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.
Article 26, Religious Denomination, Sabarimala, Constitutionality,
RELIGIOUS DENOMINATION UNDER THE
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
and 26. Article 25 guarantees individual right to practice, profess and
propagate religion and Article 26 guarantees
religious denominations or Sections.
Relation between Article 25 and
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
declared that Article 25(2) 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.
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,
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
it can be inferred from the above case that denomination has three essential
Distinctive name; it categorizes as a religious denomination.
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
the Irish Constitution, 1937. And this Article 44, in turn, was based on
of the Constitution of Poland, 1921. The term “Religious Denomination” in Article 44.1.3 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”.
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,
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.
we interpret Article 26
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.
MAINTENANCE OF RELIGIOUS ISSUES
UNDER ARTICLE 26
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.
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
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,
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,
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).
In the case of Durgah Committee, Ajmer v. Syed Hussain Ali,
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
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, 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. It was held by the court
that the Act was valid as it did not affect the religious integrities and
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.
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
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
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, 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.
the Venkataramanacase, there was restriction imposed on
the harijans to enter the temples of the Hindus. The Madras Temple Entry
Authorization Act, 1947 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.
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.
ANALYSIS OF THE SABARIMALA TEMPLE
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 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. The entire case can be well interpreted
with five major issues:
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?
Whether Sabarimala Temple can be
designated as a separate religious denomination?
Is exclusion of women from entering the
Sabarimala temple premises amounts to an essential part of religion?
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?
Is the rule 3(b) of Kerala Hindu Places
of Public Worship (Authorization of Entry) Rules unconstitutional?
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.”
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
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
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.
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)
of the Constitution.
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.
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 ,
it has been laid down that a codified custom should be deemed unconstitutional
on the ground of manifest arbitrariness.
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.
in case of Article 17,
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.
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
CONSIDERATION AS A SEPARATE
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
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. 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
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.
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
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.”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. 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. 
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.
ESSENTIAL RELIGIOUS PRACTICE:
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
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.
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
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
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
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). 
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),
must capitulate to the fundamental right of such women, as they are also
equally entitled to the right to practice religion.
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.”
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) .
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.
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.
IS LORD AYYAPPA PROTECTED BY
“MORALITY” UNDER ARTICLE 25 AND 26 OF THE CONSTITUTION:
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
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
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) 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). 
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”.
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.
CONSTITUTIONALITY OF THE RULE 3(B)
OF THE KERELA HINDU PLACES OF PUBLIC WORSHIP (AUTHORIZATION OF ENTRY) RULES:
towards Section 3
of the Kerala Hindu Place of Public Worship (Authorization of Entry) Act,1965,
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
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) 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)
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.
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
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
and therefore Rule 3(b) was
not ultra vires of the act.
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.
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
- 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), https://blog.ipleaders.in/religious-denominations-indian-constitution/.
- Arvind P Datar, The Irish Origins of “religious denomination” in Article 26, Bar
and Bench, (Accessed on 10th December 2018, 9:45 PM), https://barandbench.com/irish-origins-religious-denomination-article-26-arvind-datar/.
- Supreme Court Judgment, Indian Young Lawyers Association and Ors. v.
State of Kerala and Ors., https://www.sci.gov.in/supremecourt/2006/18956/18956_2006_Judgement_28-Sep-2018.pdf.
Longley, Understanding Celibacy,
ThoughtCo., (25th December 2018, 9:00 PM), https://www.thoughtco.com/celibacy-abstinence-chastity-difference-4156422.
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).
 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
(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.
 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
(d) to administer such property in adherence to law.
Venkataramana Devaru andOrs. v. The State of Mysore & Ors; 1958 AIR 255.
 Supra Note. 1, Art.25.
 Commissioner Religious Hindu Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt; 1954 AIR 282, 1954 SCR 1005.
 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
(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.
 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
 Supra Note. 6, Art. 44.
 Yagnapurushdasji v. Muldas , (1959) 61 BOMLR 1016.
 Supra Note.2., Art.26.
 Supra Note. 2,Art. 26.
 Justice Ruma Pal and Samaraditya
Pal, M P Jain Indian Constitutional Law (Lexis Nexis Butterworths
Wadhwa, Nagpur, 6th edn., Rev. 2010) at p. 1327.
 Azeez Basha v. Union of India,
AIR 1968 SC 662.
Supra Note. 2,
 Supra Note.1, Art. 25.
 Durgah Committee, Ajmer v.
Syed Hussain Ali , AIR 1961 SC 1402.
 Bira Kishore Devi v. State of Orissa, AIR 1964 SC 1501.
 Shri Jaganath Temple Act, 1954,
Act No.11, Govt. of Odisha. (India)
 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.
 Venkataramana v. State of Mysore, A.I.R. 1958 S.C. 255.
 Supra Note.19, Venkataramana.
 Madras Temple Entry
Authorization Act, 1947, Act No.5, Tamil Nadu. (India).
 S Mahendran v The Secretary, Travancore, AIR 1993 Ker 42.
 Debayan Roy, Sabarimala Case in Supreme Court: From Key
Issues to Kerela Govt’s Stand, Here’s All You Need To Know, News18.com,
(7th December 2018, 9:15 PM),
 Indian Const., Art.14.
 Indian Const., Art.15.
 Indian Const., Art.17.
 Indian Const., Art.15.
 Shayara Bano v. Union of India, (2017) 9 SCC 1.
 Indian Const., Art.17: Abolition of untouchability.
 Para 63, J. Chandrachud, Supreme
 Para 26, J. Nariman, Supreme
 Para 12.9,ii, J. Malhotra, Supreme Court Judgment.
 Para 26, J. Chandrachud, Supreme
 Para 69, J. Chandrachud, Supreme
 Para 94, Para 69, Supreme Court
 Para 27, Supreme Court Judgment.
 Supra Note.1., Art.25.
 Commr., Hindu Religious Endowments v. Sri
Lakshmindra Thirtha Swamiar of Shirur Mutt, AIR 1954 SC 282 : 1954 SCR
 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].
 Para 124, J. Misra, Supreme
 Para 21.6, J. Nariman, Supreme
 Supra Note.1., Art.25.
 Supra Note.1., Art.25.
 Para 28, J. Nariman, Supreme
 Para 109, J. Chandrachud, Supreme
 Paragraph 8.2, J. Malhotra, Supreme
 Sri Venkataramana Devaru v. State of Mysore; AIR 1958 SC 255: 1958
 Supra Note.1., Art.25.
 Supra Note.2., Art.26.
 Indian Const., Art.15.
 Supra Note.1., Art.25.
 Robert Longley, Understanding Celibacy, ThoughtCo., (25th
December 2018, 9:00 PM),
 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.
 Kerala Hindu Places of Public
Worship (Authorization of Entry) Act, 1965, Kerala (India).
 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
 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
(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.
 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.
 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
 Supra Note.54., Section.4.
 Supra Note.53., Section.3.
 Supra Note.56., Rule 3(b).