ISSN : 2581-8465 R

Author : Shubham Kashyap Kalita

National Law University, Assam

Co-Author : Tripti Kejriwal


The Constitution of India provides for certain rights and liberties along with the power to control and enjoy such liberties and rights subject to certain restrictions. The right to freedom of religion as enshrined to the citizens of India provided under Article 25 of the Indian Constitution is exposed to certain limitations along with the liberty to propagate and practice any religion. In the name of religion, it is not expected that each and every person commits acts as according to his own very whims and fancies without considering the well being of the society at large. This does not necessarily bring into picture that religion is ungovernable or turbulent. It has its well defined aspects and ambit which limits the act of people practicing such religion. There needs to be barriers put on the question of application of religion so that the value and dignity of the institution holds does not get surpassed or misappropriated.

Indiscrimination in gender aspects and non gender neutrality has been practiced since time immemorial. Restrictions on women in the various spheres of life have always remained one of the most contended issues. The issue of late that has been in trend is the obstacle faced by the women community to entry to religious places of worship. The ongoing protests and movements taking place across the country have culminated these concerns to a great extent and as a result of which there are numerous petitions being filed raising their contentions in this regard.  The need of the hour is to listen to the suppressed voices of the women and provide for their upliftment. Hence, the courts are trying to uphold the rights of women so as to provide them equality and freedom of religion there by striking down and doing away with the restrictions imposed on them.

The present paper provides one such analysis of the Sabarimala temple entry case, thereby throwing light on the various interpretations to it and principles advocated in the case for banning entry of women in the temple. It also projects and incorporates the constitutionality embedded in the Article 25 and Article 26.

Keywords: Article 26, Religious Denomination, Sabarimala, Constitutionality, Discrimination.


India is a secular country provided under the Indian Constitution and does not possess any state religion. We all know that religion has somehow direct or indirect impact on our lives. And India is a country with diverse religions with diverse religious beliefs. The Constitution of India has guaranteed religious freedom as an individual right to all the persons residing in India. The Part III of the Constitution distinctly guarantees fundamental freedom of religion under Article 25[1] and 26. Article 25 guarantees individual right to practice, profess and propagate religion and Article 26[2] guarantees religious denominations or Sections.

Relation between Article 25 and Article 26:

Article 25 guarantees individual rights to the citizens while on the other hand Article 26 guarantees rights to a particular group or Section. Also, the term in Article 25 “to the other provisions of this part” expressly if not impliedly put a limitation in its operation. However, there is no such clause in Article 26 which is only subjected to ‘public order, morality and public health’. It can be concluded from above that Article 26 is not subjected to the provisions of Article 25. The Supreme Court of India in its judgment at Sri Venkataramana Devaru and Ors. v. The State of Mysore & Ors[3] declared that Article 25(2)[4] have a wider scope of application and Article 26 must capitulate to the restrictions enumerated in Article 25 in such a way that the right granted under Article 26 does not affect the rights provided in Article 25.

From the relation between Article 25 and Article 26, the simple difference can be sought that is Article 25 does not talk about religious denomination whereas Article 26 guarantees religious denomination. But what has been left aside is that the Constitution does not define ‘religious denomination’. Religious denomination has been a controversial and ambiguous part of the Article 26. In the landmark judgment of the Commissioner Religious Hindu Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[5], denomination has been explained which says that “denomination is a collection of individuals, classed together under the same name; now almost always specifically, specially a religious sect or body having a common faith and organization and designated by a distinctive name.”

Thus it can be inferred from the above case that denomination has three essential elements:

1) Common faith

2) Common Organization

3) Distinctive name; it categorizes as a religious denomination.

So if a community is to be designated as a religious denomination, then they have to contain all these three elements otherwise they will cease to be called as religious denomination. Now tracing back to the history of this Article from where it has been originated, we all know that Indian Constitution is a handpicked of various constitutions of different nations. We need to look from where does this unique Article originated and placed in the constitution.  Article 26 is basically derived from Article 44[6] of the Irish Constitution, 1937. And this Article 44, in turn, was based on Article 114[7] of the Constitution of Poland, 1921. The term “Religious Denomination” in Article 44.1.3[8] set forth some specific denominations like the Presbyterian Church in Ireland, the Methodist Church, and Jewish congregations and so on. Therefore, Article 26 has been adopted from the Irish Constitution. However, there was a change in the Article as put forward by KM Munshi in the Constituent Assembly which inducted the phrase “any Section thereof”. Why this phrase has been included? The reason being that the rights conferred under Article 26 were made available to any “religious denomination or any Section thereof”.

The expression “religious denomination” is considered to be of Judeo-Christian origin and used in the context of denominations that practices in Christianity. If we take the context of Hinduism, we will not encounter any kind of sub-divisions of this religion into distinct components, it is a true notion of religious denomination. It often says that Hinduism is a way of life rather being a religion. In Yagnapurushdasji v. Muldas[9], Chief Justice Gajnedragadkar described Hinduism as “the title applied to that form of religion which prevails among the vast majority of the present population of the Indian Empire”. Here it has been depicted that when we look for the Hindu religion, it is totally difficult to define or even describe it properly. As compare to other religions in the world, the Hindu religion does not possess any one particular prophet nor does it worship any one God. It also does not believe in any particular philosophic concept or dogma nor does it follow any one specific set of religious rites or performances. It is concluded that the Hinduism is a way of life and nothing else. Adhering to the above statement “Hindu religion as a way of life”, the followers of this religion cannot be specified as denominations only because of the fact that they serve a common faith and organization or a distinct name.

If we interpret Article 26[10] literally, it can be observed that the Article confines itself to religious denomination. But the rights therein can be extended to religious institutions as well and any Section thereof. The religious institutions are entitled to own and acquire movable and immovable property as well and also to other rights mentioned therein. Further, if we look into the scope of Article 26, it can be observed that the term ‘denomination’ can also be used to refer to those members who form a particular or sub-sect of a religion which is recognized by a distinctive name. So the religious denomination has a wider scope and various interpretations can be sought by referring to this Article.


Article 26 of the Indian Constitution enshrines some fundamental rights to the citizens of India with regards to the freedom to manage religious affairs which is subject to public order, morality and health. Thus, it constitutes that every religious denomination or any Section thereof shall have the right to – (a) 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. [11]

The words ‘establish and administer’ must be read conjunctively and therefore, where an institution has been established by a religious denomination, it can claim the right to maintain the same as well.[12] Thus, every religious denomination can maintain its supremacy over the religious institutions only if it has established it. This was questioned in the Azeez Basha case[13], it was held that the Muslims could not claim the right to maintain Aligarh Muslim University as it was established under a statute and not by the Muslim minority.

Further, under the ambit of management of religious matters as given in clause (b) of Article 26[14], it has been stated that the religious denominations or Sections have the right to manage its own affairs in the ‘matters of religions’ which is synonym to ‘religion’ in Article 25(1).[15] In the case of Durgah Committee, Ajmer v. Syed Hussain Ali[16], the religion should treat certain practices as its integral and dominant part so that other purely secular practices, not being essential part of the religion often get coated with a religious form and may claim to be dominant parts of the religion. This can happen vividly in case of religious practices superstitious beliefs which may be unessential for a religion, but claim to constitute integral parts. Thus, the court held that such practice needs to be properly scrutinized.

The state do not hold arbitrary and absolute power concerned with the right to manage religious matters, but can interfere when certain acts that run counter to morality, health and public order, which may be detrimental to public interests at large. Thus, the state can exercise its power for administering the religious institutions but cannot use the assets of the temple or perform such other deeds which may prove beneficial to people of other faiths. Thus, secular practices, economic practices and political practices associated with the religious institution are to be regulated by the state in accordance to the law.

As in the case of Bira Kishore Devi v. State of Orissa[17], the management of the secular activity of the Jagannath temple was taken from the Raja of Puri and was vested to the committee constituted under the Shri Jagannath Temple Act. [18]It was held by the court that the Act was valid as it did not affect the religious integrities and aspects.

The state cannot override religious injunctions that prohibits or restricts certain classes from entering into religious institutions or temples. However, this power is applied to religious institutions or temples of public character founded for the safeguard and benefit for particular Sections of the Hindus.

What constitutes an essential part of religion or religious practice has to be decided by the courts with reference to doctrines and tenets of that particular religion.[19]

Article 26 can be regarded as a complement to Article 25 of the Indian Constitution. The essence of Article 26 lies in safeguarding or dealing with rights of the religious denomination, both majority and minority and not with the rights of individuals.

In accordance with the practice of restricting the entry of outsiders in the Hindu temples during hours when the idol is at rest or to places where the deity is located, the law interfering in such practices can be declared as unconstitutional. Hindu open temples are public places and provide access to all classes and Sections or denominations. This right conferred to the public is not unlimited. In the case of Venkataramana v. State of Mysore,[20] it was held by the Supreme Court in India that no Hindu can claim that the temples should be accessible at all times of the day, nor the individuals themselves would be given the opportunity to perform all the services that the priests perform. Thus the rights enshrined under the Article 26 is also regulated or governed by certain restrictions and limitations.

In the Venkataramana[21]case, there was restriction imposed on the harijans to enter the temples of the Hindus. The Madras Temple Entry Authorization Act, 1947 [22]was enacted and the Government passed an order contending that the act could only be applied to a temple belonging to the Godwa Saraswati Brahmin Community. As a consequence, the trustees of the temple filed a suit opining that the decision as to who is entitled to take part in the worship is a matter of religion and as such providing access to all communities would violate their right. The Supreme Court held that the practices considered by the community as a part of their religion also constitutes matters of religion. Thus, a balance needs to be created between religious liberty of individuals and the social control in order to make the society harmonize and establish stability.

There is freedom provided to practice any religion or conduct any religious acts subject to the provisions of law so that it does not, in any manner, run counter to public order, morality and health. The essence of Article narrates to curb all immoral acts performed in the name of religious freedom such as gambling, sati system, etc. Also, the benefit of the rights guaranteed should not only be limited to the majority and should be declared to the minority groups as well. These broaden the scope of Article 26 of the Constitution in terms of safeguarding public rights and interests.


Sabarimala is one of the most renowned and famous pilgrimage temples for the Hindus situated at the Periyar Tiger Reserve at Pathanamthitta district of Kerela. Lord Ayyappa is considered to be the presiding deity there, who was considered to be born out of a union between Lord Shiva and the mythical Mohini, which is also believed as an avatar of Lord Vishnu. The issue arises there as it prohibits women of age 10-50 years from entering the temple.  This was first challenged in 1991 before the Kerela High Court in the case of S Mahendran v The Secretary, Travancore [23]where the court held that the ban was constitutional and justified on the ground that it was a long-decade custom prevailing since time immemorial. Again in 2006, Indian Young Lawyers Association come up with the same issue before the Supreme Court filing a PIL challenging the custom of excluding women from the temple premises. Their prime contention was that the custom of banning women entry clearly violates the right to equality under Article 14 along with freedom of religion under Article 25. Thereafter, the matter was referred to a three-judge bench on 7th March 2008 and it appeared for hearing seven years later i.e. on 11th January 2016. The case was further referred to Constitution Bench on 20th February 2017. [24]The entire case can be well interpreted with five major issues:

(1) Whether exclusion of women from entering the Sabarimala temple which is based on biological factors leads to “discrimination”, and thereby violates Article 14, 15 and 17 of the Constitution?

(2) Whether Sabarimala Temple can be designated as a separate religious denomination?

(3) Is exclusion of women from entering the Sabarimala temple premises amounts to an essential part of religion?

(4) Is Lord Ayyappa, the presiding deity of Sabarimala Temple is protected by ‘morality’ as used in Article 25 and 26 of the Constitution which guarantees freedom of religion?

(5) Is the rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules unconstitutional?

 VIOLATION OF ARTICLE 14, 15 and 17:

“The horizontal rule of fundamental rights is in no manner separate and is rather an interdependent chain forming a part of the Indian Constitution.”  

Article 14[25] provides for the equality before law which states that “everyone is equal before law and everyone is equally protected by law within the territory of India.” The prohibition of women of menstrual age clearly violates Article 14 as the Supreme Court also observed that the right of women to pray is equal to the right of a man. Further, Article 15[26] puts a prohibition on any kind of discrimination ranging from caste, race, sex, place of birth. Exclusion of women based on her sex is a clear discrimination of gender which directly violates Article 15 of the Constitution along with Article 17[27] which abolished untouchability. Banning women of menstrual age from entering the temple premises shows the ideology of purity and pollution as women of menstrual age is considered to be impure and polluted which is a clear violation of the constitutional right against untouchability. Why there exists a belief of exclusion of women of menstrual age? Is it simply because of the reason that Lord Ayyappa practice celibacy? Through observation, it can be seen that women are banned because of the orthodox Hindu texts.

The stigma on women of being associated by the impure elements in the period of menstruation leaves a huge psychological trauma on the part of the feminine gender and poses a great hindrance to the continuous flow of living. The practice of the women being ostracized by the society as a whole, including their family members seems to largely violate Article 15(1)[28] of the Constitution.

The practiced customs that constitute a derogatory notion about women being impure and thus, then making them a victim of outcast to the society leads on to the violation of the principles of gender justice as well as equality enshrined in the Article 14 and Article 15.

A main point of content is that the state should refrain from all such activities relating to customs, traditions or religious considerations and perform their obligation of enabling every person to enjoy their rights. As in the case of Shayara Bano v. Union of India[29] , it has been laid down that a codified custom should be deemed unconstitutional on the ground of manifest arbitrariness.

Banning the women of the age who menstruates constituted to attributing the trait of weakness to women thereby posing an outcast to their dignity. The prohibition, as in the opinion of J. Chandrachud is inconsistent with the Articles thus mentioned and hence should be struck down. On the other hand, J. Malhotra upheld constitutional validity of the prohibition. She opined that unless and until a practice is regarded as a social evil, it cannot be struck down and hence should not be interfered with. She believed that the imposed restriction was practical way of achieving the objective. She also pointed out that the courts do not have the authority to determine the validity of religious beliefs. It can be inferred that giving such monopoly to the religious authorities might lead to misuse of power by them.

As in case of Article 17[30], which deals with the “abolishment of untouchability”, it has been seen that this right is also violated as the case necessarily deals with the aspect of women’s purity and impurity during the menstrual cycle. The essence of Article 17 is related to the pollution and impurity associated with the caste system, and the outlook of menstruating women runs parallel to the same notion, thus proving violation of Article 17.

But, opinions contradict and dissenting views point out that the ambit and scope of Article 17 does not imply to women in particular. Hence, the clear dimensions need to be sorted in order to declare the judgment unconstitutional and inappropriate in a situation which lacks in precedents and statutes regarding the same.


The struck down of the decade long tradition by the Constitution Bench which put a ban on women entry in the Sabarimala temple of Lord Ayyappa as it violates the fundamental rights of women guaranteed by the Constitution. A question has been raised by the court that whether the followers of Lord Ayappa formed a separate religious denomination where they held that the devotees of Ayyappa do not constitute a separate religious denomination. The only dissenting judge was Justice Indu Malhotra, who was of the view that Ayyappa devotees do form a separate denomination.

To constitute a religious denomination, the judges have put forward three conditions which is required to be met; (1) it must comprise of persons who have a common faith, common organization and recognized by a distinct name. J Chandrachud added one more condition to it that has been emerged from the narratives of judicial precedents i.e. a common set of religious tenets. He also stated that “Religion is what binds a religious denomination. A religious denomination is not the resultant of a caste, community and social status. [31]Adhering to the three folded test, the first condition was not fulfilled as required. The judges held that the devotees from all religions who worship the temple do not necessarily be a part of that religion. Devotees from other religion also worship the temple without ceasing to be a part of that religion. They put the example of Hindus who worship Ayyappa as a part of the Hindu religious practices and not as separate denomination.[32] Also there is no religious tenant notable to Ayyappa devotees. Moreover, it is seen that since the exclusion of women had not been consistently followed, therefore the exclusion of women cannot be considered as their common religious belief.  However, J Malhotra had a dissenting view regarding this; she held that the following of a 41 day ‘Vratham’ and exclusion of women between 10-50 years can be considered as an identifiable customs and usages, which are originated on the common faith of the deity being a ‘Naisthik Bhramachari’. Thus it fulfilled the first condition.[33]

The Court also reasoned that since persons of all religious beliefs visit the Dargah considering as a place of pilgrimage does not amount to constitute a religious denomination.[34] He also stated that “religion was not the basis of a collective of devotees’ and one could not be designated as a religious denomination without having a religious identity.”[35]Further, the judges also observed that the second and third condition was not fulfilled as well. They held that since there is no specific group called as Ayyappans (as claimed by respondents), the temple is devoted to the general public and represents the plural character of the society as everyone can worship at the temple irrespective of their religious belief.[36] So there is no common organization of worshippers and along with it, the third condition failed as there is no distinguished name for the worshippers. [37] While throughout the fulfilling of the test, J Malhotra had a contradicting view as she defended the second and third condition along with the first one. She held that as the temple owned enormous properties, which were taken over by the state owing to the obligation of paying indemnities and also it was maintained by the Travancore Devaswom Board. She also stated that there are distinctive names for the devotees of Lord Ayyappa such as the male devotees are called as ‘Ayyappans’, female devotees below 10 and above 50 as ‘Mallikapurnams’, and collectively they are called as ‘Ayyappaswamis’ who follow the Ayyappan Dharma.


In order to arrive at a conclusion as to whether the practice of exclusion of women of a particular age is an essential part of the religion and thus has to be protected under Article 25 of the Constitution, the “essential religious practice test” has been used for a long. This test does not originate from the Constitution as Article 25 only deals with the limitations relating to public order, morality and health, and other fundamental rights.[38] This test has been incorporated by the Supreme Court which is sharply based on Dr. B.R. Ambedkar’s speech in the Constituent Assembly debates.[39] While arriving at the conclusion, Hon’ble Chief Justice Dipak Mishra sharply relied on two terms i.e., ‘proximate evolution’ and a ‘continuity in practice’ which is in question as a test. Misra J brought the second Ananda Margi case[40] to state that the practice of exclusion was never a continued existence and started only after the subordinate legislation has been enacted. The respondents had put on argument while supporting the ban on entry that until the enactment of the rules regarding the ban, it was loosely enforced. From this argument, Misra J concluded that the ban on entry is an ‘alterable part or practice’ and it does not form the core part of the religion from where the religion is founded upon. Adding to this, he also pointed out that the practice is not based on any scripture for claiming the right and thus the status of “essential practice” has been denied relying on the finding that it does not have the ‘unhindered continuity’.[41]

Further, Nariman J. observed that the ban on entry of women as essential practice is irrelevant and also unnecessary augmentation cannot be considered as essential part of religion. He opined that “The Court should take a common-sense view and be actuated by considerations of practical necessity.”[42]Through this he pointed out that the practice of exclusion of women is not practically necessary and therefore can be struck down as the ban on entry is unconstitutional under Article 25(1). [43] He  also hold that the fundamental rights claimed by the worshippers of the institution which is based on custom and usage under Article 25(1)[44], must capitulate to the fundamental right of such women, as they are also equally entitled to the right to practice religion.[45] Chandrachud J. has observed that the practice is predetermined upon the physiology of women which can be considered to be a disability imposed upon them and therefore the Constitution seeks to prevent in its various forms. He also raised a basic question as to “whether the recognition of rights that has been inherited in religious denominations can impact upon the fundamental values of dignity, liberty and equality which constitute the soul of the Constitution.”[46] And the dissenting judgment delivered by Indu Malhotra J. by observing that the court is not authorized to determine the rationality of the religious beliefs or practices, except in the case ‘if they are pernicious, oppressive, or a social evil, like Sati’ rejected the intervention of the court under Article 25(2)(b) .[47]

After viewing all the incentives of the judges, it is observed that the exclusion of women is not an essential part of the religion and is clearly violate the fundamental rights of the women. But in my opinion, the essential practices test is somehow arbitrary in nature and the Court has adopted without any references to any legislation. The exclusion of women is not an essential practice of religion but merely the consequences arises of an essential practice of the Hindu religion which is basically the right of the institution to determine who are entitled to enter into the temple and how the worship is to be conducted.  And if the institution does not have the right to regulate who are permitted to enter their premises then that is contrary to the observations made in the Sri Venkataramana Devaru Case.[48] Also if the “essential practice of religion test” has to be applied to each practice and at a temple level then the Courts will be burdened with litigation and will have to deal with the customs and practices of the temples/deities at a individual level which is ideally not considered to be the function of the courts.


A five judge constitution bench headed by J Dipak Misra was put forward an issue where it has been asked about the protection of Lord Ayyappa’s morality under Article 25 and 26 of the Constitution. It has been argued before the court that Lord Ayyappa is characterized as ‘Naishtika Brahmachari’ (eternal celibate) is protected by the Constitution. People who are coming to the temple shouldn’t be in company with young women. The reason behind it is that whoever is coming to the temple must not simply follow the celibacy but it must also appear to follow. Further, it has been argued that Article 25(2)[49] which throws an open way for all classes and Sections of society to access public Hindu religious institutions, which can be applied only to social reforms and cannot be applied in matters of religion provided under Article 26(b) [50]of the Constitution.  While the bench asked “What will happen, if the state makes a law to bring about social reforms and allow the entry of women in the temple?” It has been argued that the unique character of the deity has to be put on consideration while deciding the constitutional validity of a practice which is followed from decades. A special focus has been traced to Article 15(2) [51]of the Constitution, where there is no mentioning of public temples.  The court is required to listen to the voices of the both of the activist and the ones who are trying to protect their traditions. It has been put forwarded that the very character of the religious institution would be irreparably altered by abolishing the practice and would directly violate the rights of the devotees under Article 25(1). [52]

The morality that has been incorporated in Article 25 and 26 of the Constitution is subject to public morality. The practice of excluding women is against the public morality and a clear violation of the constitutional rights of the women. The Court already held at the starting that the matter will be decided according to constitutional ethos rather than any state legislation. Further, if something has to be an essential religious practice then it must be originated with the religion but exclusion of women is not something which has been in practice since the time immemorial. Therefore, it’s not an essential religious practice. Also, if we look at the definition of celibacy, it has been stated that “It is a voluntary choice to stay unmarried or engage in any form of sexual activity, usually in order to fulfill a religious vow”.[53] If Lord Ayyappa is a celibate and therefore to preserve his sanctity women of 10-50 years of age are being prohibited from entering the temple, then what about the male devotees? Do all the male devotees who go there to worship practice celibacy? If that is not the case, then why women are being prohibited from worshipping there? Don’t you go to Church where the sisters practice celibacy? Are we being prohibited from entering there? Celibacy is the state where you stay unmarried and dejected from any form of sexual relations rather excluding women to maintain celibacy? Not only men practice celibacy, women too practice it.  So there is no question of morality of the deity which is to be protected by the Constitution rather protecting the constitutional morality by striking down the discriminative tradition of exclusion of women.


Delving towards Section 3[54] of the Kerala Hindu Place of Public Worship (Authorization of Entry) Act,1965[55], which states that “places of public worship which are open to Hindus shall be open to all Sections and classes of Hindus.” Further, Section 4[56] of the act which confers the power to the state to make regulation for the particular temple with the authority which is in charge of a public places i.e. in this case, the Sabarimala’s temple authority. A proviso has also been stipulated stating “no regulation made under this Section shall discriminate against any Hindu for belonging to a particular class or Section.” Now, the state legislature has made a rule i.e. rule 3(b) [57]under Section 4 which states that women are not allowed to offer worship in any public worshipping place at such a time which they are being prohibited by custom and usage. This rule has been struck down by the judges considering it to be ultra vires and unconstitutional in nature.  J Misra and J Chandrachud referred to Section 2(a)[58] and 2(c)[59] of the said act which defines ‘Hindu’ and ‘Section or classes’ respectively to examine who all comes under the purview of this act. They observed that women come under the said act as they form a ‘Section or class’ as incorporated in this act. J Chandrachud also added that the long title of the act glorify the fundamental objective of bringing social reform in the society and do away with all forms of exclusionary practices practiced in Hindu temples in Kerala. Thus, they held that the act was applicable to women and was intended for their benefit.

The act is not unconstitutional rather the Rule 3(b) which justifies the prohibition on entry of women is unconstitutional.  J Misra observed that if any statute is delegating the rule making power to an authority, then the aforesaid power has to be exercised within the ambit of the statute. J Chandrachud adding to J Misra further opined that Rule3(b) was in direct contravention to the proviso of Section 4[60] as it discriminated against a particular class or Section of Hindus which is prohibited under the aforesaid Section.  Also J. Nariman referred to Article 25 which confers freedom of conscience and right to enter the temple and worship their deity is being violated by the exclusion practice of Sabarimala. Only Malhotra had a dissenting view who concluded that as Sabarimala temple constitutes a religious denomination, so the temple was covered by the exception put on Section 3[61] and therefore Rule 3(b) [62]was not ultra vires of the act.


The analysis and interpretation as has been duly submitted deeply aggravates the fact of the idea of religion getting narrowed down to its very core. The purity and chastity attached with the institution of religion has started losing its grounds due to the unbridled judicial intervention and the significant roles of the legal institutions, in the action of curbing discrimination and bringing out enlightenment of social justice. The Sabarimala case that has been vividly discussed has a variegated approach altogether. It is a golden opportunity for the Supreme Court which strengthens the issue of gender equality in India and focuses on providing a better and a more firm ground to the apex courts in order to establish a base which would lead to effective horizontal application of fundamental rights to all the citizens thereby upholding the integrity and value of such rights as provided by the Indian Constitution.

In conformity to the lights of various versions that has been held in this judgment, the different approaches has rendered a broader view for the representation of the Article 25 and Article 26 of the Constitution whereby there has been major reliance on incorporating the constitutional morality in one aspect and holding on to safeguard the fundamental rights as the other aspect with the thought of showing gender neutrality. The case thus takes into account the issue of upholding the rights and respect of the feminine gender by accepting and breaking down certain obstacles coming midway, thereby setting up a strong and firm platform for women in society. It well defines the scope of the essential components that comes within the ambit of the various articles of the Constitution along with their order of interpretation and clarifies their jurisprudences.


  • Neha Chauhan, Religious Conversion and Freedom of Religion in India: Debates and Dilemmas, ILI Law Review, Vol.I, Summer Issue 2017.
  • Faizan Mustafa & Jagteshwar Singh Sohi, Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy, BYU Law Review, Volume 2017, Article 9, Issue 4.
  • Rashi Sharma, Religious Denomination under the Indian Constitution, I pleaders (Accessed on 15th December 2018, 8:30 PM),
  • Arvind P Datar, The Irish Origins of “religious denomination” in Article 26, Bar and Bench, (Accessed on 10th December 2018, 9:45 PM),
  • Supreme Court Judgment, Indian Young Lawyers Association and Ors. v. State of Kerala and Ors.,
  • Robert Longley, Understanding Celibacy, ThoughtCo., (25th December 2018, 9:00 PM), 
  • Debayan Roy, Sabarimala Case in Supreme Court: From Key Issues to Kerela Govt’s Stand, Here’s All You Need To Know,, (7th December 2018, 9:15 PM).

[1] Indian Const. Article 25: provided freedom to profess, practice and propagate religion.

(1) All persons are equally entitled to profess, practice and propagate religion and according to their own conscience subject to public order, morality and health;

(2) Nothing in this article shall affect in the operation of any existing law or prevent the state from implementing or making any law;

(a) regulating or restricting any economic, financial, political or any secular activity which may be in some way associated with religious practice;

(b) Providing for social welfare and reform along with the keeping open of the Hindu religious institutions which is of a public character to all classes and Sections of Hindus.

[2] Indian Const. Article 26: provided the freedom to manage religious affairs subject to public order, morality and health and every religious denomination or any Section thereof shall possess the right

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own religious  affairs;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in adherence to law.

[3]Sri Venkataramana Devaru andOrs. v. The State of Mysore & Ors; 1958 AIR 255.

[4] Supra Note. 1, Art.25.

[5] Commissioner Religious Hindu Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt; 1954 AIR 282, 1954 SCR 1005.

[6] Irish Constitution, 1937, Article 44: provided rights for freedom of religion.

1. (1) the state acknowledges public worship and directs to respect and honour religion.

     (2)Recognition of the special position holds by the Holy Catholic Apostolic and Roman Church as the guardian of the faith as professed by the majority of the citizens.

     (3) Recognized all the communities as religious denomination which exists in Ireland at the date of the coming into operation of this Constitution.

2.  (1) provided freedom of conscience and to profess, practice and propagate religion which is subject to public order and morality subject to every citizen.

     (2) The State guarantees not to endow any religion.

      (3) The State is barred from imposing any kind of disabilities or any discrimination on the ground of religious profession, belief or status.

      (4) State aid for schools shall not be discriminatory on the grounds of different religious denomination and also not to affect the right of any child prejudicially to attend a school receiving public money without attending religious instruction at that school.

      (5) Every religious denomination has the right to manage its own religious affairs, own, acquire and administer property, whether movable or immovable, and maintain institutions for religious or charitable purposes.

      (6) the property of any religious denomination or any educational institution shall be subjected to public utility and by paying compensation.

[7] Constitution of Poland, 1921, Article 114: Among all the enfranchised religions, The Roman Catholic religion, being the religion of the preponderant majority of the nation, occupies in the state the supreme position. The Roman Catholic Church is governed by its own laws. The relationship between the state and the church will be determined according to an agreement with the Apostolic See, which is subject to ratification by the Seym.

[8] Supra Note. 6, Art. 44.

[9] Yagnapurushdasji v. Muldas , (1959) 61 BOMLR 1016.

[10] Supra Note.2., Art.26.

[11] Supra Note. 2,Art. 26.

[12] Justice Ruma Pal and Samaraditya Pal, M P Jain Indian Constitutional Law (Lexis Nexis Butterworths Wadhwa, Nagpur, 6th edn., Rev. 2010) at p. 1327.

[13] Azeez Basha v. Union of India, AIR 1968 SC 662.

[14] Supra Note. 2, Art. 26.

[15] Supra Note.1, Art. 25.

[16] Durgah Committee, Ajmer v. Syed Hussain Ali , AIR 1961 SC 1402.

[17] Bira Kishore Devi v. State of Orissa, AIR 1964 SC 1501.

[18] Shri Jaganath Temple Act, 1954, Act No.11, Govt. of Odisha. (India)

[19] Mohd. Hanif Quraeshi v. State of Bihar, AIR 1958 SC 731; Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853; Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, AIR 2004 SC 2984.

[20] Venkataramana v. State of Mysore, A.I.R. 1958 S.C. 255. 

[21] Supra Note.19, Venkataramana.

[22] Madras Temple Entry Authorization Act, 1947, Act No.5, Tamil Nadu. (India).

[23] S Mahendran v The Secretary, Travancore, AIR 1993 Ker 42.

[24] Debayan Roy, Sabarimala Case in Supreme Court: From Key Issues to Kerela Govt’s Stand, Here’s All You Need To Know,, (7th December 2018, 9:15 PM),

[25] Indian Const., Art.14.

[26] Indian Const., Art.15.

[27] Indian Const., Art.17.

[28] Indian Const., Art.15.

[29] Shayara Bano v. Union of India, (2017) 9 SCC 1.

[30] Indian Const., Art.17: Abolition of untouchability.

[31] Para 63, J. Chandrachud, Supreme Court Judgment.

[32] Para 26, J. Nariman, Supreme Court Judgment.

[33] Para 12.9,ii, J. Malhotra,  Supreme Court Judgment.

[34] Para 26, J. Chandrachud, Supreme Court Judgment.

[35] Para 69, J. Chandrachud, Supreme Court Judgment.

[36] Para 94, Para 69, Supreme Court Judgment.

[37] Para 27, Supreme Court Judgment.

[38] Supra Note.1., Art.25.

[39] Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 SC 282 : 1954 SCR 1005.

[40] The Commissioner of Police & Ors v. Acharya Jagdishwarananda, in this case, The Supreme Court restored the fact that taking out a Tandava dance in public carrying a trident, a skull, a knife and a live snake is not an essential part of the Ananda Margi faith and thus police could impose reasonable restrictions on such processions. The Court also held that the essential part of a religion means the core beliefs through which a religion is founded and the practices that are considered fundamental to follow a religious belief. The superstructure of religion is built upon the foundation of essential parts of practices without which, a religion will be no religion. [AIR 1991 Cal 263].

[41] Para 124, J. Misra, Supreme Court Judgment.

[42] Para 21.6, J. Nariman, Supreme Court Judgment.

[43] Supra Note.1., Art.25.

[44] Supra Note.1., Art.25.

[45] Para 28, J. Nariman, Supreme Court Judgment.

[46] Para 109, J. Chandrachud, Supreme Court Judgment.

[47] Paragraph 8.2, J. Malhotra, Supreme Court Judgment.

[48] Sri Venkataramana Devaru v. State of Mysore; AIR 1958 SC 255: 1958 SCR 895.

[49] Supra Note.1., Art.25.

[50] Supra Note.2., Art.26.

[51] Indian Const., Art.15.

[52] Supra Note.1., Art.25.

[53] Robert Longley, Understanding Celibacy, ThoughtCo., (25th December 2018, 9:00 PM), 

[54] Hindu Places of Public Worship (Authorization of Entry) Act, 1965, Section 3: (Places of public worship to be open to all sections 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 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 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.

[55] Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965, Kerala (India).

[56] Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965, 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.

[57] Kerala Hindu Places of Public Worship (Authorization of entry) Rules, 1965, Rule 3: The below mentioned classes of persons 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 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.

(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.

(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.

(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 of begging.

[58] Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965, Section.2 (a): “Hindu” includes a person professing the Buddhist, Sikh or Jaina religion.

[59] Hindu Places of Public Worship (Authorization of Entry) Act, 1965, Section.2 (c): “section or class” includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever.”

[60] Supra Note.54., Section.4.

[61] Supra Note.53., Section.3.

[62] Supra Note.56., Rule 3(b).