Sabarimala temple is situated at Sabarimala in Pathanamthitta district, Kerala.
It is a Hindu temple dedicated to Lord Ayyappa and their followers Ayyappan.
This temple is managed and administered by statutory body Travancore Devaswom
Board created under the Travancore-Cochin Hindu Religious Insitution Act, 1950.
In the past women devotees between age of 10 to 50 years were not permitted to
exercise their right to worship in this temple.
This restriction on women is
justified on the ground that Lord Ayyappa is �Naishtik Brahmachari� and for
preservation of character of deity Ayyappa it is necessary. So, as per
notification by Travancore Devaswom Board, women belonging to age of 10 to 50
years are not permitted to enter into the temple. On the other hand, some gender
right activist thinks that this exclusionary practice which is based upon the
biological factor exclusive to the female gender amount to discrimination and
violates various fundamental right guaranteed under Indian Constitution.
Sabarimala Temple row is all about the conflict between tradition and women
rights. As per traditions and customs, women between 10 and 50 years of age were
not allowed to enter into Sabarimala Temple but this restriction is not in
accordance with the constitutional morality. Constitutional morality and
Individual or social morality is different things. In a democratic country like
India, if there is any conflict between constitutional morality and societal
morality, farmer should prevail over later.
Fact of the Case
In 1990, a petition was filed in Kerala High Court seeking a ban on entry of
women inside the Sabarimala temple. The Kerala High Court had upheld the
restriction of women of certain age entry inside the holy shrine of Lord Ayyappa.
In 2006, A petition under Art 32 of Indian Constitution was filed in the Supreme
Court by the registered association of Indian Young Lawyers seeking entry of
women between 10 to 50 years.
In 2008 after two years matter was referred to
three-judge bench. In January 2016 Supreme Court of India raise questions
against such restriction and said that this is not in accordance with
constitutional morality. In April 2016, Kerala government replied that it is
under obligation to protect the right to practice the religion of Sabarimala
devotees. In 2017 Supreme Court of India referred the case to Constitutional
In writ petition it was argued that Rule 3(b) of Kerala Hindu places of public
worship (authorisation of entry) rules, 1965 (hereinafter referred as 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
referred as 1965 Act) is unconstitutional because it violates Articles 14,15,25
and 51A(e) of Indian Constitution.
Arguments of Petitioners
- Whether the exclusionary practice, which is based upon the biological
factor exclusive to the female gender amounts to discrimination and violates
very core of Articles 14,15 and 17 and not protected by morality as used in
Articles 25 and 26 of Indian constitution?
- Whether this exclusionary practice constitutes an essential religious
practice under Art 25 of Indian constitution?
- Whether the Ayappa Temple is Religious denomination under Art 26 of
Indian constitution? If yes then whether such denomination managed and
administered by statutory body and financed under Art 290A of Indian
constitution, is allowed to indulge in such derogatory practices violating
constitutional morality/principles guaranteed under Articles 14,15(3),39(a) and
- Whether Rule 3 of 1965 Rules permits religious denomination to prohibit
entry of women between age of 10 to 50? And if so, would it not against the
Articles 14 and 15(3) of Indian constitution?
- Whether rule 3(b) of Rules of 1965 is ultra vires to Act of 1965? If
consider it as intra vires, whether it will be violative of the provisions of
Part III of constitution?
Arguments of Respondents
- It was argued by the petitioner that exclusionary practice results in
discrimination against women as a class, since the significance section
between the age of 10 to 50 years are prohibited from entry. Petitioner also
trusted on impact test articulated in Bennett Coleman and Co. & Ors. v.Union
of India & Ors. And said that this discrimination is only on the ground of
sex because the biological feature of menstruation emanates from the
characteristics of particular sex.
- Is was also argued that such practice which is solely based on the sex�
violates Art 15(1) and because the Sabarimala temple is a public place so it
also violates Article 15(2)(b).
- It was argued that such exclusionary or customary practice which is
codified in Rule 3(b) of Rules of 1965 and the notification issued by the
statutory body does not in accordance with the tests of Articles 14,15 and
21. This customary practice violates article 14 because the classification
lacks a constitutional object.
- It was also argued that such customary practice is also violates the
individuals right to worship or follow any religion. Petitioner contended
that Act of 1965 passed to achieve the goals enshrined in Art 25(2)(b) as a
measure of social reform and act of 1965 contains no such provision which
prohibit a women of specific age to enter into public temple. But rule 3(b)
of 1965 Rules is ultra vires the act of 1965 insofar as it bars the entry in the
public temple on the basis of sex.
- Rule 3(b) of 1965 rules says that Women at such time during which they
are not by custom and usage allowed to enter a place of worship and it was
the basis of the practice of excluding women of the age group of 10 through
to 50 years. Here petitioner contended that expression at any such time in
rule does not mean total or complete bar or prohibition/exclusion of any
women. Petitioner also contended that any other interpretation of that
expression would result that rule as invalid because any other
interpretation may conflict with the act of 1965 and various fundamental
rights of Indian constitution.
- Petitioner argued that followers of lord Ayyappa do not constitute
�religious denomination� under art 26 of Indian constitution because they don�t
have a common faith or distinct name. Only a slight difference in rituals and
ceremonies does not make them a separate religious denomination.
- Petitioner argued that even if we suppose that devotees or followers of
Lord Ayyappa form a religious denomination, their rights under Art 26(b) should
be subject to Art 25(2)(b).
- Even if devotees of Lord Ayyappa constitute a Religious denomination,
the restriction on the women is not an essential religious practice. That
prohibition on women of specific age can not be considered as core foundation of
assumed religious denominations and any custom or usage to be protected under
Art 26 should have Constitutional legitimacy.
- Petitioner also argued that such practice also violates article 21 of
constitution because it cast a stigma on the women as they are polluted.
- Petitioner also contended that such customary practice also violates
also violates Art 17 which is available against state and non-state, because
prohibiting entrance of women in public place is a direct form of
- Petitioner also contented that temple is managed and administered by a
statutory authority and it receives a financial assistance from the
consolidated fund of India. So it is fall under the term other
authority and therefore under obligation to respect fundamental rights.
- Petitioner argued that right to worship and religion is available to
both men and women equally under constitution, so right of women to enter
into temple as a devotee for worship is protected as fundamental right. This
right could not be diluted by the state for providing social reform or
welfare under Art 25(2)(b).
Findings of the Court
- Respondent contended that the expression throwing open to all classes
and sections of Hindus under article 25(2)(b) shows that there should be no
discrimination of caste basis. That expression cannot be interpreted in
specific manner to overlook the custom which is essential part of religion.
Also, article 25(2)(b) have no importance here because there is no total
ban, but only a limited period restriction based on custom, faith and belief
which has been observed since time immemorial.
- Respondent also argued that girls below the age of 10 year and women
after 50 years can freely enter into temple and exercise their right to
worship so the partial restriction does not amount to social discrimination.
And also, there is no restriction on the entry of women at other temple of
so classification has a reasonable nexus with the object sought to be achieved,
which is to preserve the identity and manifestation of the Lord Ayyappa as a
- Respondent contented that this practice is continued since time
immemorial without any interruption so it becomes usage and custom which is
pre constitutional. And according to art 13(3)
(b) law includes custom or usage.
- Respondent also contended that Art 26 is only subject to public order,
morality and health and not to other provisions of part III, so fundamental
right of religious denomination is not subject to Articles 14 or 15. Rights
to profess, practise and propagate religion of devotees of Lord Ayyappa can be
protected only when the character of deity as a Naishtik Brahmachari is
- It was also contended by the respondent that restriction on the entry of
women is a part of the essential practise of this temple. It is restricted with
the intention to keep away pilgrims from any distraction related to sex.
- Respondent also argues that restriction on entry is not resulted in
derogation, because its only object is to protect the manifestation and form
of deity which is scared and divine.
- Respondent contended that this case contains issues of law and fact both
and fact should be decided by competent civil court, after examination of
documentary and other evidences.
- Responded also argues that devotees of Lord Ayyappa constitute a
religious denomination because they follow Ayyappa Dharma, all the devotees
are called as Ayyappans and all female eligible devotees are called as Malikapurams.
- It was also observed that the devotees of Lord Ayyappa are religious
denomination is already held by the Kerala high court in S. Mahendran v. The
Secretary, Travancore Devaswom Board & Ors. The High Court decided the case
after recording both documentary and oral evidences. This judgement which
decides the status of the temple as a religious denomination is judgment in rem,
this judgment was not challenge by any party. So, it is binding on all parties
- Respondent also said that main object of Art 17 is to prohibit
untouchability based on caste in Hindu religion. No such caste based or
religion-based untouchability is practised at temple.
Dissent opinion of Indu Malhotra, J:
- Court held that art 25 of Indian constitution provide right to religion
to every person irrespective of their gender or sex. Such exclusionary
customary practice violates right of women to visit a public temple to
freely practice Hindu religion and to exibit her devotion towards lord Ayyappa.
- Court also observed that various evidences which are presented in the
court shows that devotees of Lord Ayyappa does not constitute a separate
religious denomination under art 26. For a separate religious denomination
there must be new methodology provided for a religion. But the various practices
of devotees show that it is common in Hindu religion. Mere observance of certain
practices from time immemorial does not make it distinct religion.
- Court made its opinion that, In the absence of scriptural or textual
evidence court denied to accept the exclusionary practice as essential part
of religion. By allowing the women in Sabarimala temple will not resulted in any
alteration or change in the fundamental concept of Hindu religion.
- Court find out that the term morality under Art 25 means constitutional
morality, not societal or individuals� morality. When there is violation of
fundamental right the wrd morality naturally implies constitutional morality.
- Court held that plain reading of rule 3(b) of 1965 rules shows that it
is ultra vires to the sections 3 and 4 of 1965 Act
- According to her devotees of Lord Ayyappa constitute a religious
denomination so they are entitled to be protected under Art 26.
- In this case there is a mix question of Law and fact so this need to be
decided by the competent court of civil jurisdiction. As in writ question of
fact cannot be decided.
- Right to move SC under art 32 for violation of Fundamental right to
worship in temple should be based on a pleading that petitioner�s personal
right to worship have been violated.
- Rule 3(b) is not ultra vires of section 3 of act of 1965, because this
restriction is provided for the benefit of any religious denominations.
- She observed that equality doctrine enshrine under Art 14 does not
override the fundamental right under Art 26. Issue of what constitute an
essential religious practise is for the religious community to decide.
- Follower of Lord Ayyappa constitute a separate religious denomination
because they follow Ayyappa Dharma and they have identifiable set of belief,
customs and usage and code of conduct which is practised by them since time
- She also observed that restriction on the women is partial and it is
essential part of their religion. Any interference with the same would
conflict with their right guaranteed by art 25(1) to worship Lord Ayyappa in
the form of a Naishtik Brahmachari.
There is a sharp distinction between the societal morality/individual morality
and constitutional morality. I case where, there is violation of fundamental
right, we should have to focus on the constitutional morality. Whether any
practise is essential part of the religion or not? It can be found out only
through the documentary evidences. So, as Indu Malhotra j. right observed that
this case involves the mix question of fact and law and question of fact can not
be decided in writ petition hearing.
Question of fact need to be solved by
competent court of civil jurisdiction. There is also lack of documentary
evidences with regard to the question whether devotees of Lord Ayyappa
constitute a religious denomination under art 26 or not? So there are various
lacuna in this judgment, so review petition was filed later and 5 judge bench
(3:2) referred this matter to 7 judge bench.
- The Constitution of India, Art 25
- The Constitution of India, see Articles 25, 26
- 1973 AIR 106, 1973 SCR (2) 757
- The constitution of India, Art 25
- Sri Venkataramana Devaru & Ors. V. State of Mysore & Ors. 1958 AIR 255, 1958
- The Constitution of India, Art 290 A
- Supra, Art 12
- Supra, art 25
- AIR 1993 Ker 42
- Paragraph 12.10 of Justice Indu Malhotra�s Judgement. Pg.53