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

[DR. DHANANJAYA Y CHANDRACHUD, J.]

2. The significance of the Preamble lies both in its setting forth A the founding principles of the Constitution as well as in the broad sweep of their content. The Constitution was brought into existence to oversee a radical transformation. There would be a transformation of political power from a colonial regime. There was to be a transformation in the structure of governance. Above all the Constitution envisages a B transformation in the position of the individual, as a focal point of a just society. The institutions through which the nation would be governed would be subsumed in a democratic polity where real power both in legal and political terms would be entrusted to the people. The purpose of adopting a democratic Constitution was to allow a peaceful transition from a colonial power to home rule. In understanding the fundamental principles of the Constitution which find reflection in the Preamble, it is crucial to notice that the transfer of political power from a colonial regime was but one of the purposes which the framers sought to achieve. The transfer of political power furnished the imperative for drafting a fundamental text of governance. But the task which the framers assumed was infinitely more sensitive. They took upon themselves above all, the task to transform Indian society by remedying centuries of discrimination against Dalits, women and the marginalised. They sought to provide them a voice by creating a culture of rights and a political environment to assert freedom. Above all, placing those who were denuded of their human rights before the advent of the Constitution – whether in the veneer of caste, patriarchy or otherwise – were to be placed in control of their own destinies by the assurance of the equal protection of law. Fundamental to their vision was the ability of the Constitution to pursue a social transformation. Intrinsic to the social transformation is the role of each individual citizen in securing justice, liberty, equality and fraternity in all its dimensions.

3. The four founding principles are not disjunctive. Together, the values which they incorporate within each principle coalesce in achieving the fulfilment of human happiness. The universe encompassed by the four founding principles is larger than the sum total of its parts. The Constitution cannot be understood without perceiving the complex relationship between the values which it elevates. So, liberty in matters of belief, faith and worship, must produce a compassionate and humane society marked by the equality of status among all its citizens. The freedom to believe, to be a person of faith and to be a human being in H

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A prayer has to be fulfilled in the context of a society which does not discriminate between its citizens. Their equality in all matters of status and opportunity gives true meaning to the liberty of belief, faith and worship. Equality between citizens is after all, a powerful safeguard to preserve a common universe of liberties between citizens, including in matters of religion. Combined together, individual liberty, equality and fraternity among citizens are indispensable to a social and political ordering in which the dignity of the individual is realised. Our understanding of the Constitution can be complete only if we acknowledge the complex relationship between the pursuit of justice, the protection of liberty, realisation of equality and the assurance of fraternity. Securing the worth of the individual is crucial to a humane society.

4. The Constitution as a fundamental document of governance has sought to achieve a transformation of society. In giving meaning to its provisions and in finding solutions to the intractable problems of the present, it is well to remind ourselves on each occasion that the purpose of this basic document which governs our society is to bring about a constitutional transformation. In a constitutional transformation, the means are as significant as are our ends. The means ensure that the process is guided by values. The ends, or the transformation, underlie the vision of the Constitution. It is by being rooted in the Constitution’s quest for transforming Indian society that we can search for answers to the binaries which have polarised our society. The conflict in this case between religious practices and the claim of dignity for women in matters of faith and worship, is essentially about resolving those polarities.

5. Essentially, the significance of this case lies in the issues which it poses to the adjudicatory role of this Court in defining the boundaries of religion in a dialogue about our public spaces. Does the Constitution, in the protection which it grants to religious faith, allow the exclusion of women of a particular age group from a temple dedicated to the public? Will the quest for human dignity be incomplete or remain but a writ in sand if the Constitution accepts the exclusion of women from worship in G a public temple? Will the quest for equality and fraternity be denuded of its content where women continue to be treated as children of a lesser god in exercising their liberties in matters of belief, faith and worship? Will the pursuit of individual dignity be capable of being achieved if we deny to women equal rights in matters of faith and worship, on the basis of a physiological aspect of their existence? These questions are central H

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to understanding the purpose of the Constitution, as they are to defining the role which is ascribed to the Constitution in controlling the closed boundaries of organised religion.

6. The chapter on Fundamental Rights encompasses the rights to (i) Equality (Articles 14 to 18); (ii) Freedom (Articles 19 to 24); (iii) Freedom of religion (Articles 25 to 28); (iv) Cultural and educational rights (Articles 29 and 30); and (v) Constitutional remedies (Article 32). Article 25 provides thus: “25. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. E Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference F to Hindu religious institutions shall be construed accordingly.” In clause (1), Article 25 protects the equal entitlement of all persons to a freedom of conscience and to freely profess, protect and propagate religion. By conferring this right on all persons, the Constitution emphasises the universal nature of the right. By all persons, the G Constitution means exactly what it says : every individual in society without distinction of any kind whatsoever is entitled to the right. By speaking of an equal entitlement, the Constitution places every individual on an even platform. Having guaranteed equality before the law and the equal protection of laws in Article 14, the draftspersons specifically H

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A continued the theme of an equal entitlement as an intrinsic element of the freedom of conscience and of the right to profess, practice and propagate religion. There are three defining features of clause (1) of Article 25: first, the entitlement of all persons without exception, second, the recognition of an equal entitlement; and third, the recognition both of the freedom of conscience and the right freely to profess, practice B and propagate religion. The right under Article 25(1) is evidently an individual right for, it is in the individual that a conscience inheres. Moreover, it is the individual who professes, practices and propagates religion. Freedom of religion in Article 25(1) is a right which the Constitution recognises as dwelling in each individual or natural person. C

7. Yet, the right to the freedom of religion is not absolute. For the Constitution has expressly made it subject to public order, morality and health on one hand and to the other provisions of Part III, on the other. The subjection of the individual right to the freedom of religion to the other provisions of the Part is a nuanced departure from the position D occupied by the other rights to freedom recognised in Articles 14, 15, 19 and 21. While guaranteeing equality and the equal protection of laws in Article 14 and its emanation, in Article 15, which prohibits discrimination on grounds of religion, race, caste, sex or place of birth, the Constitution does not condition these basic norms of equality to the other provisions of Part III. Similar is the case with the freedoms guaranteed by Article E 19(1) or the right to life under Article 21. The subjection of the individual right to the freedom of religion under Article 25(1) to the other provisions of Part III was not a matter without substantive content. Evidently, in the constitutional order of priorities, the individual right to the freedom of religion was not intended to prevail over but was subject to the overriding constitutional postulates of equality, liberty and personal freedoms recognised in the other provisions of Part III.

8. Clause (2) of Article 25 protects laws which existed at the adoption of the Constitution and the power of the state to enact laws in future, dealing with two categories. The first of those categories consists of laws regulating or restricting economic, financial, political or other secular activities which may be associated with religious practices. Thus, in sub-clause (a) of Article 25 (2), the Constitution has segregated matters of religious practice from secular activities, including those of an economic, financial or political nature. The expression “other secular H

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

activity” which follows upon the expression “economic, financial, political” A indicates that matters of a secular nature may be regulated or restricted by law. The fact that these secular activities are associated with or, in other words, carried out in conjunction with religious practice, would not put them beyond the pale of legislative regulation. The second category consists of laws providing for (i) social welfare and reform; or (ii) throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. The expression “social welfare and reform” is not confined to matters only of the Hindu religion. However, in matters of temple entry, the Constitution recognised the disabilities which Hindu religion had imposed over the centuries which restricted the rights of access to dalits and to various groups within Hindu society. The effect of clause (2) of Article 25 is to protect the ability of the state to enact laws, and to save existing laws on matters governed by sub-clauses (a) and (b). Clause (2) of Article 25 is clarificatory of the regulatory power of the state over matters of public order, morality and health which already stand recognised in clause (1). Clause 1 makes the right conferred subject to public order, morality and health. Clause 2 does not circumscribe the ambit of the ‘subject to public order, morality or health’ stipulation in clause 1. What clause 2 indicates is that the authority of the state to enact laws on the categories is not trammelled by Article 25.

9. Article 26, as its marginal note indicates, deals with the “freedom to manage religious affairs”: “26. Subject to public order, morality and health, every religious denomination or any section thereof shall have the right— (a) to establish and maintain institutions for religious and charitable purposes; F (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.” Article 26 confers rights on religious denominations and their G sections. The Article covers four distinct facets: (i) establishment and maintenance of institutions for purposes of a religious and charitable nature; (ii) managing the affairs of the denomination in matters of religion; (iii) ownership and acquisition of immovable property; and (iv) administration of the property in accordance with law. Article 26, as in H

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A the case of Article 25(1), is prefaced by a “subject to public order, morality and health” stipulation. Article 26(1) does not embody the additional stipulation found in Article 25(1) viz; “and to the other provisions of this Part.” The significance of this will be explored shortly.

10. Public order, morality and health are grounds which the B Constitution contemplates as the basis of restricting both the individual right to freedom of religion in Article 25(1) and the right of religious denominations under Article 26. The vexed issue is about the content of morality in Articles 25 and 26. What meaning should be ascribed to the content of the expression ‘morality’ is a matter of constitutional moment. In the case of the individual right as well as the right of religious C denominations, morality has an overarching position similar to public order and health because the rights recognised by both the Articles are subject to those stipulations. Article 25(2) contemplates that the Article will neither affect the operation of existing law or prevent the state from enacting a law for the purposes stipulated in sub-clauses (a) and (b).

D 11. In defining the content of morality, did the draftspersons engage with prevailing morality in society? Or does the reference to morality refer to something more fundamental? Morality for the purposes of Articles 25 and 26 cannot have an ephemeral existence. Popular notions about what is moral and what is not are transient and fleeting. Popular E notions about what is or is not moral may in fact be deeply offensive to individual dignity and human rights. Individual dignity cannot be allowed to be subordinate to the morality of the mob. Nor can the intolerance of society operate as a marauding morality to control individual self- expression in its manifest form. The Constitution would not render the existence of rights so precarious by subjecting them to passing fancies F or to the aberrations of a morality of popular opinion. The draftspersons of the Constitution would not have meant that the content of morality should vary in accordance with the popular fashions of the day. The expression has been adopted in a constitutional text and it would be inappropriate to give it a content which is momentary or impermanent. G Then again, the expression ‘morality’ cannot be equated with prevailing social conceptions or those which may be subsumed within mainstream thinking in society at a given time. The Constitution has been adopted for a society of plural cultures and if its provisions are any indication, it is evident that the text does not pursue either a religious theocracy or a dominant ideology. In adopting a democratic Constitution, the framers H

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would have been conscious of the fact that governance by a majority is A all about the accumulation of political power. Constitutional democracies do not necessarily result in constitutional liberalism. While our Constitution has adopted a democratic form of governance it has at the same time adopted values based on constitutional liberalism. Central to those values is the position of the individual. The fundamental freedoms which Part B III confers are central to the constitutional purpose of overseeing a transformation of a society based on dignity, liberty and equality. Hence, morality for the purposes of Articles 25 and 26 must mean that which is governed by fundamental constitutional principles.

12. The content of morality is founded on the four precepts which emerge from the Preamble. The first among them is the need to ensure justice in its social, economic and political dimensions. The second is the postulate of individual liberty in matters of thought, expression, belief, faith and worship. The third is equality of status and opportunity amongst all citizens. The fourth is the sense of fraternity amongst all citizens which assures the dignity of human life. Added to these four precepts is the fundamental postulate of secularism which treats all religions on an even platform and allows to each individual the fullest liberty to believe or not to believe. Conscience, it must be remembered, is emphasised by the same provision. The Constitution is meant as much for the agnostic as it is for the worshipper. It values and protects the conscience of the atheist. The founding faith upon which the Constitution is based is the belief that it is in the dignity of each individual that the pursuit of happiness is founded. Individual dignity can be achieved only in a regime which recognises liberty as inhering in each individual as a natural right. Human dignity postulates an equality between persons. Equality necessarily is an equality between sexes and genders. Equality postulates a right to be free from discrimination and to have the protection of the law in the same manner as is available to every citizen. Equality above all is a protective shield against the arbitrariness of any form of authority. These founding principles must govern our constitutional notions of morality. Constitutional morality must have a value of permanence which is not subject to the fleeting fancies of every time and age. If the vision which the founders of the Constitution adopted has to survive, constitutional morality must have a content which is firmly rooted in the fundamental postulates of human liberty, equality, fraternity and dignity. These are the means to secure justice in all its dimensions to the individual citizen. H

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A Once these postulates are accepted, the necessary consequence is that the freedom of religion and, likewise, the freedom to manage the affairs of a religious denomination is subject to and must yield to these fundamental notions of constitutional morality. In the public law conversations between religion and morality, it is the overarching sense of constitutional morality which has to prevail. While the Constitution B recognises religious beliefs and faiths, its purpose is to ensure a wider acceptance of human dignity and liberty as the ultimate founding faith of the fundamental text of our governance. Where a conflict arises, the quest for human dignity, liberty and equality must prevail. These, above everything else, are matters on which the Constitution has willed that its values must reign supreme.

13. The expression “subject to” is in the nature of a condition or proviso. Making a provision subject to another may indicate that the former is controlled by or is subordinate to the other. In making clause 1 of Article 25 subject to the other provisions of Part III without introducing a similar limitation in Article 26, the Constitution should not readily be assumed to have intended the same result. Evidently the individual right under Article 25(1) is not only subject to public order, morality and health, but it is also subordinate to the other freedoms that are guaranteed by Part III. In omitting the additional stipulation in Article 26, the Constitution has consciously not used words that would indicate an intent specifically to make Article 26 subordinate to the other freedoms. This textual interpretation of Article 26, in juxtaposition with Article 25 is good as far as it goes. But does that by itself lend credence to the theory that the right of a religious denomination to manage its affairs is a standalone right uncontrolled or unaffected by the other fundamental freedoms? The answer to this must lie in the negative. It is one thing to say that Article 26 is not subordinate to (not ‘subject to’) other freedoms in Part III. But it is quite another thing to assume that Article 26 has no connect with other freedoms or that the right of religious denominations is unconcerned with them. To say as a matter of interpretation that a provision in law is not subordinate to another is one thing. But the absence of words of subjection does not necessarily attribute to the provision a status independent of a cluster of other entitlements, particularly those based on individual freedoms. Even where one provision is not subject to another there would still be a ground to read both together so that they exist in harmony. Constitutional interpretation is all about bringing a H

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sense of equilibrium, a balance, so that read individually and together the provisions of the Constitution exist in contemporaneous accord. Unless such an effort were to be made, the synchrony between different parts of the Constitution would not be preserved. In interpreting a segment of the Constitution devoted exclusively to fundamental rights one must eschew an approach which would result in asynchrony. Co-existence of freedoms is crucial, in the ultimate analysis, to a constitutional order which guarantees them and seeks to elevate them to a platform on which every individual without distinction can reap their fruit without a bar to access. Thus, the absence of words in Article 26 which would make its provisions subordinate to the other fundamental freedoms neither gives the right conferred upon religious denominations a priority which overrides other freedoms nor does it allow the freedom of a religious denomination to exist in an isolated silo. In real life it is difficult to replicate the conditions of a controlled experiment in a laboratory. Real life is all about complexities and uncertainties arising out of the assertions of entitlements and conflicts of interests among groups of different hues in society. The D freedoms which find an elaboration in Part III are exercised within a society which is networked. The freedoms themselves have linkages which cannot be ignored. There is, therefore, a convincing reason not to allow the provisions of Article 26 to tread in isolation. Article 26 is one among a large cluster of freedoms which the Constitution has envisaged as intrinsic to human liberty and dignity. In locating the freedom under E Article 26 within a group – the religious denomination – the text in fact allows us to regard the fundamental right recognised in it as one facet of the overall components of liberty in a free society.

14. This approach to constitutional interpretation which I propose and follow is acceptable for another reason, as a matter of constitutional doctrine. Since the decision of eleven judges in Rustom Cavasjee Cooper v Union of India2, it is now settled doctrine that the fundamental rights contained in Part III are not, as it has been said, water-tight compartments. Evolving away from the earlier jurisprudence in A K Gopalan v State of Madras3 our interpretation of the freedoms is now governed by a sense of realism which notices their open-textured content and indeed, their fluid nature. One freedom shades into and merges with another. Fairness as a guarantee against arbitrary state action influences the content of the procedure for the deprivation of life under 2 (1970) 1 SCC 248 3 1950 SCR 88 H

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A Article 21. Though Article 21 speaks only of the deprivation of life or personal liberty by a procedure established by law, decisions from Maneka Gandhi v Union of India4, (“Maneka”) have expounded that the law must have a content which is reasonable. The procedure for deprivation must be free of the taint of that which is arbitrary. This reading of the fundamental rights as constellations emanating from a B cosmos of freedom and as having paths which intersect and merge enhances the value of freedom itself. Though the principal provision relating to equality before the law is embodied in Article 14, the four articles which follow it are a manifestation of its basic doctrines. Article 15 in outlawing discrimination on grounds of religion, race, caste, sex and place of birth is but a manifestation of equality. Equality in matters of public employment under Article 16 is a facet of the basic postulate of equality. Article 17 gives expression to equality in abolishing untouchability: a practice fundamentally at odds to the notion of an equal society. Titles which place some citizens above others are abolished by Article 18 in manifesting yet another aspect of equality. As we have seen, a fundamental notion of equality is embodied in Article 25(1) itself when it speaks of an equal entitlement to freely practice, profess and propagate religion. This sense of equality permeates the other guarantees of fundamental freedoms as well. Article 19 recognises six freedoms as an entitlement “of all citizens”. Recognizing that a right inheres in all citizens is a constitutional affirmation that every citizen, without exception or discrimination of any kind is entitled to those freedoms. Then again, the restrictions on the freedoms contemplated by Articles 19(2) to (6) have to be reasonable. Reasonableness is a facet of equality. The equal application of law to persons similarly circumstanced is a fundamental postulate of the protections which are conferred by Articles 20, 21 and F

22. Thus the principle which has become an entrenched part of our constitutional doctrine after the decision in Bank Nationalization is based on a sure foundation. The freedoms which we possess and those which we exercise are not disjunctive parts, separate from each other. Individuals in society exercise not one but many of the freedoms. An G individual exercises a multitude of freedoms as a composite part of the human personality. A single act embodies within it the exercise of many choices reflecting the assertion of manifold freedoms. From this perspective, it is but a short step to hold that all freedoms exist in harmony. Our freedoms are enveloped in the womb created by the Constitution 4 H (1978) 1 SCC 248

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for the survival of liberty. Hence, the absence of a clause of subjection in Article 26 does not lead to the conclusion that the freedom of a religious denomination exists as a discrete element, divorced from the others. This approach is quite independent of the consideration that even Article 26 like Article 25(1) is subject to public order, morality and health. Once we hold, following the line which is now part of conventional doctrine, that all freedoms have linkages and exist in a state of mutual co-existence, the freedom of religious denominations under Article 26 must be read in a manner which preserves equally, other individual freedoms which may be impacted by an unrestrained exercise. Hence, the dignity of women which is an emanation of Article 15 and a reflection of Article 21 cannot be disassociated from the exercise of religious freedom under Article 26. C

15. Once Articles 25 and 26 are read in the manner in which they have been interpreted, the distinction between the articles in terms of the presence or absence of a clause of subjection should make little practical significance to the relationship between the freedom of religion with the other freedoms recognized in the fundamental rights. If the D Constitution has to have a meaning, is it permissible for religion – either as a matter of individual belief or as an organized structure of religious precepts – to assert an entitlement to do what is derogatory to women? Dignity of the individual is the unwavering premise of the fundamental rights. Autonomy nourishes dignity by allowing each individual to make E critical choices for the exercise of liberty. A liberal Constitution such as ours recognizes a wide range of rights to inhere in each individual. Without freedom, the individual would be bereft of her individuality. Anything that is destructive of individual dignity is anachronistic to our constitutional ethos. The equality between sexes and equal protection of gender is an emanation of Article 15. Whether or not Article 15 is attracted to a F particular source of the invasion of rights is not of overarching importance for the simple reason that the fundamental principles which emerge from the Preamble, as we have noticed earlier, infuse constitutional morality into its content. In our public discourse of individual rights, neither religious freedom nor organized religion can be heard to assert an immunity to G adhere to fundamental constitutional precepts grounded in dignity and human liberty. The postulate of equality is that human beings are created equal. The postulate is not that all men are created equal but that all individuals are created equal. To exclude women from worship by allowing the right to worship to men is to place women in a position of subordination. H

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A The Constitution, should not become an instrument for the perpetuation of patriarchy. The freedom to believe, the freedom to be a person of faith and the freedom of worship, are attributes of human liberty. Facets of that liberty find protection in Article 25. Religion then cannot become a cover to exclude and to deny the basic right to find fulfilment in worship to women. Nor can a physiological feature associated with a woman provide a constitutional rationale to deny to her the right to worship which is available to others. Birth marks and physiology are irrelevant to constitutional entitlements which are provided to every individual. To exclude from worship, is to deny one of the most basic postulates of human dignity to women. Neither can the Constitution countenance such an exclusion nor can a free society accept it under the veneer of religious beliefs.

16. Much of our jurisprudence on religion has evolved, as we shall see, around what constitutes an essential religious practice. At a certain level an adjudication of what is a religious practice seems to have emerged from the distinction made in clause 2(a) of Article 25 between a religious practice and economic, financial, political or other secular activities which are associated with religious practices. Where the state has enacted a law by which it claims to have regulated a secular activity associated with a religious practice, but not the religious practice, it becomes necessary to decide the issue, where the validity of the law is challenged. Similarly, Article 26(b) speaks of “matters of religion” when it recognises the right of a religious denomination to manage them. In the context of Article 26(b), this Court has embarked upon a course to decide in individual cases whether, what was said to be regulated by the state was a matter of religion which falls within the freedom guaranteed to the denomination. These compulsions nonetheless have led the court to don a theological mantle. The enquiry has moved from deciding what is essentially religious to what is an essential religious practice. Donning such a role is not an easy task when the Court is called upon to decide whether a practice does nor does not form an essential part of a religious belief. Scriptures and customs merge with bewildering complexity into superstition and dogma. Separating the grain from the chaff involves a complex adjudicatory function. Decisions of the Court have attempted to bring in a measure of objectivity by holding that the Court has been called upon to decide on the basis of the tenets of the religion itself. But even that is not a consistent norm. H

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17. Our conversations with the Constitution must be restructured A to evolve both with the broadening of the content of liberty and dignity and the role of the Court as an enforcer of constitutional doctrine. The basic principle which must guide any analysis in this area is the dominance of the values of liberty, equality and fraternity as instruments in achieving individual dignity. Once individual dignity assumes the character of a B shining star in the constellation of fundamental rights, the place of religion in public places must be conditioned by India’s unwavering commitment to a constitutional order based on human dignity. Practices which are destructive of liberty and those which make some citizens less equal than others can simply not be countenanced. To treat women as children of a lesser god is to blink at the Constitution itself. Among the fundamental duties of every citizen recognized by the Constitution is “to renounce practices derogatory to the dignity of women”.5 In speaking to the equality between individuals in matters of livelihood, health and remuneration for work, the Directive Principles speak to the conscience of the Constitution. To allow practices derogatory to the dignity of a woman in matters of faith and worship would permit a conscious breach of the fundamental duties of every citizen. We cannot adopt an interpretation of the Constitution which has such an effect. Our inability to state this as a matter of constitutional doctrine is liable to lead us to positions of pretence or, worse still, hypocrisy. Both are willing allies to push critical issues under the carpet. If we are truly to emerge out of the grim shadows of E a society which has subjugated groups of our citizens under the weight of discrimination for centuries, it is time that the Constitution is allowed to speak as it can only do: in a forthright manner as a compact of governance, for today and the future.

18. Now it is in this background that it would be necessary to explore the principles which emerge from the precedents of this Court which explain the content of Article 25(1) and Article 26. B History: Lord Ayyappa and the Sabarimala Temple Origins

19. The Sabarimala Temple, devoted to Lord Ayyappa is a temple of great antiquity. The temple is situated over one of the eighteen mountains spread over the Western Ghats known as Sannidhanam. Situated in the district of Pathananthitta in Kerala, the temple nestles at a height of 1260 metres (4135 feet) above sea level. The faithful believe 5 Article 51A(e), The Constitution of India H

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A that Lord Ayyappa’s powers derive from his ascetism, in particular from his being celibate. Celibacy is a practice adopted by pilgrims before and during the pilgrimage. Those who believe in Lord Ayyappa and offer prayer are expected to follow a strict ‘Vratham’ or vow over a period of forty one days which lays down a set of practices.

B 20. The legend of Lord Ayyappa and the birth of the Sabarimala temple have been explained6 in the erudite submissions in this case. Although there are numerous Ayyappa Temples in India, the Sabarimala Temple depicts Lord Ayyappa as a “Naishtika Brahmacharya”: his powers derive specifically from abstention from sexual activities. C The birth of Lord Ayyappa is described as arising from the union of Lord Shiva and Lord Vishnu (the form of Mohini). The divine beings left the boy in a forest near River Pampa. The Pandalam King, Rajasekara, while on a hunting trip in the forest along the banks of the River Pampa, heard the cries of a child. The King reached the banks of the river and found the child Ayyappa. The King took the child in and took him to the Palace, where the King briefed the Queen about the incident. The couple as well as the people of the Kingdom were happy by the arrival of the new child. Ayyappa, also called ‘Manikanta’ grew up in the palace and was trained in the martial arts and Vedas. The Guru responsible for Manikanta’s education concluded that the this was not an ordinary child, but a divine power. Meanwhile, the Queen gave birth to a male child named Raja Rajan. Impressed with the talents of Manikanta, King Rajasekara decided to crown him, treating him as the elder child. He ordered the Minister to make arrangements for the coronation. However, the Minister, desiring the throne for himself, attempted to execute plans to prevent the coronation, all of which failed. Having failed, the Minister approached the Queen to persuade her to ensure that her own biological child was crowned King. The Minister suggested that the Queen pretend that she was suffering from a severe headache, whereupon he would make the physician prescribe that the milk of a tigress be brought to cure her. To G achieve this, he suggested that Manikanta should be sent to the forest.

21. Manikanta soon left for the forest after promising the King that he would return with the milk of a tigress. Manikanta set out on his 6 Written Submissions by: Learned Senior Counsel Shri K. Parasaran, Learned Senior Counsel Dr. Abhishek Manu Singhvi for the Respondents; Non-Case Law Convenience H Compilation filed by Advocate for Respondent No. 2; Learned Senior Counsel Indira Jaisingh and Learned Counsel R.P. Gupta for the Petitioners

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journey after having refused an escort of men that the King had desired to accompanying him. The King had sent with Manikanta food and coconuts with three eyes, in the remembrance of Lord Shiva. In the forest, Lord Shiva appeared before Manikanta and told him that though he had done his duty towards the devas, he was left with the task to ensure the King’s comfort. Lord Shiva told Manikanta that he could go back to the Palace with Lord Indra in the form of a tiger. When Manikanta was seated on the tiger, and all the female devatas in the disguise of tigresses started their journey to the palace, the schemers were frightened into confessing their plot. They were convinced of his divine origins and prayed for their own salvation and for the safety of the Kingdom. Manikanta disappeared. The King refused to eat anything till his return. Manikanta appeared in the form of a vision before the King. Filled with emotions of happiness, grief, fear, wonder and ‘Bhakti, the King stood praying for mercy and the blessings of Manikanta. He repented in front of Manikanta for not having realized his divine power and for treating him merely as his child. The Lord lovingly embraced the D King who prayed to bless him by freeing him from ego and the worldy cycle of rebirth. Manikanta granted him Moksha (salvation). He told the King that he was destined to return. The King implored Manikanta to allow him to build a temple and dedicate it to him. The Lord assented. Manikanta then enlightened the King on the path of Moksha. E

22. The Lord shot an arrow that fell at the pinnacle of Sabarimala and told the King that he could construct a temple at Sabarimala, north of the Holy river Pampa and install his deity there. Lord Ayyappa also explained how the Sabarimala pilgrimage shall be undertaken, emphasizing the importance of the penance or ‘Vratham’ and what the devotees can attain by his ‘darshan’. But before the departure of the Lord, the King F secured a promise from the Lord that on thai pongal on January 14, every year, his personal jewelry will be adorned on his deity at Sabarimala. The Pilgrimage

23. Sabarimala follows the system of being open for: G

2. For the first five days of each Malayalam month which communes approximately in the middle of each calendar month; and H

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24. The pilgrimage has three distinctive features: (i) It is almost exclusively a male-centric pilgrimage that bars women between the ages of ten and fifty from participating in the rituals; (ii) Though the worshippers of Lord Ayyappa fall broadly within the Hindu tradition, yet males of all ages may participate on an equal footing, regardless of caste, creed or religion. Muslims and Christians are also known to undertake this pilgrimage, enjoying the same equality; and (iii) The actual journey to the pilgrimage site is preceded by a preparatory period of forty-one days. During this period, pilgrims are obliged to wear black clothes and the ‘mala’ with which they are initiated, and they must observe celibacy, abstinence from meat and intoxicants.

25. Traditionally though the Vratham period extended over forty- one days, nowadays shorter periods are permitted. While it is expected that for first time initiaties observe the forty-one day Vratham, others shorten the term to two weeks or even six days. A key essential of the H

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

Vratham is a sathvic lifestyle and brahmacharya. This is believed to A be a step towards a pure body and mind an effort to be aloof from the materialistic world, by taking a step towards the path of devotion. The Vratham or penance entails: (i) Abstaining from physical relations with a spouse; B (ii) Abstention from intoxicating drinks, smoking and tamasic food; (iii) Living in isolation from the rest of the family; (iv) Refraining from interacting with women in daily life including those in the family; C (v) Cooking one’s own food; (vi) Maintaining hygiene including bathing twice a day before prayers; (vii) Wearing a black mundu and upper garments; (viii) Partaking of one meal a day; and D

(ix) Walking barefoot. The penance is to be carried out in the manner prescribed. Maintaining oneself as ‘pure and unpolluted’, it is believed, would lead to the path towards attaining Godhead or to be one with Lord Ayyappa. E C Temple entry and the exclusion of women Before proceeding to analyse the questions in this reference, it would be necessary to outline the history of the case bearing upon the controversy. F

26. Two notifications were issued by the Travancore Devaswom Board which read as follows: Notification dated 21 October 1955 “In accordance with the fundamental principle underlying the prathishta (installation) of the venerable, holy and ancient G temple of Sabarimala, Ayyappans who had not observed the usual vows as well as women who had attained maturity were not in the habit of entering the above mentioned temple for Darshan (worship) by stepping the Pathinettampadi. But of late, there seems to have been a deviation from this custom H

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A and practice. In order to maintain the sanctity and dignity of this great temple and keep up the past traditions, it is hereby notified that Ayyappans who do not observe the usual Vrithams are prohibited from entering the temple by stepping the Pathinettampadi and women between the ages of ten and fifty-five are forbidden from entering the temple.”7 B Notification dated 27 November 1956 “In accordance with the fundamental principle underlying the prathishta (installation) of the venerable, holy and ancient temple of Sabarimala, Ayyappans who had not observed the usual vows as well as women who had attained maturity were not in the habit of entering the above-mentioned temple for Darshan (worship) by stepping the Pathinettampadi. But of late, there seems to have been a deviation from this custom and practice. In order to maintain the sanctity and dignity of this great temple and keep up the past traditions, it is hereby notified that Ayyappans who do not observe the usual Vritham (vows) are prohibited from entering the temple by stepping the pathinettampadi and women between the ages of ten and fifty five are forbidden from entering the temple.” In 1965, the Kerala Hindu Places of Public Worship (Authorization E of Entry) Act 19658 was enacted. The preamble to the Act lays down that the Act has been enacted to make better provisions for entry of all classes and sections of Hindu into places of public worship. Section 2 contains definitions: “Section 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 7 The Kerala High Court in S Mahendran v The Secretary, Travancore Devaswom Board, Thiruvananthapuram, recorded that women between ten and fifty were excluded from the Sabarimala temple. The Petitioners and Respondents in the present case accept that women between the age of ten and fifty are excluded. 8 H The “1965 Act”

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

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 any sacred tanks, wells, springs and water courses the waters of 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.” Section 3 provides for places of public worship to be open to all sections and classes of Hindus: C “Section 3. Places of public worship to be open to all section 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; 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 enter, worship, pray or perform: Provided that in the case of a place of public worship which is a F 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.” Section 4 deals with the power to make regulations: G “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 H

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A authority and any rules which may be made by that authority, to make regulations for the maintenance of order and the 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,- (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 1930), 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 D Board; and (iii) in relation to a place of public worship situated in any other area in the State of Kerala, the Government.” The State of Kerala in exercise of the power under Section 4 framed the Kerala Hindu Places of Public Worship (Authorization of E Entry) Rules 1965.9 Rule 3 of the 1965 Rules is extracted below: “Rule 3. The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bathe 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 F 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- (a) Persons who are not Hindus. G (b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship. (c) Persons under pollution arising out of birth or death in their families. 9 The “1965 Rules” H

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

(d) Drunken or disorderly persons. A (e) Persons suffering from any loathsome or contagious disease. (f) Persons of unsound mind except when taken for worship under proper control and with the permission of the executive authority of the place of public worship concerned. B (g) Professional beggars when their entry is solely for the purpose of begging.” (Emphasis Supplied)

27. The legality of banning the entry of women above the age of ten and below the age of fifty to offer worship at Sabarimala shrine was sought to be answered in 1992 by a Division Bench of the High Court of Kerala in S Mahendran v The Secretary, Travancore Devaswom Board, Thiruvananthapuram (“Mahendran”).10 A public interest litigation was entertained by the High Court on the basis of a petition addressed by one S. Mahendran. Upholding the exclusion of women from the ceremonies and prayer at the shrine, the High Court concluded: “44. Our conclusions are as follows: (1) The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial. (2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India. (3) Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a temple whereas the prohibition is only in respect of women of a particular age group and not women as a class.” 11 The High Court issued the following directions:- G “In the light of the aforesaid conclusions we direct the first respondent, the Travancore Devaswom Board, not to permit women above the age of 10 and below the age of 50 to trek the 10 AIR 1993 Ker 42 11 Ibid, at page 57 H

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A holy hills of Sabarimala in connection with the pilgrimage to the Sabarimala temple and from offering worship at Sabarimala Shrine during any period of the year. We also direct the 3rd respondent, Government of Kerala, to render all necessary assistance inclusive of police and to see that the direction which we have issued to the Devaswom Board is implemented and complied with.” B D The reference

28. When the present case came up before a three judge Bench of this Court, by an order dated 13 October 2017, the following questions were referred to a larger bench: C “1 Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by ‘morality’ as used in Articles 25 and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an D “essential religious practice” under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion?

3. Whether Ayyappa Temple has a denominational character and, E if so, is it permissible on the part of a ‘religious denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51- A(e)? F

4. Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years? And if so, would it not play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex? G

5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and, if treated to be intra vires, whether it will be violative of the provisions of Part III of the Constitution?” H

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It is these questions that we have been called upon to answer. A E Submissions The Petitioners challenge the exclusion of women between the age group ten and fifty from the Sabarimala Temple as unconstitutional. Mr Ravi Prakash Gupta,12 learned Counsel submitted that the exclusion of women between the age group of ten and fifty from the Sabarimala Temple is unconstitutional on the following grounds: i. The devotees of Lord Ayyappa do not constitute a religious denomination under Article 26 of the Constitution; ii.The restriction of entry of women into Sabarimala temple does not constitute an Essential Religious Practice; iii. The right under Article 26 and Article 25 must be read harmoniously as laid down in Devaru; and iv. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act D and Article 14 and 15 of the Constitution. Ms Indira Jaising,13 learned Senior Counsel, submits that the exclusion from the Sabarimala temple is unconstitutional: i. The exclusionary practice is based on physiological factors exclusive to the female gender and this violates Articles 14, 15 E and 21 of the Constitution; ii.The practice of exclusion based on menstruation constitutes a form of untouchability and is prohibited by Article 17 of the Constitution; iii. The devotees of Lord Ayyappa do not constitute a religious denomination under Article 26 of the Constitution; iv. The practice of excluding women from the Sabarimala temple does not constitute an Essential Religious Practice; v.That the impugned custom of excluding women falls within the ambit of ‘laws in force’ in Article 13 and is constitutionally invalid; and vi. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act. 12 Appearing for the Petitioners – Indian Young Lawyer’s Association 13 Appearing for the Intervenors – Nikita Azad Arora and Sukhjeet Singh H

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A Mr Raju Ramachandran, learned Senior Counsel who has assisted the Court as Amicus Curiae made the following submissions: i. That the right of a woman to worship is an essential aspect of her right to worship under Article 25; ii. That the exclusion of women from Sabarimala temple amounts B to discrimination prohibited under Article 15(1) of the Constitution; iii. That compulsory disclosure of menstrual status by women is a violation of their right to privacy under Article 21 of the Constitution; C iv. The term ‘morality’ in Article 25 and 26 embodies constitutional morality; v. That Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act; vi. The devotees of Lord Ayyappa do not constitute a religious denomination under Article 26 of the Constitution; vii. The practice of excluding women from the Sabarimala temple does not constitute an Essential Religious Practice; viii. The prohibition against untouchability in Article 17 extends to the denial of entry to women between the age group ten and fifty; ix. A deity is not a juristic person for the purpose of rights enshrined in Part III of the Constitution; and x. That there is no requirement of trial as the recordings by the F High Court in Mahendran are sufficient. Mr P V Surendranath,14 learned Senior Counsel submitted thus: i. There is no proven custom of excluding women from the Sabarimala temple; ii. The practice of exclusion violates Article 14, 15, 25 and 51 of G the Constitution; and iii. In the case of a conflict between fundamental rights and customs, the former would prevail in accordance with Article 13 of the Constitution. 14 Appearing for the Intervenors – All India Democratic Women’s Association H

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

Mr Jaideep Gupta,15 learned Senior Counsel submitted: A i. The State Government of Kerala stands by the affidavit filed on 13 November 2007 wherein the State Government was not in favour of any discrimination against women; ii. That women fall within the ambit of ‘section or class’ in Section 3 of the 1965 Act; B

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A v. That Article 13 of the Constitution does not apply to the present case; and vi. That a separate trial would be required for the determination of facts.

B Shri K Parasaran,17 learned Senior Counsel submitted that the exclusion from the Sabarimala temple is constitutionally permissible: i. There exists an independent custom that permits the exclusion of women from the Sabarimala temple; ii.The right to exclude women of a particular age group from the C temple flows from the religious rights of the devotees under Article 25 of the Constitution and the character of the deity as a Naishtika Brahmacharya; iii. The custom is protected under Rule 3(b) the 1965 Rules; and

D iv. That the notion of equality is enshrined in Article 25, and consequently, Article 14 and 15 are inapplicable to the present case. Mr K Ramamoorthy, learned Senior Counsel who assisted the Court as Amicus Curiae made the following submissions: E i. That the exclusion of women between the age group ten and fifty does not violate the rights of the Petitioners under Article 25; and ii.The practice of exclusion is protected under Article 25. F Mr K Radhakrishnan,18 learned Senior Counsel submitted that the exclusion of women between the ages ten and fifty is permissible: i. The impugned practice constitutes an Essential Religious Practice; and

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

i. The exclusion of women constitutes an Essential Religious A Practice and is in accordance with character of the deity as a Naishtika Brahmacharya. Mr J Sai Deepak,20 learned Counsel submitted that the deity has constitutional rights and that the practice of excluding women between the age group of ten and fifty from worship at the Sabarimala temple is B constitutional and permissible: i. The impugned practice is based on the character of the deity as a Naishtika Brahmacharya; ii. Given the form of the deity, the practice constitutes an Essential Religious Practice; C iii.The devotees of Lord Ayyappa constitute a religious denomination under Article 26 of the Constitution; iv.That the presiding deity of Sabarimala Temple is a bearer of constitutional rights under Articles 21 and 25 of the Constitution; v.Article 17 of the Constitution has no applicability as it applies D only to untouchability based on caste and religion; and vi.The impugned Rules and Act flow from the right of the denomination under Article 26 and are constitutionally valid. Mr V K Biju,21 learned Counsel submitted that the exclusion is constitutionally permissible: E i. That the right of the deity as a juristic person sitting as a Naishtika Brahmacharya cannot be questioned; ii.That the exclusion is protected under Article 25 and 26 of the Constitution; and iii. The issue at hand cannot be decided without a determination of facts that would take place at trial. Mr Gopal Sankaranarayanan,22 learned Counsel made the following submissions: i. That Article 25 is not applicable to the present case; ii. That the devotees of Lord Ayyappa constitute a religious denomination under Article 26 of the Constitution; and

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A iii. The 1965 Act does not apply to the Sabarimala temple; In any case, the proviso to Rule 3 of the 1965 Rules protects the rights of religious denominations. F Essential Religious Practices

29. The doctrine of essential religious practices was first articulated in 1954, in Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Shirur Mutt23 (“Shirur Mutt”). A seven judge Bench of this Court considered a challenge to the Madras Hindu Religious and Charitable Endowments Act 1951, which empowered a statutory commissioner to frame and settle a scheme if they had reason to believe that the religious institution was mismanaging funds. The Petitioner, the mathadhipati (superior) of the Shirur Mutt monastery, claimed that the law interfered with his right to manage the religious affairs of the monastery, and therefore violated Article 26(b) of the Constitution. D Justice B K Mukherjea, writing for the Court, noted that Article 26(b) allowed a religious denomination to ‘manage its own affairs in matters of religion’ and framed a question on the ambit of ‘matters of religion’: “16.The language undoubtedly suggests that there could be other E affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply. The question is, where is the line to be drawn between what are matters of religion and what are not?”

F (Emphasis supplied) The Court cited with approval the judgment of the High Court of Australia in Adelaide Company of Jehovah’s Witnesses Incorporated v The Commonwealth of Australia24, which held that the Constitution protected not only “liberty of opinion” but also “acts done in pursuance of religious belief as part of religion.” The court noted G the importance of both religious belief and the practice that stems from it, and provided an expansive definition of ‘religion’: “A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion 23 1954 SCR 1005 H 24 [1943] HCA 12

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as conducive to their spiritual well-being, but it would not be correct A to say that religion is nothing else but a doctrine or belief...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.” B (Emphasis supplied) Drawing a distinction between religious and secular practices, the court held that: “...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…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 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).” (Emphasis supplied) The Court ruled that the freedom of religion guaranteed by the E Constitution applied to freedom of both religious belief and practice. To distinguish between the religious and the secular, the Court looked to the religion itself, and noted that the views of adherents were crucial to the analysis of what constituted ‘essential’ aspects of religion.

30. This approach was followed in Ratilal Panachand Gandhi v F State of Bombay25 (“Ratilal”), where a Constitution Bench of this Court considered the constitutionality of the Bombay Public Trusts Act, 1950. The Act sought to regulate and make provisions for the administration of public and religious trusts in the State of Bombay. The Petitioners challenged the validity of the Act on the grounds that it interfered with G their freedom of conscience, their right to freely profess, practise and propagate their religion, and their right to manage their religious affairs under Articles 25 and 26 of the Constitution. Justice B K Mukherjea, speaking for a Constitution Bench of this Court, expounded upon the meaning and scope of Article 25: 25 1954 SCR 1055 H

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A “10...Subject to the restrictions which this article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others.” B Speaking with reference to Article 26, Justice Mukherjea reiterated the broad view taken by the Court in Shirur Mutt – that religious denominations had ‘complete autonomy’ to decide which religious practices were essential for them: C “Religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines … 23…No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate.” The Court, however, recognized the limited role of the Court in the determination of such a question: “The distinction between matters of religion and those of secular administration of religious properties may, at times, appear to be a thin one. But in cases of doubt …the court should take a common sense view and be actuated by considerations of practical necessity.” (Emphasis supplied)

31. The late 1950s witnessed two cases that were central to the evolution of the essential practices doctrine. In Sri Venkataramana Devaru v State of Mysore26(“Devaru”), a Constitution Bench of this Court considered the constitutionality of the Madras Temple Entry Authorisation Act, 1947, which sought to reform the practice of religious exclusion of Dalits from a denominational temple founded by the Gowda Saraswat Brahmins. The Court accepted the claim that the temple was G a denominational temple founded for the benefit of the Gowda Saraswats, and proceeded to examine whether exercising the right of a religious denomination under Article 26(b), they were ‘entitled to exclude other communities from entering into it for worship on the ground that it was a matter of religion.’ H 26 (1958) SCR 895

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Rather than allowing the religious denomination ‘complete A autonomy in the matter of deciding as to what rites and ceremonies are essential’, the Court examined scripture and precedent to determine whether the exclusion of a person from entering into a temple for worship was a matter of religion under Hindu Ceremonial Law. Justice Venkatarama Aiyar reviewed ancient literature, the practice of Hindus, B and the role of temples in that practice, and concluded on behalf of the Court that: “18…Thus, under the ceremonial law pertaining to temples, who are entitled to enter them for worship and where they are entitled to stand and worship and how the worship is to be conducted are all matters of religion.” (Emphasis supplied) C

This firmly established the Court’s role in determining what constituted ‘essential’ religious practices. However, the matter did not end here. The Gowda Saraswats claimed their right to manage their own religious affairs under Article 26(b), whereas the State claimed that it had a constitutional mandate to throw open Hindu temples ‘to all classes and sections of Hindus’ under Article 25(2)(b). Noting that the two are “apparently in conflict”, the Court considered whether the right of a religious denomination to manage its own affairs in matters of religion guaranteed under Article 26(b) was subject to, and could be controlled by, a law protected by Article 25(2)(b), throwing open a Hindu public temple to all classes and sections of Hindus: “Article 26, it was contended, should therefore be construed as falling wholly outside Art. 25(2)(b), which should be limited to institutions other than denominational ones…The answer to this contention is that it is impossible to read any such limitation into the language of Art. 25(2)(b). It applies in terms to all religious institutions of a public character without qualification or reserve. As already stated, public institutions would mean not merely temples dedicated to the public as a whole but also those founded for the benefit of sections thereof, and denominational temples would be comprised therein. The language of the Article being plain and unambiguous, it is not open to us to read into it limitations which are not there, based on a priori reasoning as to the probable intention of the Legislature. Such intention can be gathered only from the words actually used in the statute; and in a Court of law, H

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A what is unexpressed has the same value as what is unintended. We must therefore hold that denominational institutions are within Art. 25(2)(b).” Applying the doctrine of harmonious construction, the Court held that the protection under Article 25(2)(b) vanishes in its entirety if it is B held that Article 26(b) allows no exceptions or is not subject to Article 25(2)(b): “If the denominational rights are such that to give effect to them would substantially reduce the right conferred by Art. 25(2)(b), then of course, on our conclusion that Art. 25(2)(b) prevails as against Art. 26(b), the denominational rights must vanish. But C where that is not the position, and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk of it, there is no reason why we should not so construe Art. 25(2)(b) as to give effect to Art. 26(b) and recognise the rights of the denomination D in respect of matters which are strictly denominational, leaving the rights of the public in other respects unaffected.”

32. This case marked a nuance of the essential practices doctrine laid down in Shirur Mutt, where a denomination was granted ‘complete autonomy’ to determine which practices it considered to be essential. In E Shirur Mutt, the autonomy to decide what is essential to religion was coupled with the definition of religion itself, which was to comprehend belief and practice. In Devaru, the Court laid down a crucial precedent in carving out its role in examining the essentiality of such practices. While the Court would take into consideration the views of a religious community in determining whether a practice qualified as essential, this would not be determinative. Prior to Devaru, this Court used the word ‘essential’ to distinguish between religious and secular practices in order to circumscribe the extent of state intervention in religious matters. The shift in judicial approach took place when ‘essentially religious’ (as distinct from the secular) became conflated with ‘essential to religion.’ The Court’s enquiry into the essentiality of the practice in question represented a shift in the test, which now enjoined upon the Court the duty to decide which religious practices would be afforded constitutional protection, based on the determination of what constitutes an essential religious practice.

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33. In Mohd. Hanif Quareshi v State of Bihar27 (“Qureshi”), A a Constitution Bench of this Court considered whether laws prohibiting cattle slaughter infringed upon the fundamental right to religion of the Petitioners, who were members of the Muslim Qureshi Community. The Petitioners claimed that these laws were violative of Article 25 of the Constitution as Muslims were compelled by their religion to sacrifice cows at Bakr-Id. The Court placed reliance upon Islamic religious texts to determine that the sacrificing of cows at Bakr-Id was not an essential practice for Muslims: “13...No reference is made in the petition to any particular Surah of the Holy Quran which, in terms, requires the sacrifice of a cow...What the Holy book enjoins is that people should pray unto the Lord and make sacrifice...It is therefore, optional for a Muslim to sacrifice a goat for one person or a cow or a camel for seven persons. It does not appear to be obligatory that a person must sacrifice a cow. The very fact of an option seems to run counter to the notion of an obligatory duty…” D (Emphasis supplied) In response to the claim that Muslims had been sacrificing cows since time immemorial and that this practice was sanctioned by their religion and was therefore protected by Article 25, the Court observed that: E “13…It is part of the known history of India that the Moghul Emperor Babar saw the wisdom of prohibiting the slaughter of cows as and by way of religious sacrifice and directed his son Humayun to follow this example...We have, however, no material on the record before us which will enable us to say, in the face of the foregoing facts, that the sacrifice of a F cow on that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea. In the premises, it is not possible for us to uphold this claim of the petitioners.” (Emphasis supplied) The Court looked to the texts and scriptures of the religious G community to conclude that the practice claimed to be essential was not supported by religious tenets.

34. In Durgah Committee, Ajmer v Syed Hussain Ali 28 (“Durgah Committee”), a Constitution Bench of this Court considered 27 (1959) SCR 629 28 H

(1962) 1 SCR 383

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A a challenge to the Durgah Khawaja Saheb Act, 1955, which provided for the constitution of a Committee to manage a Muslim Durgah. The Respondents, who were khadims29 of the Durgah, contended that the Act barred them from managing the Durgah and receiving offerings from pilgrims, and hence infringed upon their rights under Article 26 as Muslims belonging to the Soofi Chishtia Order. Rather than making a B reference to scriptures, Justice Gajendragadkar, writing for the Court, considered the history of the Ajmer shrine to determine that the right to administer the property never vested in the Respondents: “22. Thus it would be clear that from the middle of the 16th Century to the middle of the 20th Century the administration and C management of the Durgah Endowment has been true to the same pattern. The said administration has been treated as a matter with which the State is concerned and it has been left in charge of the Mutawallis who were appointed from time to time by the State and even removed when they were found to be guilty of misconduct or when it was felt that their work was unsatisfactory.” D Before parting with the judgment, Justice Gajendragadkar issued an important “note of caution”: “33…in order that the practices in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26.Similarly, even practices though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 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 it and no other.” (Emphasis supplied) 29 According to the khadims, they were descendants of two followers of the twelfth century Sufi saint Khwaja Moinuddin Chisti, whose tomb at Ajmer is known as the Durgah Khwaja Saheb. The khadims also claimed they belonged to a religious denomination known as the Chishtia Sufis. H

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35. This statement pushed the essential religious practices doctrine in a new direction. The Court distinguished, for the first time, between ‘superstitious beliefs’ and religious practice. Apart from engaging in a judicial enquiry to determine whether a practice claimed to be essential was in fact grounded in religious scriptures, beliefs, and tenets, the Court would ‘carefully scrutinize’ that the practice claiming constitutional protection does not claim superstition as its base. This was considered a necessary safeguard to ensure that superstitious beliefs would not be afforded constitutional protection in the garb of an essential religious practice. The Court also emphasized that purely secular matters clothed with a religious form do not enjoy protection as an essential part of religion. C

36. The test was narrowed down further in Sardar Syedna Taher Saifuddin Saheb v State of Bombay (“Saifuddin”),30 where this Court, by a 4-1 majority, struck down the Bombay Prevention of Excommunication Act, 1949, which prohibited the practice of excommunication within religious communities. The Court held that the D practice of excommunication within the Dawoodi Bohra faith on religious grounds fell within ‘matters of religion’ under Article 26(b) and was thus constitutionally protected. Justice Das Gupta, writing for the majority, emphasized that the practice claimed to be essential must be based strictly on religious grounds in order to claim constitutional protection: E “43…The barring of excommunication on grounds other than religious grounds say, on the breach of some obnoxious social rule or practice might be a measure of social reform and a law which bars such excommunication merely might conceivably come within the saving provisions of clause 2(b) of Art. 25. But barring of excommunication on religious grounds pure and simple, cannot however be considered to promote social welfare and reform and consequently the law in so far as it invalidates excommunication on religious grounds and takes away the Dai’s power to impose such excommunication cannot reasonably be considered to be a measure of social welfare and reform.” (Emphasis supplied) The Court, therefore, enquired into the basis of excommunication: if its basis was strictly religious, the practice would warrant constitutional 30 1962 Supp (2) SCR 496 H

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A protection. If, however, the practice was based on any other ground, it would be open to the Legislature to prohibit such a practice.

37. In a strong dissent, Chief Justice Sinha concluded that the matter of excommunication was not purely of a religious nature. Clarifying that his analysis was confined to the civil rights of the members of the community, Justice Sinha opined: “11…The impugned Act, thus, has given full effect to modern notions of individual freedom to choose one’s way of life and to do away with all those undue and outmoded interferences with liberty of conscience, faith and belief. It is also aimed at ensuring human dignity and removing all those restrictions which prevent a person from living his own life so long as he did not interfere with similar rights of others.” Justice Sinha drew a distinction between ‘matters of religion’ as protected under Article 26(b) and activities associated with religion, though not intimately connected with it: “18…Now, Art. 26(b) itself would seem to indicate that a religious denomination has to deal not only with matters of religion, but other matters connected with religion, like laying down rules and regulations for the conduct of its members and the penalties attached to infringement of those rules, managing property owned and possessed by the religious community, etc., etc. We have therefore, to draw a line of demarcation between practises consisting of rites and ceremonies connected with the particular kind of worship, which is the tenet of the religious community, and practises in other matters which may touch the religious institutions at several points, but which are not intimately concerned with rites and ceremonies the performance of which is an essential part of the religion.” Justice Sinha noticed the extreme consequences that follow excommunication: G “24. On the social aspect of excommunication, one is inclined to think that the position of an excommunicated person becomes that of an untouchable in his community, and if that is so, the Act in declaring such practises to be void has only carried out the strict injunction of Art. 17 of the Constitution, by which H

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

untouchability has been abolished and its practice in any form A forbidden. The Article further provides that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. The Act, in this sense, is its logical corollary and must, therefore, be upheld.” The decision in Saifuddin is presently pending consideration before B a larger bench.

38. Durgah Committee and Saifuddin established the role of this Court in scrutinizing claims of practices essential to religion in order to deny constitutional protection to those practices that were not strictly based in religion. Ascertaining what was “essential” to a religious denomination “according to its own tenets” required a scrutiny of its religious texts. Durgah Committee laid down that the court would ‘carefully scrutinize’ claims to deny constitutional protection to those claims which are religious but spring from superstitious beliefs and are not essential to religion. Saifuddin laid down that a practice grounded on an obnoxious social rule or practice may be within the ambit of social reform that the State may carry out. This view infuses the doctrine with a safeguard against claims by religious denominations that any practice with a religious undertone would fall within the protection afforded by Article 26(b) to them to ‘manage its own affairs in matters of religion.’

39. In Tilkayat Shri Govindlalji Maharaj v State of Rajasthan E (“Tilkayat”)31, a Constitution Bench of this Court dealt with a challenge to Nathdwara Temple Act 1959, which provides for the appointment of a board to manage the affairs of the temple and its property. The Petitioner, the spiritual head of the temple, claimed that the temple and its properties were private and that the State legislature was not competent to pass the law. He contended that even if the temple was held to be a public temple, the Act infringed Articles 25, 26(b) and 26(c) because the temple was managed by the Tilkayat as head of the Vallabh denomination. The Court relied on firmans (edicts or administrative orders) issued by emperors of the erstwhile Mughal Empire to hold that the temple was public and that the Tilkayat was “merely a custodian, manager and trustee of the temple.” Justice Gajendragadkar, writing for the Bench, underlined why the claims of a community regarding their religious practices could not be accepted without scrutiny: 31

(1964) 1 SCR 561

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A “57.In deciding the question as to whether a given religious practice is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation...In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practices the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practice is an integral part of its religion, because the community may speak with more than one voice and the formula would therefore break down. The question will always have to be decided by the Court…” In this regard, the Court noted that: “58...What is protected under Articles 25(1) and 26(b) respectively are the religious practices and the right to manage affairs in matters of religion. If the practice in question is purely secular or the affair which is controlled by the statute is essentially and absolutely secular in character, it cannot be urged that Article 25(1) or Article 26(b) has been contravened.” Tilkayat set forth an important qualification to the proposition laid down in Shirur Mutt, which held that adherents themselves must be allowed to determine what was essential to their religion. The Court observed that where ‘conflicting evidence is produced in respect of rival contentions as to competing religious practices,’ a ‘blind application’ of the Shirur Mutt formula may not resolve a dispute, because persons within a community may have diverse and contrasting conceptions of what is essential to their religion. It was therefore held to be incumbent upon the Court to determine not only whether a practice was religious in character, but also whether it could be considered an essential part of religion. Beginning with the Shirur Mutt formulation that what is essential to religion would be determined by the adherents to the faith, the Court moved towards a doctrine that what is essential “will always have to be decided by the Court.” In fact, the Court would determine whether a statute sought to regulate what is “essentially and absolutely secular.” What is religious and what is secular and the boundaries of both were then to be adjudicated by the Court.

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40. In Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya32 A (“Sastri Yagnapurushadji”), a Constitution Bench of this Court was seized with the issue of whether the Swaminarayan sect could be exempted from the application of the Bombay Hindu Places of Public Worship (Entry Authorization) Act, 1956, which allowed Dalits to worship in all temples to which the Act applied. The Petitioners, who were members of the Swaminarayan sect, contended that by virtue of being a non-Hindu creed, temples belonging to the sect did not fall within the ambit of the Act. Justice Gajendragadkar, writing for the Court, rejected this claim: “55.It may be conceded that the genesis of the suit is the genuine apprehension entertained by the appellants, but as often happens in these matters the said apprehension is founded on superstition, ignorance and complete misunderstanding of the true teachings of Hindu religion and of the real significance of the tenets and philosophy taught by Swaminarayan himself.” (Emphasis supplied) D

Quoting Tilak, Justice Gajendragadkar then expounded the distinctive features of Hinduism: “40.Tilak faced this complex and difficult problem of defining or at least describing adequately Hindu religion and he evolved a working formula which may be regarded as fairly adequate and satisfactory. Said Tilak: “Acceptance of the Vedas with reverence; recognition of the fact that the means or ways to salvation are diverse and realisation of the truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hindu religion.” (Emphasis supplied)

41. In Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, Calcutta33(“Avadhuta I”), a three judge Bench of this Court considered whether the police could prevent the Ananda Margis from performing the ‘tandava dance’ in public, in which adherents dance in a public procession carrying knives, live snakes, tridents, and skulls. The Court enquired ‘whether performance of Tandava dance is a religious 32

(1966) 3 SCR 242

33 (1983) 4 SCC 522 H

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A rite or practice essential to the tenets of the religious faith of the Ananda Margis.’ Justice Ranganath Misra, writing for the Court, held that since the Ananda Margis were a recent religious order, and the tandava dance an even more recent innovation, it could not be considered an essential religious practice: B “14.Ananda Marga as a religious order is of recent origin and tandava dance as a part of religious rites of that order is still more recent. It is doubtful as to whether in such circumstances tandava dance can be taken as an essential religious rite of the Ananda Margis. “Even conceding that Tandava dance has been prescribed as a C religious rite for every follower of Ananda Margis it does not follow as a necessary corollary that Tandava dance to be performed in the public is a matter of religious rite. In fact, there is no justification in any of the writings of Shri Ananda Murti that tandava dance must be performed in public.”34

D 42. In Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v State of Uttar Pradesh35 (“Adi Visheshwara”), a three judge Bench of this Court dealt with a challenge to the Uttar Pradesh Sri Kashi Vishwanath Temple Act, 1983, which entrusted the State with the management of the temple as opposed to the Pandas (priests). The priests contended that this violated their right under Article 25(1) and Article 26(b) and (d) of the Constitution. Rejecting that the claim and holding that the management of a temple is a secular activity, this Court held that the Sri Vishwanath Temple is not a denominational temple and that the Appellants are not denominational worshippers. In a view similar to that taken by Justice Gajendragadkar in Tilkayat, the Court cautioned against extending constitutional protection to purely secular practices clothed with a religious form: “28…Sometimes, practices, religious or secular, are inextricably mixed up. This is more particularly so in regard to Hindu religion because under the provisions of the ancient Smriti, G human actions from birth to death and most of the individual actions from day-today are regarded as religious in character in one facet or the other. They sometimes claim the religious system or sanctuary and seek the cloak of constitutional protection guaranteed by Articles 25 and 26. One hinges upon constitutional religious model 34 Ibid, at pages 532-533 H 35 (1997) 4 SCC 606

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and another diametrically more on traditional point of view. The A legitimacy of the true categories is required to be adjudged strictly within the parameters of the right of the individual and the legitimacy of the State for social progress, well- being and reforms, social intensification and national unity.”36(Emphasis supplied) B

43. In N Adithayan v Travancore Devaswom Board 37 (“Travancore Devaswom Board”), a two judge Bench of this Court was seized with the issue of whether the Travancore Devaswom Board could appoint a non-Malayala Brahmin as priest of the Kongorpilly Neerikode Siva Temple. Justice Doraiswamy Raju, writing for the Court, held that there was no evidence on record to demonstrate that only C Brahmins were entitled to serve as priests. Rejecting the claim that Shirur Mutt laid down the proposition that all practices arising out of religion are afforded constitutional protection, the Court held: “18…The attempted exercise by the learned Senior Counsel for the appellant to read into the decisions of this Court in Shirur D Mutt’s case (supra) and others something more than what it actually purports to lay down as if they lend support to assert or protect any and everything claimed as being part of the religious rituals, rites, observances and method of worship and make such claims immutable from any restriction or regulation based on the other provisions of the Constitution or the law enacted to implement such constitutional mandate, deserves only to be rejected as merely a superficial approach by purporting to deride what otherwise has to have really an overriding effect, in the scheme of rights declared and guaranteed under Part III of the Constitution of India. Any custom or usage irrespective of even any proof of their existence in pre constitutional days cannot be countenanced as a source of law to claim any rights when it is found to violate human rights, dignity, social equality and the specific mandate of the Constitution and law made by Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of the land or opposed to public policy or social decency can be accepted or upheld by courts in the country.”38 (Emphasis supplied) 36 Ibid, at page 630 37 (2002) 8 SCC 106 38 Ibid, at pages 124-125 H

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A 44. The question of the essential religious nature of the Tandava dance was considered again in 2004, in Commissioner of Police v. Acharya Jagdishwarananda Avadhuta 39(“Avadhuta II”). After Avadhuta I, the religious book of the Anand Margis, the Carya- Carya,was revised to prescribe the Anand Tandava as an essential religious practice. Laying emphasis on the ‘essential’ nature of the practice claimed, the majority, in a 2-1 split verdict, held that the practice must be of such a nature that its absence would result in a fundamental change in the character of that religion: “9.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 that the superstructure of a religion is built, without which a religion will be no religion. Test to determine whether a part or practice is essential to a religion is to find out whether the nature of the 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 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 which are protected by the Constitution…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.” 40 (Emphasis supplied) The essentiality test came to be linked to the “fundamental character” of the religion. If the abrogation of a practice does not change the fundamental nature of the religion, the practice itself is not essential. Rejecting the claim of the Anand Margis, the majority held that the Ananda Margi order was in existence (1955-66) even without the practice of the Tandava dance. Hence, such a practice would not 39 (2004) 12 SCC 770 40 Ibid, at pages 782-783 H