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

[DIPAK MISRA, CJI]

respondent no. 2 may not be acceptable today and the said practices have not come up before this Court and should not be taken cognizance of. Further, it is the view of the petitioners that the said practices cannot be held to be the essence of religion as they had evolved out of convenience and, in due course of time, have become crude accretions. To prove its point, the petitioners have cited the examples of the practices of dowry and restriction of women from entering mosques which, although had come into existence due to certain factors existing at the relevant time, no longer apply.

59Copy pinpoint59. Thereafter, the petitioners have contended that if Sabarimala does not come in the category of religious denomination, then it cannot claim the right under Article 26 and it would come within the purview of C Article 12 making it subject to Articles 14 and 15 and, hence, the State would be restrained from denying equal protection of law and cannot discriminate on the basis of sex. Even if it is concluded that Sabarimala is a religious denomination, then as per the Devaru case, there has to be a harmonious construction between Articles 25 and 26 of the Constitution D and, thus, to completely deny women of the age group of 10 to 50 years from entering the temple would be impermissible as per the Devaru case. Finally, the petitioners have submitted that in legal and constitutional parlance, after coming into effect of the Constitution of India, ‘dignity of women’ under Article 51A(e) is an essential ingredient of constitutional morality. E

Rejoinder Submissions on behalf of Intervenor in I.A No. 10 of 2016

60Copy pinpoint60. The applicant/intervenor has submitted that the law relating to entry into temple for darshan is separate and distinct from the law relating F to management of religious affairs. The former is governed by Article 25 and the latter is governed by Article 26. Further, the applicant/ intervenor has pointed out that even those institutions which are held to be denominations and claim protection under Article 26 cannot deny entry to any person for the purpose of darshan and the ex facie denial of women between the age group of 10 to 50 years violates Articles 14, G 15, 21 and 25 of the Constitution.

61Copy pinpoint61. Thereafter, the applicant/intervenor has averred that the question whether Sabarimala is a denomination or not is irrelevant for

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A the reason that even if it is concluded that Sabarimala is a denomination, it can claim protection of only essential practices under Article 26(b) and denial of entry to women between the age of 10 to 50 years cannot be said to be an essential aspect of the Hindu religion. Further, the applicant/intervenor has also averred that Sabarimala does not satisfy the test of religious denomination as laid down in S.P. Mittal (supra). B

62Copy pinpoint62. The applicant/intervenor has also submitted that the respondents, by referring to the practice as a custom with aberrations, have themselves suggested that there has been no continuity in the applicability of the said custom and that it has also been established in the evidence before the High Court that women irrespective of their age were permitted to enter the Sabarimala for the first rice feeding ceremony of their children and it is only since the last 60 years after the passing of the Notification in 1955 that women between the age of 10 to 50 years were prohibited from entering the temple. The applicant/intervenor has also pointed out that even if the said practice is considered to be a custom, it has to still pass the test of constitutional morality and constitutional legitimacy and the applicant/intervenor has relied upon the decision of this Court in Adi Saiva Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and others 21 wherein it was observed: “48. Seshammal vs State of T.N., (1972) 2 SCC 11] is not an authority for any proposition as to what an Agama or a set of Agamas governing a particular or group of temples lay down with regard to the question that confronts the court, namely, whether any particular denomination of worshippers or believers have an exclusive right to be appointed as Archakas to perform the poojas. Much less, has the judgment taken note of the particular class or caste to which the Archakas of a temple must belong asprescribed by the Agamas. All that it does and says is that some of the Agamas do incorporate a fundamental religious belief of the necessity of performance of the poojas by Archakas belonging to a particular and distinct sect/group/denomination, failing which, there will be defilement of deity requiring purification ceremonies. Surely, if the Agamas in question do not proscribe any group of citizens from being appointed as Archakas on the basis of caste or class the sanctity of Article 17 or any other provision of Part III of the Constitution or even theProtection of Civil Rights Act, 1955 will 21 (2016) 2 SCC 725 H

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not be violated. What has been said in Seshammal [Seshammal v. A State of T.N., (1972) 2 SCC 11] (supra) is that if any prescription with regard to appointment of Archakas is made by the Agamas, Section 28 of the Tamil Nadu Act mandates the trustee to conduct the temple affairs in accordance with such custom or usage. The requirement of constitutional conformity is inbuilt and if a custom B or usage is outside the protective umbrella afforded and envisaged by Articles 25 and 26, the law would certainly take its own course. The constitutional legitimacy, naturally, must supersede all religious beliefs or practices.”

63Copy pinpoint63. In reply to the contention of the respondents that the basis for exclusion of women is that women cannot observe the 41 days Vruthum C and also on the ground that Ayyappa is a celibate God, the applicant/ intervenor has submitted that the meaning of celibacy is the abstinence from sex and the respondents by suggesting that women cannot practice Vruthum which requires abstinence from sex are stigmatizing women and stereotyping them as being weak and lesser human beings than D men. Hence, the classification, in view of the applicant/intervenor, is not based on intelligible differentia.

64Copy pinpoint64. The applicant/intervenor has also submitted that menstruating women and untouchables are being treated as similar in terms of entry to temple and, hence, the custom in dispute amounts to ‘untouchability’. E

65Copy pinpoint65. The applicant/intervenor has, thereafter, drawn the attention of the Court to the fact that although the respondents aver that they do not intend to discriminate on the basis of gender, yet the Court has to test the violation of the fundamental rights not on the basis of intention but the impact of the impugned action. The applicant/intervenor has stated that the respondents have wrongly placed reliance upon the decision in T.M.A. Pai Foundation and others v. State of Karnataka and others 22 as in the present case, the issue is not one pertaining to the rights of minorities but concerning the unconstitutional acts of the majority.

66Copy pinpoint66. The applicant/intervenor has also submitted that the age-old practice of considering women as impure while they are menstruating amounts to untouchability and stigmatizes them as lesser human beings and is, therefore, violative of Articles14, 15, 17 and 21 of the Constitution.

22 (1995) 5 SCC 220 H

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A Submissions of learned Amicus Curiae, Sr. Advocate Mr. Raju Ramchandran, assisted by Mr. K. Parameshwar

67Copy pinpoint67. It is submitted on the behalf of learned Senior Advocate Mr. Raju Ramchandran, that the Sabarimala Sree Dharma Sastha Temple, Kerala is a public temple being used as a place of worship where members B of the public are admitted as a matter of right and entry thereto is not restricted to any particular denomination or part thereof. As per the learned Amicus, the public character of the temple gives birth to the right of the devotees to enter it for the purpose of darshan or worship and this universal right to entry is not a permissive right dependent upon the temple authorities but a legal right in the true sense of the expression. C To advance this view, the learned Amicus has relied upon the decisions of this Court in Deoki Nandan v. Murlidhar and others23 and Sri Radhakanta Deb and another v. Commissioner of Hindu Religious Endowments, Orissa24.

68Copy pinpoint68. As regards the nature of the right claimed by the petitioners D herein, learned Senior Advocate, Mr. Raju Ramchandran, the learned Amicus, has submitted that it is the freedom of conscience and the right to practise and profess their religion which is recognized under Article 25 of the Constitution of India. This right, as per the learned Amicus, encompasses the liberty of belief, faith and worship, pithily declared as a E constitutional vision in the Preamble to the Constitution of India.

69Copy pinpoint69. Learned Senior Advocate Mr. Raju Ramchandran, the learned Amicus, submits that the right of a woman to visit and enter a temple as a devotee of the deity and as a believer in Hindu faith is an essential aspect of her right to worship without which her right to worship is F significantly denuded. Article 25 pertinently declares that all persons are ‘equally’ entitled to freely practise religion. This, in view of the learned Amicus, implies not just inter-faith but intra-faith parity. Therefore, the primary right under Article 25(1) is a non-discriminatory right and is, thus, available to men and women professing the same faith.

70Copy pinpoint70. Further, it has been put forth that the constitutional intent in keeping the understanding of untouchability in Article 17 open-textured was to abolish all practices based on the notion of purity and pollution. This Article proscribes untouchability ‘in any form’ as prohibited and the 23 AIR 1957 SC 133 24 (1981) 2 SCC 226 H

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exclusion of menstruating women from religious spaces and practices is no less a form of discrimination than the exclusion of oppressed castes. After referring to Section 7(c) of the Civil Rights Act, 1955, which criminalizes the encouragement and incitement to practise untouchability in ‘any form whatsoever’ and the Explanation II appended to the said Section, the learned Amicus has submitted that untouchability cannot be understood in a pedantic sense but must be understood in the context of the Civil Rights Act to include any exclusion based on the notions of purity and pollution.

71Copy pinpoint71. It is also the view of the learned Amicus that the phrase ‘equally entitled to’ in Article 25(1) finds resonance in Section 3(a) of the Civil Rights Act, 1955 which criminalizes exclusion of people to those places which are “open to other persons professing the same religion or any section thereof, as such person” and prevention of worship “in the same manner and to the same extent as is permissible to other persons professing the same religion or any section thereof, as such persons”. That apart, the learned Amicus has drawn our attention to Section 2(d) D of the 1955 Act which defines ‘place of public worship’ to mean, inter alia, ‘by whatever name belonging to any religious denomination or any section thereof, for the performance of any religious service’ and, therefore, the Amicus submits that a temple is a public temple and irrespective of its denominational character, it cannot prevent the entry of any devotee aspiring to enter and worship. E

72Copy pinpoint72. After placing reliance on the decision of this Court in K.S. Puttaswamy (supra), the Amicus has submitted that the exclusionary practice in its implementation results in involuntary disclosure by women of both their menstrual status and age which amounts to forced disclosure that consequently violates the right to dignity and privacy embedded in F Article 21 of the Constitution of India.

73Copy pinpoint73. It has also been submitted by the Amicus Curiae that Article 25(2)(b) is not a mere enabling provision but is a substantive right as it creates an exception for laws providing for social reform or throwing open of Hindu religious institutions of a public character to all classes G and sections of Hindus and thereby embodies the constitutional intent of abhorring exclusionary practices. Further, referring to the judgment of this Court in Devaru (supra), the learned Amicus has submitted that Article 25(2)(b) does not merely seek to prevent exclusionary practices on the basis of caste only, for the rights under Part III of the Constitution H

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A must be given a broad meaning and any exception must be given a narrow construction.

74Copy pinpoint74. Further, it has been submitted by the learned Amicus that the exclusionary practice in the present case cannot be justified either on the grounds of health, public order or morality for the term ‘morality’ B used in Article 25 or 26 is not an individualized or sectionalized sense of morality subject to varying practices and ideals of every religion but it is the morality informed by the constitutional vision. The judgments of this Court in Adi Saiva Sivachariyargal Nala Sangam (supra), Manoj Narula v. Union of India25 and National Legal Services Authority (supra) have been pressed into service by the Amicus to accentuate that C any subjective reading of the term ‘morality’ in the context of Article 25 would make the liberty of faith and worship otiose and the exclusion of women as in the present case is a matter of institutional practice and not morality.

75Copy pinpoint75. The Amicus has also cited the judgments of this Court in D Acharya Jagadishwarananda Avadhuta (supra) to submit that in order to claim protection of the doctrine of essential religious practices, the practice to exclude women from entry to the Sabarimala temple must be shown by the respondents to be so fundamental to the religious belief without which the religion will not survive. On the contrary, no scriptural E evidence has been led by the respondents herein to demonstrate that the exclusion of women is an essential part of their religion.

76Copy pinpoint76. After referring to Section 3 of the Kerala Hindu Places of Public Worship (Authorization of Entry) Act, 1965 which makes a place of worship open to all sections and classes, Mr. Raju Ramchandran, F learned senior counsel, is of the view that the said Section is nothing but a statutory enunciation of rights embodied under Article 25(2)(b) and similarly, the emphasis on the word ‘like’ in Section 3 is the statutory reflection of the phrase ‘equally’ found in Article 25(1). That apart, it is the case of the learned Amicus curiae that the expression ‘section’ or ‘class’ in Section 2(c) of the 1965 Act must necessarily include all sexes G if Section 3 is to be in consonance with a woman’s right to worship under Article 25 and in consonance with Article 15. As per the learned Amicus, women between the age of 10 to 50 years are a section or class of Hindus who are within the inclusive provision of Section 3 and the proviso to Section 3 brings in the right conferred in Article 26, for the 25 H (2014) 9 SCC 1

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inter-play between Section 3 and the proviso must be governed by how A Articles 25(2)(b) and 26 are reconciled by the judgment of this Court in Devaru (supra).

77Copy pinpoint77. It have been asseverated by Mr. Raju Ramchandran, learned senior counsel, that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires Sections 3 B and 4 of the 1965 Act, for the reason that it protects ‘custom and usage’ which may prohibit entry when Section 3 expressly overrides custom and usage. The said rule, in view of the learned Amicus, discriminates against women when Section 4 makes it clear that rules made under it cannot be discriminatory against any section or class. It is submitted that the power entrusted under the 1965 Act to make rules, inter alia, for C due observance of religious rights and ceremonies is for the furtherance of a devotee’s right to worship under Article 25, whereas to the contrary, Rule 3(b), by saving ‘custom and usage’, militates against the very purpose of the 1965 Act which is to protect the right to worship guaranteed under Article 25. D

78Copy pinpoint78. It has also been pointed out that there is another Rule, similar to Rule 3(b), in the form of Rule 6(c) framed under the 1950 Act, which was relied upon by the High Court and this Rule 6(c) has not been assailed by the petitioners in the present writ petition, but in view of the learned Amicus, this Rule 6(c) would also be unconstitutional for the E same reason that Rule 3(b) is unconstitutional.

79Copy pinpoint79. The burden to prove that the devotees of Lord Ayyappa form a denomination within the meaning of Article 26, as per the learned Amicus, is on the respondents, which they have failed to discharge as none of the three tests for determination of denominational status, i.e., F (i) common faith, (ii) common organization and (iii) designation by a distinctive name, have been established by the respondents. Further, the Amicus has submitted that the decision of the Kerala High Court in S. Mahendran (supra) does not indicate finding of a denominational status.

80Copy pinpoint80. It is also submitted by the learned Amicus that Devaswom G Board in its counter affidavit before the Kerala High Court in S. Mahendran (supra), had asserted, as is reflected vide para 7 of the judgment, that there was no such prohibition against women entering the temple and that there was no evidence to suggest any binding religious practice and, likewise, the High Court, in its judgment vide para 34, found H

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A the exclusionary practice as just a usage and not a religious custom or essential religious practice.

81Copy pinpoint81. The learned Amicus also averred that even if we are to assume that the devotees of Lord Ayyappa constitute a separate denomination, the rights conferred under Article 26 being subject to the constitutional B standard of morality, exclusion of women from entry would violate this standard of morality for a denomination’s right to manage its affairs in matters of religion under Article 26(b) is subject to Article 25(2)(b) as has been succinctly explained by this Court in Devaru (supra) by observing thus: C “And lastly, it is argued that whereas Article 25 deals with the rights of individuals, Article 26 protects the rights of denominations, and that as what the appellants claim is the right of the Gowda Saraswath Brahmins to exclude those who do not belong to that denomination, that would remain unaffected by Article 25(2)(b). This contention ignores the true nature of the right conferred by D Article 25(2)(b). That is a right conferred on “all classes and sections of Hindus” to enter into a public temple, and on the unqualified terms of that Article, that right must be available, whether it is sought to be exercised against an individual under Article 25(1) or against a denomination under Article 26(b). The E fact is that though Article 25(1) deals with rights of individuals, Art. 25(2) is much wider in its contents and has reference to the rights of communities, and controls both Article 25(1) and Article 26(b).” Submissions of learned Amicus Curiae, Senior Advocate F Mr. K. Ramamoorthy

82Copy pinpoint82. It has been asseverated by learned Senior Advocate Mr. K. Ramamoorthy, learned Amicus curiae, that in all prominent Hindu temples in India, there had been some religious practices based on religious beliefs, which are essential part of the Hindu religion as considered by people G for a long time. It has been submitted that the devotees of Lord Ayyappa could also be brought within the ambit of religious denomination who have been following the impugned religious practice which has been essential part of religion.

83Copy pinpoint83. Mr. K. Ramamoorthy, learned senior counsel, has submitted that the petitioners herein have not disputed that the impugned religious H

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practice in Sabarimala temple is not a religious practice based on religious belief for several centuries, rather the petitioners have only argued that such a practice is violative of Article 25 of the Constitution. It is also submitted by Mr. K. Ramamoorthy that in any of the judgments cited by the petitioners, the question never arose as to what the religious practice on the basis of religious belief is and, accordingly, the question as to whether religious practices based on religious beliefs in all prominent temples in India are violative of Articles14, 15, 17, 21 and 25 of the Constitution is to be considered herein.

84Copy pinpoint84. It has been put forth by Mr. K. Ramamoorthy that the protection of Articles 25 and 26 are not limited to the matters of doctrine or belief, rather they extend to acts done in pursuance of religion and, therefore, contain a guarantee for rituals, observations, ceremonies and modes of worship which are integral parts of religion. It has been submitted that what constitutes an essential part of a religious practice is to be decided with reference to the practices which are regarded by a large section of the community for several centuries and, therefore, would have to be treated as a part of the religion.

85Copy pinpoint85. It has also been averred that Ayyappa temple by itself is a denomination as contemplated under Article 26 having regard to the nature of worship and the practices followed by the temple and similarly, the devotees of Ayyappa temple would also constitute a denomination who have accepted the impugned religious practice based on religious belief which has been in vogue for several centuries unbroken and accepted by all sections of Hindus.

86Copy pinpoint86. It has been submitted that it is too late in the day to contend that religious practice based on religious faith, adhered to and followed by millions of Hindus for so long in consonance with the natural rights of men and women is violative of fundamental rights. It is also the case of the Amicus Mr. K. Ramamoorthy that to project such a religious practice as being contrary to natural law is a shock to the judgment of the community, as calling such a religious practice contrary to fundamental rights amounts to offending the common sense and wisdom of our ancestors in faithfully following the command of the divine. Further, no group or individual can force other Hindus to follow their view in the domain of religious faith.

87Copy pinpoint87. As regards the challenge raised by the petitioners against Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of H

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A Entry) Rules, 1965, it is asseverated by Mr. K. Ramamoorthy that the question which arises is whether the State Government, with reference to such a religious practice, could make a rule so that the general public would know the denominational character of the temple and the religious practice followed by the temple. B Followers of Lord Ayyappa do not constitute a religious denomination

88Copy pinpoint88. Article 26 of the Constitution of India guarantees to every religious denomination the right (a) to 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. However, these rights are subject to public order, morality and health.

89Copy pinpoint89. The important question that emerges is as to what constitutes a religious denomination. The said question has been the subject matter of several decisions of this Court beginning from Shirur Mutt (supra) wherein the Court observed thus: “As regards Article 26, the first question is, what is the precise meaning or connotation of the expression “religious denomination” and whether a Math could come within this expression. The word E “denomination” has been defined in the Oxford Dictionary to mean ‘a collection of individuals classed together under the same name: a religious sect or body having a common faith and Organisation and designated by a distinctive name. It is well known that the practice of setting up Maths as centres of the logical teaching was started by Shri Sankaracharya and was followed by various F teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be balled a religious denomination, as it is designated by a distinctive name, - G in many cases it is the name of the founder, -and has a common faith and common spiritual organization. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight UdipiMaths were H

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founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya. As article 26 contemplates not merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this article.”

90Copy pinpoint90. In S.P. Mittal (supra), the challenge was with regard to the validity of the Auroville (Emergency) Provisions Act, 1980 as being violative of Articles 25 and 26 of the Constitution. Sri Aurobindo postulated the philosophy of cosmic salvation and along with the disciples found the C Aurobindo Society for preaching and propagating the teachings of Sri Aurobindo and The Mother through its centres in India as well as abroad. After the death of Sri Aurobindo, the Mother proposed an international cultural township, Auroville, in the then Pondicherry. The society received funds as grants from the Central Government, State Government and other organizations in India as well as from outside India for development of the township at Auroville. Upon the death of the Mother, the Government started receiving complaints about the mismanagement of the society and, accordingly, enacted the Auroville (Emergency) Provisions Act, 1980. The Supreme Court, by a majority of 4:1, ruled that neither the society nor the township of Auroville constituted a religious denomination, for the teachings and utterances of Sri Aurobindo did not constitute a religion and, therefore, taking over of the Auroville by the Government did not infringe the society’s right under Articles 25 and 26 of the Constitution.

91Copy pinpoint91. The Court referred, inter alia, to the MoA of the society along with Rule 9 of the Rules and Regulations of Sri Aurobindo Society which dealt with membership and read thus: “9. Any person or institution for organisation either in India or abroad who subscribes to the aims and objects of the Society, and whose application for membership is approved by the Executive G Committee, will be member of the Society. The membership is open to people everywhere without any distinction of nationality, religion, caste, creed or sex.”

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A After so referring, the Court opined thus: “The only condition for membership is that the person seeking the membership of the Society must subscribe to the aims and objects of the Society. It was further urged that what is universal cannot be a religious denomination. In order to constitute a separate denomination, there must be something distinct from another. A denomination, argues the counsel, is one which is different from the other and if the Society was a religious denomination, then the person seeking admission to the institution would lose his previous religion. He cannot be a member of two religions at one and the same time. But this is not the position in becoming a member of the Society and Auroville. A religious denomination must necessarily be a new one and new methodology must be provided for a religion. Substantially, the view taken by Sri Aurobindo remains a part of the Hindu philosophy. There may be certain innovations in his philosophy but that would not make it a religion on that account.”

92Copy pinpoint92. The Court in S.P Mittal (supra) reiterated and concurred with the definition of ‘religious denomination’ which was also accepted in Shirur Mutt (supra) and observed as under: “The words ‘religious denomination’ in Article 26 of the Constitution must take their colour from the word ‘religion’ and if this be so, E the expression ‘religious denomination’ must also satisfy three conditions: (1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith; F (2) common organisation, and (3) designation by a distinctive name.”

93Copy pinpoint93. In the case of Nallor Marthandam Vellalar and others v. Commissioner, Hindu Religious and Charitable Endowment and G others26, the question that arose before the Court was whether the temple at Nellor owned by the Vellala Community of Marthandam constituted a ‘religious denomination’ within the meaning of Article 26 of the Constitution. It was argued in this case that the Vellala Community observed special religious practices and beliefs which are integral part 26 (2003) 10 SCC 712 H

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of their religion and that the front mandappam of the sanctorium is open to access only to the members of their community and no one else and outsiders can offer worship from the outer compound. The Court held that the temple at Nellor owned by the Vellala Community of Marthandam did not constitute a religious denomination as there was no evidence to prove that the members of the Vellala Community had common religious tenets peculiar to themselves other than those which are common to the entire Hindu community and further, the Court, following the principle laid down in S.P. Mittal (supra), observed: “It is settled position in law, having regard to the various decisions of this Court that the words C “religious denomination” take their colour from the word `religion’. The expression “religious denomination” must satisfy three requirements – (1) it must be collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being, i.e., a common faith; (2) a common organisation; and (3) designation of a distinctive name. It D necessarily follows that the common faith of the community should be based on religion and in that they should have common religious tenets and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status.” E

94Copy pinpoint94. As is decipherable form the above decisions of this Court, for any religious mutt, sect, body, sub-sect or any section thereof to be designated as a religious denomination, it must be a collection of individuals having a collective common faith, a common organization which adheres to the said common faith, and last but not the least, the said collection of individuals must be labeled, branded and identified by a distinct name.

95Copy pinpoint95. Though, the respondents have urged that the pilgrims coming to visit the Sabarimala temple being devotees of Lord Ayyappa are addressed as Ayyappans and, therefore, the third condition for a religious denomination stands satisfied, is unacceptable. There is no identified group called Ayyappans. Every Hindu devotee can go to the temple. We have also been apprised that there are other temples for Lord Ayyappa and there is no such prohibition. Therefore, there is no identified sect. Accordingly, we hold, without any hesitation, that Sabarimala temple is a public religious endowment and there are no exclusive identified followers of the cult. H

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96Copy pinpoint96. Coming to the first and the most important condition for a religious denomination, i.e., the collection of individuals ought to have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, there is nothing on record to show that the devotees of Lord Ayyappa have any common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well-being, other than those which are common to the Hindu religion. Therefore, the devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination. For a religious denomination, there must be new methodology provided for a religion. Mere observance of certain practices, even though from a long time, does not make it a distinct religion on that account. Enforceability of Fundamental Rights under Article 25(1) against the Travancore Devaswom Board

97Copy pinpoint97. Having stated that the devotees of Lord Ayyappa do not constitute a religious denomination within the meaning of Article 26 and that Sabarimala Temple is a public temple by virtue of the fact that Section 15 of the 1950 Act vests all powers of direction, control and supervision over it in the Travancore Devaswom Board which, in our foregoing analysis, has been unveiled as ‘other authority’ within the meaning of Article 12, resultantly fundamental rights including those guaranteed under Article 25(1) are enforceable against the Travancore Devaswom Board and other incorporated Devaswoms including the Sabarimala Temple. We have also discussed the secular character of the Indian Constitution as well as the broad meaning assigned to the term religion occurring in various Articles of the Constitution including Article 25(1). F

98Copy pinpoint98. Now adverting to the rights guaranteed under Article 25(1) of the Constitution, be it clarified that Article 25(1), by employing the expression ‘all persons’, demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women.

99Copy pinpoint99. It needs to be understood that the kernel of Article 26 is ‘establishment of a religious institution’ so as to acclaim the status of religious denomination. Whereas, Article 25(1) guarantees the right to practise religion to every individual and the act of practice is concerned, primarily, with religious worship, rituals and observations as held in Rev.

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Stainislaus v. State of Madhya Pradesh and others27. Further, it has been held in Shirur Mutt (supra) that the logic underlying the constitutional guarantee regarding ‘practice’ of religion is that religious practices are as such a part of religion as religious faith or doctrines.

100Copy pinpoint100. The right guaranteed under Article 25(1) has nothing to do with gender or, for that matter, certain physiological factors, specifically attributable to women. Women of any age group have as much a right as men to visit and enter a temple in order to freely practise a religion as guaranteed under Article 25(1). When we say so, we are absolutely alive to the fact that whether any such proposed exclusion of women from entry into religious places forms an essential part of a religion would be examined at a subsequent stage. C

101Copy pinpoint101. We have no hesitation to say that such an exclusionary practice violates the right of women to visit and enter a temple to freely practise Hindu religion and to exhibit her devotion towards Lord Ayyappa. The denial of this right to women significantly denudes them of their right to worship. We concur with the view of the Amicus Curiae, learned senior counsel, Mr. Raju Ramachandran, that the right guaranteed under Article 25(1) is not only about inter-faith parity but it is also about intra-faith parity. Therefore, the right to practise religion under Article 25(1), in its broad contour, encompasses a non-discriminatory right which is equally available to both men and women of all age groups professing the same religion.

102Copy pinpoint102. Though not in reference to men or women, yet in the context of any Hindu worshipper seeking entry in a temple which is a public place of worship for Hindus, the observations of the Supreme Court in Nar Hari Shastri and others v. Shri Badrinath Temple Committee28 F are quite instructive wherein the Court opined thus: “It seems to us that the approach of the court below to this aspect of the case has not been quite proper, and, to avoid any possible misconception, we would desire to state succinctly what the correct legal position is. Once it is admitted, as in fact has been admitted G in the present case, that the temple is a public place of worship of the Hindus, the right of entrance into the temple for purposes of ‘darshan’ or worship is a right which flows from the nature of the institution itself, and for the acquisition of such rights, no custom 27 (1977) 1 SCC 677 28 AIR 1952 SC 245 H

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A or immemorial usage need be asserted or proved…..” And again: “The true position, therefore, is that the plaintiffs’ right of entering the temple along with their Yajmans is not a precarious or a permissive right depending for its existence upon the arbitrary discretion of the temple authorities; it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the temple committee may impose in good faith for maintenance of order and decorum within the temple and for ensuring proper performance of customary worship. In our opinion, the plaintiffs are entitled to a declaration in this form.”

103Copy pinpoint103. Another authoritative pronouncement in regard to the freedom to practise a religion freely without with any fictitious and vague constraint is the case of Acharya Jagadishwarananda Avadhuta (supra), wherein the Court observed thus: D “The full concept and scope of religious freedom is that there are no restraints upon the free exercise of religion according to the dictates of one’s conscience or upon the right freely to profess, practice and propagate religion save those imposed under the police power of the State and the other provisions of Part II of the E Constitution. This means the right to worship God according to the dictates of one’s conscience. Man’s relation to his God is made no concern for the State. Freedom of conscience and religious belief cannot, however, be, set up to avoid those duties which every citizen owes to the nation; e.g. to receive military training, to take an oath expressing willingness to perform military service and so on.”

104Copy pinpoint104. Therefore, it can be said without any hesitation or reservation that the impugned Rule 3(b) of the 1965 Rules, framed in pursuance of the 1965 Act, that stipulates exclusion of entry of women of the age group of 10 to 50 years, is a clear violation of the right of such women to practise their religious belief which, in consequence, makes their fundamental right under Article 25(1) a dead letter. It is clear as crystal that as long as the devotees, irrespective of their gender and/or age group, seeking entry to a temple of any caste are Hindus, it is their legal right to enter into a temple and offer prayers. The women, in the case at hand, are also Hindus and so, there is neither any viable nor any legal H

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limitation on their right to enter into the Sabarimala Temple as devotees of Lord Ayyappa and offer their prayers to the deity.

105Copy pinpoint105. When we say so, we may also make it clear that the said rule of exclusion cannot be justified on the ground that allowing entry to women of the said age group would, in any way, be harmful or would play a jeopardizing role to public order, morality, health or, for that matter, any other provision/s of Part III of the Constitution, for it is to these precepts that the right guaranteed under Article 25(1) has been made subject to.

106Copy pinpoint106. The term ‘morality’ occurring in Article 25(1) of the Constitution cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean. We must remember that when there is a violation of the fundamental rights, the term ‘morality’ naturally implies constitutional morality and any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of this constitutional morality that gets support from the Constitution.

107Copy pinpoint107. In Manoj Narula (supra), this Court has reflected upon the predominant role that the concept of constitutional morality plays in a democratic set-up and opined thus: E “The principle of constitutional morality basically means to bow down to the norms of the Constitution and not to act in a manner which would become violative of the rule of law or reflectible of action in an arbitrary manner. It actually works at the fulcrum and guides as a laser beam in institution building. The traditions and conventions have to grow to sustain the value of such a morality. F The democratic values survive and become successful where the people at large and the persons-in-charge of the institution are strictly guided by the constitutional parameters without paving the path of deviancy and reflecting in action the primary concern to maintain institutional integrity and the requisite constitutional G restraints. Commitment to the Constitution is a facet of constitutional morality.”

108Copy pinpoint108. That apart, this Court, in Government of NCT of Delhi v. Union of India and others29, observed thus: 29 (2018) 8 SCALE 72 H

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A “Constitutional morality in its strictest sense of the term implies strict and complete adherence to the constitutional principles as enshrined in various segments of the document. When a country is endowed with a Constitution, there is an accompanying promise which stipulates that every member of the country right from its citizens to the high constitutional functionaries must idolize the B constitutional fundamentals. This duty imposed by the Constitution stems from the fact that the Constitution is the indispensable foundational base that functions as the guiding force to protect and ensure that the democratic setup promised to the citizenry remains unperturbed.”

109Copy pinpoint109. Elaborating further, in Navtej Singh Johar and others v. Union of India and others30, this Court observed: “The concept of constitutional morality is not limited to the mere observance of the core principles of constitutionalism as the magnitude and sweep of constitutional morality is not confined to the provisions and literal text which a Constitution contains, rather it embraces within itself virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while at the same time adhering to the other principles of constitutionalism. It is further the result of embodying constitutional morality that the values of constitutionalism trickle down and percolate through the apparatus of the State for the betterment of each and every individual citizen of the State.” And again: “115. The society as a whole or even a minuscule part of the society may aspire and prefer different things for themselves. They are perfectly competent to have such a freedom to be different, like different things, so on and so forth, provided that their different tastes and liking remain within their legal framework and neither violates any statute nor results in the abridgement of fundamental rights of any other citizen. The Preambular goals of our Constitution which contain the noble objectives of Justice, Liberty, Equality and Fraternity can only be achieved through the commitment and loyalty of the organs of the State to the principle of constitutional morality” 30 (2018) 10 SCALE 386 H

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110Copy pinpoint110. The right guaranteed under Article 25(1) has been made A subject to, by the opening words of the Article itself, public order, morality, health and other provisions of Part III of the Constitution. All the three words, that is, order, morality and health are qualified by the word ‘public’. Neither public order nor public health will be at peril by allowing entry of women devotees of the age group of 10 to 50 years into the Sabarimala B temple for offering their prayers. As regards public morality, we must make it absolutely clear that since the Constitution was not shoved, by any external force, upon the people of this country but was rather adopted and given by the people of this country to themselves, the term public morality has to be appositely understood as being synonymous with constitutional morality. C

111Copy pinpoint111. Having said so, the notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple for the simple reason that public morality must yield to constitutional morality. Whether exclusionary practice is an essential practice as per Hindu religion

112Copy pinpoint112. We have, in the earlier part of this judgment, determined that the devotees of Lord Ayyappa, who though claim to be a separate religious denomination, do not, as per the tests laid down by this Court in several decisions, most prominent of them being S.P. Mittal (supra), constitute a separate religious denomination within the meaning of Article 26 of the Constitution. This leads us to a mathematical certainty that the devotees of Lord Ayyappa are the followers of Hindu religion. Now, what remains to be seen is whether the exclusion of women of the age group of 10 to 50 years is an essential practice under the Hindu religion in the backdrop of the peculiar attending circumstances attributable to the Sabarimala temple. For ascertaining the said question, we first need to understand what constitutes an essential practice for a particular religion which has been the subject matter of several decisions of this Court. Article 25 G merely protects the freedom to practise rituals, ceremonies, etc. which are an integral part of a religion as observed by this Court in John Vallamattom and another v. Union of India31. While saying so, the Court ruled that a disposition towards making gift for charitable or religious 31 (2003) 6 SCC 611 H

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A purpose can be designated as a pious act of a person, but the same cannot be said to be an integral part of any religion.

113Copy pinpoint113. The role of essential practices to a particular religion has been well demonstrated by Lord Halsbury in Free Church of Scotland v. Overtoun32 wherein it was observed: B “In the absence of conformity to essentials, the denomination would not be an entity cemented into solidity by harmonious uniformity of opinion, it would be a mere incongruous heap of, as it were, grains of sand, thrown together without being united, each of these intellectual and isolated grains differing from every other, and the whole forming a but nominally united while really unconnected mass; fraught with nothing but internal dissimilitude, and mutual and reciprocal contradiction and dissension.”

114Copy pinpoint114. This Court, in Shirur Mutt (supra), for the first time, held that what constitutes an essential part of a religion will be ascertained with reference to the tenets and doctrines of that religion itself. The Court had opined thus: “In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”

115Copy pinpoint115. In Mohd. Hanif Quareshi v. State of Bihar33, this Court rejected the argument of the petitioner that sacrifice of cow on Bakr-id was an essential practice of Mohammedan religion and ruled that it could be prohibited by the State under Clause 2(a) of Article 25.

116Copy pinpoint116. Similarly, in State of West Bengal and others v. Ashutosh F Lahiri and others34, this Court, while approving the judgment of the High Court, observed that the State of West Bengal had wrongly invoked Section 12 of the West Bengal Animal Slaughter Control Act, 1950 on the ground that exemption of slaughtering healthy cows was required to be given for the Muslim community. While holding so, the Court opined thus: G “...before the State can exercise the exemption power under Section 12 in connection with slaughter of any healthy animal covered by the Act, it must be shown that such exemption is 32 (1904) AC 515 33 AIR 1958 SC 731 H 34 AIR 1995 SC 464

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necessary to be granted for sub-serving an essential religious, A medicinal or research purpose. If granting of such exemption is not essential or necessary for effectuating such a purpose no such exemption can be granted so as to by-pass the thrust of the main provisions of the Act.”

117Copy pinpoint117. In Durgah Committee, Ajmer and others v. Syed Hussain B Ali and others35, the Court, although speaking in the context of Article 26, warned that some practices, though religious, may have sprung from merely superstitious beliefs and may, in that sense, be extraneous and unessential accretions to religion itself and unless such practices are found to constitute an essential and integral part of a religion, their claim for protection as essential practices may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of the religion and no other.

118Copy pinpoint118. The Court, in this case, has excluded such practices from protection which, though may have acquired the characteristic of religious practices, are found, on careful scrutiny, to be an outcome of some superstitious beliefs which may render them unessential and not an integral part of the religion.

119Copy pinpoint119. In Acharya Jagadishwarananda Avadhuta and others v. Commissioner of Police, Calcutta36, popularly known as the first Ananda Marga case, this Court held that Tandav dance in processions or at public places by the Ananda Margis carrying lethal weapons and human skulls was not an essential religious rite of the followers of Ananda Marga and, therefore, the order under Section 144 Cr.PC. prohibiting such processions in the interest of public order and morality was not violative of the rights of the Ananda Marga denomination under Articles F 25 and 26 of the Constitution more so when the order under Section 144 Cr.PC. did not completely ban the processions or gatherings at public places but only prohibited carrying of daggers, trishuls and skulls which posed danger to public order and morality.

120Copy pinpoint120. In N. Adithayan v. Travancore Devaswom Board and G others37, the Court very succinctly laid down as to what should be the approach of the court for deciding what constitutes an essential practice of a religion in the following words: 35 AIR 1961 SC 1402 36 (1983) 4 SCC 522 37 (2002) 8 SCC 106 H

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A “The legal position that the protection under Article 25 and 26 extend a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion and as to what really constitutes an essential part of religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion or practices regarded as parts of B religion...” (Emphasis is ours)

121Copy pinpoint121. In Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others (supra), being the second C Ananda Marga case, the Court has elaborately discussed the true nature of an essential practice and has further laid down the test for determining whether a certain practice can be characterized as essential to a particular religion in order to guarantee protection under the Constitution. The Court has opined: D “The protection guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a guarantee for rituals, observances, ceremonies and modes of worship which are essential or integral part of religion. What constitutes an integral or essential part of religion has to be E determined with reference to its doctrines, practices, tenets, historical background etc. of the given religion. (See generally the Constitution bench decisions in The Commissioner v. L T Swamiar of Srirur Mutt 1954 SCR 1005, SSTS Saheb v. State of Bombay 1962 (Supp) 2 SCR 496, and Seshammal v. State of Tamilnadu : F [1972]3SCR815 , regarding those aspects that are to be looked into so as to determine whether a part or practice is essential or not). What is meant by ‘an essential part or practices of a religion’ is now the matter for elucidation. Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental to follow a religious belief. It is upon the cornerstone of essential parts or practices the superstructure of religion is built. Without which, a religion will be no religion. Test to determine whether a part or practice is essential to the religion is - to find out whether the nature of religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the

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character of that religion or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part. Because it is the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts is what is protected by the Constitution. Nobody can say that essential part or practice of one’s religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the ‘core’ of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non-essential part or practices.”

122Copy pinpoint122. In the light of the above authorities, it has to be determined whether the practice of exclusion of women of the age group of 10 to 50 years is equivalent to a doctrine of Hindu religion or a practice that could be regarded as an essential part of the Hindu religion and whether the nature of Hindu religion would be altered without the said exclusionary practice. The answer to these questions, in our considered opinion, is in the firm negative. In no scenario, it can be said that exclusion of women of any age group could be regarded as an essential practice of Hindu religion and on the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity. In the absence of any scriptural or textual evidence, we cannot accord to the exclusionary practice followed at the Sabarimala temple the status of an essential practice of Hindu religion.

123Copy pinpoint123. By allowing women to enter into the Sabarimala temple for offering prayers, it cannot be imagined that the nature of Hindu religion would be fundamentally altered or changed in any manner. Therefore, F the exclusionary practice, which has been given the backing of a subordinate legislation in the form of Rule 3(b) of the 1965 Rules, framed by the virtue of the 1965 Act, is neither an essential nor an integral part of the Hindu religion without which Hindu religion, of which the devotees of Lord Ayyappa are followers, will not survive. G

124Copy pinpoint124. Nobody can say that essential part or practice of one’s religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the ‘core’ of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non-essential part or practices. H

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125Copy pinpoint125. This view of ours is further substantiated by the fact that where a practice changes with the efflux of time, such a practice cannot, in view of the law laid down in Commissioner of Police and others (supra), be regarded as a core upon which a religion is formed. There has to be unhindered continuity in a practice for it to attain the status of essential practice. It is further discernible from the judgment of the High B Court in S. Mahendran (supra) that the Devaswom Board had accepted before the High Court that female worshippers of the age group of 10 to 50 years used to visit the temple and conducted poojas in every month for five days for the first rice feeding ceremony of their children. The Devaswom Board also took a stand before the High Court that restriction C of entry for women was only during Mandalam, Makaeavilakku and Vishnu days. The same has also been pointed out by learned Senior Counsel, Ms. Indira Jaising, that the impugned exclusionary practice in question is a ‘custom with some aberrations’ as prior to the passing of the Notification in 1950, women of all age groups used to visit the Sabarimala temple for the first rice feeding ceremony of their children. D

126Copy pinpoint126. Therefore, there seems to be no continuity in the exclusionary practice followed at the Sabarimala temple and in view of this, it cannot be treated as an essential practice. Analysis of the 1965 Act and Rule 3(b) of the 1965 Rules

127Copy pinpoint127. We may presently deal with the statutory provisions of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act,

1965. Section 2 of the said Act is the definition clause and reads as under: “2. Definitions.- In this Act, unless the context otherwise requires,- (a) “Hindu” includes a person professing the Buddhist, Sikh or Jaina religion; (b) “place of public worship” means a place, by whatever name known or to whomsoever belonging, which is dedicated to, or for the benefit of, or is used generally by, Hindus or any section or class thereof, for the performance of any religious service or for offering prayers therein, and includes all lands and subsidiary shrines, mutts, devasthanams, namaskara mandapams and nalambalams, appurtenant or attached to any such place, and also H

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any sacred tanks, wells, springs and water courses the waters of A which are worshipped or are used for bathing or for worship, but does not include a “sreekoil”; (c) “section or class” includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever. “

128Copy pinpoint128. As per clause (a) of Section 2, the term ‘Hindu’ includes a B person professing Buddhist, Sikh or Jaina religion. The word ‘person’ occurring in this clause, for the pure and simple reason of logic, must include all genders. Clause (c) defines ‘section or class’ as any division, sub-division, caste, sub-caste, sect or denomination whatsoever. Nowhere the definition of section or class suggests being limited to male division, sub-division, caste and so forth.

129Copy pinpoint129. Section 3 of the Act stipulates that places of public worship will be open to all sections and classes of Hindus and reads thus: “Section 3 : Places of public worship to 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; E 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: F Provided that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in matters of religion. “ G

130Copy pinpoint130. Section 3 of the Act being a non-obstante clause declares that 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 be prevented, H

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A obstructed or discouraged from entering such place of public worship, or from worshipping, offering prayers or performing any religious service at such place of public worship in the like manner and to the like extent as any other Hindu of whatsoever section or class may so be eligible to enter, worship, pray or perform.

131Copy pinpoint131. A careful dissection of Section 3 reveals that places of public worship in the State of Kerala, irrespective of any contrary law, custom, usage or instrument having effect by virtue of any such law or any decree or order of Court, shall be open to all sections and classes of Hindus. The definition of ‘section or class’ and ‘Hindu’ has to be imported, for the purposes of Section 3, from the definition clauses 2(a) and 2(c) C which, as per our foregoing analysis, includes all the genders, provided they are Hindus. It further needs to be accentuated that the right provided under Section 3 due to its non-obstante nature has to be given effect to regardless of any law, custom or usage to the contrary.

132Copy pinpoint132. The proviso to Section 3 stipulates that in case the place of public worship is a temple founded for the benefit of any religious denomination or section thereof, then the rights warranted under Section 3 becomes subject to the right of that religious denomination or section to manage its own affairs in matters of religion. Having said so, we have, in the earlier part of this judgment, categorically stated that devotees and followers of Lord Ayyappa do not constitute a religious denomination and, therefore, the proviso to Section 3 cannot be resorted to in the case at hand.

133Copy pinpoint133. The importance and the gravity of the right stipulated under Section 3 of this Act, for all sections and classes of Hindus which include women, is very well manifest and evident from the fact that its violation has been made penal under Section 5 of the 1965 Act which reads as under: “Section 5 : Penalty Whoever, in contravention of Section 3,- G (a) prevents or attempts to prevent any person belonging to any section or class of Hindus from entering, worshipping or offering prayers, performing any religious service, in any place of public worship; or

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(b) obstructs, or causes or attempts to cause obstruction to, or by threat of obstruction or otherwise discourages, any such person from doing or performing any of the acts aforesaid, shall be publishable with imprisonment which may extent to six months, or with fine which may extent to five hundred rupees, or with both: Provided that in a case where a sentence of fine only is awarded, such fine shall not be less than fifty rupees. “

134Copy pinpoint134. Proceeding ahead, Section 4 of the 1965 Act confers the power to make regulations for the maintenance of order and decorum and performance of rites and ceremonies with regard to places of public worship in Kerala: C “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 worship (1) The trustee or any other person in charge of any place public worship shall have power, subject to the control of the competent authority and any rules which may be made by that authority, to make regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein: Provided that no regulation made under this sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class. (2) The competent authority referred to in sub-section (1) shall be,- F (i) In relation to a place of public worship situated in any area to which Part I of the Travancore-Cochin Hindu Religious Institutions Act, 1950 (Travancore-Cochin Act XV of 1950), extends, the Travancore Devaswom Board; (ii) in relation to a place of public worship situated in any area to which Part II of the said Act extends, the Cochin Devaswom G Board; and (iii) in relation to a place of public worship situated in any other area in the State of Kerala, the Government.”

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135Copy pinpoint135. The proviso to Section 4 being an exception to Section 4(1) is a classic example of a situation where the exception is more important than the rule itself. It needs to be borne in mind that the language of the proviso to Section 4 of the 1965 Act, in very clear and simple terms, states that the regulations made under clause (1) of Section 4 shall not discriminate against any Hindu on the ground that he/she belongs to a B particular section or class. As stated earlier, a particular section or class for the purposes of this Act includes women of all age groups, for Hindu women of any age group also constitute a class or section of Hindus.

136Copy pinpoint136. The State of Kerala, by virtue of clause (1) of Section 4, has framed the Kerala Hindu Places of Public Worship (Authorisation of C Entry) Rules, 1965. The relevant rule which is also the most prominent bone of contention in the present case is Rule 3(b). The relevant part of Rule 3 reads thus: “Rule 3. The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bath D in or use the 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 the place of public worship: E x x x (b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship. x x x”

137Copy pinpoint137. The law is well-settled on the point that when a rule-making power is conferred under any statute on an authority, the said power has to be exercised within the confines of the statute and no transgression of the same is permissible. In this context, we may refer to the decision in Union of India and others v. S. Srinivasan38 wherein it has been ruled: G “At this stage, it is apposite to state about the rule making powers of a delegating authority. If a rule goes beyond the rule making power conferred by the statute, the same has to be declared ultra vires. If a rule supplants any provision for which power has not 38 (2012) 7 SCC 683 H

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been conferred, it becomes ultra vires. The basic test is to A determine and consider the source of power which is relatable to the rule. Similarly, a rule must be in accord with the parent statute as it cannot travel beyond it.”

138Copy pinpoint138. In General Officer Commanding-in-Chief v. Dr. Subhash Chandra Yadav39, the Court held that for a rule to have the effect of a B statutory provision, it must fulfill two conditions, firstly it must conform to the provisions of the statute under which it is framed and secondly, it must also come within the scope and purview of the rule making power of the authority framing the rule and if either of these two conditions is not fulfilled, the rule so framed would be void. In Kunj Behari Lai Butail and others v. State of H.P. and others40, it has been laid down that for holding a rule to be valid, it must first be determined as to what is the object of the enactment and then it has to be seen if the rules framed satisfy the test of having been so framed as to fall within the scope of such general power conferred and if the rule making power is not expressed in such a usual general form, then it shall have to be seen if the rules made are protected by the limits prescribed by the parent act. Another authority which defines the limits and confines within which the rule-making authority shall exercise its delegating powers is Global Energy Limited and another v. Central Electricity Regulatory Commission41, where the question before the Court was regarding the validity of clauses (b) and (f) of Regulation 6- A of the Central Electricity E Regulatory Commission (Procedure, Terms and Conditions for Grant of Trading Licence and other Related Matters) Regulations, 2004. The Court gave the following opinion: “It is now a well-settled principle of law that the rule-making power “for carrying out the purpose of the Act” is a general delegation. F Such a general delegation may not be held to be laying down any guidelines. Thus, by reason of such a provision alone, the Regulation-making power cannot be exercised so as to bring into existence substantive rights or obligations or disabilities which are not contemplated in terms of the provisions of the said Act.” G

139Copy pinpoint139. It was clearly held in this case that the rule-making power, which is provided under a statute with the aim of facilitating the implementation of the statute, does not confer power on any authority to 39 AIR 1988 SC 876 40 AIR 2000 SC 1069 41 (2009) 15 SCC 570 H

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A bring into existence substantive rights or obligations or disabilities which are not contemplated in terms of the provisions of the said Act. The Court, further, went on to hold that: “The image of law which flows from this framework is its neutrality and objectivity: the ability of law to put sphere of general decision- B making outside the discretionary power of those wielding governmental power. Law has to provide a basic level of “legal security” by assuring that law is knowable, dependable and shielded from excessive manipulation. In the contest of rule-making, delegated legislation should establish the structural conditions within which those processes can function effectively. The question C which needs to be asked is whether delegated legislation promotes rational and accountable policy implementation. While we say so, we are not oblivious of the contours of the judicial review of the legislative Acts. But, we have made all endeavours to keep ourselves confined within the well-known parameters.”

140Copy pinpoint140. At this stage, we may also benefit from the observations made in State of T.N. and another v. P. Krishnamurthy and others42 wherein it was stated that where a rule is directly inconsistent with a mandatory provision of the statute, then, of course, the task of the court is simple and easy. This implies that if a rule is directly hit for being violative of the provisions of the enabling statute, then the Courts need not have to look in any other direction but declare the said rule as invalid on the said ground alone.

141Copy pinpoint141. Rule 3(b) seeks to protect custom and usage by not allowing women, Hindu women to be specific, to enter a place of public worship at such times during which they are not so allowed to enter by the said custom or usage. A cursory reading of Rule 3(b) divulges that it is ultra vires both Section 3 as well as Section 4 of the 1965 Act, the reason being that Section 3 being a non-obstante provision clearly stipulates that every place of public worship shall be open to all classes and sections of Hindus, women being one of them, irrespective of any custom or usage to the contrary.

142Copy pinpoint142. That apart, Rule 3(b) is also ultra vires Section 4 of the 1965 Act as the proviso to Section 4(1) creates an exception to the effect that the regulations/rules made under Section 4(1) shall not discriminate, in 42 (2006) 4 SCC 517 H

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any manner whatsoever, against any Hindu on the ground that he/she belongs to a particular section or class.

143Copy pinpoint143. The language of both the provisions, that is, Section 3 and the proviso to Section 4(1) of the 1965 Act, clearly indicates that custom and usage must make space to the rights of all sections and classes of Hindus to offer prayers at places of public worship. Any interpretation to the contrary would annihilate the purpose of the 1965 Act and the fundamental right to practise religion guaranteed under Article 25(1). It is clear as crystal that the provisions of the 1965 Act are liberal in nature so as to allow entry to all sections and classes of Hindus including Scheduled Castes and Scheduled Tribes. But framing of Rule 3(b) of the 1965 Rules under the garb of Section 4(1) would violate the very purpose of the 1965 Act. Conclusions

144Copy pinpoint144. In view of our aforesaid analysis, we record our conclusions in seriatim: D (i) In view of the law laid down by this Court in Shirur Mutt (supra) and S.P. Mittal (supra), the devotees of Lord Ayyappa do not constitute a separate religious denomination. They do not have common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well-being, other than those which are common to the Hindu religion. Therefore, the devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination. (ii) Article 25(1), by employing the expression ‘all persons’, demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. The right guaranteed under Article 25(1) has nothing to do with gender or, for that matter, certain physiological factors specifically attributable to women. G (iii) The exclusionary practice being followed at the Sabrimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. This denial denudes them H

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A of their right to worship. The right to practise religion under Article 25(1) is equally available to both men and women of all age groups professing the same religion. (iv) The impugned Rule 3(b) of the 1965 Rules, framed under the 1965 Act, that stipulates exclusion of entiy of women of the B age group of 10 to 50 years, is a clear violation of the right of Hindu women to practise their religious beliefs which, in consequence, makes their fundamental right of religion under Article 25(1) a dead letter. (v) The term ‘morality’ occurring in Article 25(1) of the Constitution C cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean. Since the Constitution has been adopted and given by the people of this country to themselves, the term public morality in Article 25 has to be appositely understood as being synonymous with constitutional morality. (vi) The notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple. (vii) The practice of exclusion of women of the age group of 10 to 50 years being followed at the Sabarimala Temple cannot be regarded as an essential practice as claimed by the respondent Board. F (viii) In view of the law laid down by this Court in the second Ananda Marga case, the exclusionary practice being followed at the Sabarimala Temple cannot be designated as one, the non-observance of which will change or alter the nature of Hindu religion. Besides, the exclusionary practice has not been G observed with unhindered continuity as the Devaswom Board had accepted before the High Court that female worshippers of the age group of 10 to 50 years used to visit the temple and conducted poojas in every month for five days for the first rice feeding ceremony of their children. H

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(ix) The exclusionary practice, which has been given the backing A of a subordinate legislation in the form of Rule 3(b) of the 1965 Rules, framed by the virtue of the 1965 Act, is neither an essential nor an integral part of the religion. (x) A careful reading of Rule 3(b) of the 1965 Rules makes it luculent that it is ultra vires both Section 3 as well as Section B 4 of the 1965 Act, for the simon pure reason that Section 3 being a non-obstante provision clearly stipulates that every place of public worship shall be open to all classes and sections of Hindus, women being one of them, irrespective of any custom or usage to the contrary. C (xi) Rule 3(b) is also ultra vires Section 4 of the 1965 Act as the proviso to Section 4(1) creates an exception to the effect that the regulations/rules made under Section 4(1) shall not discriminate, in any manner whatsoever, against any Hindu on the ground that he/she belongs to a particular section or class. D (xii) The language of both the provisions, that is, Section 3 and the proviso to Section 4(1) of the 1965 Act clearly indicate that custom and usage must make space to the rights of all sections and classes of Hindus to offer prayers at places of public worship. Any interpretation to the contrary would annihilate the purpose of the 1965 Act and incrementally impair the E fundamental right to practise religion guaranteed under Article 25(1). Therefore, we hold that Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act.

145Copy pinpoint145. In view of the aforesaid analysis and conclusions, the writ petition is allowed. There shall be no order as to costs. F R. F. NARIMAN, J. (Concurring) 1. The present writ petition raises far-reaching questions on the ambit of the fundamental rights contained in Articles 25 and 26 of the Constitution of India. These questions arise in the backdrop of an extremely famous temple at Sabarimala in which the idol of Lord Ayyappa is installed. According to G the Respondents, the said temple, though open to all members of the public regardless of caste, creed, or religion, is a denominational temple which claims the fundamental right to manage its own affairs in matters relating to religion. The question that arises is whether the complete exclusion of women between the ages of 10 and 50 from entry, and H

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A consequently, of worship in this temple, based upon a biological factor which is exclusive to women only, and which is based upon custom allegedly constituting an essential part of religion, can be said to be violative of their rights under Article 25. Consequently, whether such women are covered by Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and whether Rule 3(b) of the Kerala B Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 is violative of their fundamental right under Article 25(1) and Article 15(1), and ultra vires the parent Act.

2. Before answering the question posed on the facts before us, it is necessary to cover the ground that has been covered by our previous decisions on the scope and effect of religious freedom contained in Articles 25 and 26.

3. In one of the earliest judgments dealing with religious freedom, namely, Nar Hari Sastri and Ors. v. Shri Badrinath Temple Committee, 1952 SCR 849, this Court was concerned with the temple at Badrinath, which is an ancient temple, being a public place of worship for Hindus. A representative suit was filed under Order I Rule 8 of the Code of Civil Procedure, 1908 on behalf of all Deoprayagi Pandas who, as guides or escorts of pilgrims, sought a declaration that they cannot be obstructed from entering the precincts of the temple along with their E “clients” for darshan of the deities inside the temple. This Court held: “It seems to us that the approach of the court below to this aspect of the case has not been quite proper, and, to avoid any possible misconception, we would desire to state succinctly what the correct legal position is. Once it is admitted, as in fact has been admitted in the present case, that the temple is a public place of worship of the Hindus, the right of entrance into the temple for purposes of ‘darshan’ or worship is a right which flows from the nature of the institution itself, and for the acquisition of such rights, no custom or immemorial usage need be asserted or proved. As the Panda as well as his client are both Hindu worshippers, there can be nothing wrong in the one’s accompanying the other inside the temple and subject to what we will state presently, the fact that the pilgrim, being a stranger to the spot, takes the assistance of the Panda in the matter of ‘darshan’ or worship of the deities or that the Panda gets remuneration from his client for the services he renders, does not in any way affect the legal rights of either of

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them. In law, it makes no difference whether one performs the A act of worship himself or is aided or guided by another in the performance of them. If the Pandas claim any special right which is not enjoyed ordinarily by members of the Hindu public, they would undoubtedly have to establish such rights on the basis of custom, usage or otherwise. B This right of entry into a public temple is, however, not an unregulated or unrestricted right. It is open to the trustees of a public temple to regulate the time of public visits and fix certain hours of the day during which alone members of the public would be allowed access to the shrine. The public may also be denied access to certain particularly sacred parts of the temple, e.g., the inner sanctuary or as it is said the ‘Holy of Holies’ where the deity is actually located. Quite apart from these, it is always competent to the temple authorities to make and enforce rules to ensure good order and decency of worship and prevent overcrowding in a temple. Good conduct or orderly behaviour is always an obligatory condition of admission into a temple [Vide Kalidas Jivram v. Gor Parjaram, I.L.R. 15 Bom. p. 309; Thackeray v. Harbhum, I.L.R. 8 Bom. p. 432], and this principle has been accepted by and recognised in the Shri Badrinath Temple Act, section 25 of which provides for framing of bye-laws by the temple committee inter alia for maintenance of order inside the temple and regulating the entry of persons within it [Vide Section 25(1)(m)]. The true position, therefore, is that the plaintiffs’ right of entering the temple along with their Yajmans is not a precarious or a permissive right depending for its existence upon the arbitrary discretion of the temple authorities; it is a legal right in the true sense of the expression but it can be exercised subject to the restrictions which the temple committee may impose in good faith for maintenance of order and decorum within the temple and for ensuring proper performance of customary worship. In our opinion, the plaintiffs are entitled to a declaration in this form.” (at pp. 860-862)

4. In chronological sequence, next comes the celebrated Shirur Math case, viz., The Commissioner, Hindu Religious Endowments, H

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A Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR 1005. This case concerned itself with the settlement of a scheme in connection with a Math known as the Shirur Math, which, legislation in the form of the Madras Hindu Religious and Charitable Endowments Act, 1951, sought to interfere with. In history, the Shirur Math is stated to be one of the eight Maths situated at Udipi in the B district of South Kanara and reputed to have been founded by Shri Madhwacharya, the well-known exponent of dualistic theism in Hinduism. This judgment being a seminal authority for a large number of aspects covered under Articles 25 and 26 needs to be quoted in extenso. The Court first dealt with the individual right contained in Article C 25 as follows: “We now come to Article 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others. A question is raised as to whether the word “persons” here means individuals only or includes corporate bodies as well. The question, in our opinion, is not at all relevant for our present purpose. A Mathadhipati is certainly not a corporate body; he is the head of a spiritual fraternity and by virtue of his office has to perform the duties of a religious teacher. It is his duty to practice and propagate the religious tenets, of which he is an adherent and if any provision of law prevents him from propagating his doctrines, that would certainly affect the religious freedom which is guaranteed to every person under Article 25. Institutions as such cannot practice or propagate religion; it can be done only by individual persons and whether these persons propagate their personal views or the tenets for which the institution stands is really immaterial for purposes of Article 25. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting.”1 (emphasis supplied) (at p. 1021) 1 In State Trading Corporation of India Ltd. v. Commercial Tax Officer and Ors., (1964) 4 SCR 99, a majority of 9 Judges held that the S.T.C., which is a company registered under the Indian Companies Act, 1956, is not a citizen within the meaning of

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With regard to whether a Math could come within the expression A “religious denomination” under Article 26, this Court laid down the following tests: “As regards Article 26, the first question is, what is the precise meaning or connotation of the expression “religious denomination” and whether a Math could come within this expression. The word B “denomination” has been defined in the Oxford Dictionary to mean “a collection of individuals classed together under the same name: a religious sect or body having a common faith and organisation and designated by a distinctive name”. It is well known that the practice of setting up Maths as centers of theological teaching was started by Shri Sankaracharya and C was followed by various teachers since then. After Sankara, came a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by D a distinctive name, — in many cases it is the name of the founder, and has a common faith and common spiritual organization. The followers of Ramanuja, who are known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight Udipi Maths E were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths profess to be followers of that teacher. The High Court has found that the Math in question is in charge of the Sivalli Brahmins who constitute a section of the followers of Madhwacharya. As Article 26 contemplates not F merely a religious denomination but also a section thereof, the Math or the spiritual fraternity represented by it can legitimately come within the purview of this article.” (emphasis supplied) (at pp. 1021-1022) Article 19 of the Constitution of India. In a concurring judgment by Hidayatullah, J., G the learned Judge, in arriving at this result, held that Articles 15, 16, 18 and 29(1) clearly refer to natural persons, i.e., individuals (See p. 127). The learned Judge went on to hold that in Articles 14, 20, 27 and 31, the word “person” would apply to individuals as well as to corporations (See p. 147). What is conspicuous by its absence is Article 25(1), which also uses the word “person”, which, as Shirur Math (supra) states above, can apply only to natural persons. Consequently, the argument that an idol can exercise fundamental rights contained in Article 25(1), as urged by some of the Respondents, H must be rejected.

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A With regard to what constitutes “religion”, “religious practice”, and “essential religious practices”, as opposed to “secular practices”, this Court held:

“It will be seen that besides the right to manage its own affairs in matters of religion, which is given by clause (b), the next two B clauses of Article 26 guarantee to a religious denomination the right to acquire and own property and to administer such property in accordance with law. The administration of its property by a religious denomination has thus been placed on a different footing from the right to manage its own affairs in matters of religion. C The latter is a fundamental right which no legislature can take away, whereas the former can be regulated by laws which the legislature can validly impose. It is clear, therefore, that questions merely relating to administration of properties belonging to a religious group or institution are not matters of religion to which clause (b) of the Article applies. What then are matters of religion? D The word “religion” has not been defined in the Constitution and it is a term which is hardly susceptible of any rigid definition. In an American case [Vide Davis v. Benson, 133 US 333 at 342], it has been said “that the term ‘religion’ has reference to one’s views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His will. It is often confounded with cultus of form or worship of a particular sect, but is distinguishable from the latter.” We do not think that the above definition can be regarded as either precise or adequate. Articles 25 and 26 of our Constitution are based for the most part upon Article 44(2) of the Constitution of Eire and we have great doubt whether a definition of “religion” as given above could have been in the minds of our Constitution-makers when they framed the Constitution. Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Buddhism G and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion

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may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress. The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression “practice of religion” in Article 25. Latham, C.J. of the High Court of Australia while dealing with the provision of section 116 of the Australian Constitution which inter alia forbids the Commonwealth C to prohibit the “free exercise of any religion” made the following weighty observations [Vide Adelaide Company v. Commonwealth, 67 C.L.R. 116, 127]: “It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinions, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts done in pursuance of religious belief as part of religion.” F These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. Restrictions by the State upon free exercise of religion are permitted both under Articles 25 and 26 on grounds of public order, morality and health. Clause (2)(a) of Article 25 reserves the right of the State to regulate or G restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-clause (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices. The learned H

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A Attorney-General lays stress upon clause (2)(a) of the Article and his contention is that all secular activities, which may be associated with religion but do not really constitute an essential part of it, are amenable to State regulation. The contention formulated in such broad terms cannot, we think, be supported. In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion and the mere fact that they involve expenditure of money or employment of priests and servants or the use of marketable commodities would not make them secular activities partaking of D a commercial or economic character; all of them are religious practices and should be regarded as matters of religion within the meaning of Article 26(b). What Article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation E of activities which are economic, commercial or political in their character though they are associated with religious practices. We may refer in this connection to a few American and Australian cases, all of which arose out of the activities of persons connected with the religious association known as “Jehovah’s Witnesses.” F This association of persons loosely organised throughout Australia, U.S.A. and other countries regard the literal interpretation of the Bible as fundamental to proper religious beliefs. This belief in the supreme authority of the Bible colours many of their political ideas. They refuse to take oath of allegiance to the king or other constituted human authority and even to show respect to the G national flag, and they decry all wars between nations and all kinds of war activities. In 1941 a company of “Jehovah’s Witnesses” incorporated in Australia commenced proclaiming and teaching matters which were prejudicial to war activities and the defence of the Commonwealth and steps were taken against them H

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under the National Security Regulations of the State. The legality A of the action of the Government was questioned by means of a writ petition before the High Court and the High Court held that the action of the Government was justified and that section 116, which guaranteed freedom of religion under the Australian Constitution, was not in any way infringed by the National Security B Regulations [Vide Adelaide Company v. Commonwealth, 67 C.L.R. 116, 127]. These were undoubtedly political activities though arising out of religious belief entertained by a particular community. In such cases, as Chief Justice Latham pointed out, the provision for protection of religion was not an absolute protection to be interpreted and applied independently of other provisions of the C Constitution. These privileges must be reconciled with the right of the State to employ the sovereign power to ensure peace, security and orderly living without which constitutional guarantee of civil liberty would be a mockery.” (emphasis supplied) D (at pp. 1023-1026) As to what matters a religious denomination enjoys complete autonomy over, this Court said: “…… As we have already indicated, freedom of religion in our Constitution is not confined to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under Article 26(b), therefore, 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. Of course, the scale of expenses to be incurred in connection with these religious observances would be a matter of administration of property belonging to the religious denomination and can be controlled by secular authorities in accordance with any law laid down by a competent legislature; for it could not be the injunction of any religion to destroy the institution and its endowments by incurring wasteful expenditure on rites and ceremonies. It should be noticed, however, that under Article 26(d), it is the fundamental right of a religious denomination or its representative to administer its properties in accordance H

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