Judges: Dipak Misra, CJI, A.M. Khanwilkar, Rohinton Fali Nariman, Dr. D.Y. Chandrachud and Indu Malhotra, JJ.

Facts:

This writ petition under Article 32 of the Constitution was filed seeking 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.

Constitutional validity of Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (hereinafter, '1965 Rules') framed in exercise of the powers conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 (hereinafter'' '1965 Act') was also challenge on grounds of violation of Articles 14, 15, 25 and 51A(e) of the Constitution of India.

A three-Judge Bench considered the questions formulated by the counsel for the parties and, thereafter, referred the matter before a five-Judge Constitution Bench.

Issues:

(i) 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?

(ii) Whether the practice of excluding such women constitutes an 'essential religious practice' under Article 25 of Constitution 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?

(iii) 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 Constitution 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)?

(iv) Whether Rule 3 of the 1965 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?

(v) Whether Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?

Laws:

Constitution of India, 1950 - Article 14 - Right to equality and equal protection of the laws.

Constitution of India, 1950 - Article 15 - Forbids discrimination on grounds only of religion, race, caste, sex, or place of birth.

Constitution of India, 1950 - Article 15(3) - Power of State to make special provision for women and children.

Constitution of India, 1950 - Article 17 - Abolition of Untouchability.

Constitution of India, 1950 - Article 25 - Freedom of conscience and free profession, practice and propagation of religion.

Constitution of India, 1950 - Article 26 - Freedom to manage religious affairs.

Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 - Section 3 - Places of public worship to open to all Sections and classes of Hindus.

Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 - Rule 3(b) - Stipulates exclusion of entry of women of the age group of 10 to 50 years.

Contentions:

Petitioners

(i) 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.

(ii) 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'. 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.

(iii) Before any religious practice is examined on the touchstone of constitutional principles, it has to be ascertained positively whether the said practice is, in pith and substance, really the 'essence' of the said religion.

(iv) Even if any accretion added for any historical reason has become an essence of the said religious denomination, the same shall not be protected under Article 26(b) of Constitution, if it is so abhorring and is against the basic concept of our Constitution.

(v) 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.

(vi) Even if Sabarimala temple is taken as a religious denomination, their basic tenets are not confined to taking of oath of celibacy for certain period of pilgrimage as all pilgrims are allowed freely in the temple and there is no such practice of not seeing the sight of women during this period.

(vii) Though 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.

Respondents

(i) 1965 Act and the Rules framed thereunder are in consonance with Article 25(2)(b) of the Constitution.

(ii) 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.

(iii) Ayyappa had explained the manner in which the Sabarimala pilgrimage was to be undertaken emphasizing the importance of Vrutham' which are special observances that need to be followed in order to achieve spiritual refinement. 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 himself from all family ties.

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.

(iv) 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.

(v) Prohibition is not a social discrimination but is only a part of the essential spiritual discipline related to this particular pilgrimage.

(vi) 'Devaprasanams' conducted in the past also reveal that the deity does not want young women to enter the precincts of the temple.

(vii) Deity at 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.

Analysis:

Followers of Lord Ayyappa - Whether constitute a religious denomination

(i) Devotees of Lord Ayyappa do not constitute a separate religious denomination as 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. Therefore, the devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination.

(ii) 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 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 doctrines which they regard as conducive to their spiritual wellbeing. 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.

(iii) Merely addressing 'pilgrims' coming to visit the Sabarimala temple being devotees of Lord Ayyappa as 'Ayyappans' does not satisfy the third condition for a religious denomination. There is no identified group called Ayyappans. Every Hindu devotee can go 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

Fundamental rights under Article 25(1) of Constitution - Whether enforceable against the Devaswom Board

(i) Devotees of Lord Ayyappa do not constitute a religious denomination within the meaning of Article 26 of Constitution. Sabarimala Temple is a public temple by virtue of the fact that Section 15 of the Travancore Cochin Hindu 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 of Constitution. Resultantly fundamental rights including those guaranteed under Article 25(1) are enforceable against the Travancore Devaswom Board and other incorporated Devaswoms including the Sabarimala Temple.

(ii) Expression 'all persons' in Article 25(1) of Constitution 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 kernel of Article 26 of Constitution is 'establishment of a religious institution' so as to acclaim the status of religious denomination. Whereas, Article 25(1) guarantees the right to practise religion to every individual and the act of practice is concerned, primarily, with religious worship, rituals. 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) of Constitution.

(iii) The practice of exclusion of women from entry into 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 but it is also about intra-faith parity.

(iv) Rule 3(b) of the 1965 Rules, framed in pursuance of the 1965 Act, which 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) of Constitution a dead letter. 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 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 III of the Constitution, for it is to these precepts that the right guaranteed under Article 25(1) has been made subject to.

(v) Term 'morality' in Article 25(1) of the Constitution 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. 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.

(vi) Right guaranteed under Article 25(1) of Constitution has been made subject to '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 temple for offering their prayers. The term public morality has to be appositely understood as being synonymous with constitutional morality.

(vii) The notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple for the simple reason that 'public morality must yield to constitutional morality'.

Exclusionary practice - Whether an essential practice as per Hindu religion

(i) Exclusion of women of any age group cannot be regarded as an essential practice of Hindu religion. It is an essential part of the Hindu religion to allow Hindu women to enter into a temple a devotees and followers of Hindu religion and offer their prayers 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. Exclusionary practice, which has been given the backing of a subordinate legislation in the form of Rule 3(b) of 1965 Rules, 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.

(ii) 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.

(iii) Where a practice changes with the efflux of time, such a practice cannot 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. 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. Devaswom Board also took a stand before the High Court that restriction of entry for women was only during Mandalam, Makaeavilakku and Vishnu days.

(iv) 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. 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.

1965 Act and Rule 3(b) of the 1965 Rules - Analysis of

(i) As per Section 2(a) of the 1965 Act, the term 'Hindu' includes a person professing Buddhist, Sikh or Jaina religion. The word 'person' occurring therein for the pure and simple reason of logic, must include all genders. Section 2(c) of the 1965 Act 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, subdivision, caste and so forth.

(ii) Section 3 of the 1965 Act 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) which, includes all the genders, provided they are Hindus.

(iii) Proviso to Section 3 stipulates that in case the place of 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 stated that devotees and followers of Lord Ayyappa do not constitute a religious denomination and, therefore, the proviso to Section 3 cannot be resorted to in present case.

(iv) 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 fact that its violation has been made penal under Section 5 of the 1965 Act.

(v) Exclusionary practice, which has been given the backing of a subordinate legislation in the form of Rule 3(b) of 1965 Rules, is neither an essential nor an integral part of the religion. Rule 3(b) is ultravires both Sections 3 and 4 of 1965 Act, because 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. Rule 3(b) is also ultravires Section 4 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.

(vi) 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) of Constitution. 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) 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

Indu Malhotra, J. (Dissenting)

(i) 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.

(ii) Constitutional morality in a secular polity would imply the harmonisation of the fundamental rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise was rational or logical.

(iii) Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26 of Constitution. This was a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction.

(iv) The limited restriction on the entry of women during the notified age-group does not fall within the purview of Article 17 of the Constitution.

(v) Rule 3(b) of the 1965 Rules was 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.

Conclusions:

(i) Sabarimala temple was a public religious endowment and there were no exclusive identified followers of the cult.

(ii) Devotees of Lord Ayyappa were just Hindus and did not constitute a separate religious denomination.

(iii) 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.

(iv) Right to practise religion under Article 25(1), in its broad contour, encompasses a non-discriminatory right which was equally available to both men and women of all age groups professing the same religion.

(v) 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 ten to fifty years, was a clear violation of the right of such women to practise their religious belief.

(vi) Neither public order nor public health would be at peril by allowing entry of women devotees of the age group of ten to fifty years into the Sabarimala temple for offering their prayers.

(vii) 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 ten to fifty years by denying them their legal right to enter and offer their prayers at the Sabarimala temple.

(viii) By allowing women to enter into the Sabarimala temple for offering prayers, it could not be imagined that the nature of Hindu religion would be fundamentally altered or changed in any manner.

Important Precedents:

(i) S.P. Mittal v. Union of India and Ors. MANU/SC/0532/1982

(ii) The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt MANU/SC/0136/1954