I ask no favours for my sex. All I ask of our brethren is that they take their
feet off our necks:
~ Ruth Bader Ginsburg
One of the fundamental rights guaranteed by the Constitution also includes the
Right to Freedom of Religion. India is a secular nation and therefore every
citizen residing within the territory of India has the right to follow the
religion they believe in. India, most popularly acknowledged as the land of
spiritual beliefs, philosophical thinking and culture. 'Religion' is a matter of
choice, perception and belief. India is absolutely neutral, unbiased and
impartial when it comes to exercising one's religious beliefs.
ensures that no citizen is deprived of this right to profess the religion of his
choice peacefully within the Indian territory. Our Constitution has high regard
and gives utmost importance to the concept of secularism. Secularism has great
significance and also enjoys dignified recognition in the eyes of law. The 42nd
Amendment,1976 inserted the word 'Secular' in the Preamble. According to Thomas
Jefferson - "The Constitutional freedom of religion is the most inalienable and
sacred of all human rights."
The Sabarimala temple restricted menstruating women between the age of 10 and 50
years from entering into the temple. The restrictions and its sources are based
on the fact that the temple deity, Swami Ayyappa, is a Naisthik Bhramachari
(celibate) and therefore, an epitome of purity which should not violated by
menstruating women. Based on this, Rule 3(b) of the Kerala Hindu Places of
Public Worship (Authorization of Entry) Rules, 1965, restricts women by
prohibiting them from entering the Sabarimala temple premises.
In 2018, a Constitution bench in the case of Indian Young Lawyers Association vs
The State of Kerala
, the above practice was challenged and the Court allowed the
entry of women irrespective of age into the Sabarimala Temple on the grounds
that the ban violated the fundamental right of freedom of religion as per
Article 25 of the Constitution. The provision restricting entry of women in the
state legislation was struck down and deemed unconstitutional.
A group of five women lawyers has challenged Rule-3(b) which authorized
restriction on women of a menstruating age. They moved the apex court after the
Kerala High Court upheld the century-old restriction and ruled that only the
'priests' were empowered to decide on traditions. Senior Advocate Indira Jaising,
who represented the petitioners, said that the restrictions were against
Article-14,15 & 17 of the Constitution of India. She argued that the custom is
discriminatory in nature and stigmatized women and then women should be allowed
to pray at the place of their choice.
Impugned legislation and rules
Two notifications issued in 1955 and 1956 under Section-31 of Travancore Cochin
Hindu Religious Institutions Act, 1950. These totally prohibited entry of women
between ages 10-50 into the Sabarimala temple on the ground that it was in
contravention of custom and practice of the temple
Rule 3 (b) of Kerala Hindu Places Worship (Authorization of entry) Rules, 1965
also barred women from offering worship in any place of public worship or entry
into places of public worship, at such time, if they're by custom or usage, not
allowed to enter such place of public worship
Freedom of Religion vs judicial review:
During colonial times, the British largely followed a policy of non-regulation
of personal law", leaving communities" free to manage their own internal
It was argued by the respondents that the Supreme Court is entrenching into the
territory of the clergymen of the respective religions and it is only the
clergymen who should lay down the rules/practices for that religion.
J. D.Y. Chandrachud also was cognisant of the dangers of theological analysis by
The Court, he said, ought not to enter into scriptural or dogmatic
analysis, but should only consider whether a practice amounts to a violation of
a person's fundamental right or not''.
To achieve this, 'Anti Exclusion test'
should be undertaken. Such an approach will allow the courts to respect
religious autonomy while, at the same time, striking down practices that impair
people's access to basic civil rights.
The Indian Judiciary has an inevitable part in clearing lacuna in law relating
to religion. It is very evident that the State can govern only the secular acts
whereas with regard to the religious acts, the Constitution of India provides
protection from the interference of the State in religious matters.
it is the Judiciary which has the right to interfere in the matters of religion
and religious practices. One of the contributions of the Indian Judiciary in
that field is the ERP (Essential Religious Practice) test. The essential
religious practice test means that any religious practices that are so
'essential' to a religion or form the basis of a religion, will fall within the
protection of Article 25 and 26 and should be protected as such.
J. Chandrachud while delivering judgment reminisced the ghost of Narasu (Narasu
Appa Mali vs State of Bombay), in which the Bombay HC held that personal law
is not included in the expression laws in force used in Article 13(1) of the
Constitution. And it also lay that personal law is immune from constitutional
scrutiny. The judgment was heavily criticized and considered bad in law.
B.R. Ambedkar during Constituent Assembly Debates clarified that notwithstanding
the existence of minority and group rights in the Constitution, its basic unit
was the individual; and, more specifically, to remark, during the debates on the
religious freedom clauses: What are we having this liberty for? We are having
this liberty in order to reform our social system, which is so full of
inequities, so full of inequalities, discriminations and other things, which
conflict with our fundamental rights." he Constituent Assembly agreed with Ambedkar when he specifically argued that it wasn't merely the State, but the
social system, i.e., the community, whose actions conflicted with individual
rights and would accordingly have to be reformed"
Analysis of the judgment - Indian Young Lawyers Association vs The State of
(28 September, 2018) -
- CJI Dipak Mishra (for himself and AM Khanwilkar J.):
Delivering the judgment in favour of the petitioners, he supported his judgment
with conventional theories of law. He held that:
Followers of Lord Ayyappa do not constitute a religious denomination as required
under Article 26 of the Constitution: As they don't satisfy the 3 fold criteria,
(as initially laid down in the case of S.P. Mittal vs UOI) i.e. A collection of
individuals having common faith which is peculiar to themselves; A common
organisation and identified by a distinct name.
Morality under Articles 25 and 26 refers to Constitutional morality and not
Public/Social morality.Exclusionary practice violates Art 25 of the women
followers and therefore it is unconstitutional and arbitrary and thus Rule 3 (b)
is also ultra vires of sec 3 of 1965 Act.
CJI Dipak Mishra & J. A.M. Khanwilkar also opined that "Women are not lesser or
inferior to men. Patriarchy of religion cannot be permitted to trump over faith,
biological or physiological reasons cannot be accepted in freedom for faith.
Religion is basically a way of life however certain practices create
incongruities." He also held that the exclusion of women between ages 10-50
years by the Sabarimala Temple cannot be an essential religious practice as the
Ayappans were Hindus.
CJI Dipak Mishra struck down Rule-3(b) of the Kerala Hindu Places of Public
Worship (Authorisation of entry) Rules of 1965. He said that is both a violation
of our Constitution and ultra vires to Section-3 and Section-4 of its Parents
Act. Section-3 & 4 of the act were written with the specific aim of reforming
public hindu places so that they become open to all sections of Hindus. Rule
3(b) achieves the opposite - it allows public Hindu places of worship to exclude
women on the basis of custom. Hence, CJI Mishra concluded that the rule not only
violates the Constitution of India but also stands in conflict with the
intention of the Parent Act.
The Supreme Court is the apex court of our country because it is the highest and
final judiciary tribunal of the country. It is the final interpreter of our
Constitution. Therefore, it will be erroneous to allege that the Supreme Court
adjudicating matters under Article - 25 & 26 entrenches into the territory so
called 'reserved' for the respective clergymen.
According to the judgement, also the devotees of Lord Ayappa did not pass the
constitutional test to be declared as a Separate Religious Identity. As they are
Hindus who worship Lord Ayappa. Then it was also held that the temple's
denominational right to manage its own internal affairs under Article-26(b) was
subject to the State's social reform mandate under Article-25(2)(b).
Article-25(2)(b) provides that the State can make laws to reform Hindu
denominations. Specifically, Article-25(2)(b) allows the State to make any law
that opens a public Hindu institution to all 'classes and sections' of Hindus.
Justice Mishra interpreted 'classes and sections' to include the gendered
category women. He concluded that the Sabarimala custom of excluding women is
subject to state mandated reform.
- Justice R.F. Nariman:
According to Justice Nariman the exclusion of women from the temple effectively
rendered their right under Article-25 meaningless. He emphasized that
Article-25(1) protects the fundamental right of women between the ages of 10 to
50 years to enter Sabarimala temple and exercise their freedom of worship. He
stated that there was sufficient material to conclude that the exclusion of
women from Sabarimala violated Article-25(1).
He focused on the harmonious Construction of Article 25 (2) (b). It is only the
essential part of religion, as distinguished from secular activities, that is
the subject matter of the fundamental right. Superstitious beliefs which are
extraneous, unnecessary accretions to religion cannot be considered as essential
parts of religion
Morality under Articles 25 and 26 refers to 'Societal morality'. Hindus of all
kinds, Muslims, Christians etc., all visit the temple as worshippers, without,
in any manner, ceasing to be Hindus, Christians or Muslims. So, all those who
worship him do so as part of Hindu religious form of worship, not as
denominational worshippers. Thus his followers can't constitute a religious
denomination under Article-26.
- Justice D.Y. Chandrachud:
Justice D.Y. Chandrachud held that the exclusion of women between the age of
10-50 years by the Sabarimala temple was contrary to constitutional morality and
that subverted the ideals of autonomy, liberty and dignity. He further
emphasized that philosophical characteristics of women, like menstruation, have
no significance or bearing on the entitlement guaranteed to them under our
The menstrual status of a woman cannot be a valid constitutional
basis to deny her dignity and the stigma around the same had no place in a
constitutional order. He further held that Article-17 is a powerful guarantee
against exclusion and cannot be read to exclude women against whom social
exclusion of the worst kind has been practiced and legitimized on notions of
purity and pollution.
He stressed on the fact that Morality under Articles 25 and 26 refers to
Constitutional morality and not Public/Social morality.
He heavily relied on the Anti-Exclusion Test that allows courts to find a just
and fair solution to thorny questions of conflict between liberty and equality,
while maintaining a fidelity to the Constitution's text and history.He stressed
on the fact that this exclusionary practice amounts to untouchability under Art
17. The idea of Purity and pollution that stigmatizes individuals, has no
place in a constitutional order.
Thus, the majority opinion has found that both the notifications as well as Rule
3 (b) violates art 14, 25 (1) and 21 (menstruation as offending to dignity).
Additionally, J. Chandrachud has found violation of Art 17 as well. The
exclusion was not an essential religious practice.
- Justice Indu Malhotra (Dissenting):
It came as a great shock that the only woman judge on the Bench ruled in favour
of the ban on temple entry on the basis of 'Locus' of the petitioners, as they
do not claim to be the devotees of Lord Ayappa. So the petitioners lack legal
Rule 3 (b) is not ultra vires sec 3 of the Act of 1965, because Proviso to sec 3
exempts religious denominations and devotees of lord Ayappa constitutes the same
The Sabarimala case represented not just the hopes of devout women seeking entry
into the temple, but also those who wish a strong, cogent constitutional
precedent be established for the future. The Sabarimala case gave a golden
opportunity to the court to give us a precedent that firmly entrenched
constitutional morality in our political vocabulary and liberated individual
rights from the checking of group rights.
If we go into the jurisprudential aspect, then we can relate this judgement to
Jeremy Bentham' Utilitarianism. Utilitarianism is a theory mainly based on
"greatest happiness to the greatest numbers." Secondly, we can also relate this
to John Stuart's Harm Principle, which states that the only actions that can be
prevented are ones that create harm. In other words, a person can do whatever he
wants as long as his actions do not harm others.
Lastly, we can also relate this
to Sir Henry Maine's Status to Contract Theory. He often quoted that the
"movement of the progressive societies has hitherto been a movement from status
to contract." Status is a fixed condition in which an individual finds himself
without reference to his will and from which he cannot divest himself by his own
efforts. With the progress of civilization this condition gradually gives away
to a social system based on contract.
If I were a dictator, religion and state would be separate. I swear by my
religion. I will die for it. But it is my personal affair. The state has nothing
to do with it. The state would look after your secular welfare, health,
communications, foreign relations, currency and so on, but not your or my
religion. That is everybody's personal concern ~Mahatma Gandhi
Every rapist, murderer, thief or delinquent is allowed to enter a temple, but a
menstruating woman cannot, this is the only crime she has committed.
In the majority opinion in the Sabarimala review plea in case of Kantaru
Rajeevaru vs Indian Young Lawyers Association (14 November, 2019) Chief Justice
of India Ranjan Gogoi suggested three other cases pending in the Supreme Court,
which were, like Sabarimala, be clubbed with Sabarimala when the review plea is
taken up by a larger Bench at a future date.
The 3 cases are regarding entry of
Muslim Women in Durgah/Mosque, Parsi Women married to a non-Parsi in the Agyari
and including the practice of female genital mutilation in Dawoodi Bohra
The judgments like the Sabarimala, Criminalizing Triple Talaq and
decriminalising Sec 377 IPC is reaffirming the faith in the judiciary by the
citizens. The judgment is a bold narrative that the Supreme Court has adopted a
reformist approach and that it does not merely exist to 'cutting the T's and
dotting the I's'.
The Supreme Court acknowledged the 'transformative nature of
the Constitution' and reiterated that it is a living document that will evolve
with the changing needs of the society. It is not a pawn in the games played by
the people sitting in the Parliament, but 'it is a Court of the people; for the
people and by the people'. Thus, on one hand, it is a step forward in women's
rights towards equality with men and on the other it establishes the
predominance of Constitutional morality over customary laws, rituals and
traditions or social morality.
It is hoped that now the focus of the conversations will shift from menstruation
taboos to important issues like menstrual hygiene, more long-lasting sanitary
protection, keeping access open to education, sports, travel, social life and
all other regular activities.
Written by Shashwata Sahu, Advocate
LLM, KIIT School of Law