INDIAN YOUNG LAWYERS ASSOCIATION & ORS. v. THE STATE OF KERALA & ORS. (2018)

INDIAN YOUNG LAWYERS ASSOCIATION & ORS. v. THE STATE OF KERALA & ORS. (2018)

Writ Petition (Civil) No 373 of 2006 

COURT: Supreme Court of India  

BENCH: Justice Dipak Misra, Justice A.M. Khanwilkar, Justice R.F. Nariman, Justice D.Y. Chandrachu, Justice Indu Malhotra 

DATE OF JUDGMENT: 28.09.2018 

PARTIES: 

PETITIONER: Indian Young Lawyers Association & Ors. 

RESPONDENT: The State of Kerala & Ors. 

INTRODUCTION 

The present proceedings arose after a 3-Judge Bench in India Young Lawyers Assn. v. State of Kerala, 2017, referred the matter for consideration by a constitution bench. The writ petition preferred pursuant to Article 32 of the Constitution sought directions to be issued against the Kerala Government and other respondents to ensure entry in Lord Ayyappa Temple at Sabarimala of female devotees between the age group of 10 to 50 years which was denied to them on the basis of certain custom and usage. Secondly, to declare unconstitutional Rule 3 (b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 on grounds of violating Articles 14, 15, 25 and 51 A(e) of the Constitution and also to issue directions for women pilgrims’ safety. On the contrary, the respondents hold the view that the temple though open to all members of public irrespective of caste, creed, or religion, is a denominational temple that asserts the fundamental right to manage its own affairs in religious matters. 

FACTS 

• Sabarimala Temple is dedicated to Lord Ayyappa, worshipped as ‘Naishtika Bramhachari’ or celibate for life. Those who believe in and worship Lord Ayyappa are expected to follow a strict ‘Vratham’ or a vow over a span of 41 days which provides a set of practices. Devaswom Board that adminsters the temple had notified that women belonging to menstruating age (10-50 years) are prohibited from entering the temple or take part in 41 days penance ‘vratham’ in order to preserve the sanctity of temple. Women are considered weak and unfit for the arduous journey due to their physiological features. 
• S Mahendran filed a plea in Kerala High Court in 1990, seeking a ban on exclusion of women from entering the temple. However, Kerala High Court upheld the age-old restraint on women of certain age-group from entering the temple by noting that prohibition by Travancore Devaswom Board that manages the shrine are not in violation of either the Constitution or a related 1965 Kerala law. 
• Indian Young Lawyers Association, on August 4, 2006, filed a plea in Supreme Court seeking to permit entry in historic Lord Ayyappa Temple at Sabarimala, of women devotees between 10 to 50 years of age.   
• The then Left Democratic Front government filed an affidavit in 2007 in the court supporting PIL to question the ban on entry of female devotees. 
• PIL was filed by the India Young Lawyers Association in 2016, opposing that Rule 3(b) of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965 which states that, “Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship” violates the constitutional values of equality, non-discrimination and freedom of religion. Kerala’s Left Front government in November 2016, preferred the entry of women of all age groups to the temple and filed an affidavit to the effect.  
• The Court referred the case to a constitution bench in 2017.

ISSUES

• Whether the exclusionary practise based on biological factor exclusive to female gender is discriminatory thus, violating the core Articles of Indian constitution (Article 14, 15, 17 and 25).  
• Whether the practice of excluding menstruating women constitutes an ‘essential religious practices’ pursuant to Article 25(1) and whether religious institution asserts a right to manage and administer its own affairs in the matter of religion.  
• Whether Sabarimala worshippers constitute a separate religious denomination under Article 26 and can attract Article 290A of the Constitution.  
• Whether Rule 3(b) of 1965 Rules ultra vires the Kerala Hindu places of public worship (Authorization of entry) Act, 1965 and whether the same violates the provisions of part III of the Constitution.

JUDGMENT  

• In its broad outline, right to practise religion under Article 25(1), embraces a non-discriminatory right equally available to men and women of all age groups professing the same religion. By using the expression “all persons”, Article 25(1) establishes that freedom of conscience and right to freely profess, practise and propagate religion, though subject to certain restrictions, are accessible to every person including women. Women of any age group are entitled to same right as men to visit and enter a temple so as to freely practise Hindu religion and exhibit their devotion towards Lord Ayyappa. The word “morality” under Article 25(1) of Constitution can’t be interpreted narrowly so as to confine its ambit to what an individual, a section or religious sect may identify the term to mean. Notions of public order, morality and health can’t be used as colourable device to limit the freedom to freely practise religion and discriminate against women aged between 10 to 50 years by negating their legal right to enter and offer their prayers at Sabarimala temple for the reason that public morality must be subject to constitutional morality. 
• “Religion is a way of life intrinsically linked to the dignity of an individual and patriarchal practices based on exclusion of one gender in favour of another could not be allowed to infringe upon the fundamental freedom to practice and profess one’s religion”, thus the practice of excluding women aged between 10-50 years by Sabarimala Temple deprives women of their freedom of worship protected under Article 25(1). Justice DY Chandrachud stated that restricting only women from the right to worship indicates subordination of women. The exclusionary practise and suggesting that women can’t keep ‘vrutham’ and take part in pilgrimage is a form of social discrimination that stigmatize and stereotype women on physiological factors that are non-religious in nature. “Women is nor lesser or inferior to men. Patriarchy of religion can’t be permitted to trump over faith. Biological or physiological reasons cannot be accepted in freedom of faith.” This practice infringes Article 14 of Constitution as discrimination of women on the basis of specific age group is not a reasonable classification and is also in direct violation of Article 15 of Constitution as it discriminates women solely on the basis of sex and thus undermines the dignity of women. Prohibiting women of menstruating age from entering the temple is against the dignity and personal liberty of women guaranteed under Article 21 of Constitution. Exclusion of women from religious places and practices because they menstruate and are deemed impure during that period is a form of discrimination and unconstitutional for violating Article 17 that abolishes untouchability in any form. Notions of “purity and pollution” which stigmatize individuals have no place in a constitutional order. This approach widens the ambit of Article 17 and emphasises that Constitution should not become an instrument for perpetuation of patriarchy. However, Justice Indu holds a dissenting view and held that the limited restriction on entry of women during the notified age group does not violate Article 17 of Constitution.  
• Court negated the practice of exclusion of women aged between 10 to 50 years to be equivalent to a doctrine or essential practice of Hindu religion. “What constitutes the essential part of a religion is primarily ascertained with reference to the tenants and doctrines of that religion itself.” If a religious practice is essential to a religion, it eliminates the process of evaluating the practice for Constitutional morality that result in perpetuation of an immoral and unconstitutional practice to exist in the name of religious freedom. Therefore, “The test instead of considering whether the practice is essential or not, it should consider whether the practice is constitutional or not”. It was held that exclusionary practice followed by Sabarimala temple couldn’t be accorded the status of essential practice of Hindu religion due to absence of any scriptural or textual evidence to support this practice and it cannot be imagined that the essence of Hindu religion would be fundamentally altered or modified in any way by permitting women to enter the Sabarimala temple. As per facts this practice commenced only in 1950, and thus lacks the ageless and consistent character required for an essential religious practice. However, Justice Indu Malhotra gave a dissenting view and held the restriction to be an ‘essential religious practise’ followed consistently by Sabarimala Temple as evident from the Memoir of the Survey of Travancore and Cochin States published in two parts in 1893 and 1901 and further stated that any interference with the mode and manner of worship would impact the character of the Temple.  
• Claims of respondents that pilgrims visiting Sabarimala temple being devotees of Lord Ayyappa are called Ayyappans and are a religious denomination were rejected by Court. As per Article 26, the stringent test of separate denomination necessitates a system of distinctive beliefs, a separate name and a common organisation.  Mere observance of certain practices from a long time does not make it a distinct religion on that account. Sabarimala temple is a public religious endowment where every Hindu devotee and even individuals from other faiths can go and worship. Part III of Constitution is applicable to the Temple as it is governed by a statutory body i.e. Devaswom Board and receives State funds pursuant to Article 290A of Constitution. However, the religious ceremonies at Sabarimala Temple are not distinct from any other Hindu temples. There is no identified group called Ayyappans and the devotees of Lord Ayyappa are just Hindus that don’t establish a separate religious denomination. Justice Indu Malhotra giving a dissenting view held that the worshippers of Lord Ayyappa at Sabarimala Temple constitute a religious denomination or sect as they follow the ‘Ayyappa Dharma’, an identifiable set of beliefs, customs, usages and code of conduct that are in practice from time immemorial and are based on common faith. Also, Article 290-A doesn’t in any way eliminates the denominational character of Sabarimala Temple or the Fundamental Rights under Article 26 of Constitution. 
• The court struck down Rule 3(b) of 1965 Rule as ultra vires of Section 3 of the Parent Act. The 1965 Act is a social reform legislation under which Section 3 of the Act prohibits discrimination against “any class” of Hindus. Women aged between 10-50 years did constitute a “class” of Hindus but the exclusionary practise is discriminatory on the ground of sex which attacks their dignity and is fundamentally at odds with the constitutional values. Justice Nariman holds this practice to be directly in violation of Article 15(1), stating that “Anything destructive of individuality in anachronistic of Constitutionality. To treat women as people of lower status blinks at the Constitution itself”.

CONCLUSION 

“In the theatre of life, it seems, man has put the autograph and there is no space for a woman even to put her signature. There is inequality on the path of approach to understand the divinity. The dualism that persists in religion by glorifying and venerating women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned.” In a nutshell, the Supreme Court by 4:1 majority declared the practise of restricting the entry of women aged between 10 to 50 years to be unconstitutional for violating fundamental rights. This landmark judgment is a testament of impeccable patience and clear judicial interpretation of laws by Supreme Court where they efficiently balanced the bridge between constitutional ideals and social reality and proved that blind application of obsolete laws results in unjust actions.