SC reviews Sabrimala Decision, refers to a larger bench [Read All about the Case]


The Supreme Court Constitution bench had reserved verdict against various review petitions filed against this judgment delivered on 28th September 2018. The Supreme Court today has referred the Sabarimala review petitions to a larger bench by 3:2 majority. Justices Rohinton Nariman and DY Chandrachud have dissented. The majority finally held that issues surrounding the Essential Religious Practices test, among others, need to be referred to a larger bench to be decided by a larger bench of seven judges. 
Read Review Judgement here.
The CJI's majority judgment clubs the issues of entry of Muslim women in mosques, Parsi women to tower of silence and so on with the Sabarimala women entry issue.  The CJI also favours clubbing the issue of female genital mutilation.


What happened previously in Sabrimala case? 

Indian Young Lawyers Association v. The State of Kerala

JUDGES - The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M. Khanwilkar, Dr D.Y Chandrachud and Indu Malhotra JJ., decided the case by a 4:1 majority.

The judgment of the court was delivered by CJ Dipak Misra for himself and A.M. Khanwilkar, J. While R.F. Nariman and Dr D.Y. Chandrachud each gave separate concurring opinions. Indu Malhotra, J. rendered a dissenting opinion.

Background
The instant writ petition arose under Article 32 of the Constitution of India after a 3-Judge Bench in India Young Lawyers Assn. v. State of Kerala (2017) 10 SCC 689 referred the matter for consideration by a Constitution bench. It was filed in public interest by a registered association of Young Lawyers  seeks issuance of directions against the Government of Kerala, Devaswom Board of Travancore, Chief Thanthri of Sabarimala Temple and the District Magistrate of Pathanamthitta to ensure entry of female devotees between the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala (Kerala) which has been denied to them on the basis of certain custom and usage; to declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (for short, “1965 Rules”) framed in exercise of the powers conferred by Section 4 of 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.

The following questions were framed for the purpose of reference to the Constitution Bench


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?

- Whether the practice of excluding such women constitutes an "essential religious practice" under Article 25 and whether a 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.

-  Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a 'religious denomination' managed by a statutory board and financed under Article 290-A of the Constitution of India out of 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)?

-    - 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 the entry of women on the the ground of sex?

-   - 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?

Submissions on behalf of the petitioners


- 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 referred to Travancore - Cochin Hindu Religious Institutions Act, 1950 and various amendments which led to the inclusion of women in the management board. It has been stated by the petitioners that after the funding by the State no individual ill-practice could be carried on in any temple associated with the statutory Devaswom Board and ill-practice is impermissible which is against the constitutional principles.

-The contention of the petitioners is that Sabarimala Temple is not a separate religious denomination, for the religious practices performed in Sabarimala Temple at the time of Puja‟ and other religious ceremonies are akin to any other practice performed in any Hindu Temple. It does not have its separate administration, but is administered by or through a statutory body constituted under the „Travancore - Cochin Hindu Religious Institutions Act, 1950‟ and further, as per Section 29(3A) of the said Act, the Devaswom Commissioner is required to submit reports to the government, once in three months, with respect to the working of the Board.


-The petitioners have also averred that discrimination in matters of entry to temples is neither a ritual nor a ceremony associated with 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.

-The customary practice, 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 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) , Articles 14 and 15 of the Constitution of India.

-The petitioners have further stated that no right is absolute, 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.

-It was contended 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. In Sri Venkatramana Devaru v. State of Mysore and others it was held that right of a denomination under Article 26(b) would be subject to Article 25(2)(b) in favour of the public to enter into a temple for worship.

-After referring to Sections 3 and 4 of the Kerala Hindu Places 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. 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 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 Intervenors

-  -The exclusionary practice of preventing women between the age of 10 to 50 years based on physiological factors such as menstruation  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.

-    -Any law which is discriminatory has to have the existence of an intelligible differentia and the same must bear a rational nexus with the object sought to be achieved.  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.

-     -The exclusionary practice per se violates the sacrosanct principle of equality of women and equality before law and does not satisfies the test of reasonable classification under Article 14 of the Constitution. The intervenor has placed reliance upon the judgments of this Court in Anuj Garg and others v. Hotel Association of (1989) 2 SCC 145 (2017) 9 SCC  India and others and Charu Khurana and others v. Union of India and others, to accentuate that gender bias in any form is opposed to constitutional norms.

-    - They have also submitted that it leads to the 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 women. It is also violative of Article 21  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.

-   - It has further been submitted by the applicant/intervenor that Rule 3(b) is ultra vires Section 4 of the Kerala Places of Public Worship (Authorization of Entry) Act, 1965  Act and is also unconstitutional for it violates Articles 14, 15, 17, 21 and 25 of the Constitution in so far as it prohibits women from entering a public temple.


-    -The applicant/intervenor has also drawn the attention of this Court to the Convention on Elimination of all forms of Discrimination Against Women (CEDAW) and the fact that India is a party to this Convention for emphasizing that it is the obligation of the State to eradicate taboos relating to menstruation based on customs or traditions and further the State should refrain from invoking the plea of custom or tradition to avoid their obligation.

-   - The applicant/intervenor has also submitted that the age-old practice of considering women as impure while they are menstruating amounts to untouchability and stigmatizes them as lesser human beings and is, therefore, violative of Articles14, 15, 17 and 21 of the Constitution.

Submissions on behalf of the respondents

-  -That the 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.
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  -The respondents have 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.

-  -The respondents have 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 fulfil the said Vruthum cannot enter the temple and, hence, women who have not attained puberty and those who are in menopause alone can undertake the pilgrimage at Sabarimala.

-   -The respondent no. 4, thereafter, contends that the prohibition is not a social discrimination but is only a part of the essential spiritual discipline related to this particular pilgrimage and is clearly intended to keep the mind of the pilgrims away from the distraction-related to sex as the dominant objective of the pilgrimage is the creation of circumstances in all respects for the successful practice of spiritual self-discipline.
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  - The respondent no. 4 has also submitted that the deity at Sabarimala in the form of „Naishtik Brahmachari‟ and that is also (1972) 2 SCC 11 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.

-   - It was submitted by the Respondents that a continued since time immemorial without interruption, becomes a usage and custom. The custom and usage of restricting the entry of women in the 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 continuous. The customs and usages, religious beliefs and practises are peculiar to the Sabarimala Temple, and have admittedly been followed since centuries.

-   -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 with the ‘Nishta’ or ‘Naishtik Buddhi’ of the deity. It was 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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- -It was further submitted that Division Bench of the Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board & Ors. Held the status of the temple as a religious denomination,In that case the then Thanthri – Sri Neelakandaru, who had installed the deity was examined and he stated that women during the age group of 10 to 50 years were prohibited from entering the temple much before the 1950s.
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- -The Respondents submitted that the object 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 17. The custom is not based on any alleged impurity or disability.

Decision of the court

-    - The rights guaranteed under Article 25(1) of the Constitution, be it clarified that Article 25(1), by employing the expression „all persons‟, demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. 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). the right guaranteed under Article 25(1) is not only about inter-faith parity but it is also about intra-faith parity. Therefore, the right to practise religion under Article 25(1), in its broad contour, encompasses a non-discriminatory right which is equally available to both men and women of all age groups professing the same religion.

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-  -The devotees of Lord Ayyappa do not constitute a religious denomination within the meaning of Article 26 and that Sabarimala Temple is a public temple by virtue of the fact that Section 15 of the 1950 Act vests all powers of direction, control and supervision over it in the Travancore Devaswom Board which, has been unveiled as “other authority” within the meaning of Article 12, resultantly fundamental rights including those guaranteed under Article 25(1) is enforceable against the Travancore Devaswom Board and other incorporated Devaswoms including the Sabarimala Temple.

-   -When there is a violation of the fundamental rights, the term „morality‟ naturally implies constitutional morality and any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of this constitutional morality that gets support from the Constitution. 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 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.

-    - Court examined the Rule 3(b) of the 1965 Act and  Rule 3(b) is also ultra vires Section 4 of the 1965 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. The language of both the provisions, i.e., Section 3 and the proviso to Section 4(1) of the 1965 Act clearly indicate that custom and usage must take space to the rights of all sections and classes of Hindus to offer prayers at places of public worship.

-   -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 part as claimed by the respondent Board. 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. This directly offends the right of temple entry established by Section 3. Rules 3(b) is ultra vires the 1965 Act.

Dissenting Opinion of Justice Indu Malhotra

-   -The Ayyappans or worshippers of the Sabarimala Temple satisfied the requirements of being a religious denomination, or sect, therefore, they are entitled to the protections provided by Article 26. She further emphasised that this is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction. As in the writ proceedings the question of fact cannot be decided. Hence, the writ petition should be dismissed on this ground alone.

-    -The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. Whereas the petitioners in the instant case did not claim to be devotees of the Sabarimala temple.

-    -According to her Rule 3(b) of the 1965 Rules is not ultra vires Section 3 of the 1965 Act, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion.

-   -She remarked that 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. The issue of what constitutes an essential religious practise is for the religious community to decide.

-    -The worshippers of Lord Ayyappa at Sabarimala Temple constitute a religious denomination or sect the devotees 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, in any event, Article 290 A does not in any manner take away the denominational character of the Sabarimala Temple, or the Fundamental Rights under Article 26.

-     -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. She has held that 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’.
  

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