CASE COMMENT

INDIAN YOUNG LAWYERS ASSOCIATION & ORS

V. STATE OF KERALA & ORS.

(2019) 11 SCC 1
Ms. Nidhi Chauhan

INTRODUCTION

The judgment pronounced by the apex court one year ago in Indian
Young Lawyers Association & Ors v. State of Kerala & Ors.1,
popularly known as the Sabarimala case, is incontestably a ground-
breaking work of the higher judiciary. The ruling lifted the age-old
ban on entry of women belonging to menstruating age group (10- 50
years) in the famous Sabarimala temple of Lord Ayyappa in Kerala,
opining that such prohibition does not only violate the fundamental
right to religion and equality, as guaranteed by the Constitution but
is also highly regressive and derogatory in substance. The
constitutional bench comprising of former Chief Justice, J. Dipak
Mishra, J. A. M. Khanwilkar, J. Chandrachud, J.
R. F. Nariman and J. Indu Malhotra had delivered the judgment on
26th September 2018 with 4:1 majority2 ; with the sole dissenting
opinion coming ironically from the only lady judge on the bench,
J. Indu Malhotra.
There has been a nation-wide uproar after the judgment. While one
section is celebrating this ruling, viewing it as a milestone for

Ms. Nidhi Chauhan is Assistant Professor of Law, School of Law, Bennett
University, Greater Noida
1
Writ Petition (Civil) No. 373 of 2006; pronounced on 28th September 2018
2
With assistance of Mr. Raju Ramachandran and Mr. K. Ramamoorthy as
Amici Curiae

185
186 Bennett Journal of Legal Studies [Vol. I

attaining gender equality in the age-old patriarchal society of India;

there is another section comprising of stern believers of the faith,
who regard this decision as an unwarranted encroachment over
religious freedom and a threat to secular character of the Indian
constitution. Thus, the extent of authority of supreme court on
religious matters has also been extensively debated.
The impact is such that even after one year of the ruling, the order
has not been implemented efficaciously by the state organs due to
absence of equivalent will on the part of people. It is well accepted
that any law3, especially pertaining to the rules of faith, cannot be
successfully implemented merely through transcription, as society’s
great sentimental values and beliefs are attached to it. As on date,
several review petitions are pending before the supreme court 4
urging it to review the order and the fate of the decision is yet to
become final.
BACKGROUND
The issue regarding exclusion of women in Sabarimala temple was
brought before the supreme court in 2006 by an association of
lawyers through a public interest litigation under Article 32 of the
constitution. In recent past, there have been several cases where the
issue of religion-based equality and protection of religious rights has
cropped up before the courts, including the recent pronouncement
of the triple talaq judgment and the ongoing turmoil of the Ayodhya
case.
In such cases, the fundamental challenge before the judiciary is to
resolve the conflict and strike a balance between two fundamental
rights of equality and religion. On one hand, it may be argued that
3
Including law of the land, as declared by supreme court under Articel 141
of the Constitution of India
4
Hearing scheduled for 13 November 2019
2020] Case Comment 187

Article 25 is subject to public order, morality, health and other

fundamental rights (including Article 14-right to equality), thus,
Article 14 should be given preference over Article 25; on the other
hand, it may be argued that in matters of religion, Article 14 cannot
be viewed in isolation and along with the exception of intelligible
differentia, it has to be interpreted in light of the tenets of the
relevant faith. As well, state should have a minimal role to play in
the matter of religion as secularism is a cherished facet and basic
structure of the Indian constitution.
The bench truly delved into the constitutional, legislative, religious
and societal aspect of the issue, holding that biological or
physiological factors of women or notions of impurity associated
with menstruation, cannot and should not be used as a reason to bar
entry in a place of worship. The majority observed that every
devotee, irrespective of gender, shall have an equal right to worship
the Almighty and went further to say that the presence of women in
temple must not be regarded as “impure” especially in a country like
India where women are glorified as goddesses in several forms and
religions.
While such progressive thought process of the supreme court is very
much appreciated and welcomed by the Author (being a woman
herself); it needs to be said that the decision raises certain
fundamental concerns, which needs to be appraised and addressed
by the court (discussed in latter part).
FACTS AND ISSUES
Essentially in this case, the constitutional validity of Rule 3(b) of the
Kerala Hindu Places of Public Worship (Authorisation of Entry)
Rules, 1965 was challenged before the Supreme Court for being
violative of fundamental rights under Articles 14, 15, 17 and 25(1)
of the Constitution. The said rule 3(b) and corresponding
188 Bennett Journal of Legal Studies [Vol. I

notification5 issued thereunder, prohibited entry of women of age

group 10-50 from entering the Sabarimala temple. The central
debate in this case revolved around conflict between right to equality
(Article 14) and right to religion Articles 25 and 26).
It was the case of the Petitioners (Lawyers’ Association) that the said
Rules 3(b) by excluding entry of only women of certain age group,
not only creates unreasonable discrimination against them and falls
foul of Article 14, but also violates their right to worship under
Article 25. Basically, the Petitioners made their case to be one of
gender discrimination, highlighting the patriarchal structure of the
Indian society, with special emphasis on the notions of menstrual
impurity. On the other hand, the Respondents (Temple Board),
claiming to be a distinct religious denomination asserted their rights
under Article 25 and 26 to manage their own affairs, including right
to regulate entry in the temple.
Thus, both Petitioners and Respondents contended violation of
rights under Article 25. While the Petitioner argued that the right to
religion of such class of women is violated as they are not permitted
to enter the temple and worship Lord Ayyappa; the Respondents
argued that their right to religion (and right to manage religious
affairs) will be violated if women’s entry is allowed in the temple
as their faith requires exclusion of such women from the temple on
account of the celibate nature6 of the deity and the core beliefs of the
Ayyappan faith.
Based on these submissions, in order to determine whether Rule 3
should be declared unconstitutional or not, three main issues were
framed and addressed by the court.

5
Dated 21 October 1955 and 27 November 1956 issued by the Devaswom
Board
6
Sthal Purana of the Temple, known as the ‘Bhuthanatha Geetha’.
2020] Case Comment 189

Firstly, whether the practice of prohibiting entry of women

(belonging to age group of 10-50) in place of worship is an essential
religious practice of Hindu religion with reference to Article 25?
This issue was framed in view of the “essentiality” doctrine evolved
by courts through various precedents. The doctrine holds that
protection under Article 25 of the Constitution can be claimed only
with respect to essential religious practices of one’s faith7.
Secondly, whether Ayyappa temple has a denominational character
and is entitled to formulate rules for governing the practices of their
faith under Article 26 of the Constitution? This question was
extremely crucial to the case because based on the answer to this
question alone, it could be ascertained whether the prohibition on
entry was valid or not.
Thirdly, whether such exclusionary practice amounts to
discrimination against such women under Article 14 of the
Constitution? Here, the crucial task before the Supreme Court was
to strike a balance between two fundamental rights of equality and
religion while preserving the secular character of the Indian polity.
DECISION ON ESSENTIAL RELIGIOUS PRACTICE
The Supreme Court reiterated its stance that the right under Article
25 exists only with regards to essential religious practices8. In other
words, the term “religion” under Article 25 shall include and be
confined to all such rituals and practices which are “integral” to
one’s religion. To determine this, in some cases, the court has relied
on religious texts, empirical behaviour of the followers, and
7
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra
Swamiar Thirtha Swamiar of Shirur Mutt, AIR 282 (SC:1954); Durgah
Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors., 1961 AIR 1402
(SC:1961).
8
Id.
190 Bennett Journal of Legal Studies [Vol. I

yet in others, they based their decision on whether the practice

existed at the time the religion originated9.
The Temple Board argued that the beliefs and practices of the
Ayyappan faith (including the practice of excluding women’s entry)
have been imparted by Lord Ayyappa himself to the king of
Pandalam who constructed the temple and the same forms part of
the text of Sthal Purana of the temple, known as the Bhuthanatha
Geetha It further contended that exclusion of such women is on
account of the celibate nature of the deity present in the temple and
such exclusionary practice is essential to their faith.
The majority opined that barring entry of women in place of worship
is not an essential religious practice of Hindu religion. On the
contrary, it is an essential part of the Hindu religion to allow Hindu
women to enter a temple as devotees. The court observed that this
exclusionary practice appears to have commenced only in 1950, and
therefore lacks the ageless and consistent character that is required
of an “essential religious practice”10. On this aspect, J. Chandrachud
observed that since the exclusion practice had not been consistently
followed, the argument that exclusion of women due to a deity being
celibate is a part of their common religious belief, was not
established. Further, J. Mishra, referring to the second Ananda
Marga case11, held that the exclusionary practice is not of such great
significance, the non-observance of which, could alter the nature of
Hindu religion.

9
Faizan Mustafa, Ayodhya case: Understanding the ‘essentiality’ doctrine
and its implications, The Indian Express, (Sep. 28, 2018, 6:03 pm),
https://indianexpress.com/article/explained/ayodhya-case-supreme-court-
verdict-mosque-integral-to-islam-ismail-faruqui-judgement-5377466/.
10
Para 125 of the judgment.
11
Commissioner of Police and others v. Acharya Jagadishwarananda
Avadhuta and others, 12 SCC 770 (SC:2004).
2020] Case Comment 191

DECISION ON DENOMINATIONAL CHARACTER

Placing reliance on Shirur Matt12 and S. P. Mittal13 case, the court
reiterated that to constitute a distinct religious denomination, there
shall be a common faith, common organisation and a distinctive
name.
It was held that the followers of Lord Ayyappa do not constitute a
distinct religious denomination as the first condition is not fulfilled
for people belonging a different faith or non-followers are also
allowed to enter the temple. However, J. Malhotra in her dissenting
judgment, opined that:

 Observance of the 41 day ‘Vratham’ by male devotees and

exclusion of women between 10-50 years were
distinguishable customs and usages of the Ayyappan faith;

 Such custom was founded on the common faith of the deity

being a ‘yogi’14 or ‘Naisthik Bhramachari’ and constitutes
the sanctum sanctorum of such faith.
Referring to Supreme Court’s following observations in the S. P.
Mittal case, she urged that a wider interpretation is warranted while
determining denomination character under Article 26:
Any freedom or right involving the conscience must
naturally receive a wide interpretation and the
expression religion and religious denomination must
therefore, be interpreted in no narrow, stifling sense but
in a liberal, expansive way.”

12
Supra 307.
13
S.P. Mittal v. Union of India and others, 1 SCC 51 (SC:1983).
14
Meaning: student who must live in the house of his preceptor, and studies
the Vedas, living the life of utmost austerity and discipline.
192 Bennett Journal of Legal Studies [Vol. I

DECISION ON VIOLATION OF ARTICLE 14 AND

ARTICLE 25
On the fact of this case, it appears that there are two combatting
fundamental rights: one of religion (right of Temple Board to
manage own religious affairs, including right to regulate entry in
temple) and one of equality (equal right of women devotees to enter
the temple and worship their Lord). Therefore, a significant question
which arises here is: whether right to religion can be strictly tested
on canons of equality?
The majority concluded that such women’s fundamental right to
equality and religion is violated by the impugned Rule 3 and is
therefore, unconstitutional and liable to be struck down. J.
Chandrachud observed all human beings were created equal and “To
exclude women from worship by allowing the right to worship to
men is to place women in a position of subordination.”
Further, J. Mishra held that right under Article 25 is conferred upon
“all persons” including women and such right has nothing to do with
gender or physiological factors.
However, J. Malhotra in her dissenting opinion, observed that
testing essential religious practices on the tenants of fundamental
right to equality could lead to disastrous ramifications, especially in
a diverse religious polity like India. Further, the phrase “equally
entitled to” as used under Article 25 essentially advocates that each
devotee is equally entitled to practice his/her religion as per the
tenets of such religion. Therefore, if the tenets of a faith require
exclusion of women then such women devotees’ right to practice her
religion inevitably becomes subject to the beliefs of such religion.
2020] Case Comment 193

ANALYSIS
The Author’s prime concern is whether the correct issue has been
framed or not. What is it that the court is really concerned with? Is
the matter pertaining to validity of the right of respondents to
determine who can or cannot enter the temple? Or is it a matter of
exclusion of women belonging to menstruating age group? To put it
differently, does the exclusionary practice constitute an “essential
religious practice” per se or is it only a consequence of a right of
Respondents to regulate entry into the temple?
Women’s agency feels affronted because certain women are not
permitted to enter the temple; however, the court should be able to
zoom out and look at the bigger picture. The majority decision on
this issue implies that places of religious worship do not have the
right to decide who should or should not enter. Such a stand appears
to be in direct contradiction with the Supreme Court’s own decision
in Sri Venkataramana Devaru15 case, in which the following
observations were made on the aspect of regulating entry:
“18…Thus, under the ceremonial law pertaining to temples, who
are entitled to enter into them for worship and where they are
entitled to stand and worship and how the worship is to be
conducted are all matters of religion.”
Barring entry of women in temples per se is not an essential religious
practice of Hindu religion but only a consequence of right to regulate
entry in temples, which in fact is an essential religious practice of
Hindu religion. On account of this very right, there are several Hindu
temples across the country which have their own rules on who will
be permitted to enter and how worship is to be
15
Sri Venkataramana Devaru and Ors. v. State of Mysore and Ors., SCR 895
(SC:1958).
194 Bennett Journal of Legal Studies [Vol. I

conducted16. In Author’s humble opinion, the issue of regulating

entry in place of worship has been made up to be a gender issue,
which it really isn’t.
It is also interesting to note that the court has very conveniently
ignored the peculiar nature of the Deity. It is well known that
Hinduism is a religion of innumerable deities and corresponding
temples and practice of each temple is governed by the nature and
form of the deity and beliefs of its devotees. As pointed out by the
Respondents, women of all age groups are permitted to enter other
Ayyappan temples situated in the country (1000 in number), where
deity of Lord Ayyappa is in a different form. Thus, it is only on
account of the peculiar form or unique characteristic of deity
Ayyappa in Sabarimala temple (Naishtik Brahamachari), that
women of certain age are not permitted to enter. It is the desire of
the deity that it wants to be spared of the presence of women of
certain age and this constitutes the core belief (Pratyasha Rath) of
this faith. The relevant exclusionary practice must be understood in
this context. In the humble opinion of the Author, bar on entry of
certain women is not founded on social exclusion or gender biasness
but upon unique celibate nature of the deity present in the temple.
Also, the analogy drawn by court by comparing women with Dalits
is farfetched and misguided.
Another disturbing part of the judgment is the reasoning given by
the court for not affording denominational character to Ayyappan
devotees. The decision was based on the reasoning that people from
other faiths are allowed to enter the temple. In the humble

16
The Temple of Lord Brahma in Pushkar, Rajasthan; the Bhagati Maa Temple
in Kanya Kumari, Kerala; the Attukal Bhagavathy Temple in Kerala; the
Chakkulathukavu Temple in Kerala; the Mata Temple in Muzaffarpur, Bihar;
Bhavani Deeksha Mandapam in Vijaywada; Patbausi Satra in Assam;
Mangala Chandi Temple in Bokaro, Jharkhand.
2020] Case Comment 195

opinion of the Author, such reasoning is not well founded as it is not

uncommon for non-followers or even foreign tourists to visit places
of worship of different religion including churches, mosque etc.
Such entry certainly cannot be taken to imply that their faith does
not have a distinct religious denomination.
ROLE OF JUDICIARY IN MATTERS OF RELIGION
In the last few years, the Supreme Court has, through intense judicial
activism, become a symbol of hope for the people of India 17.
However, in matters of religion, we need to ask what is the extent of
authority of the judiciary to determine what is and what is not
essential to a particular religion?
It is essentially a question of fact and certainly courts can
consciously rope in primary texts and base the judgment on them
through the application of intelligent tools of interpretation18.
However, invalidating religious practices on the premise of
fundamental right to equality could lead to tragic complications,
especially in a pluralistic society like India. What is religion to one
is superstition to another19. It should not be the prerogative of the
judiciary to ascertain what is essential to a particular faith; the
followers of such faith alone could determine that. Ideally the
judiciary should not take over the role of clergy20.

17
Justice P.N. Bhagwati, Judicial Activism in India,
https://mediArticlelaw.wisc.edu/m/4mdd4/gargoyle_17_1_3.pdf.
18
Mohd. Umar, Triple Talaq in classic Islamic jurisprudence and the Indian
Conundrum, The Indian Law Institute Journal.
19
Adelaide company of Jehovah’s Witness v. Commonwealth, HCA 12
(HCA:1943).
20
Faizan Mustafa, Ayodhya case: Understanding the ‘essentiality’ doctrine
and its implications, The Indian Express, (Sep. 28, 2018, 6:03 pm),
https://indianexpress.com/article/explained/ayodhya-case-supreme-court-
verdict-mosque-integral-to-islam-ismail-faruqui-judgement-5377466/.
196 Bennett Journal of Legal Studies [Vol. I

In Ratilal case21, the supreme court held: “…a religious

denomination or organization enjoys complete autonomy in the
matter of deciding as to what rites and ceremonies are essential
according to the tenets of the religion they hold, and no outside
authority has any jurisdiction to interfere with their decision in such
matters”. Further, in, Shayara Bano case22, discouraging the
practice of imputing rationale or logic in religious practices, it was
held that: “It is not for a court to determine whether religious
practices were prudent or progressive or regressive. Religion and
Personal Law, must be perceived, as it is accepted by the followers
of the faith…”
However, that has not stopped the court from making such
determination, as done in Ayodhya case23. The Constitution Bench
had ruled that: “A mosque is not an essential part of the practice of
the religion of Islam and namaz (prayer) by Muslims can be offered
anywhere, even in open.”
It is the humble opinion of the Author that judicial activism should
not become judicial overreach24. The ‘secular’ nature of our
Constitution requires the judiciary to maintain a righteous position
from religion, except when practice of religion contravenes public
order, morality, health, egalitarian social order and objectives of the
welfare state intended for integrated development of the

21
Ratilal Panachand Gandhi v. The State of Bombay & Ors, SCR 1055
(SC:1954).
22
Shayara Bano v. Union of India & Ors., 9 SCC 1 (SC:2017).
23
Dr M Ismail Faruqui and Ors v. Union of India AIR 605 (SC:1995).
24
Markandey Katju, We Need Clean Air But Spare Us the Judicial Overreach,
The Wire (Dec. 16, 2015), https://thewire.in/environment/we-need-clean-
air-but-spare-us-the-judicial-overreach.
2020] Case Comment 197

individuals and communities25. Nowhere did the practice of

disallowing women of a menstruating age violate these principles.
As discussed in earlier part, the restriction on entry of women is with
respect to only one Ayyappan temple out of 1000 Ayyappan temples
situated in the country and that too on account of special celibate
nature of the deity present there. It has been agreed by the majority
that there is no general practice of discrimination against women in
Hindu religion with regards to entry into temples. Thus, it will not
be wrong to say that the judgment has penalised an exception and
not a general practice.
By exercising the power of judicial review to adjudge essentiality of
religious practices, which do not have the mandate of people, the
Supreme Court could potentially undermine its own institutional
authority. This may lead to people losing their faith in the authority
of the Supreme Court.
SOCIAL EQUALITY AS AN ORGANIC INTERNAL
PROCESS
It needs to be appreciated that religion like law is also not static and
keeps evolving with the changing times and thought processes. For
instance, followers of Ayyappa belonging to older generation are not
willing to enter temples though a right is created in their favour26;
however, the younger educated generation with feminist approach is
demanding a right of entry.

25
Chapter IV: The Freedom of Religion Under The Indian Constitution: A
study of its different perspectives, https://shodhgangArticleinflibnet.ac.in
/bitstream/10603/77961/9/09_chapter%2004.pdf.
26
There are women in Kerela (firm believers of Ayyappan faith) who are
opposing this decision and have started a #readytowait movement on social
media asserting that they are ready to wait till the age of 50 for entering the
Sabarimala temple and meeting their Lord Ayyappa, as per the tenets of
their faith.
198 Bennett Journal of Legal Studies [Vol. I

Law has always been looked at as one of the important instruments

that could bring about social change. Society and law have a
symbiotic relationship. Social transformation is a result of legal
change, and legal change is an outcome of social transformation27.
We could use socio-legal activism to bring about the desired change
in the societal perspective towards religious practices. Moral
pressure and religious reforms could be used as a tool, instead of
court order under Article 141. Also, courts shouldn’t impose western
notions of feminism and progressiveness into the religious Indian
sphere28.
The Author is of the humble opinion that if the judiciary takes upon
itself to hold what is essential to a faith and what is not, judging on
tenants of right to equality, the courts would be flooded with
litigation, as correctly predicted by J. Indu Malhotra in her
judgment. The court will have to deal with customs and practices of
individual temples and deities. Such microscopic interference at a
temple level also has the potential to destroy the plurality and
diversity of Hindu religion.
Recently, Muslim women association has filed a PIL before the
Supreme Court contending that they have a right to enter mosques
and the prohibition on their entry is violative of Article 14 and
Article 25. We can expect the same appeal from Parsi women, as
they are not allowed to enter the fire temples. Where will it end 29 ?

27
Deva Prasand, Law and Social Transformation in India through the lens of
Sociological Jurisprudence; Eastern Book Company (October 1, 2019),
http://www.supremecourtcases.com/index2.php?option=com_content&item
id=5&do_pdf=1&id=20264.
28
Sri Krishna Singh v Mathura Ahir, AIR 707 (SC:1980).
29
It will not be surprising if tomorrow Sikh women demand a right to recite
granth in the gurudwara or worshippers going to gurudwara start protesting
covering their heads or leaving footwear outside the place of worship or
practice other form of ritual purity.
2020] Case Comment 199

How secular character of the Indian polity, the basic structure of our
constitution, will be safeguarded?
By entering within the realm of religion, the court will open
floodgates for such controversies in the future. The question is: Is
the court ready for this avalanche?
At present the matter is pending for review before the a Seven- Judge
Bench of Supreme Court and the hearing is scheduled for February
2020. So the fate of the matter is yet to become final.