutional rights is a distinct issue, and does not flow as a necessary
consequence from the position of the deity as a juristic person for certain
purposes. Merely because a deity has been granted limited rights as
E juristic persons under statutory law does not mean that the deity
necessarily has constitutional rights.
In Shirur Mutt, Justice B K Mukherjea writing for the Court,
made observations on the bearer of the rights under Article 25 of the
Constitution:
F
“14.We now come to Article 25 which, as its language indicates,
secures to every person, subject to public order, health and morality,
a freedom not only to entertain such religious belief, as may be
approved of by his judgment and conscience, but also to exhibit
his belief in such outward acts as he thinks proper and to propagate
G 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….Institutions, as such
152
Ibid, at page 560
153
B K Mukherjea “The Hindu Law of Religious and Charitable Trust”, at pages 257,
H 264
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 829
[DR. DHANANJAYA Y CHANDRACHUD, J.]

cannot practise or propagate religion; it can be done only A
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
B
a temple or parlour meeting.”
(Emphasis supplied)
In Shri A S Narayana Deekshitulu v State Of Andhra
Pradesh 154 , a two judge Bench of this Court considered the
constitutionality of Sections 34, 35, 37, 39 and 144 of the Andhra Pradesh
Charitable and Hindu Religious Institutions and Endowments Act, 1987 C
which abolished the hereditary rights of archakas, mirasidars, gamekars
and other office-holders. Upholding the Act, the Court held:
“85.Articles 25 and 26 deal with and protect religious freedom.
Religion as used in these articles must be construed in its strict
and etymological sense. Religion is that which binds a man with D
his Cosmos, his Creator or super force. It is difficult and rather
impossible to define or delimit the expressions ‘religion’ or “matters
of religion” used in Articles 25 and 26. Essentially, religion is a
matter of personal faith and belief of personal relations of
an individual with what he regards as Cosmos, his Maker E
or his Creator which, he believes, regulates the existence
of insentient beings and the forces of the universe.” 155
(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 F
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 G
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
154
1996 9 SCC 548
155
Ibid, at pages 592-593 H
830 SUPREME COURT REPORTS [2018] 9 S.C.R.

A towards the recognition of the individual as its basic unit. The individual
is the bearer of rights under Part III of the Constitution. The deity may
be a juristic person for the purposes of religious law and capable of
asserting property rights. However, the deity is not a ‘person’ for the
purpose of Part III of the Constitution. The legal fiction which has led to
the recognition of a deity as a juristic person cannot be extended to the
B
gamut of rights under Part III of the Constitution.
In any case, the exclusion of women from the Sabarimala temple
effects both, the religious and civic rights of the individual. The anti-
exclusion principle would disallow a claim based on Article 25 and 26
which excludes women from the Sabarimala Temple and hampers their
C exercise of religious freedom. This is in keeping with over-arching liberal
values of the Constitution and its vision of ensuring an equal citizenship.
M A road map for the future
107. The decision in Shirur Mutt defined religion to encompass
D matters beyond conscience and faith. The court recognized that religious
practices are as much a part of religion. Hence, where the tenets of a
religious sect prescribe ceremonies at particular hours of the day or
regular offerings of food to the deity, this would constitute a part of
religion. The mere fact that these practices involve the expenditure of
money would not take away their religious character. The precept that
E religion encompasses doctrine and ceremony enabled the court to allow
religion a broad autonomy in deciding what according to its tenets is
integral or essential. Shirur Mutt was followed by another decision in
Ratilal. Both cases were decided in the same year.
108. As the jurisprudence of the court evolved, two separate issues
F came to the fore. The first was the divide between what is religious and
secular. This divide is reflected in Article 25(2)(a) which allows the state
to enact legislation which would regulate or restrict economic, financial,
political or “other secular activities” which may be associated with
religious practice. A second distinct issue, however, was addressed by
G this Court. That was whether a practice is essential to religion. While
the religious versus secular divide finds support in constitutional text,
neither Article 25 nor Article 26 speaks about practices which are
essential to religion. As the jurisprudence of this Court unfolded, the
court assumed the function of determining whether or not a practice
constitutes an essential and integral part of religion. This set the
H determination up at the threshold. Something which the court holds not
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 831
[DR. DHANANJAYA Y CHANDRACHUD, J.]

to be essential to religion would not be protected by Article 25, or as the A
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
B
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, C
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, Chief Justice Gajendragadkar propounded a view of
Hinduism which in doctrinal terms segregates it from practices which
D
could be isolated from a rational view of religion. The result which
followed was that while at a formal level, the court continued to adopt a
view which placed credence on the role of the community in deciding
what constitutes a part of its religion, there is a super imposed adjudicatory
role of the court which would determine as to whether something is
essential or inessential to religion. In the case of the Avadhuta II, the E
assumption of this role by the Court came to the forefront in allowing it
to reject a practice as not being essential, though it had been prescribed
in a religious text by the founder of the sect.
By reserving to itself the authority to determine practices which
are essential or inessential to religion, the Court assumed a reformatory F
role which would allow it to cleanse religion of practices which were
derogatory to individual dignity. Exclusions from temple entry could be
regarded as matters which were not integral to religion. While doing so,
the Court would set up a progressive view of religion. This approach is
problematic. The rationale for allowing a religious community to define
what constitutes an essential aspect of its religion is to protect the G
autonomy of religions and religious denominations. Protecting that
autonomy enhances the liberal values of the Constitution. By entering
upon doctrinal issues of what does or does not constitute an essential
part of religion, the Court has, as a necessary consequence, been required
to adopt a religious mantle. The Court would determine as to whether a H
832 SUPREME COURT REPORTS [2018] 9 S.C.R.

A practice is or is not an essential part of religion. This has enabled the
Court to adopt a reformist vision of religion even though it may conflict
with the views held by the religion and by those who practice and profess
the faith. The competence of the Court to do so and the legitimacy of
the assumption of that role may be questionable. The Court discharges a
constitutional (as distinct from an ecclesiastical) role in adjudication.
B
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. The former has a textual origin in Article 25(2)(a).
The latter is a judicial creation.
109. The assumption by the court of the authority to determine
C 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
D 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.
E
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
F seamless web. Together, they build the edifice of constitutional liberty.
Fundamental human freedoms in Part III are not disjunctive or isolated.
They exist together. It is only in cohesion that they bring a realistic sense
to the life of the individual as the focus of human freedoms. The right of
a denomination must then be balanced with the individual rights to which
G each of its members has a protected entitlement in Part III.
110. Several articles in the chapter on fundamental rights are
addressed specifically to the state. But significantly, others have a
horizontal application to state as well non-state entities. Article 15(2)
embodies a guarantee against discrimination on grounds of religion, race,
H caste, sex or birth place in access to listed public places. Article 17
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 833
[DR. DHANANJAYA Y CHANDRACHUD, J.]

which abolishes untouchability has a horizontal application which is A
available against the state as well as non-state entities. Article 23, Article
24 and Article 25(1) are illustrations of horizontal rights intended to secure
the dignity of the individual. All these guarantees rest in equilibrium with
other fundamental freedoms that the Constitution recognizes: equality
under Article 14, freedoms under Article 19 and life and personal liberty
B
under Article 21. The individual right to the freedom of religion under
Article 25 must rest in mutual co-existence with other freedoms which
guarantee above all, the dignity and autonomy of the individual. Article
26 guarantees a group right – the right of a religious denomination. The
co-existence of a group right in a chapter on fundamental rights which
places the individual at the forefront of its focus cannot be a matter C
without significance. Would the Constitution have intended to preserve
the assertion of group rights even at the cost of denigrating individual
freedoms? Should the freedom conferred upon a group - the religious
denomination under Article 26(b) – have such a broad canvas as would
allow the denomination to practice exclusion that would be destructive
D
of individual freedom? The answer to this, in my view, would have to be
in the negative for the simple reason that it would be impossible to
conceive of the preservation of liberal constitutional values while at the
same time allowing group rights to defy those values by practicing
exclusion and through customs which are derogatory to dignity. This
apparent contradiction can be resolved by postulating that notwithstanding E
the recognition of group rights in Article 26, the Constitution has never
intended that the assertion of these rights destroy individual dignity and
liberty. Group rights have been recognized by the Constitution in order to
provide a platform to individuals within those denominations to realize
fulfilment and self-determination. Gautam Bhatia156 in a seminal article
F
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 G
156
Gautam Bhatia, Freedom from community: Individual rights, group life, state
authority and religious freedom under the Indian Constitution, Global
Constitutionalism, Cambridge University Press (2016).
157
C Taylor, The Politics of Recognition in Multiculturalism: Examining the Politics of
Recognition (A Gutmann ed.) Princeton University Press (1994)
H
834 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
to.”
Relevant to the subject which this section explores, Bhatia’s thesis
is that the essential religious practices doctrine, which lacks a sure
constitutional foundation, has led the court into a maze in the process of
unraveling theological principles. While deciding what is or is not essential
C to religion, the court has ventured into areas where it lacks both the
competence and legitimacy to pronounce on the importance of specific
doctrines or beliefs internal to religion. In making that determination, the
court essentially imposes an external point of view. Imposition of an
external perspective about what does or does not constitute an essential
D part of religion is inconsistent with the liberal values of the Constitution
which recognize autonomy in matters of faith and belief.
111. A similar critique of the essential religious practices doctrine
has been put forth by Professors Faizan Mustafa and Jagteshwar Singh
Sohi in a recent publication titled “Freedom of Religion in India: Current
E Issues and Supreme Court Acting as Clergy”.159 Along similar lines,
Jaclyn L Neo in an article titled “Definitional Imbroglios: A critique of
the definition of religion and essential practice tests in religious freedom
adjudication”160 has dealt with the flaws of the essential religious
practices doctrine. The author notes that definitional tests such as the
essential religious practices doctrine are formalistic in nature, leading
F the court to draw an arbitrary line between protected and non-protected
religious beliefs or practices:
“The key distinction between adjudicating religious freedom claims
by examining whether the restrictions are permissible under the
limitation clauses and adjudicating claims through a definitional
G 158
R Bhargava, Introduction Multiculturalism in Multiculturalism, Liberalism and
Democracy (R Bhargava et al. eds), Oxford University Press (2007)
159
Faizan 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
H essential practice tests in religious freedom adjudication, International Journal of
Constitutional Law, Vol. 16 (2018), at pages 574-595
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 835
[DR. DHANANJAYA Y CHANDRACHUD, J.]

test is that the latter precludes a religious freedom claim by A
determining that it falls outside the scope of a constitutional
guarantee, before any consideration could be made concerning
the appropriate balance between the right and competing rights
or interests. Definitional tests are often formalistic in that courts
select a particular set of criteria and make a decision on the religious
B
freedom claim by simply considering whether the religion, belief
or practice falls within these criteria. In doing so, the courts
therefore could be said to risk drawing an arbitrary line between
protected and non-protected religions, beliefs or practices.”161
Associated with this conceptual difficulty in applying the essential
religious practices test is the issue of competence and legitimacy for the C
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 D
to have judicial competence to have theological expertise over all
religions.”162
She suggests a two stage determination which is explained thus:
“Accordingly, there would be a two-stage test in adjudicating E
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 self-definition 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 F
balancing, compelling reason inquiry, or proportionality analysis to
determine whether the religious freedom claim is outweighed by
competing state or public interest.”163
A deferential approach to what constitutes a part of religious tenets
would free the court from the unenviable task of adjudicating upon G
religious texts and doctrines. The deference, however, that is attributed
to religion is subject to the fundamental principles which emerge from
161
Ibid, at pages 575, 576
162
Ibid, at page 589
163
Ibid, at page 591
H
836 SUPREME COURT REPORTS [2018] 9 S.C.R.

A the quest for liberty, equality and dignity in Part III of the Constitution.
Both Article 25(1) and Article 26 are subject to public order, morality
and health. Acting under the rubric of these limitations even the religious
freedom of a denomination is subject to an anti-exclusion principle:
“the anti-exclusion principle holds that the external norm of
B constitutional anti-discrimination be applied to limit the autonomy
of religious groups in situations where these groups are blocking
access to basic goods.”164
The anti-exclusion principle stipulates thus:
“…that the state and the Court must respect the integrity of
C religious group life (and thereby treat the internal point of religious
adherents as determinative of the form and content of religious
practices) except where the practices in question lead to the
exclusion of individuals from economic, social or cultural life in a
manner that impairs their dignity, or hampers their access to basic
D goods.”165
112. The anti-exclusion principle allows for due-deference to the
ability of a religion to determine its own religious tenets and doctrines.
At the same time, the anti-exclusion principle postulates that where a
religious practice causes the exclusion of individuals in a manner which
E impairs their dignity or hampers their access to basic goods, the freedom
of religion must give way to the over-arching values of a liberal
constitution. The essential religious practices test should merit a close
look, again for the above reasons, in an appropriate case in the future.
For the present, this judgment has decided the issues raised on the law
as it stands.
F
N Conclusion
113. The Constitution embodies a vision of social transformation.
It represents a break from a history marked by the indignation and
discrimination attached to certain identities and serves as a bridge to a
vision of a just and equal citizenship. In a deeply divided society marked
G
by intermixing identities such as religion, race, caste, sex and personal
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
H Constitutionalism, Cambridge University Press (2016) at page 382
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 837
[DR. DHANANJAYA Y CHANDRACHUD, J.]

characteristics as the sites of discrimination and oppression, the A
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 B
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 C
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 D
to a freedom of conscience and to freely profess, protect and propagate
religion. Inhering in the right to religious freedom, is the equal entitlement
of all persons, without exception, to profess, practice and propagate
religion. Equal participation of women in exercising their right to religious
freedom is a recognition of this right. In protecting religious freedom, the E
framers subjected the right to religious freedom to the overriding
constitutional postulates of equality, liberty and personal freedom in Part
III of the Constitution. The dignity of women cannot be disassociated
from the exercise of religious freedom. In the constitutional order of
priorities, the right to religious freedom is to be exercised in a manner
consonant with the vision underlying the provisions of Part III. The equal F
participation of women in worship inheres in the constitutional vision of
a just social order.
115. The discourse of freedom in the Constitution cannot be
denuded of its context by construing an Article in Part III detached from
the part within which it is situated. Even the right of a religious G
denomination to manage its own affairs in matters of religion cannot be
exercised in isolation from Part III of the Constitution. The primacy of
the individual, is the thread that runs through the guarantee of rights. In
166
Pandit Govind Ballabh Pant (Member, Constituent Assembly) in a speech to the
Constituent Assembly on 24 January, 1947 H
838 SUPREME COURT REPORTS [2018] 9 S.C.R.

A being located in Part III of the Constitution, the exercise of denominational
rights cannot override and render meaningless constitutional protections
which are informed by the overarching values of a liberal Constitution.
116. The Constitution seeks to achieve a transformed society based
on equality and justice to those who are victims of traditional belief systems
B founded in graded inequality. It reflects a guarantee to protect the dignity
of all individuals who have faced systematic discrimination, prejudice
and social exclusion. Construed in this context, the prohibition against
untouchability marks a powerful guarantee to remedy the stigmatization
and exclusion of individuals and groups based on hierarchies of the social
structure. Notions of purity and pollution have been employed to
C perpetuate discrimination and prejudice against women. They have no
place in a constitutional order. In acknowledging the inalienable dignity
and worth of every individual, these notions are prohibited by the guarantee
against untouchability and by the freedoms that underlie the Constitution.
In civic as in social life, women have been subjected to prejudice,
D 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
E 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
F 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 exclude these identities
G from participation in an equal life. An indispensable facet of an equal
life, is the equal participation of women in all spheres of social activity.
The case at hand asks important questions of our conversation
with the Constitution. In a dialogue about our public spaces, it raises the
question of the boundaries of religion under the Constitution. The quest
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 839
[DR. DHANANJAYA Y CHANDRACHUD, J.]

for equality is denuded of its content if practices that exclude women A
are treated to be acceptable. The Constitution cannot allow practices,
irrespective of their source, which are derogatory to women. Religion
cannot become a cover to exclude and to deny the right of every woman
to find fulfillment in worship. In his speech before the Constituent
Assembly on 25 November 1949, Dr B R Ambedkar sought answers to
B
these questions: ‘How long shall we continue to live this life of
contradictions? How long shall we continue to deny equality in our social
and economic life?’167 Sixty eight years after the advent of the
Constitution, we have held that in providing equality in matters of faith
and worship, the Constitution does not allow the exclusion of women.
118. Liberty in matters of belief, faith and worship, must produce C
a compassionate and humane society marked by the equality of status
of all its citizens. The Indian Constitution sought to break the shackles of
social hierarchies. In doing so, it sought to usher an era characterized by
a commitment to freedom, equality and justice. The liberal values of the
Constitution secure to each individual an equal citizenship. This recognizes D
that the Constitution exists not only to disenable entrenched structures
of discrimination and prejudice, but to empower those who traditionally
have been deprived of an equal citizenship. The equal participation of
women in every sphere of the life of the nation subserves that premise.
119. I hold and declare that: E
1) The devotees of Lord Ayyappa do not satisfy the judicially
enunciated requirements to constitute a religious denomination under
Article 26 of the Constitution;
2) A claim for the exclusion of women from religious worship,
even if it be founded in religious text, is subordinate to the constitutional F
values of liberty, dignity and equality. Exclusionary practices are contrary
to constitutional morality;
3) In any event, the practice of excluding women from the temple
at Sabarimala is not an essential religious practice. The Court must decline
to grant constitutional legitimacy to practices which derogate from the G
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.
167
Dr. B R Ambedkar in a speech to the Constituent Assembly on 25 November 1949
H
840 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B 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
C 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 this case – Ms Indira Jaising, Dr. Abhishek
D Manu Singhvi, Mr K Parasaran, Mr Jaideep Gupta, Mr V Giri, Mr P V
Surendranath, and Mr K Radhakrishnan, Senior Counsel; and Mr Ravi
Prakash Gupta, Mr J Sai Deepak, Mr V K Biju, and Mr Gopal
Sankaranarayanan, learned Counsel. I acknowledge the dispassionate
assistance rendered by Mr Raju Ramachandran and Mr K Ramamoorthy,
E Senior Counsel who appeared as Amicus Curiae. Their knowledge and
erudition have enriched my own learning.
INDU MALHOTRA, J.
1. The present Writ Petition has been filed in public interest by a
registered association of Young Lawyers. The Intervenors in the
F Application for Intervention have averred that they are gender rights
activists working in and around the State of Punjab, with a focus on
issues of gender equality and justice, sexuality, and menstrual
discrimination.
The Petitioners have interalia stated that they learnt of the practise
G of restricting the entry of women in the age group of 10 to 50 years in
the Sabarimala Temple in Kerala from three newspaper articles written
by BarkhaDutt (Scent of a Woman, Hindustan Times; July 1, 2006),
Sharvani Pandit (Touching Faith, Times of India; July 1, 2006), and Vir
Sanghvi (Keeping the Faith, Losing our Religion, Sunday Hindustan Times;
July 2, 2006).
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 841
[INDU MALHOTRA, J.]

The Petitioners have challenged the Constitutional validity of Rule A
3(b) of the Kerala Hindu Places of Public Worship (Authorisation of
Entry) Rules, 1965 (hereinafter referred to as “the 1965 Rules”), which
restricts the entry of women into the Sabarimala Temple as being
ultravires Section 3 of the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Act, 1965 (hereinafter referred to as “the 1965
B
Act”).
Further, the Petitioners have prayed for the issuance of a Writ of
Mandamus to the State of Kerala, the Travancore Devaswom Board,
the Chief Thanthri of Sabarimala Temple and the District Magistrate of
Pathanamthitta to ensure that female devotees between the age group
of 10 to 50 years are permitted to enter the Sabarimala Temple without C
any restriction.
2. SUBMISSIONS OF PETITIONERS AND INTERVENORS
The Petitioners and the Intervenors were represented by Mr. R.P.
Gupta, and Ms. Indira Jaising, Senior Advocate. Mr. Raju Ramachandran, D
learned Senior Advocate appeared as Amicus Curiae who supported
the case of the Petitioners.
(i) In the Writ Petition, the Petitioners state that the present case
pertains to a centuries old customof prohibiting entry of women
between the ages of 10 years to 50 years into the Sabarimala E
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 F
Constitution.
This exclusionary practise violates Article 14 asthe classification
lacks a Constitutional object. It is manifestly arbitrary as it is
based on physiological factors alone, and does not serve any
valid object.
G
(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
H
842 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B enshrined in Article 25(2)(b) as a ‘measure of social reform’.
The Act contains no prohibition against women from entering
any public temple.
(iv) Rule 3(b) of the 1965 Rules is ultravires the Act insofar as it
prohibits the entry of women.
C
(v) The Petitioners contend that a religious denomination must
have the following attributes:
• It has its own property & establishment capable of succession
by its followers.
D • It has its distinct identity clearly distinguishable from any
established religion.
• It has its own set of followers who are bound by a distinct set of
beliefs, practises, rituals or beliefs.

E • It has the hierarchy of its own administration, not controlled by
any outside agency.
It wascontended that the devotees of Lord Ayyappa do not
constitute a religious denomination under Article 26 as they do not have
a common faith, or a distinct name. The devotees of Lord Ayyappa are
F not unified on the basis of some distinct set of practises. Every temple
in India has its own different set of rituals. It differs from region to
region. A minor difference in rituals and ceremonies does not make
them a separate religious denomination.
The devotees of Lord Ayyappa do not form a religious
G denomination since the tests prescribed by this Court have not been
satisfied in this case. Even assuming that the devotees of Lord Ayyappa
constitute a religious denomination, their rights under Article 26(b) would
be subject to Article 25(2)(b) in line with the decision of this Court in Sri
Venkataramana Devaru & Ors. v. State of Mysore & Ors.1.
1
1958 SCR 895 : AIR 1958 SC 255
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 843
[INDU MALHOTRA, J.]

It was further submitted that there are no exclusive followers of A
this Temple except general Hindu followers visiting any Hindu temple.
Reliance was placed on the judgments of this Court in Sardar
Syedna Taher Saifuddin Saheb v. State of Bombay 2 , Raja Bira
Kishore Deb, Hereditary Superintendent, Jagannath Temple, P.O.
and District Puri v. State of Orissa3, and in S. P. Mittal v. Union of B
India & Ors.4.
(vi) Even if the Sabarimala Temple is taken to be a religious
denomination, the restriction on the entry of women is not an
essential religious practise.
The prohibition on women between the ages of 10 to 50 years C
from entering the templedoes not constitute the core foundation
of the assumed religious denomination. Any law or custom to
be protected under Article 26 must have Constitutional
legitimacy.
(vii)The exclusionary practise is violative of Article 21, as it has D
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 E
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 F
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
G
upon the temple authorities.
The Travancore Devaswom Board is a statutorily created
authority under the Travancore – Cochin Hindu Religious
2
1962 Supp (2) SCR 496 : AIR 1962 SC 853
3
(1964) 7 SCR 32 : AIR 1964 SC 1501
4
(1983) 1 SCC 51 H
844 SUPREME COURT REPORTS [2018] 9 S.C.R.

A Institutions Act, 1950, and receives an annual payment from
the Consolidated Fund of India under Article 290A. It would
squarely fall within the ambit of “other authorities” in Article
12, and is duty bound to give effect to the Fundamental Rights.
(ix) The Fundamental Right to worship under Article 25(1) is a
B non-discriminatory right, and is equally available to both men
and women alike. The right of a woman to enter the Temple
as a devotee is an essential aspect of her right to worship, and
is a necessary concomitant of the right to equality guaranteed
by Articles 15.
C The non-discriminatory right of worship is not dependent upon
the will of the State to provide for social welfare or reform
under Article 25(2)(b).
Article 25(2)(b) is not merely an enabling provision, but provides
a substantive right. The exclusion of women cannot be classified
D as an essential religious practise in the absence of any scriptural
evidence being adduced on the part of the Respondents.
(x) The exclusionary practise results in discrimination against
women as a class, since a significant section of women are
excluded from entering the Temple. Placing reliance on the
E “impact test” enunciated by this Court in Bennett Coleman &
Co. & Ors. v. Union of India & Ors.5, he submitted that the
discrimination is only on the ground of “sex” since the biological
feature of menstruation emanates from the characteristics of
the particular sex.

F (xi)Article 17 prohibits untouchability “in any form” in order to
abolish all practises based on notions of purity, and pollution.
The exclusion of menstruating women is on the same footing
as the exclusion of oppressed classes.
(xii)The term “morality” used in Articles 25 and 26 refers to
Constitutional Morality, and not an individualised or sectionalised
G
sense of morality. It must be informed by Articles 14, 15, 17,
38, and 51A.
(xiii) Mr. Ramachandran, learned Amicus Curiae submitted that
Rule 3(b) of the 1965 Act is ultravires Section 3 of the 1965
5
(1972) 2 SCC 788
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 845
[INDU MALHOTRA, J.]

Act insofar as it seeks to protect customs and usages,which A
Section 3 specifically over-rides. The justification for Rule 3
cannot flow from the proviso to Section 3, since the proviso
can only be interpreted in line with the decision of this Court in
Sri Venkataramana Devaru & Ors. v. State of Mysore &
Ors. (supra). It is ultravires Section 4 since it provides that
B
the Rules framed thereunder cannot be discriminatory against
any section or class.
3. SUBMISSIONS OF THE RESPONDENTS
The State of Kerala was represented by Mr. Jaideep Gupta, Senior
Advocate. The Travancore Dewaswom Board was represented by Dr. C
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 D
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 E
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:
F
“…As such, Government cannot render an independent
direction against the present prevailing custom, regard being
had to the finality of the said judgment [Kerala High Court’s
decision in S. Mahendran (supra)] over the disputed questions
of facts which requires the necessity of adducing evidence
also… G
…Thus, Government is of the opinion that no body should be
prohibited from their right to worship, but considering the
fact that the matter of entry to Sabarimala is a practise
followed for so many years and connected with the belief
H
846 SUPREME COURT REPORTS [2018] 9 S.C.R.

A and values accepted by the people and since there is a binding
High Court judgment in that regard, Government felt that this
Hon’ble Court may be requested to appoint an appropriate
commission consisting of eminent scholars with authentic
knowledge in Hinduism and reputed and uncorrupt social
reformers to submit suggestions/views on the issue whether it
B
is open to all women, irrespective of their age to enter the
temple and make worship…”
(Emphasis supplied)
In the subsequent Additional Affidavit dated February 4, 2016
C filed by the State, it was submitted that the assertions made in the previous
Affidavit dated November 13, 2007 erroneously sought to support the
Petitioners. It was submitted that it was not open for the State
Government to take a stand at variance with its position before the Kerala
High Court in S. Mahendran v. The Secretary, Travancore Devaswom
Board, Thiruvananthapuram & Ors. 6and in contravention of the
D directions issued therein. It was asserted that the practise of restricting
the entry of women between the ages of 10 to 50 years is an essential
and integral part of the customs and usages of the Temple, which is
protected under Articles 25 and 26 of the Constitution. Being a religious
custom, it is also immune from challenge under other provisions of Part
E III of the Constitution in light of the ruling of this Court in Riju Prasad
Sharma & Ors. v. State of Assam & Ors.7.
However, during the course of hearing before the three-Judge
Bench at the time of reference, it was submitted that the State would be
taking the stand stated in the Affidavit dated November 13, 2007.
F 5. The submissions made by the Respondent No.2 – Travancore
Devaswom Board, Respondent No. 4 – the Thanthri of the Temple,
Respondent No. 6 – the Nair Service Society, Respondent Nos. 18 and
19 are summarised hereinbelow:
(i) The Sabarimala Temple, dedicated to Lord Ayyappa, is a
G 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.
6
AIR 1993 Ker 42
7
(2015) 9 SCC 461
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 847
[INDU MALHOTRA, J.]

This is attributable to the manifestation of the deity at the A
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 B
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. C
The King duly constructed the temple at Sabarimala and dedicated it to
Lord Ayyappa. The deity of Lord Ayyappa in Sabarimala Temple was
installed in the form of a ‘Naishtik Brahmachari’ i.e. an eternal celibate.
Lord Ayyappa is believed to have explained the manner in which
the pilgrimage to the Sabarimala Temple is to be undertaken, after D
observing a 41-day ‘Vratham’.
It is believed that Lord Ayyappa himself undertook the 41-day
‘Vratham’ before he went to Sabarimala Temple to merge with the deity.
The whole process of the pilgrimage undertaken by a pilgrim is to replicate
the journey of Lord Ayyappa. The mode and manner of worship at this E
Temple as revealed by the Lord himself is chronicled in the ‘Sthal
Purana’ i.e. the ‘Bhuthanatha Geetha’.
The 41 day “Vratham” is a centuries old custom and practise
undertaken by the pilgrims referred to as ‘Ayyappans’. The object of
this ‘Vratham’ is to discipline and train the devotees for the evolution of F
spiritual consciousness leading to self-realization. Before embarking on
the pilgrimage to this shrine, a key essential of the ‘Vratham’ is
observance of a ‘Sathvic’ lifestyle and ‘Brahmacharya’ so as to keep
the body and mind pure. A basic requirement of the ‘Vratham’ is to
withdraw from the materialistic world and step onto the spiritual path.
G
When a pilgrim undertakes the ‘Vratham’, the pilgrim separates
himself from the women-folk in the house, including his wife, daughter,
or other female members in the family.
The “Vratham” or penance consists of:
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848 SUPREME COURT REPORTS [2018] 9 S.C.R.

A • Forsaking all physical relations with one’s spouse;
• Giving up anything that is intoxicating, including alcohol, cigarettes
and ‘tamasic’ food;
• Living separately from the rest of the family in an isolated room
B or a separate building;
• Refraining from interacting with young women in daily life,
including one’s daughter, sister,or other young women relatives;
• Cooking one’s own food;

C • Observing cleanliness, including bathing twice a day before
prayers;
• Wearing a black mundu and upper garments;
• Having only one meal a day;
D • Walking barefoot.
On the 41st day, after puja, the pilgrim takes the irimudi (consisting
of rice and other provisions for one’s own travel, alongwith a coconut
filled with ghee and puja articles) and starts the pilgrimage to climb the
18 steps to reach the ‘Sannidhanam’, for darshan of the deity. This
E involves walking from River Pampa, climbing 3000 feet to the
Sannidhanam, which is a climb of around 13 kilometres through 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.
F
(ii) This custom or usage is understood to have been prevalentsince
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:
G
“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
8
Radhika Sekar, The Process of Pilgrimage: The AyyappaCultus and Sabarimalai
Yatra (Faculty of Graduate Studies, Department of Sociology and Anthropology at
H Carleton University, Ottawa, Ontario; October 1987)
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 849
[INDU MALHOTRA, J.]

order to gain protection from other forest spirits, for as A
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 B
only in religious activities. He may continue to work at his
profession, but he may not indulge in social enterprises.
Ayyappas are also required to eat only once a day (at noon)
and to avoid garlic, onion and stale food. In the evening,
they may eat fruit or something very light. As far as the dress
code is concerned, a degree of flexibility is allowed during C
the vratam period. The nature of one’s profession does not
always permit this drastic change in dress code. For example,
Ayyappas in the army or police force wear their regular
uniforms and change into black only when off duty. Black or
blue vestis and barefootedness are, however, insisted upon D
during the actual pilgrimage…
…The rule of celibacy is taken very seriously and includes
celibacy in thought and action. Ayyappas are advised to look
upon all women older than them as mothers and those younger
as daughters or sisters. Menstrual taboos are now strictly E
imposed….. Sexual cohabitation is also forbidden. During
the vratam, Ayyappas not only insist on these taboos being
rigidly followed but they go a step further and insist on
physical separation. It is not uncommon for a wife, daughter
or sister to be sent away during her menses if a male member
of the household has taken the vratam….” F

(Emphasis supplied)
In the Memoir of the Survey of the Travancore and Cochin States
written by Lieutenants Ward and Conner,reference has been made
regarding the custom and usage prevalent at Sabarimala Temple. The G
Memoir of the Survey was originally published in two parts in 1893 and
1901 giving details of the statistical and geographical surveys of the
Travancore and Cochin States. Reference was sought to be made to the
following excerpt from the survey:

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850 SUPREME COURT REPORTS [2018] 9 S.C.R.

A “…old women and young girls, may approach the temple, but
those who have attained puberty and to a certain time of life
are forbid to approach, as all sexual intercourse in that vicinity
is averse to this deity…”9
(iii) Dr.Singhvisubmitted that a practise started in hoary antiquity,
B and continued since time immemorial without interruption, becomes a
usage and custom. Reliance, in this regard, was placed on the judgments
of Ewanlangki-E-Rymbaiv. Jaintia Hills District Council & Ors.10 ,
Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa11 , and Salekh
Chand (Dead) by LRs v. Satya Gupta & Ors.12.
The custom and usage of restricting the entry of women in the
C
age group of 10 to 50 years followed in the Sabarimala Temple is pre-
constitutional. As per Article 13(3)(a) of the Constitution, “law” includes
custom or usage, and would have the force of law.
The characteristics and elements of a valid custom are that it
must be of immemorial existence, it must be reasonable, certain and
D 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,
E 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.
F
(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
G the entry of women in the other Temples of Lord Ayyappa, where women
of all ages can worship the deity.
9
Lieutenants Ward and Conner, Memoir of the Survey of the Travancore and Cochin
States (First Reprint 1994, Government of Kerala) at p. 137
10
(2006) 4 SCC 748
11
(2006) 13 SCC 627
H 12
(2008) 13 SCC 119
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 851
[INDU MALHOTRA, J.]

(vi) Mr. Parasaran, Senior Advocate submitted that the restriction A
on entry of women is a part of the essential practise of this Temple, and
the pilgrimage undertaken. It is clearly intended to keep the pilgrims
away from any distraction related to sex, as the dominant objective of
the pilgrimage is the creation of circumstances in all respects for the
successful practise of the spiritual self-discipline.
B
The limited restriction on the entry of women from 10 to 50 years,
in the Sabarimala Temple is a matter of ‘religion’ and ‘religious faith and
practise’, and the fundamental principles underlying the ‘prathishtha’
(installation) of the Sabarimala Temple, as well as the custom and usage
of worship of the deity - Lord Ayyappa.
C
(vii) With respect to the contention that the custom is violative of
women’s right to gender equality, Mr. V. Giri, Senior Advocate interalia
submitted that if women as a class were prohibited from participation, it
would amount to social discrimination. However, this is not so in the
present case. Girls below 10 years, and women after 50 years can freely
enter this Temple, and offer worship Further, there is no similar restriction D
on the entry of women at the other Temples of Lord Ayyappa.
The classification of women between the ages of 10 to 50 years,
and men of the same age group, has a reasonable nexus with the object
sought to be achieved, which is to preserve the identity and manifestation
of the Lord as a ‘Naishtik Brahmachari’. E

(viii) It was submitted by the Respondents that in order to preserve
the character of the deity, and the sanctity of the idol at the Sabarimala
Temple, the limited restriction is imposed on the entry of women only
during the period notified by the Travancore Devaswom Board. There
is no absolute restriction on women per se. Such practise is consistent F
with the ‘Nishta’or ‘Naishtik Buddhi’ of the deity. This being the
underlying reason behind the custom, there is no derogation of the dignity
of women. It is only to protect the manifestation and form of the deity,
which is sacred and divine, and preserve the penance undertaken by the
devotees. G
(ix) It was further submitted that it is the duty of the Travancore
Devaswom Board under Section 31 of the Travancore - Cochin Hindu
Religious Institutions Act, 1950 to administer the temple in accordance
with the custom and usage of the Temple.
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852 SUPREME COURT REPORTS [2018] 9 S.C.R.

A (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
B 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
C 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:
D “The Gods have distinct forms ascribed to them and their
worship at home and in temples is ordained as certain means
of attaining salvation.”
In Tilkayat Shri Govindlalji Maharaj etc.v. State of Rajasthan
& Ors.13, emphasis was laid on the mode of worship adopted when
E Lord Krishna was worshipped in the form of a child.
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 parts of the religion.
(xii) The words ‘religious denomination’ in Article 26 of the
F Constitution must take their colour from the word “religion”; and if this
be so, the expression ‘religious denomination’ must satisfy three conditions
as laid down in S.P. Mittal v. Union of India & Ors. (supra):
“80. (1) It must be a collection of individuals who have a
system of beliefs or doctrines which they regard as conducive
G to their spiritual well-being, that is, a common faith;
(2) common organisation; and
(3) designation by a distinctive name.”
13
(1964) 1 SCR 561 at 582 : AIR 1963 SC 1638
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 853
[INDU MALHOTRA, J.]

Religious maths, religious sects, religious bodies, sub-sects or any A
section thereof have been held to be religious denominations. Reliance
was placed on the judgments in Commissioner., Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt (supra); Durgah Committee, Ajmer & Anr. v. Syed Hussain
Ali & Ors.,14 and Dr. Subramanian Swamy v. State of T.N. & Ors.15.
B
Relying on the judgment in Sri Venkataramana Devaru & Ors.
v. State of Mysore & Ors. case (supra), Dr. Singhvi submitted that
religion, in this formulation, is a much wider concept, and includes:
• Ceremonial law relating to the construction of Temples;
C
• Installation of Idols therein;
• Place of consecration of the principle deity;
• Where the other Devatas are to be installed;
• Conduct of worship of the deities;
D
• Where the worshippers are to stand for worship;
• Purificatory ceremonies and their mode and manner of
performance;
• Who are entitled to enter for worship; where they are entitled to
E
stand and worship; and, how the worship is to be conducted.
(xiii) It was categorically asserted by the Respondents 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
F
years of age are called ‘Malikapurams’. A devotee has to abide by the
customs and usages of this Temple, if he is to mount the
‘pathinettupadikal’ 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. G

(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,
14
(1962) 1 SCR 383 : AIR 1961 SC 1402
15
(2014) 5 SCC 75 H
854 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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.
B
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.
C
Subramanian Swamy v. State of Tamil Nadu & Ors. (supra) was
relied upon:
“The declaration that Dikshitars are religious denomination
or section thereof is in fact a declaration of their status and
making such declaration is in fact a judgment in rem.”
D
(Internal quotations omitted)
(xv) Unlike Article 25, which is subject to the other provisions of
Part III of the Constitution, Article 26 is subject only to public order,
morality, and health, and not to the other provisions of the Constitution.
As a result, the Fundamental Rights of the denomination is not subject to
E Articles 14 or 15 of the Constitution.
With respect to Article 25(1), it was submitted that the worshippers
of Lord Ayyappa are entitled to the freedom of conscience, and the right
to profess, practise and propagate their religion. The right to profess
their faith by worshipping at the Sabarimala Temple, can be guaranteed
F only if the character of the deity as a ‘Naishtik Brahmachari’ 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.
G The right of the devotees under Article 25(1) cannot be made
subject to the claim of the Petitioners to enter the temple under Articles
14 and 15 of the Constitution, since they do not profess faith in the deity
of this Temple, but claim merely to be social activists.
(xvi) Article 25(2)(b) declares that nothing in Article 25(1) shall
prevent the State from making any law providing for social welfare and
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 855
[INDU MALHOTRA, J.]

reform or the throwing open of Hindu religious institutions of a public A
character to all classes and sections of Hindus. The ‘throwing open’ to
‘all classes and sections of Hindus’ was intended to redress caste-based
prejudices and injustices in society.
Article 25(2)(b) cannot be interpreted to mean that customs and
usages forming an essential part of the religion, are to be overridden. B
Article 25(2)(b) would have no application since there is no ban,
but only a limited restriction during the notified period, based on faith,
custom and belief, which has been observed since time immemorial.
(xvii) The Respondents submitted that the plea of the Petitioners
with reference to Article 17, was wholly misconceived. The object and C
core of Article 17 was to prohibit untouchability 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
D
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.
E
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, customsand 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 F
be interfered with by Courts.
6.2. In the past, the Courts,in the context of Hindu temples, have
been asked to identify the limits of State action under Articles 25 and 26
on the administration, control and management of the affairs of temples,
including the appointment of archakas. For instance, in the case of Adi G
Saiva Sivachariyargal Nala Sangam & Ors. v. Government of Tamil
Nadu & Anr.16, this Court was asked to consider the issue of appointment
of archakas in Writ Petitions filed by an association of archakas and
individual archakas of Sri Meenakshi Amman Temple of Madurai.
16
(2016) 2 SCC 725
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856 SUPREME COURT REPORTS [2018] 9 S.C.R.

A The present case is a PIL filed by an association of lawyers, who
have invoked the writ jurisdiction of this Court to review certain practises
being followed by the SabarimalaTemple on the grounds of gender
discrimination against women during the age-band of 10 to 50 years.
7. MAINTAINABILITY& JUSTICIABILITY
B 7.1. Article 25 of the Constitution guarantees to all persons the
freedom of conscience, and the right freely to profess, practise and
propagate religion. This is however subject to public order, morality and
health, and to the other provisions of Part III of the Constitution.
7.2. The right to move the Supreme Court under Article 32 for
violation of Fundamental Rights, must be based on a pleading that the
C Petitioners’personal rights to worshipin this Temple have been violated.
The Petitioners do not claim to be devotees of the Sabarimala Temple
where Lord Ayyappais believed to have manifestedhimself as a ‘Naishtik
Brahmachari’. To determine the validity of long-standing religious
customs and usages of a sect, at the instance of an association/Intervenors
D who are “involved in social developmental activities especially
activities related to upliftment of women and helping them become
aware of their rights”17, would require this Court to decide religious
questions at the behest of persons who do not subscribe to this faith.
The right to worship, claimed by the Petitioners has to be predicated
on the basis of affirmation of a belief in the particular manifestation of
E the deity in this Temple.
7.3. The absence of this bare minimum requirement must notbe
viewed as a mere technicality, but an essential requirement to maintain a
challenge for impugning practises of any religious sect, or denomination.
Permitting PILs in religious matterswould open the floodgates to
F interlopers to question religious beliefs and practises, even if the petitioner
is not a believer of a particular religion, or a worshipper 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
theTravancore Devaswom Board, and submitted an illustrative list of
G
various religious institutions where restrictions on the entry of both men
and women exist on the basis of religious beliefsand practises being
followed since time immemorial.18
17
Paragraph 2 of the Writ Petition.
18
Annexure C-8 in the Non-Case Law Convenience Compilation submitted by Dr.
A.M. Singhvi, Senior Advocate enlists places of worship where women are not
H allowed.
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 857
[INDU MALHOTRA, J.]

7.4. In matters of religion and religious practises,Article 14 can A
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
B
differently. It has to be adjudged amongst the worshippers of a particular
religion or shrine, who are aggrieved by certain practises which are
found to be oppressive or pernicious.
7.5. Article 25(1) confers on every individual the right to freely
profess, practise and propagate his or her religion.19 The right of an
individual to worship a specific manifestation of the deity, in accordance C
with the tenets of that faith or shrine, is protected by Article 25(1) of the
Constitution. If a person claims to have faith in a certain deity, the same
has to be articulated in accordance with the tenets of that faith.
In the present case, the worshippers of this Temple believe in the
manifestation of the deity as a ‘Naishtik Brahmachari’. The devotees D
of this Temple have not challenged the practises followed by this Temple,
based onthe essential characteristics of the deity.
7.6. The right to practise one’sreligion is a Fundamental Right
guaranteed by Part III of the Constitution, without reference to whether
religion or the religious practisesare rational or not. Religious practises E
are Constitutionally protected under Articles 25 and 26(b). Courts normally
do not delve into issues of religious practises, especially in the absence
of an aggrieved personfrom that particular religious faith, or sect.
In Hans Muller of Nurenburg v. Superintendent, Presidency
Jail, Calcutta &Ors.20, this Court held that a person can impugn a F
particular law under Article 32 only if he is aggrieved by it.
This list includes the Nizamuddin Dargah in New Delhi, Lord Kartikeya Temple in
Pehowa, Haryana and Pushkar, Rajasthan; Bhavani Deeksha Mandapam in Vijaywada;
Patbausi Satra in Assam; Mangala Chandi Temple in Bokaro, Jharkhand.
Annexure C-7 in the Non-Case Law Convenience Compilation submitted by Dr.
A.M. Singhvi, Senior Advocate enlists places of worship where women are not G
allowed. This list includes the Temple of Lord Brahma in Pushkar, Rajasthan; the
Bhagati Maa Temple in Kanya Kumari, Kerala; the Attukal Bhagavathy Temple in
Kerala; the Chakkulathukavu Temple in Kerala; and the Mata Temple in Muzaffarpur,
Bihar.
19
H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4th Ed.,
Reprint 1999), at Pg. 1274, para 12.35.
20
(1955) 1 SCR 1284 : AIR 1955 SC 367. H
858 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 7.7. Precedents under Article 25 have arisen against State action,
and not been rendered in a PIL.
An illustrative list of such precedents is provided hereinbelow:
(i) In Commissioner, Hindu Religious Endowments, Madras v.
Shri Lakshimdra Thirtha Swamiar of Sri Shirur Mutt (supra), this
B Court had interpreted Articles 25 and 26 at the instance of the
Mathadhipati or superior of the Shirur Mutt who was in-charge of
managing its affairs. The Mathadhipati was aggrieved by actions taken
by the Hindu Religious Endowments Board, which he claimed were
violative of Articles 25 and 26.
C (ii) In Sri Venkataramana Devaru & Ors. v. State of Mysore &
Ors.(supra), this Court dealt with the question whether the rights under
Article 26(b) are subject to Article 25(2)(b), at the instance of the Temple
of Sri Venkataramana and its trustees who belonged to the sect known
as Gowda Saraswath Brahmins.
D (iii) In Mahant Moti Das v. S.P. Sahi, The Special Officer In
Charge of Hindu Religious trust & Ors.21, this Court considered the
Constitutional validity of actions taken by the Bihar State Board of
Religious Trusts under the Bihar Hindu Religious Trusts Act, 1950 as
being violative of the Fundamental Rights of Mahants of certain Maths
E 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
F 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
G
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.22,
three children belonging to a sect of Christianity called Jehovah’s
21
1959 Supp (2) SCR 563 :AIR 1959 SC 942
H 22
(1986) 3 SCC 615
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 859
[INDU MALHOTRA, J.]

Witnesses had approached the Kerala High Court by way of Writ Petitions A
to challenge the action of the Headmistress of their school, who had
expelled them for not singing the National Anthem during the morning
assembly. The children challenged the action of the authorities as being
violative of their rights under Articles 19(1)(a) and Article 25. This Court
held that the refusal to sing the National Anthem emanated from the
B
genuine and conscientious religious belief of the children, which was
protected under Article 25(1).
In a pluralistic society comprising of people with diverse faiths,
beliefs and traditions, to entertain PILs challenging religious practises
followed by any group, sect or denomination, could cause serious damage
to the Constitutional and secular fabric of this country. C

8. APPLICABILITY OF ARTICLE 14 IN M ATTERS OF RELIGION AND
RELIGIOUS PRACTISES
8.1. Religious customs and practises cannot be solely tested on
the touchstone of Article 14 and the principles of rationality embedded D
therein. Article 25 specifically provides the equal entitlement of every
individual to freely practise their religion. Equal treatment under Article 25
is conditioned by the essential beliefs and practises of any religion. Equality
in matters of religion must be viewed in the context of the worshippers
of the same faith.
E
8.2. The twin-test for determining the validity of a classification
under Article 14 is:
• The classification must be founded on an intelligible differentia;
and
• It must have a rational nexus with the object sought to be F
achieved by the impugned law.
The difficulty lies in applying thetests under Article 14 to religious
practises which are also protected as Fundamental Rights under our
Constitution. The right to equality claimed by the Petitioners under
Article 14 conflicts with the rights of the worshippers of this shrine which G
is also a Fundamental Right guaranteed by Articles 25, and 26 of the
Constitution. It would compel the Court to undertake judicial review
under Article 14 to delineate the rationality of the religious beliefs or
practises, which would be outside the ken of the Courts. It is not for the
courts to determine which of these practises of a faith are to be struck
H
860 SUPREME COURT REPORTS [2018] 9 S.C.R.

A down, except if they are pernicious, oppressive, or a social evil, like Sati.
8.3. The submissions made by the Counsel for the Petitioners is
premised on the view that this practise constitutes gender discrimination
against women. On the other hand, the Respondents submit that the
present case deals with the right of the devoteesof this denomination or
B 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 havecontended that the age
group of 10 to 50 years is arbitrary, and cannot stand the rigours of
C 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 Ayyappais
protected by permitting women of all ages, to visit temples where he has
D 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.

E 8.6. The prayers of the Petitioners if acceded to, in its true effect,
amounts to exercising powers of judicial review in determining the validity
of religious beliefs and practises, which would be outside the ken of the
courts.The issue of what constitutes an essential religious practise is for
the religious community to decide.

F 9. APPLICABILITY OF ARTICLE 15
9.1. Article 15 of the Constitution prohibits differential treatment
of persons on the ground of ‘sex’ alone.
The limited restriction on the entry of women during the notified
age-groupbut in the deep-rooted belief of the worshippers that the deity
G in the Sabarimala Temple has manifested in the form of a ‘Naishtik
Brahmachari’.
9.2. With respect to the right under Article 15, Mr. Raju
Ramachandran, Amicus Curiae had submitted that the Sabarimala Temple
would be included in the phrase “places of public resort”, as it occurs
H in Article 15(2)(b).
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 861
[INDU MALHOTRA, J.]

In this regard, reference may be made to the debates of the A
Constituent Assembly on this issue. Draft Article 9 which corresponds
to Article 15 of the Constitution, is extracted for ready reference:
“9.Prohibition of discrimination on grounds of religion, race,
caste or sex – The State shall not discriminate against any
citizen on grounds only of religion, race, caste, sex or any of B
them
(1) In particular, no citizen shall, on grounds only of religion,
race, caste, sex or any of them, be subject to any disability,
liability, restriction or condition with regard to—
a. access to shops, public restaurants, hotels and places C
of public entertainments, or
b. the use of wells, tanks, roads and places of public resort
maintained wholly or partly out of the revenues of the State
or dedicated to the use of the general public.
D
(2) Nothing in this article shall prevent the State from making
any special provision for women and children.”23
Professor K.T. Shah proposed Amendment No. 293 for substitution
of sub-clauses (a) & (b) as follows:
“any place of public use or resort, maintained wholly or partly E
out of the revenues of the State, or in any way aided,
recognised, encouraged or protected by the State, or place
dedicated to the use of general public like schools, colleges,
libraries, temples, hospitals, hotels and restaurants, places
of public entertainment, recreation or amusement, like theatres
F
and cinema-houses or concert-halls; public parks, gardens
or museums; roads, wells, tanks or canals; bridges, posts and
telegraphs, railways, tramways and bus services; and the
like.” 24
(Emphasis supplied)
G
23
Draft Constitution of India, Drafting Committee of the Constituent Assembly of
India (Manager Government of India Press, New Delhi, 1948) available at http://
14.139.60.114:8080/jspui/bitstream/123456789/966/7/
Fundamental%20Rights%20%285-12%29.pdf
24
Statement of Professor K.T. Shah, Constituent Assembly Debates (November 29,
1948) H
862 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B (Emphasis supplied and internal quotations omitted)
Amendment No. 301 was also proposed by Mr. Tajamul Hussain
for inclusion of: “places of worship”, “Dharamshalas, and Musafir
khanas”at the end of sub-clause (a).26
All these proposals were voted upon, and rejected by the
C Constituent Assembly.27 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
D
would be included within the ambit of ‘places of public resort’ under
Article 15(2) cannot be accepted.
10. ROLE OF COURTS IN MATTERS CONCERNING RELIGION
10.1. The role of Courts in matters concerning religion and religious
practises under our secular Constitutional set up is to afford protection
E
under Article 25(1) to those practises which are regarded as “essential”
or “integral” by the devotees, or the religious community itself.
In Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (supra),
this Court noted that the personal views of judges are irrelevant in
ascertaining whether a particular religious belief or practise must receive
F the protection guaranteed under Article 25(1). The following observations
of Chinnappa Reddy, J. are instructive in understanding the true role of
this Court in matters of religion:
“19…We may refer here to the observations of Latham, C.J. in
Adelaide Company of Jehovah’s Witnesses v. The
G Commonwealth, a decision of the Australian High Court
quoted by Mukherjea, J. in the Shirur Mutt case. Latham,
C.J. had said:
25
Statement of Vice-President, Constituent Assembly Debates (November 29, 1948)
26
Statement of Mr. Mohd. Tahir, Constituent Assembly Debates (November 29,
1948)
27
H Constituent Assembly Debates (November 29, 1948)
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 863
[INDU MALHOTRA, J.]

The Constitution protects religion within a community A
organised under a Constitution, so that the continuance
of such protection necessarily assumes the continuance of
the community so organised. This view makes it possible to
reconcile religious freedom with ordered government. It
does not mean that the mere fact that the Commonwealth
B
Parliament passes a law in the belief that it will promote
peace, order and good government of Australia precludes
any consideration by a court of the question whether that
question by Parliament would remove all reality from the
constitutional guarantee. That guarantee is intended to limit
the sphere of action of the legislature. The interpretation C
and application of the guarantee cannot, under our
Constitution, be left to Parliament. If the guarantee is to
have any real significance it must be left to the courts of
justice to determine its meaning and to give effect to it by
declaring the invalidity of laws which infringes it and by
D
declining to enforce them. The courts will therefore have
the responsibility of determining whether a particular law
can fairly be regarded, as a law to protect the existence of
the community, or whether, on the other hand, it is a law
for prohibiting the free exercise of any religion…
What Latham, C.J. has said about the responsibility of the E
court accords with what we have said about the function of
the court when a claim to the Fundamental Rights guaranteed
by Article 25 is put forward…
…20…In Ratilal’s case we also notice that Mukherjea, J.
quoted as appropriate Davar, J.’s following observations in F
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 G
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
H
864 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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.”
B (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).
C
In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali &
Ors. (supra), a reference was made as to how practises emanating
from superstition “…may in that sense be extraneous, and unessential
accretions to religion itself…”.28

D Similarly, in Tilkayat Shri Govindlalji Maharaj etc. v. State of
Rajasthan & Ors. (supra), an argument was made by Senior Advocate
G.S. Pathak relying on the statement of Latham, C.J. in Adelaide
Company of Jehovah’s Witnesses Incorporated v. The Commonwealth
(supra) that “…what is religion to one is superstition to another…”29.
The argument was rejected by Gajendragadkar, J. as being “…of no
E relevance…”.30
Mr. H.M. Seervai, well-known Constitutional expert and jurist, in
his seminal treatise titled ‘Constitutional Law of India: A Critical
Commentary’, has remarked that the observations of Gajendragadkar, J.
in Durgah Committee, Ajmer &Anr. v. Syed Hussain Ali & Ors. (supra)
F are obiter. It is inconsistent with the observations of Mukherjea, J. in
the previous decision of a Constitution Bench of seven Judges in
Commissioner, Hindu Religious Endowments, Madrasv. Shri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra), and a
Constitution Bench of five Judges in RatilalPanachand Gandhi v. The
G State of Bombay & Ors.31. Mr. Seervai comments as under:

28
(1962) 1 SCR 383 :AIR 1961 SC 1402 : at paragraph 33
29
(1964) 1 SCR 561 : AIR 1963 SC 1638, at paragraph 59
30
(1964) 1 SCR 561 : AIR 1963 SC 1638, at paragraph 59
31
1954 SCR 1055 : AIR 1954 SC 388
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 865
[INDU MALHOTRA, J.]

“12.18…Although it was wholly unnecessary to do so, A
Gajendragadkar, J. said:
…it may not be out of place incidentally to strike a note of
caution and observe that in order that the practises in
question should be treated as a part of religion they must
be regarded by the said religion as its essential and integral B
part; otherwise even purely secular practises 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 practises within the meaning of
Article 26. Similarly, even practises though religious may
have sprung from merely superstitious beliefs and may in C
that sense be extraneous and unessential accretions to
religion itself. Unless such practises 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 D
to 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 E
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 F
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. G
quoted earlier, namely, that those provisions must be regarded
as operating in relation to all aspects of religion, irrespective
of varying opinions in the community as to the truth of a
particular religious doctrine or the goodness of conduct
prescribed by a particular religion or as to the propriety of
H
866 SUPREME COURT REPORTS [2018] 9 S.C.R.

A any particular religious observance. The obiter of
Gajendragadkar J. in the Durgah Committee case is also
inconsistent with the observations of Mukherjea J. in Ratilal
Gandhi Case, that the decision in Jamshedjiv.Soonabai
afforded an indication of the measure of protection given by
Article 26(b).”32
B
(Emphasis supplied)
Mr. Seervai also criticised the observations of this Court in Tilkayat
Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (supra)
as follows:
C “12.66 In Tilkayat Shri Govindlalji v. Rajasthan
Gajendragadkar J. again adverted to the rights under Arts.
25(1) and 26(b) and stated that if a matter was obviously
secular and not religious, a Court would be justified in
rejecting its claim to be a religious practise, as based on
D irrational considerations. 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
E denomination’s religion. The actual decision in the case, that
the right to manage the property was a secular matter, is
correct, but that is because, as pointed out by Mukherjea J.,
Art. 26(b) when constrasted with Art. 26(c) and (d) shows
that matters of religious belief and practises are distinct and
F separate from the management of property of a religious
denomination. The distinction between religious belief and
practises which cannot be controlled, and the management
of the property of a religious denomination which can be
controlled to a limited extent, is recognised by the Article itself
and must be enforced. But this distinction is not relevant to
G the question whether a religious practise is itself irrational
or secular.” 33
(Emphasis supplied)
32
H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4th Ed.,
Reprint 1999), paragraph 12.18 at p. 1267-1268
H 33
Id. at paragraph 12.66 at p. 1283
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 867
[INDU MALHOTRA, J.]

J. Duncan M. Derrett, a well-known Professor of Oriental Laws, A
highlights the problems in applying the “essential practises test” in his
book titled ‘Religion, Law and State in Modern India’as follows:
“In other words the courts can determine what is an integral
part of religion and what is not. The word essential is now in
familiar use for this purpose. As we shall there is a context in B
which the 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 C
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 D
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.35, held that the court ought not to E
embark upon an enquiry into the validity or legitimacy of asserted beliefs
on the basis of objective standards or rationality. The relevant extract
from the decision of the House of Lords is reproduced hereinbelow:
“It is necessary first to clarify the court’s role in identifying a
religious belief calling for protection under article 9. When F
the genuineness of a claimant’s professed belief is an issue in
the proceedings the court will enquire into and decide this
issue as a question of fact. This is a limited inquiry. The Court
is concerned to ensure an assertion of religious belief is made
in good faith: neither fictitious, nor capricious, and that it is G
not an artifice, to adopt the felicitous phrase of Iacobucci J
in the decision of the Supreme Court of Canada in Syndicat
Northcrest v. Amselem (2004) 241 DLR (4th) 1, 27, para 52.
But, emphatically, it is not for the Court to embark on an
34
J. Duncan M. Derett, Religion, Law and the State in India (1968), at p. 447
35
[2005] UKHL 15 H
868 SUPREME COURT REPORTS [2018] 9 S.C.R.

A inquiry into the asserted belief and judge its validity by some
objective standard such as the source material upon which
the claimant founds his belief or the orthodox teaching of the
religion in question or the extent to which the claimant’s belief
conforms to or differs from the views of others professing the
same religion. Freedom of religion protects the subjected belief
B
of an individual. As Iacobucci J also noted, at page 28, para
54, religious belief is intensely personal and can easily vary
from one individual to another. Each individual is at liberty
to hold his own religious beliefs, however irrational or
inconsistent they may seem to some, however surprising. The
C European Court of Human Rights has rightly noted that in
principle, the right to freedom of religion as understood in
the Convention rules out any appreciation by the State of the
legitimacy of religious beliefs or of the manner in which these
are expressed: Metropolitan Church of Bessarabia v Moldova
(2002) 35 EHRR 306, 335, para 117. The relevance of
D
objective factors such as source material is, at most, that they
may throw light on whether the professed belief is genuinely
held.”
(Emphasis supplied and internal quotations omitted)
E 10.4. In Eddie C. Thomas v. Review Board of the Indiana
Employment Security Division36, the U.S. Supreme Court was dealing
with a case where the Petitioner, who had terminated his job on account
of his religious beliefs which forbade him from partaking in the production
of armaments, was denied unemployment compensation benefits by the
State. The Court noted that the determination of what constitutes a
F religious belief or practise is a very “difficult and delicate task”, and
noted as 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
G 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…
36
450 U.S. 707 (1981)
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 869
[INDU MALHOTRA, J.]

…The Indiana court also appears to have given significant A
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
B
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.” C
(Emphasis supplied; internal quotations, and footnotes omitted)
This view was re-iterated by the U.S. Supreme Court in the
following decisions:
• United States v. Edwin D. Lee37, wherein it was held as follows: D
“…It is not within the judicial function and judicial
competence, however, to determine whether appellee or
the Government has the proper interpretation of the Amish
faith; courts are not arbiters of scriptural interpretation…”
(Emphasis supplied; internal quotations omitted) E

• Robert L. Hernandez v. Commissioner of Internal Revenue38,
wherein the Court noted:
“…It is not within the judicial ken to question the centrality
ofparticular beliefs or practises to a faith or the validity F
of particular litigants interpretations of those creeds...”
(Emphasis supplied; internal quotations omitted)
• Employment Division, Department of Human Resources of
Oregon v. Alfred L. Smith39, wherein Scalia, J. noted as follows:
G
“…It is no more appropriate for judges to determine the
centrality of religious beliefs before applying a compelling
interest test in the free exercise field, than it would be for
37
455 U.S. 252 (1982)
38
490 U.S. 680 (1989)
39
494 U.S. 872 (1990) H
870 SUPREME COURT REPORTS [2018] 9 S.C.R.

A them to determine the importance of ideas before applying
the compelling interest test in the free speech field. What
principle of law or logic can be brought to bear to
contradict a believer’s assertion that a particular act is
central to his personal faith? Judging the centrality of
different religious practises is akin to the unacceptable
B
business of evaluating the relative merits of differing
religious claims…As we reaffirmed only last Term, it is not
within the judicial ken to question the centrality of
particular beliefs or practises to a faith, or the validity of
particular litigants interpretations of those
C creeds…Repeatedly and in many different contexts we have
warned that courts must not presume to determine the place
of a particular belief in a religion or the plausibility of a
religious claim…”
(Emphasis supplied; internal quotations omitted)
D 10.5. The observations of Chinnappa Reddy, J. in Bijoe Emmanuel
& Ors. v. State of Kerala & Ors. (supra) are instructive in understanding
the nature of the protection afforded under Article 25, and the role of the
Court in interpreting the same. The relevant extract from the opinion of
Chinnappa Reddy, J. is extracted hereinbelow:
E “18. Article 25 is an article of faith in the 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…”
F 10.6. A reference to the following extracts from the judgment of
Khehar, C.J.I. in Shayara Bano v. Union of India & Ors.40 is also
instructive with respect to the role of Courtsin matters concerning religious
faiths and beliefs:
“389. It is not difficult to comprehend what kind of challenges
G 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
40
(2017) 9 SCC 1
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 871
[INDU MALHOTRA, J.]

endeavour, declare that a matter of faith be replaced, or be A
completely done away with?...This wisdom emerging from
judgments rendered by this Court is unambiguous namely, that
while examining the issues falling in the realm of religious
practises or Personal Law, it is not for a court to make a
choice of something which it considers as forward-looking
B
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…”
(Emphasis supplied and internal quotations omitted)
C
10.7. The following extract from the concurring judgment of
Chinnappa Reddy, J. in S.P. Mittal v. Union of India & Ors. (supra) is
pertinent with respect to the approach to be adopted by Courts whilst
dealing with matters concerning religion:
“2…What is religion to some is pure dogma to others and what D
is religion to others is pure superstition to some others…But
my views about religion, my prejudices and my predilections,
if they be such, are entirely irrelevant. So are the views of the
credulous, the fanatic, the bigot and the zealot. So also the
views of the faithful, the devout, the acharya, the moulvi, the
padre and the bhikhshu each of whom may claim his as the E
only true or revealed religion. For our purpose, we are
concerned with what the people of the Socialist, Secular,
Democratic Republic of India, who have given each of its
citizens freedom of conscience and the right to freely profess,
practise and propagate religion and who have given every F
religious denomination the right to freely manage its religious
affairs, mean by the expressions religion and religious
denomination. We are concerned with what these expressions
are designed to mean in Articles 25 and 26 of the Constitution.
Any freedom or right involving the conscience must naturally
receive a wide interpretation and the expression religion and G
religious denomination must therefore, be interpreted in no
narrow, stifling sense but in a liberal, expansive way.”
(Emphasis supplied and internal quotations omitted)

H
872 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 10.8. The Constitution lays emphasis on social justice and equality.
It has specifically provided for social welfare and reform, and throwing
open of Hindu religious institutions of a public character to all classes
and sections of Hindus through the process of legislation in Article
25(2)(b) of the Constitution. Article 25(2)(b) is an enabling provision
which permits the State to redress social inequalities and injustices by
B
framing legislation.
It is therefore difficult to accept the contention that Article 25(2)(b)
is capable of application without reference to an actual legislation. What
is permitted by Article 25(2) is State made law on the grounds specified
therein, and not judicial intervention.
C
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)
D 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
E 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
F with the same would conflict with their right guaranteed by Article 25(1)
to worship Lord Ayyappa in the form of a ‘Naishtik Brahmachari’.
10.11. In other jurisdictions also, where State made laws were
challenged on grounds of public morality, the Courts have refrained from
striking down the same on the ground that it is beyond the ken of the
G Courts.
10.12. For instance, the U.S. Supreme Court in Church of Lukumi
Babalu Aye v. City of Hialeah,41 an animal cruelty law made by the
City Council was struck down as being violative of the Free Exercise
clause. The Court held:
41
H 508 U.S. 520 (1993)
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 873
[INDU MALHOTRA, J.]

“The extent to which the Free Exercise clause requires A
Government to refrain from impeding religious exercise defines
nothing less than the respective relationships in our
Constitutional democracy of the individual to Government,
and to God. ‘ Neutral, generally applicable ’ laws, drafted as
they are from the perspective of the non-adherent, have the
B
unavoidable potential of putting the believer to a choice
between God and Government. Our cases now present
competing answers to the question when Government, while
pursuing secular ends may compel disobedience to what one
believes religion commands.”
(Emphasis supplied) C

10.13. Judicial review of religious practises ought not to be
undertaken, as the Court cannot impose its morality or rationality with
respect to the form of worship of a deity. Doing so would negate the
freedom to practise one’s religion according to one’s faith and beliefs. It
would amount to rationalising religion, faith and beliefs, which is outside D
the ken of Courts.
11. CONSTITUTIONAL MORALITY IN MATTERS OF RELIGION IN A SECULAR
POLITY
11.1. The Petitionershave contended that the practise of restricting E
women of a particular age group runs counter to the underlying theme
of equality and non-discrimination, which is contrary to Constitutional
Morality. Rule 3(b) of the 1965 Rules has been challenged as being
violative ofConstitutional Morality.
11.2. India is a country comprising of diverse religions, creeds, F
sects each of which have their faiths, beliefs, and distinctive practises.
Constitutional Morality in a secular polity would comprehend the freedom
of every individual, group, sect, or denomination to practise their religion
in accordance with their beliefs, and practises.
11.3. The Preambleto the Constitution secures to all citizens of
G
this country liberty of thought, expression, belief, faith and worship. Article
25 in Part III of 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. H
874 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
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
C Article 25(2)(b) of the Constitution, where the State may make law
providing for social welfare and reform.
11.5. The concept of Constitutional Morality refers to the moral
values underpinning the text of the Constitution, which are instructive in
ascertaining the true meaning of the Constitution, and achieve the objects
D contemplated therein.
11.6. Constitutional Morality in a pluralistic society and secular
polity would reflect that the followers of various sects have the freedom
to practise their faith in accordance with the tenets of their religion. It is
irrelevant whether the practise is rational or logical. Notions of rationality
E cannot be invoked in matters of religion by courts.
11.7. The followers of this denomination, or sect, as the case may
be, submit that the worshippers of this deity in Sabarimala Temple even
individually have the right to practise and profess their religion under
Article 25(1) in accordance with the tenets of their faith, which is
F protected as a Fundamental Right.
11.8. Equality and non-discrimination are certainly one facet of
Constitutional Morality. However, the concept of equality and non-
discrimination in matters of religion cannot be viewed in isolation. Under
our Constitutional scheme, a balance is required to be struck between
G the principles of equality and non-discrimination on the one hand, and
the protection of the cherished liberties of faith, belief, and worship
guaranteed by Articles 25 and 26 to persons belonging to all religions in
a secular polity, on the other hand. Constitutional morality requires the
harmonisation or balancing of all such rights, to ensure that the religious
beliefs of none are obliterated or undermined.
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 875
[INDU MALHOTRA, J.]

A Constitution Bench of five-Judges in Sahara India Real Estate A
Corporation Limited & Ors. v. Securities and Exchange Board of
India & Anr.42 had highlighted the role of this Court as an institution
tasked with balancing the various Fundamental Rights, guaranteed under
Part III. It was noted that:
“25. At the outset, it may be stated that Supreme Court is not B
only the sentinel of the fundamental rights but also a
balancing wheel between the rights, subject to social
control…under our Constitution no right in Part III is absolute.
Freedom of expression is not an absolute value under our
Constitution. It must not be forgotten that no single value, no
matter exalted, can bear the full burden of upholding a C
democratic system of government. Underlying our
constitutional system are a number of important values, all of
which help to guarantee our liberties, but in ways which
sometimes conflict. Under our Constitution, probably, no
values are absolute. Allimportant values, therefore, must be D
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.43. E
In Acharya Maharajshri Narendra Prasadji Anandprasadji
Maharaj & Ors. v. The State of Gujarat & Ors.44, 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. F
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
G
12.1. Article 26 of the Constitution guarantees the freedom to
every religious denomination, or sect thereof, the right to establish and
maintain institutions for religious or charitable purposes, and to manage
42
(2012) 10 SCC 603
43
(2016) 7 SCC 221
44
(1975) 1 SCC 11 H
876 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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.
12.2. A religious denomination or organisation enjoys complete
autonomy in matters of deciding what rites and ceremonies are essential
B according to the tenets of that religion. The only restriction imposed is
on the exercise of the right being subject to public order, morality and
health under Article 26.
The Respondents assert that the devotees of the Sabarimala
Temple constitute a religious denomination, or a sect thereof, and are
C entitled to claim protection under Article 26 of the Constitution.
12.3. Article 26 refers not only to religious denominations, but
also to sects thereof. Article 26 guarantees that every religious
denomination, or sect thereof, shall have the right inter alia to manage
its own affairs in matters of religion. This right is made subject to public
D order, morality, and health.
The Travancore Devaswom Board, and the other Respondents
have asserted that the followers of the Sabarimala Temple constitute a
religious denomination having a distinct faith, well- identified practises,
being followed since time immemorial. The worshippers of this shrine
E observe the tenets of this faith, and are addressed as “Ayyappans.”
The Notifications issued by the Travancore Devaswom Board in 1955
and1956 refer to the devotees of the Sabarimala Temple as
“Ayyappans”.
Given the identical phraseology, only the Notification dated
November 27, 1956 is set out herein below for ready reference:
F
“ NOTIFICATION
In accordance with the fundamental principles underlying the
Prathishta (installation) of the venerable holy and ancient
temple of Sabarimala, Ayyappans who had not observed the
usual vows as well as women who had attained maturity were
G not in the habit of entering the above mentioned temple for
Darsan (worship) by stepping the Pathinettampadi. But of
late, there seems to have been a deviation from this custom
and practise. In order to maintain the sanctity and dignity of
this great temple and keep up the past traditions, it is hereby
H notified that Ayyappans who do not observe the usual Vritham
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 877
[INDU MALHOTRA, J.]

(vows) are prohibited from entering the temple by stepping A
the pathinettampadi and women between the ages of ten and
fifty five are forbidden from entering the temple.
Ambalapuzha
27-11-‘56 Assistant Devaswon Commissioner.”
(Emphasis supplied) B
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 onthe belief that Lord Ayyappahas
manifested himself in the form of a ‘Naishtik Brahmachari’.The
practises include the observance by the Ayyappans of the 41-day C
‘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 D
from entering the Temple has to be understood in this context.
12.4. The expression “religious denomination” as interpreted in
Commissioner, Hindu Religious Endowments, Madras v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra), was “a
collection of individuals classed together under the same name : a E
religious sect or body having a common faith and organisation and
designated by a distinctive name”.45 The Court held that each of the
sects or sub-sects of the Hindu religion could be called a religious
denomination, as such sects or sub-sects, had a distinctive name.
12.5. In S.P. Mittal v. Union of India & Ors. (supra), this Court, F
while relying upon the judgment in Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Swamiar Thirtha Swamiar
of Shirur Mutt (supra), held that 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
G
satisfy three conditions:
“80.(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;
45
1954 SCR 1005, at paragraph 15 H
878 SUPREME COURT REPORTS [2018] 9 S.C.R.

A (2) common organisation; and
(3) designation by a distinctive name.”
12.6. On a somewhat different note, Ayyangar, J. in Sardar Syedna
Taher Saifuddin Saheb v. State of Bombay (supra) in his separate
judgment, expressed this term to mean identity of its doctrines, creeds,
B and tenets, which are intended to ensure the unity of the faith which its
adherents profess, and the identity of the religious views which bind
them together as one community.
12.7. The meaning ascribed to religious denomination by this Court
in Commissioner, Hindu Religious Endowments case (supra), and
C subsequent cases is not a strait-jacket formula, but a working formula.It
provides guidance to ascertain whether a group would fall within a
religious denomination or not.
12.8. If there are clear attributes that there exists a sect, which is
identifiable as being distinct by its beliefs and practises, and having a
D collection of followers who follow the same faith, it would be identified
as a ‘religious denomination’.
In this context, reference may be made to the concurring judgment
of Chinnappa Reddy, J. in the decision of this Court in S.P. Mittal v.
Union of India & Ors. (supra) wherein he noted that the judicial definition
E of a religious denomination laid down by this Court is, unlike a statutory
definition, a mere explanation. After observing that any freedom or right
involving the conscience must be given a wide interpretation, and the
expressions ‘religion’ and ‘religious denomination’ must be interpreted
in a “liberal, expansive way”:
F “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
G
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
H distinctive names except that of their founder-teacher and
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 879
[INDU MALHOTRA, J.]

had no special organisation except a vague, loose – un-knit A
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
B
the common faith of the religious body is more important than
the other features…Religious denomination has not to owe
allegiance to any parent religion. The entire following of a
religion may be no more than the religious denomination. This
may be particularly be so in the case of small religious groups
or developing religions, that is, religions in the formative C
stage.”
(Emphasis supplied and internal quotationsomitted)
12.9. The Respondents have made out a strong and plausible case
that the worshippers of the Sabarimala Temple have the attributes of a
religious denomination, or sect thereof, for the reasons enumerated D
hereinbelow:
i. The worshippers of Lord Ayyappaat Sabarimala Temple
constitute a religious denomination, or sect thereof, as the case
maybe, following the ‘Ayyappan Dharma’. They are designated
by a distinctive name wherein all male devotees are called E
‘Ayyappans’; all female devotees below the age of 10 years
and above the age of 50 years, are called ‘Malikapurnams’. A
pilgrim on their maiden trip to Sabarimala Temple is called a
‘Kanni Ayyappan’. The devotees are referred to
as‘Ayyappaswamis’. A devotee has to observe the ‘Vratham’, F
and follow the code of conduct, before embarking upon the
‘Pathinettu Padikal’ to enter the Temple at Sabarimala.
ii.Thedevotees follow an identifiable set of beliefs, customs and
usages,and code of conduct which are being practised since
time immemorial, and are founded in a common faith.The G
religious practises being followed in this Temple are founded on
the belief that the Lord has manifested himself in the form of a
‘Naishtika Brahmachari’. It is because of this nishtha, that
women between the ages of 10 to 50 years, are not permitted to
enter the temple.
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880 SUPREME COURT REPORTS [2018] 9 S.C.R.

A The practises followed by this religious denomination, or sect
thereof, as the case maybe,constitute a code of conduct, which
is a part of the essential spiritual discipline related to this
pilgrimage. As per the customs and usages practised in the
Sabarimala Temple, the 41-day ‘Vratham’ is a condition
precedent for undertaking the pilgrimage to the Sabarimala
B
Temple.
The Respondents submit that the beliefs and practises being
followed by them have been imparted by the deity himself to
the King of Pandalam who constructed this Temple. The
teachings of the Lord are scripted in the Sthal Purana of this
C Temple, known as the‘Bhuthanatha Geetha’.
Reference to the custom and usage restricting the entry 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 46 published in two parts in 1893 and
D 1901written 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
E Proclamation47 dated 12th April 1922 issued by the Maharaja of
Travancore, on which reliance was placed by Mr. J. Sai Deepak,
Advocate.
When the erstwhile State of Travancore merged with the Union
of India, the obligation of paying annuities for the landed
F properties, was transferred to the Government of India.
iv. TheTemple 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.
G
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.
46
Supra note 9
47
Annexure I, Written Submissions by J. Sai Deepak, learned Advocate on Behalf of
H K.K. Sabu (Respondent No. 18), and People for Dharma (Intervenor).
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 881
[INDU MALHOTRA, J.]

12.10. The issue whether the Sabarimala Temple constitutes a A
‘religious denomination’, or a sect thereof, is a mixed question of fact
and law. It is trite in law that a question of fact should not be decided in
writ proceedings. The proper forum to ascertain whether a certain sect
constitutes a religious denomination or not, would be more appropriately
determined by a civil court, where both parties are given the opportunity
B
of leading evidence to establish their case.
In Arya Vyasa Sabha & Ors. v. Commissioner of Hindu
Charitable and Religious Institutions & Endowments, Hyderabad
&Ors.48, this Court had noted that the High Court was correct in leaving
the question open, of whether the petitioners constituted a religious
denomination for determination by a competent civil court on the ground C
that it was a disputed question of fact which could not be appropriately
determined in proceedings under Article 226.
12.11. This Court has identified the rights of a group of devotees
as constituting a religious denomination in the context of a single temple,
as illustrated hereinbelow: D

In (supra), the Sri Venkataramana Temple at Moolky was
considered to be a denominational temple, and the Gowda Saraswath
Brahmins were held to constitute a religious denomination.
Similarly, in Dr. Subramaniam Swamy v. State of Tamil Nadu E
(supra) the Podhu Dikshitars were held to constitute a religious
denomination in the context of the Sri Sabanayagar Temple at
Chidambaram.
12.12. The contention of the Petitioners that since the visitors to
the temple are not only from the Hindu religion, but also from other F
religions, the worshippers of this Temple would not constitute a separate
religious sect.
This argument does not hold water since it is not uncommon for
persons from different religious faiths to visit shrines of other religions.
This by itself would not take away the right of the worshippers of this
G
Temple who may constitute a religious denomination, or sect thereof.
12.13. TheConstitution ensures a place for diverse religions,
creeds, denominations and sects thereof to co-exist in a secular society.
It is necessary that the term ‘religious denomination’ should receive an
48
(1976) 1 SCC 292
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882 SUPREME COURT REPORTS [2018] 9 S.C.R.

A interpretation which is in furtherance of the Constitutional object of a
pluralistic society.
13. ESSENTIAL PRACTISES DOCTRINE
This Court has applied the ‘essential practises’ test to afford
protection to religious practises.
B
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
C 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.49 The original extract
relied upon has been reproduced hereinbelow:
D
“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
E religion. It appears to me to be difficult to maintain this
distinction as relevant to the interpretation of s. 116. The
section refers in express terms to the exercise of religion, and
therefore it is intended to protect from the operation of any
Commonwealth laws acts which are done in the exercise of
F religion. Thus the section goes far beyond protecting liberty
of opinion. It protects also acts done in pursuance of religious
belief as part of religion.”
(Emphasis supplied)
This Court then went on to formulate the ‘essential practises test
G in the following words:
“20…what constitutes the essential part of a religion is
primarily to be ascertained with reference to the doctrines of
that religion itself. If the tenets of any religious sect of the
Hindus prescribe that offerings of food should be given to
49
H 67 CLR 116
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 883
[INDU MALHOTRA, J.]

the idol at particular hours of the day, that periodical A
ceremonies should be performed in a certain way at certain
periods of the year or that there should be daily recital of
sacred texts or oblations to the sacred fire, all these would be
regarded as parts of religion…all of them are religious
practises and should be regarded as matters of religion within
B
the meaning of Article 26(b)…
…23. 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
authority has any jurisdiction to interfere with their decision C
in such matters.”
(Emphasis supplied)
13.2. The ‘essential practises test’ was reiterated in Ratilal
Panachand Gandhi v. The State of Bombay & Ors. 50, where the D
narrow definition of “religion” given by the Bombay High Court was
discarded.It was held that all religious practises or performances of acts
in pursuance of religious beliefs were as much a part of religion, as faith
or belief in particular doctrines. This Court re-iterated the ‘essential
practises test’ in the following words:
E
“13…Thus if the tenets of the Jain or the Parsi religion lay
down that certain rites and ceremonies are to be performed
at certain times and in a particular manner, it cannot be said
that these are secular activities partaking of commercial or
economic character simply because they involve expenditure
of money or employment of priests or the use of marketable F
commodities. No outside authority has any right to say that
these are not essential parts of religion and it is not open to
the secular authority of the State to restrict or prohibit them
in any manner they like under the guise of administering the
trust estate…We may refer in this connection to the observation G
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
50
(1954) SCR 1055 : AIR 1954 SC 388
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884 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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 –
B
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
C the measure of protection that is given by Article 26(b) of our
Constitution.”
(Emphasis supplied and internal quotations omitted)
13.3. In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali
& Ors. (supra), the ‘essential practises test’ was discussed by a
D Constitution Bench in the following words:
“33…Whilst we are dealing with this point it may not be out of
place incidentally to strike a note of caution and observe
that in order that the practises in question should be treated
as a part of religion they must be regarded by the said religion
E as its essential and integral part; otherwise even purely secular
practises 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 practises within
the meaning of Article 26. Similarly, even practises though
F religious may have sprung from merely superstitious beliefs
and may in that sense be extraneous and unessential
accretions to religion itself. Unless such practises 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
G confined to such religious practises as are an essential and
an integral part of it and no other.”
(Emphasis supplied)
This Court affirmed the ‘essential practises test’ as laid in the
previous decisions in Commissioner, Hindu Religious Endowments,
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 885
[INDU MALHOTRA, J.]

Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt A
(supra), and Ratilal Panachand Gandhi v. The State of Bombay &
Ors.(supra) insofar as it emphasised on the autonomy of religions to
identify essential or integral practises.
13.4. In Tilkayat Shri Govindlalji Maharaj etc. v. State of
Rajasthan & Ors. (supra), it was clarified that courts will intervene B
where conflicting evidence is produced in respect of rival contentions as
to competing religious practises. It was held that:
“57. In deciding the question as to whether a given religious
practise is an integral part of the religion or not, the test
always would be whether it is regarded as such by the C
community following the religion or not. This formula may in
some cases present difficulties in its operation. Take the case
of a practise 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 D
dress and 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 E
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 F
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 G
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
H
886 SUPREME COURT REPORTS [2018] 9 S.C.R.

A protection under Article 25(1) it must be “genuinely”, and “conscientiously”
held by persons claiming such rights. This Court had noted that such
religious beliefs and practises must be consistently and not “idly” held,
and should not emanate out of “perversity”. In doing so, it re-affirmed
that the Constitutional fabric of our country permits religious beliefs and
practises to exist, regardless of whether or not they appeal to the rational
B
sensibilities of this Court, or others.
It would also be instructive to refer to the decision of the Supreme
Court of Alaska in Carlos Frank v. State of Alaska51 wherein the use
of moose meat at a funeral potlatch, a religious ceremony, was held to
be a practise deeply rooted in religion, based on the evidence adduced
C before the District Court. The Court had noted that the State of Alaska
had failed to illustrate any compelling interest which would justify its
curtailment, with the result that the case was remanded with instructions
to dismiss the complaint against Frank for unlawful transportation of
moose meat. The Court had underscored the importance of the sincerity
D of Frank’s religious belief, and held that it would be sufficient that a
practise be deeply rooted in religious belief for it to receive the protection
of the free exercise clause under the U.S. Constitution.
13.6. Reference is required to be made to the doctrines and tenets
of a religion, its historical background, and the scriptural texts to ascertain
E the ‘essentiality’ of religious practises.
The ‘essential practisestest’ in its application would have to be
determined by the tenets of the religion itself. The practises and beliefs
which are considered to be integral by the religious community are to be
regarded as “essential”, and afforded protection under Article 25.
F The only way to determine the essential practises test would be
with reference to the practises followed since time immemorial, which
may have been scripted in the religious texts of this temple. 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.
G 13.7. The Temple Thanthri, the Travancore Devaswom Board,
and believers of Lord Ayyappahave submitted that the limited restriction
on access of women during the notified age of 10 to 50 years,is a religious
practise which is centraland integral to the tenets of this shrine, since the
deity has manifested himself in the form of a ‘Naishtik Brahmachari’.
51
604 P.2d 1068 (1979)
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 887
[INDU MALHOTRA, J.]

13.8. The practise of restricting the entry of women belonging to A
the age-group 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 B
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 C
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. D

A religion can lay down a code of ethics, and also prescribe rituals,
observances, ceremonies and modes of worship. These observances
and rituals are also regarded as an integral part of religion. If the tenets
of a religion lay down that certain ceremonies are to be performed at
certain times in a particular manner, those ceremonies are matters of E
religion, and are to be protected as a religious belief.
The High Court took into consideration the testimony of three
persons who had direct and personal knowledge about the practises of
the temple. One of them was the then Thanthri of the Temple, who
could authoritatively testify about the practises of the temple. His personal F
knowledge extended to a period of more than 40 years. The second
Affidavit was affirmed by the Secretary of the AyyappaSevaSangham
who had been a regular pilgrim of the shrine for a period of 60 years. A
senior member of the Pandalam Palace also testified about the practise
followed, and the views of the members of the Palace who have G
constructed the Temple. The testimony of these witnesses established
that the practiseof restriction on the entry of women during the notified
age-group was being followed since the past several centuries.
The High Court recorded that a vital reason for imposing this
restriction on young women as deposed by the Thanthri of the Temple,
H
888 SUPREME COURT REPORTS [2018] 9 S.C.R.

A as well as other witnesses, was that the deity at the Sabarimala Temple
was in the form of a ‘Naishtik Brahmachari’ which means a student
who has to live in the house of his preceptor, and studies the Vedas,
living the life of utmost austerity and discipline. The deity is in the form
of a ‘Yogi’ or ‘Naishtik Brahmachari’. The High Court noted that this
practiseof restricting the entry of women is admitted to have been
B
prevalent since the past several centuries.
The High Court concluded by holding:
“Our conclusions are as follows:
(1) The restriction imposed on women aged above 10 and
C 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
D 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
E 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
F 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
G deciding a Writ Petition under Article 226 were findings in rem, and the
principle of res judicata would apply.52
In thiscontext, it is pertinent to note that this Court, in Daryao &
Ors. v. State of U.P. & Ors.53, had held as follows:
52
Dr Subramaniam Swamy v. State of Tamil Nadu & Ors., (2014) 5 SCC 75.
53
(1962) 1 SCR 574 : AIR 1961 SC 1457
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 889
[INDU MALHOTRA, J.]

“26. We must now proceed to state our conclusion on the A
preliminary objection raised by the respondents. We hold that
if a writ petition filed by a party under Article 226 is
considered on the merits as a contested matter and is dismissed
the decision thus pronounced would continue to bind the
parties unless it is otherwise modified or reversed by appeal
B
or other appropriate proceedings permissible under the
Constitution. It would not be open to a party to ignore the
said judgment and move this Court under Article 32 by an
original petition made on the same facts and for obtaining
the same or similar orders or writs.”
Thus viewed, such findings of fact ought not to be re-opened in a C
Petition filed under Article 32.
13.9. The practise of celibacy and austerity is the unique
characteristic of the deity in the Sabarimala Temple.
Hindu deities have both physical/temporal and philosophical form. D
The same deity is capable of having different physical and spiritual forms
or manifestations. Worship of each of these forms is unique, and not all
forms are worshipped by all persons.
The form of the deity in any temple is of paramount importance.
For instance, Lord Krishna in the temple at Nathdwara is in the form of E
a child. In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan
(supra), this Court noted that Lord Krishna was the deity who was
worshipped in the Shrinathji Temple in Nathdwara. It was noted that:
“…believing in the paramount importance and efficacy of
Bhakti, the followers of Vallabha attend the worship and F
services of the Nidhi Swaroops or idols from day-to-day in
the belief that such devotional conduct would ultimately lead
to their salvation.”
In Venkataramana Devaru & Ors. v. State of Mysore & Ors.
(supra), this Court had observed that Gods have distinct forms ascribed
G
to them, and their worship at home, and in temples, is ordained as certain
means of salvation.
Worship has two elements – the worshipper, and the worshipped.
The right to worship under Article 25 cannot be claimed in the absence
of the deity in the particular form in which he has manifested himself.
H
890 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 13.10. Religion is a matter of faith, and religious beliefs are held
to be sacred by those who share the same faith. Thought, faith and
belief are internal, while expression and worship are external
manifestations thereof.
13.11. In the case of the Sabarimala Temple, the manifestation is
B in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the
form in which he has manifested himself is a fundamental right protected
by Article 25(1) of the Constitution.
The phrase “equally entitled to”, as it occurs in Article 25(1),
must mean that each devotee is equally entitled to profess, practise and
C 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
D Survey of the Travancore and Cochin States54 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
E been consistently, followed at the Sabarimala Temple, as is borne out
from the Memoir of the Survey of the Travancore and Cochin
Statespublished in two parts in 1893 and 1901. The Kerala High Court in
the case of S. Mahendran v. The Secretary, Travancore Devaswom
Board, Thiruvananthapuram & Ors. (supra) has recorded as follows:
“The testimony of three persons who have direct and personal
F
knowledge about the usage in the temple is therefore available
before this Court. Of them one is the Thanthri of the temple
who can authoritatively speak about the usage followed in
the temple. His knowledge extends to a period of more than
40 years. The Secretary of the AyyappaSevaSangham had
G been a regular pilgrim to Sabarimala shrine for a period of
60 years. A senior member of the Pandalam palace has also
testified about the practise followed and the view of the
members of the palace to which the temple at one time
belonged. The testimony of these witnesses would therefore
54
Supra note 9
H
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 891
[INDU MALHOTRA, J.]

conclusively establish the usage followed in the temple of not A
permitting women of the age group 10 to 50 to worship in the
temple. It necessarily flows that women of that age group were
also not permitted either to enter the precincts of the temple
or to trek Sabarimala for the purpose of pilgrimage.”
(Emphasis supplied) B
13.14. In the present case, the character of the temple at
Sabarimala is unique on the basis of centuries old religious practises
followed to preserve the manifestation of the deity, and the worship
associated with it. Any interference with the mode and manner of worship
of this religious denomination, or sect, would impact the character of the C
Temple, and affect the beliefs and practises of the worshippers of this
Temple.
13.15. Based on the material adduced before this Court, the
Respondents have certainly made out a plausible case that the practise
of restricting entry of women between the age group of 10 to 50 years is
D
an essential religious practise of the devotees of Lord Ayyappa at the
Sabarimala Temple being followed since time immemorial.
14. ARTICLE 17
14.1. The contention of the Petitioners that the restriction imposed
on the entry of women during the notified age group, tantamounts to a E
form of ‘Untouchability’ under Article 17 of the Constitution, is liable to
be rejected for the reasons stated hereinafter.
14.2. All forms of exclusion would not tantamount to untouchability.
Article 17 pertains to untouchability based on caste prejudice.Literally
or historically, untouchability was never understood to apply to women
F
as a class.The right asserted by the Petitioners is different from the right
asserted by Dalits in the temple entry movement. The restriction on
women within a certain age-band, is based upon the historical origin 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 G
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. H
892 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B and Mahatma Gandhi. The reforms were based upon societal morality,
much before Constitutional Morality came into place.
14.4. Article 11 of the Draft Constitution corresponds to Article
17 of our present Constitution.55 A perusal of the Constituent Assembly
debates on Article 11 of the Draft Constitution would reflect that
“untouchability” refers to caste-based discrimination faced by Harijans,
C and not women as contended by the Petitioners.
During the debates, Mr. V.I. Muniswamy Pillai had stated:
“…Sir, under the device of caste distinction, a certain section
of people have been brought under the rope of untouchability,
who have been suffering for ages under tyranny of so-called
D caste Hindus, and all those people who style themselves as
landlords and zamindars, and were thus not allowed the
ordinary rudimentary facilities required for a human being…
I am sure, Sir, by adoption of this clause, many a Hindu who
is a Harijan, who is a scheduled class man will feel that he
E has been elevated in society and has now got a place in
society…”56
Dr. Monomohan Das, quotes Mahatma Gandhi while undeniably
accepting the meaning of “Untouchability” as intended under the
Constitution:
F “…Gandhiji said I do not want to be reborn, but if I am reborn,
I wish that I should be born as a Harijan, as an untouchable,
so that I may lead a continuous struggle, a life-long struggle
against the oppressions and indignities that have been heaped
upon these classes of people.
55
“11. “Untouchability” is abolished and its practice in any form is forbidden. The
G enforcement of any disability arising out of “Untouchability” shall be an offence
punishable in accordance with law.”
Draft Constitution of India, Drafting Committee of the Constituent Assembly of India
(Manager Government of India Press, New Delhi, 1948) available 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
H 29, 1948)
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 893
[INDU MALHOTRA, J.]

… Not only Mahatma Gandhi, but also great men and A
philosophers of this ancient land, Swami Vivekananda, Raja
Ram Mohan Roy, Rabindranath Tagore and others, who led
a relentless struggle against this heinous custom, would also
be very much pleased today to see that independent India,
Free India, has at last finally done away with this malignant
B
sore on the body of Indian Society.”57
Mr. Seervai, in his seminal commentary, states that
“Untouchability” must not be interpreted in its literal or grammatical
sense, but refers to the practise as it developed historically in India
amongst Hindus. He further states that Article 17 must be read with the
Untouchability (Offences) Act, 1955, which punishes offences committed C
in relation to a member of a Scheduled Caste.58
Professor M.P. Jain also interprets Article 17 in a similar manner.
He states:
“Therefore, treating of persons as untouchables either D
temporarily or otherwise for various reasons, e.g., suffering
from an epidemic or a contagious disease, or social
observances associated with birth or death, or social boycott
resulting from caste or other disputes do no come within the
purview of Art. 17. Art. 17 is concerned with those regarded
untouchables in the course of historic developments.”59 E

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.
F
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
G
preceding the Constitution was the existence in their midst of
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 H
894 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
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.”
C 14.7. Not a single precedent has been shown to interpret Article
17 in the manner contended by the Petitioners.
It is also relevant to mention that the Counsel for the State of
Kerala did not support this submission.
15. RULE 3(B) OF THE 1965 RULES IS NOT ULTRAVIRES THE ACT
D 15.1. Section 3 of the 1965 Act reads as follows:
“3.Places of public worship to be open to all sections and
classes of Hindus:-Nothwithstanding anything to the contrary
contained in any other law for the time being in force or any
custom or usage or any instrumenthaving effect by virtue of
E 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
F
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
G 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 affair in matters
of religion”
H (Emphasis supplied)
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 895
[INDU MALHOTRA, J.]

The relevant extract of Rule 3 of the 1965 Rules is also reproduced A
hereinbelow:
“Rule 3. The classes of persons mentioned here under shall
not be entitled to offer worship in any place of public worship
or bath in or use the water of any sacred tank, well, spring or
water course appurtenant to a place of public worship B
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) ….. C
(b) Women at such time during which they are not by custom
and usage allowed to enter a place of public worship.
(c)…..
(d)…. D
(e)…..
(f)…..
(g)….”
(Emphasis supplied) E
Section 3(b) of the 1965 Act provides that every place of public
worship which is open to Hindus generally, or to any section or class
thereof, shall be open to all sections and classes of Hindus; and no Hindu
of whatsoever section or class shall, in any manner be prevented,
obstructed or discouraged from entering such place of public worship or F
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 G
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.

H
896 SUPREME COURT REPORTS [2018] 9 S.C.R.

A 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
B
regulation shall discriminate in any manner whatsoever, against any Hindu
on the ground that he belongs to a particular section or class.
15.2. The proviso carves out an exception to the Section 3 itself.
The declaration that places of public worship shall be open to Hindus of
all sections and classes is not absolute, but subject to the right of a religious
C
denomination to “manage its own affairs in matters of religion”.
Section 3 must be viewed in the Constitutional context where the
legislature has framed an enabling legislation under Article 25(2)(b) which
has been made expressly subject to religious practises peculiar to a
denomination under Article 26(b).
D
15.3. Rule 3(b) is a statutory recognition of a pre-existing custom
and usage being followed by this Temple. Rule 3(b) is within the ambit
of the proviso to Section 3 of the 1965 Act, as it recognises pre-existing
customs and usages including past traditions which have been practised
since time immemorial qua the Temple. The Travancore Devaswom
E Board submits that these practises are integral and essential to the Temple.
15.4. The Petitioners have not challenged the proviso to Section 3
as being unconstitutional on any ground. The proviso to Section 3 makes
an exception in cases of religious denominations, or sects thereof to
manage their affairs in matters of religion.
F
15.5. The Notification dated November 27, 1956 issued by the
Travancore Devaswom Board restricts the entry of women between
60
"2. Definitions –
…(c) “section or class” includes any division, sub-division, caste, sub-caste, sect
or denomination whatsoever.”
G 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 ceremonies performed
H therein…”
INDIAN YOUNG LAWYERS ASSN. v. STATE OF KERALA 897
[INDU MALHOTRA, J.]

the ages of 10 to 55 years as a custom and practise integral to the A
sanctity of the Temple, and having the force of law under Article 13(3)(a)
of the Constitution. The High Court in S. Mahendran v. The Secretary,
Travancore Devaswom Board, Thiruvananthapuram & Ors. (supra)
noted that this practise of restricting the entry of women is admitted to
have been prevalent since the past several centuries. These practises
B
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.
15.6. The contention of the Petitioners that Rule 3(b) is ultra
vires Section 3 of the 1965 Act, fails to take into consideration the proviso
to Section 3 of the 1965 Act. Section 3 applies to all places of public
C
worship, whereas the proviso applies to temples founded for the benefit
of any religious denomination or sect thereof. Hence, the contentions of
the Petitioners that Rule 3(b) is ultravires Section 3 of the 1965 Act is
rejected.
16. The summary of the aforesaid analysis is as follows:
D
(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 E
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 F
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 G
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.

H
898 SUPREME COURT REPORTS [2018] 9 S.C.R.

A (v) The limited restriction on the entry of women during the notified
age-group does notfall within the purview of Article 17 of the Constitution.
(vi) 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
B thereof, to manage their affairs in matters of religion.
17. In light of the aforesaid discussion and analysis, the Writ Petition
cannot be entertained on the grounds enumerated hereinabove.
It is ordered accordingly.

C
Nidhi Jain Writ Petition allowed.

D

E

F

G

H