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

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constitute the ‘core’ of the religion. Further, religious groups could not A be permitted to alter their religious doctrine to recognize certain religious practices, in order to afford them constitutional protection.

45. In Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu41 (“Adi Saiva”), a two judge Bench of this Court considered a challenge to a Government Order issued by the State of B Tamil Nadu which permitted ‘any qualified Hindu’ to be appointed as the Archaka of a temple. The Petitioners challenged the Government Order on the grounds that it violated their right to appoint Archakas from their own denomination in accordance with the Agamas. In determining the constitutional validity of the Government Order, this Court held that any religious belief or practice must pass constitutional muster in order to be afforded constitutional protection: “48.The requirement of constitutional conformity is inbuilt and if a custom or usage is outside the protective umbrella afforded and envisaged by Articles 25 and 26, the law would certainly take its own course. The constitutional legitimacy, naturally, must supersede all religious beliefs or practices.”42 (Emphasis supplied)

46. In Shayara Bano v Union of India43 (“Shayara Bano”), a Constitution Bench of this Court considered whether the practice of triple talaq was an essential practice to the Hanafi school of Sunni E Muslims. Based on an examination of Islamic jurisprudence which established that triple talaq constitutes an irregular practice of divorce, the majority opinion, in a 3-2 split, held that triple talaq was not an essential practice. Justice Nariman, speaking for himself and Justice Lalit, noted that “a practice does not acquire the sanction of religion simply because it is permitted” and applied the essential religious practices test set out in Javed v State of Haryana44 and Avadhuta II to the practice of triple talaq: “54...It is clear that Triple Talaq is only a form of Talaq which is permissible in law, but at the same time, stated to be sinful by the very Hanafi school which tolerates it. According to Javed (supra), therefore, this would not form part of any essential religious 41 (2016) 2 SCC 725 42 Ibid, at page 755 43 (2017) 9 SCC 1 44 (2003) 8 SCC 369 H

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A practice. Applying the test stated in Acharya Jagdishwarananda (supra), it is equally clear that the fundamental nature of the Islamic religion, as seen through an Indian Sunni Muslim’s eyes, will not change without this practice.”45 Justice Kurian Joseph, concurring with Justices Nariman and Lalit, B held that on an examination of the Quran and Islamic legal scholarship, the practice of triple talaq could not be considered an essential religious practice. He opined that “merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.” C Chief Justice Khehar, who delivered the minority judgment, held that the practice of triple talaq is integral to the religion of Hanafi Muslims. He reasoned that: “[T]here can be no dispute on two issues. Firstly, that the practice of ‘talaq-e-biddat’ has been in vogue since the period of Umar, D which is roughly more than 1400 years ago. Secondly, that ‘talaq- e-biddat’ though bad in theology, was considered as “good” in law.” On the basis of the history and prevalence of triple talaq in practice, Justice Khehar held that even though triple talaq “is considered as irreligious within the religious denomination in which the practice is prevalent, yet the denomination considers it valid in law.” While the majority based its conclusion on an examination of the substantive doctrines of Islam and the theological sanctity of triple talaq, the minority relied on the widespread practice of triple talaq to determine its essentiality. The majority and minority concurred, however, that the belief of a religious denomination claiming a particular practice to be essential must be taken into consideration in the determination of the essentiality of that practice.

47. In its jurisprudence on religious freedom, this Court has evolved a body of principles which define the freedom of religion under Article G 25 and Article 26 to practices ‘essential’ to the religion. The Constitution has been held to protect not only freedom of religious belief, but acts done in pursuance of those beliefs. While the views of a religious denomination are to be taken into consideration in determining whether a practice is essential, those views are not determinative of its essentiality. H 45 Ibid, at page 69

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The Court has assumed a central role in determining what is or is not essential to religious belief. Intrinsic to the role which the Court has carved out, it has sought to distinguish between what is religious and what is a secular practice, even if it is associated with a religious activity. Going further, the Court has enquired into whether a practice is essential to religion. Essentiality of the practice would, as the Court as held depends on whether the fundamental character of a religion would be altered. if it were not observed. Above all, there is an emphasis on constitutional legitimacy, which underscores the need to preserve the basic constitutional values associated with the dignity of the individual. The ephemeral distinction between religion and superstition becomes more coherent in terms of the need to preserve fundamental constitutional values associated with human liberty.

48. In determining the essentiality of a practice, it is crucial to consider whether the practice is prescribed to be of an obligatory nature within that religion. If a practice is optional, it has been held that it cannot be said to be ‘essential’ to a religion. A practice claimed to be essential must be such that the nature of the religion would be altered in the absence of that practice. If there is a fundamental change in the character of the religion, only then can such a practice be claimed to be an ‘essential’ part of that religion. In Tilkayat, this Court noted that ‘whether an affair in question is an affair in matters of religion or not, may present difficulties because sometimes practices, religious and secular, are inextricably mixed up.’ The process of disentangling them in order to adjudicate upon claims grounded in Article 25 and Article 26(b) becomes ultimately an exercise of judicial balancing. Durgah Committee established that in examining a claim that a practice is essential to religion, the Court must ‘carefully scrutinize’ the claims put before it in order to ensure that practices which have sprung from ‘superstitious beliefs’, through grounded in religion, will not be afforded constitutional protection. Saifuddin recognized that where a purportedly essential practice is based on an ‘obnoxious social rule or practice’, it would be amenable to a measure of social reform. G Of crucial importance are the observations in Devaru, where the Court harmonized the inherent tension between the individual right under Article 25(2)(b) and the denominational right under Article 26(b). Where the protection of denominational rights would substantially reduce the right conferred by Article 25(2)(b), the latter would prevail against the H

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A former. This ensures that the constitutional guarantee under Article 25(2)(b) is not destroyed by exclusionary claims which detract from individual dignity. That a practice claimed to be essential has been carried on since time immemorial or is grounded in religious texts, does not lend to it constitutional protection unless it passes the test of essentiality. B G The engagement of essential religious practices with constitutional values

49. For decades, this Court has witnessed claims resting on the essentiality of a practice that militate against the constitutional protection of dignity and individual freedom under the Constitution. It is the duty of the courts to ensure that what is protected is in conformity with fundamental constitutional values and guarantees and accords with constitutional morality. While the Constitution is solicitous in its protection of religious freedom as well as denominational rights, it must be understood that dignity, liberty and equality constitute the trinity which defines the faith of the Constitution. Together, these three values combine to define a constitutional order of priorities. Practices or beliefs which detract from these foundational values cannot claim legitimacy. In Government of NCT of Delhi v Union of India 46 , one of us (Chandrachud J), observed the importance of constitutional morality as a governing ideal: E “Constitutional morality highlights the need to preserve the trust of the people in institutions of democracy. It encompasses not just the forms and procedures of the Constitution, but provides an “enabling framework that allows a society the possibilities of self- renewal”. It is the governing ideal of institutions of democracy which allows people to cooperate and coordinate to pursue constitutional aspirations that cannot be achieved single-handedly.” Our Constitution places the individual at the heart of the discourse on rights. In a constitutional order characterized by the Rule of Law, the constitutional commitment to egalitarianism and the dignity of every individual enjoins upon the Court a duty to resolve the inherent tensions between the constitutional guarantee of religious freedom afforded to religious denominations and constitutional guarantees of dignity and equality afforded to individuals. There are a multiplicity of intersecting constitutional values and interests involved in determining the essentiality 46 (2018) 8 SCALE 72 H

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of religious practices. In order to achieve a balance between competing A rights and interests, the test of essentiality is infused with these necessary limitations.

50. Is the practice of excluding women between the ages of ten and fifty from undertaking the pilgrimage and praying at the Sabarimala temple an essential part of religion? The texts and tenets on which the B Respondents placed reliance do not indicate that the practice of excluding women is an essential part of religion required or sanctioned by these religious documents. At best, these documents indicate the celibate nature of Lord Ayyappa at the Sabarimala temple. The connection between this and the exclusion of women is not established on the material itself. C

51. It was briefly contended that the case at hand required a determination of fact and law and should be sent to trial. It was contended that no new material has been placed before this Court to contradict the holding of the Kerala High Court in Mahendran. The High Court recorded findings on the pilgrimage, the inconsistent practice of prohibiting women between the age group of ten and fifty, and the collection of individuals that offer prayer at the Sabarimala temple. Relying on the findings of fact recorded in Mahendran and taking note of the submissions of the Respondents herein, the question of remanding the case to a trial in this case does not arise. In regard to the maintainability of the present public interest litigation, this issue stands answered by the judgment of this Court in Adi Saiva Sivachariyargal v Government of Tamil Nadu,47 : “12…The argument that the present writ petition is founded on a cause relating to appointment in a public office and hence not entertainable as a public interest litigation would be too simplistic F a solution to adopt to answer the issues that have been highlighted which concerns the religious faith and practice of a large number of citizens of the country and raises claims of century-old traditions and usage having the force of law. The above is the second ground, namely, the gravity of the issues G that arise, that impel us to make an attempt to answer the issues raised and arising in the writ petitions for determination on the merits thereof.” (Emphasis supplied) 47 (2016) 2 SCC 725 H

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A Of importance are some of the observations of the Kerala High Court in Mahendran The High Court noted that even when old customs prevailed, women were allowed to visit the Temple.48 It noted an incident where the Maharaja of Travancore, accompanied by the Maharani and the Divan, had visited the Temple in 1115 M.E. The High Court noted that the Temple has seen the presence of women worshippers between B the ages of ten and fifty for the first rice-feeding ceremony of their children.49 The Secretary of the Ayyappa Seva Sangham had deposed that young women were seen in Sabarimala during the previous ten to fifteen years.50 A former Devaswom Commissioner admitted that the first rice-feeding ceremony of her grandchild was conducted at the C Sabarimala Temple. The High Court found that during the twenty years preceding the decision, women irrespective of age were allowed to visit the temple when it opened for monthly poojas,51 but were prohibited from entering the temple only during Mandalam, Makaravilakku and Vishu seasons.52 D The High Court thus noted multiple instances wherein women were allowed to pray at the Sabarimala temple. These observations demonstrate that the practice of excluding women from the Sabarimala temple was not uniform. This militates against a claim that such a practice is of an obligatory nature. That such practice has not been followed on numerous occasions, also shows that the denial of constitutional protection to an exclusionary practice will not result in a fundamental change in the character of the religion as required by Avadhuta II.

52. The High Court proceeded on the basis of the ‘complete autonomy’ of the followers in determining the essentiality of the practice53. This followed the dictum in Shirur Mutt, without taking note of evolution of precedent thereafter, which strengthened the role of the Court in the determination and put in place essential safeguards to ensure to every individual, the constitutional protection afforded by the trinity of dignity, liberty and equality. The approach of the High Court is incorrect. The High Court relied completely on the testimonies of the Thanthris without an enquiry into its basis in religious text or whether the practice claiming 48 Ibid, at para 7 49 Ibid 50 Ibid, at para 32 51 Ibid, at paras 8, 10 52 Ibid, at para 43 53 Ibid, at para 22 H

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constitutional protection fulfilled the other guidelines laid down by this A Court. Such an approach militates against the fundamental role of the constitutional Court as a guardian of fundamental rights. Merely establishing a usage54 will not afford it constitutional protection as an essential religious practice.It must be proved that the practice is ‘essential’ to religion and inextricably connected with its fundamental character. B This has not been proved. This is sufficient reason to hold that the practice of excluding women from Sabarimala does not constitute an essential religious practice. However, since the claim in this case has a significant bearing on the dignity and fundamental rights of women, an issue of principle must be analysed. C

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A founded on a stereotypical understanding of the role of the sex, it would not be distinguishable from the discrimination which is prohibited by Article 15 on the grounds only of sex. If certain characteristics grounded in stereotypes, are to be associated with entire classes of people constituted as groups by any of the grounds prohibited in Article 15(1), that cannot establish a permissible reason to discriminate.”

54. The Court must lean against granting constitutional protection to a claim which derogates from the dignity of women as equal holders of rights and protections. In the ethos of the Constitution, it is inconceivable that age could found a rational basis to condition the right to worship. The ages of ten to fifty have been marked out for exclusion on the ground that women in that age group are likely to be in the procreative age. Does the Constitution permit this as basis to exclude women from worship? Does the fact that a woman has a physiological feature – of being in a menstruating age – entitle anybody or a group to subject her to exclusion from religious worship? The physiological features of a woman have no significance to her equal entitlements under the Constitution. All women in the age group of ten and fifty may not in any case fall in the ‘procreative age group’. But that to my mind is again not a matter of substance. The heart of the matter lies in the ability of the Constitution to assert that the exclusion of women from worship is incompatible with dignity, destructive of liberty and a denial of the equality of all human beings. These constitutional values stand above everything else as a principle which brooks no exceptions, even when confronted with a claim of religious belief. To exclude women is derogatory to an equal citizenship.

F 55. The Respondents submitted that the deity at Sabarimala is in the form of a Naishtika Brahmacharya: Lord Ayyappa is celibate. It was submitted that since celibacy is the foremost requirement for all the followers, women between the ages of ten and fifty must not be allowed in Sabarimala. There is an assumption here, which cannot stand G constitutional scrutiny. The assumption in such a claim is that a deviation from the celibacy and austerity observed by the followers would be caused by the presence of women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from celibacy. This is then employed to deny access to spaces to which H

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women are equally entitled. To suggest that women cannot keep the A Vratham is to stigmatize them and stereotype them as being weak and lesser human beings. A constitutional court such as this one, must refuse to recognize such claims.

56. Human dignity postulates an equality between persons. The equality of all human beings entails being free from the restrictive and dehumanizing effect of stereotypes and being equally entitled to the protection of law. Our Constitution has willed that dignity, liberty and equality serve as a guiding light for individuals, the state and this Court. Though our Constitution protects religious freedom and consequent rights and practices essential to religion, this Court will be guided by the pursuit to uphold the values of the Constitution, based in dignity, liberty and equality. In a constitutional order of priorities, these are values on which the edifice of the Constitution stands. They infuse our constitutional order with a vision for the future – of a just, equal and dignified society. Intrinsic to these values is the anti-exclusion principle. Exclusion is destructive of dignity. To exclude a woman from the might of worship is fundamentally at odds with constitutional values.

57. It was briefly argued that women between the ages of ten and fifty are not allowed to undertake the pilgrimage or enter Sabarimala on the ground of the ‘impurity’ associated with menstruation. The stigma around menstruation has been built up around traditional beliefs in the impurity of menstruating women. They have no place in a constitutional order. These beliefs have been used to shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal order. The menstrual status of a woman cannot be a valid constitutional basis to deny her the dignity of being and the autonomy of personhood. The menstrual status of a woman is deeply personal and an intrinsic part of her privacy. The Constitution must treat it as a feature on the basis of which no exclusion can be practised and no denial can be perpetrated. No body or group can use it as a barrier in a woman’s quest for fulfilment, including in her finding solace in the connect with the creator. H Religious Denominations G

58. One of the major planks of the response to the petition is that Sabarimala is a denominational temple and is entitled to the rights granted to ‘religious denominations’ by Article 26 of the Constitution.

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A 59. The rights conferred by Article 26 are not unqualified. Besides this, they are distinct from the rights guaranteed by Article 25. In Devaru, this Court elucidated on the application of such a right and held that where the denominational rights would substantially diminish Article 25(2)(b), the former must yield to the latter. However, when the ambit of Article 25(2)(b) is not substantially affected, the rights of a B “denomination” as distinct “from the rights of the public” may be given effect to. However, such rights must be “strictly” denominational in nature. Over the years, criteria have emerged from judicial pronouncements of this Court on whether a collective of individuals qualifies as a ‘religious denomination’. In making the determination, benches of this Court have referred to the history and organisation of the collective seeking denominational status.

60. Shirur Mutt dealt with the status of one of the eight Maths founded by Shri Madhavacharya, an exponent of dualist theism in Hindu religion. Justice B K Mukherjea undertook an enquiry into the precise meaning of the expression “religious denomination” and whether a “Math” is covered by the expression: “15… The word “denomination” has been defined in the Oxford Dictionary to mean “a collection of individuals classed together under the same name: a religious sect or body having a common faith and organisation and designated by a distinctive name”. A three fold test emerges from the above observations: (i) the existence of a religious sect or body; (ii) a common faith shared by those who belong to the religious sect and a common spiritual organisation; and (iii) the existence of a distinctive name. F The Court held that the “spiritual fraternity” represented by followers of Shri Madhavacharya, constitute a religious denomination: “15.It is well known that the practice of setting up Maths as centres of theological teaching was started by Shri Sankaracharya and was followed by various teachers since then. After Sankara, came G a galaxy of religious teachers and philosophers who founded the different sects and sub-sects of the Hindu religion that we find in India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a distinctive name, — in many cases it is the H name of the founder, — and has a common faith and common

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spiritual organisation. The followers of Ramanuja, who are A known by the name of Shri Vaishnabas, undoubtedly constitute a religious denomination; and so do the followers of Madhwacharya and other religious teachers. It is a fact well established by tradition that the eight Udipi Maths were founded by Madhwacharya himself and the trustees and the beneficiaries of these Maths B profess to be followers of that teacher...” (Emphasis supplied)

61. In Devaru, Justice Venkatarama Aiyyar considered whether the Gowda Saraswath Brahmins, associated with the Sri Venkataramana Temple, can be regarded as a religious denomination. In doing so, the Court undertook a factual enquiry: C “14…Now, the facts found are that the members of this community migrated from Gowda Desa first to the Goa region and then to the south, that they carried with them their idols, and that when they were first settled in Moolky, a temple was founded and these idols were installed therein. We are therefore concerned with the Gowda Saraswath Brahmins not as a section of a D community but as a sect associated with the foundation and maintenance of the Sri Venkataramana Temple, in other words, not as a mere denomination, but as a religious denomination. From the evidence of PW 1, it appears that the Gowda Saraswath Brahmins have three Gurus, that those in E Moolky Petah are followers of the head of the Kashi Mutt, and that it is he that performs some of the important ceremonies in the temple. Exhibit A is a document of the year 1826-27. That shows that the head of the Kashi Mutt settled the disputes among the Archakas, and that they agreed to do the puja under his orders. The uncontradicted evidence of PW 1 also shows that during F certain religious ceremonies, persons other than Gowda Saraswath Brahmins have been wholly excluded. This evidence leads irresistibly to the conclusion that the temple is a denominational one, as contended for by the appellants.” (Emphasis supplied) G This was, in other words, not just a sect associated with the community but one associated with the foundation and maintenance of the temple. This was coupled with a spiritual head who was responsible for the performance of religious worship. H

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A The Court noted that a deed of endowment proved that the temple was founded for the benefit of the Gowda Saraswath community, and concluded that the Sri Venkateshwara Temple qualified as a denominational temple. “15... When there is a question as to the nature and extent of a B dedication of a temple, that has to be determined on the terms of the deed of endowment if that is available, and where it is not, on other materials legally admissible; and proof of long and uninterrupted user would be cogent evidence of the terms thereof. Where, therefore, the original deed of endowment is not available and it is found that all persons are freely worshipping in the temple without let or hindrance, it would be a proper inference to make that they do so as a matter of right, and that the original foundation was for their benefit as well. But where it is proved by production of the deed, of endowment or otherwise that the original dedication was for the benefit of a particular community, the fact that members of other communities were allowed freely to worship cannot lead to the inference that the dedication was for their benefit as well.…On the findings of the Court below that the foundation was originally for the benefit of the Gowda Saraswath Brahmin community, the fact that other classes of Hindus were admitted freely into the temple would not have the effect of enlarging the scope of the dedication into one for the public generally. On a consideration of the evidence, we see no grounds for differing from the finding given by the learned Judges in the court below that the suit temple is a denominational temple founded for the benefit of the Gowda Saraswath Brahmins…” F The dedication of the temple was for the Gowda Saraswath Brahmins specifically. The temple was not dedicated for followers of all communities.

62. In S P Mittal v Union of India (“Mittal”)58, Justice Ranganath Misra who delivered the opinion of the Court, held that the G followers of Sri Aurobindo do not constitute a religious denomination. The Court formulated the conditions necessary to be fulfilled to qualify as ‘religious denomination’: “80. The words “religious denomination” in Article 26 of the Constitution must take their colour from the word “religion” and if 58 H 1983 1 SCC 51

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this be so, the expression “religious denomination” must also satisfy A three conditions: “(1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith; (2) common organisation; and B

(3) designation by a distinctive name.”59 These tests, as we have seen, are a re-statement of the Shirur Mutt formulation. The Court dwelt on the organisation and activities of the Aurobindo C Society and emphasised that a collective seeking the status of a religious denomination must be a religious institution: “120. It was further contended that a religious denomination must be professed by that body but from the very beginning the Society has eschewed the word “religion” in its constitution. The Society D professed to be a scientific research organisation to the donors and got income tax exemption on the footing that it was not a religious institution. The Society has claimed exemption from income tax under Section 80 for the donors and under Section 35 for itself on that ground. Ashram Trust was different from Auroville E Ashram. The Ashram Trust also applied for income tax exemption and got it on that very ground. So also Aurobindo Society claimed exemption on the footing that it was not a religious institution and got it. They professed to the Government also that they were not a religious institution in their application for financial assistance under the Central Scheme of Assistance to voluntary Hindu F organisations.60

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A religious denomination and the teachings of Sri Aurobindo only represented his philosophy and not a religion.”61 The sect was based on a shared philosophy and not on a common set of religious beliefs or faith. Hence, the sect was held not to qualify to be a religious denomination.

B 63. The above tests have been followed in other decisions. In Avadhuta I, a three judge bench of this Court held that the Ananda Margis of West Bengal constitute a religious denomination under Article 26, as they satisfy all the three conditions: “11. Ananda Marga appears to satisfy all the three conditions viz. C it is a collection of individuals who have a system of beliefs which they regard as conducive to their spiritual well-being; they have a common organisation and the collection of these individuals has a distinctive name. Ananda Marga, therefore, can be appropriately treated as a religious denomination, within the Hindu religion…”62 D In Bramchari Sidheswar Shai v State of West Bengal63, a three judge Bench of this Court adopted the tests re-stated in Mittal to hold that the followers of Ramakrishna constitute a religious denomination: “57… These Maths and Missions of Ramakrishna composed of the followers of principles of Hinduism as expounded, preached or practised by Ramakrishna as his disciples or otherwise form a cult or sect of Hindu religion. They believe in the birth of sage Ramakrishna in Dakshineswar as an Avatar of Rama and Krishna and follow the principles of Hinduism discovered, expounded, preached and practised by him as those conducive to their spiritual well-being as the principles of highest Vedanta which surpassed the principles of Vedanta conceived and propagated by Sankaracharya, Madhavacharya and Ramanujacharya, who were earlier exponents of Hinduism. Hence, as rightly held by the Division Bench of the High Court, followers of Ramakrishna, who are a collection of individuals, who adhere to a system of beliefs as conducive to their spiritual well-being, who have organised themselves collectively and who have an

61 Ibid, at pages 98-99 62 Ibid, at page 530 63 (1995) 4 SCC 646 H

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organisation of definite name as Ramakrishna Math or A Ramakrishna Mission could,in our view, be regarded as a religious denomination within Hindu religion...”64 (Emphasis supplied) In Nallor Marthandam Vellalar v Commissioner, Hindu Religious and Charitable Endowments65 a two judge Bench held that the Vellala community in Tamil Nadu does not constitute a religious denomination. Justice Shivraj Patil emphasised that the common faith of the community must find its basis in “religion”: “7. It is settled position in law, having regard to the various decisions of this Court that the words “religious denomination” take their colour from the word “religion”. The expression “religious denomination” must satisfy three requirements: (1) it must be a collection of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual well-being i.e. a common faith; (2) a common organisation; and (3) designation of a distinctive name. It necessarily follows that the common faith of the community should be based on religion and in that they should have common religious tenets and the basic cord which connects them, should be religion and not merely considerations of caste or community or societal status…” 66 (Emphasis supplied) E Though formulated as a three-pronged test, a fourth element emerges from the narrative. That is the position of a common set of religious tenets. Religion is what binds a religious denomination. Caste, community and social status do not bring into being a religious denomination. F

64. These precedents indicate the ingredients which must be present for a set of individuals to be regarded as a religious denomination. These are a common faith, a common organisation and a distinctive name brought together under the rubric of religion. A common thread which runs through them is the requirement of a religious identity, which G is fundamental to the character of a religious denomination.

64 Ibid, at pages 648-649 65 (2003) 10 SCC 712 66 Ibid, at page 716 H

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A H. 1 Do the devotees of Lord Ayyappa constitute a religious denomination?

65. Dr Abhishek Manu Singhvi, learned Senior Counsel submitted that devotees who undertake a forty one day penance form a denomination or section called “Ayyappaswamis” and the common organisation is the organisation of ‘Ayyappas’. He submits that the ‘Ayyappas’ believe in a common faith and hold the belief that if they undertake the penance of forty-one days in the manner prescribed, by maintaining themselves pure and unpolluted, they would be one with Lord Ayyappa. It has been submitted by Mr K Parasaran, learned Senior Counsel that the devotees of Lord Ayyappa hold a sacred religious belief that the deity at Sabarimala is celibate - a Naishtika Brahmachari - who practises strict penance and the strictest form of celibacy, in which he cannot find himself in the presence of young women. It has been submitted that Lord Ayyappa has female devotees. Hence, girls below the age of ten and women above the age of fifty would be included as members of the denomination. However, it is unclear as to how they may be considered as members of a denomination that seeks their exclusion. The judgements of this Court lay down that the collective of individuals must have a common faith and set of beliefs that aid their spiritual well-being. It is implausible that women should leave the membership of a common faith, which is meant to be conducive to their spiritual growth for a period of forty years and resume membership at the age of fifty. Such a requirement takes away from the spiritual character of the denomination.

66. The decision of the Kerala High Court in Mahendran brought on the record several facets which would in fact establish that Ayyappans do not constitute a religious denomination. While it is stated in the impugned notification that women between the age of ten and fifty five are forbidden from entering the temple as a matter of custom followed since time immemorial, the stand taken by the Respondent before the Kerala High Court differs to a great extent. The Board had submitted before the High Court: “7. In olden days worshippers visit the temple only after observing penance for 41 days. Since pilgrims to Sabarimala temple ought to undergo ‘Vrathams’ or penance for 41 days, usually ladies between the age of 10 and 50 will not be physically capable of H

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observing vratham for 41 days on physiological grounds. The A religious practices and customs followed earlier had changed during the last 40 years particularly from 1950, the year in which the renovation of the temple took place after the “fire disaster”. Even while the old customs prevailed, women used to visit the temple though very rarely. The Maharaja of Travancore B accompanied by the Maharani and the Divan had visited the temple in 1115 M.E. There was thus no prohibition for women to enter the Sabarimala temple in olden days, but women in large number were not visiting the temple. That was not because of any prohibition imposed by Hindu religion but because of other non-religious factors. In recent years, many worshippers had gone to the temple with lady worshippers within the age group 10 to 50 for the first rice- feeding ceremony of their children (Chottoonu). The Board used to issue receipts on such occasions on payment of the prescribed charges. A change in the old custom and practice was brought about by installing a flag staff (Dhwajam) in

1969. Another change was brought about by the introduction of Padipooja. These were done on the advice of the Thanthri. Changes were also effected in other practices. The practice of breaking coconuts on the 18 steps was discontinued and worshippers were allowed to crack the coconuts only on a E stone placed below the eighteen sacred steps (Pathinettaam Padi). These changes had been brought about in order to preserve the temple and the precinct in all its gaiety and sanctity.”67 (Emphasis supplied) According to the above extract, in the “olden days” there was no F ‘religious prohibition’ on the entry of women in the Sabarimala temple. But women visited the temple in fewer numbers for ‘non-religious’ reasons. The submission of the Board before the High Court reveals that the prohibition has not been consistently followed even after the notification was issued. G “8. For the last 20 years women irrespective of their age were allowed to visit the temple when it opens for monthly poojas. They were not permitted to enter the temple during Mandalam, Makaravilakku and Vishu seasons. The rule that 67 Ibid, at page 45 H

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A during these seasons no woman who is aged more than 10 and less than 50 shall enter the temple is scrupulously followed.68

9. The second respondent, former Devaswom Commissioner Smt. S. Chandrika in her counter-affidavit admitted that the first rice- feeding ceremony of her grandchild was conducted on the 1st of B Chingam 1166 at Sabarimala temple while she was holding the post of Devaswom Commissioner…The restriction regarding the entry of women in the age group 10 to 50 is there only during Mandalam, Makaravilakku and Vishu. As per the stipulations made by the Devaswom Board there is no restriction during the remaining period. When monthly poojas are conducted, women C of all age groups used to visit Sabarimala. On the 1st of Chingam 1166 the first rice-feeding ceremony of other children were also conducted at the temple. No V.I.P. treatment was given to her grandchild on that day. The same facility was afforded to others also. Her daughter got married on 13-7-1984 and was not begetting D a child for a considerably long time. She took a vow that the first rice-feeding ceremony would be performed at Sabarimala in case she begets a child. Hence the reason why the first rice-feeding ceremony of the child delivered by her was performed at that temple. The entry of young ladies in the temple during monthly poojas is not against the customs and practices followed in the temple…”69 (Emphasis supplied)

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not established. Above all, what is crucial to a religious denomination is A a religious sect or body. A common faith and spiritual organisation must be the chord which unites the adherents together.

68. Justice Rajagopala Ayyangar in his concurring judgement inSaifuddin, emphasised the necessity of an identity of doctrines, creeds and tenets in a ‘religious denomination’: B “52…The identity of a religious denomination consists in the identity of its doctrines, creeds and tenets and these are intended to ensure the unity of the faith which its adherents profess and the identity of the religious views are the bonds of the union which binds them together as one community.” C The judgement cited the ruling of Lord Halsbury in Free Church of Scotlandv Overtoun70 : “In the absence of conformity to essentials, the denomination would not be an entity cemented into solidity by harmonious uniformity of opinion, it would be a mere incongruous heap of, as it were, D grains of sand, thrown together without being united, each of these intellectual and isolated grains differing from every other, and the whole forming a but nominally united while really unconnected mass; fraught with nothing but internal dissimilitude, and mutual and reciprocal contradiction and dissension.” E

69. Adherence to a ‘common faith’ would entail that a common set of beliefs have been followed since the conception of the particular sect or denomination. A distinctive feature of the pilgrimage is that pilgrims of all religions participate in the pilgrimage on an equal footing. Muslims and Christians undertake the pilgrimage. A member of any religion can F be a part of the collective of individuals who worship Lord Ayyappa. Religion is not the basis of the collective of individuals who worship the deity. Bereft of a religious identity, the collective cannot claim to be regarded as a ‘religious denomination’. To be within the fold of Article 26, a denomination must be a religious sect or body. Worship of the presiding deity is not confined to adherents of a particular religion. Coupled G with this is the absence of a common spiritual organisation, which is a necessary element to constitute a religious denomination. The temple at which worship is carried out is dedicated to the public and represents truly, the plural character of society. Everyone, irrespective of religious 70 (1904) AC 515, at page 616 H

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A belief, can worship the deity. The practices associated with the forms of worship do not constitute the devotees into a religious denomination. Considering the inability of the collective of individuals to satisfy the judicially-enunciated requirements, we cannot recognise the set of individuals who refer to themselves as “Ayyappans” or devotees of Lord B Ayyappa as a ‘religious denomination’. I Article 17, “Untouchability” and the notions of purity

70. The petitioners and the learned Amicus Curiae Mr. Raju Ramachandran urge that the denial of entry to women in the Ayyappa temple at Sabarimala, on the basis of customs, is a manifestation of C “untouchability” and is hence violative of Article 17 of the Constitution. The contention has been countered by the argument that Article 17 is specifically limited to caste-based untouchability and cannot be expanded to include gender-based exclusion. Understanding these rival positions requires the Court to contemplate on the historical background behind the insertion of Article 17 into the Constitution and the intent of the framers.

71. Article 17 occupies a unique position in our constitutional scheme. The Article, which prohibits a social practice, is located in the chapter on fundamental rights. The framers introduced Article 17, which prohibits a discriminatory and inhuman social practice, in addition to Articles 14 and 15, which provide for equality and non-discrimination. While there has been little discussion about Article 17 in textbooks on constitutional law, it is a provision which has a paramount social significance both in terms of acknowledging the past and in defining the vision of the Constitution for the present and for the future. Article 17 F provides: “”Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.” G Article 17 abolished the age old practice of “untouchability”, by forbidding its practice “in any form”. By abolishing “untouchability”, the Constitution attempts to transform and replace the traditional and hierarchical social order. Article 17, among other provisions of the Constitution, envisaged bringing into “the mainstream of society, H individuals and groups that would otherwise have remained at society’s

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bottom or at its edges”71. Article 17 is the constitutional promise of equality and justice to those who have remained at the lowest rung of a traditional belief system founded in graded inequality. Article 17 is enforceable against everyone – the State, groups, individuals, legal persons, entities and organised religion – and embodies an enforceable constitutional mandate. It has been placed on a constitutional pedestal of enforceable fundamental rights, beyond being only a directive principle, for two reasons. First, “untouchability” is violative of the basic rights of socially backward individuals and their dignity. Second, the framers believed that the abolition of “untouchability” is a constitutional imperative to establish an equal social order. Its presence together and on an equal footing with other fundamental rights, was designed to “give vulnerable people the power to achieve collective good”72. Article 17 is a reflection of the transformative ideal of the Constitution, which gives expression to the aspirations of socially disempowered individuals and communities, and provides a moral framework for radical social transformation. Article 17, along with other constitutional provisions73, must be seen as the recognition and endorsement of a hope for a better future for marginalized communities and individuals, who have had their destinies crushed by a feudal and caste-based social order.

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A While discussing the clause on “untouchability” on 29 March 1947, the Sub-Committee on Fundamental Rights accepted Munshi’s draft with a verbal modification that the words “is punishable by the law of the Union” be substituted by the expression “shall be an offence”.75 Reflecting on the draft, the constitutional advisor, B N Rau, remarked that the meaning of “untouchability” would have to be defined in the law B which would be enacted in future to implement the provision. Bearing in mind the comments received, the Sub-Committee when it met on 14 April 1947 to consider its draft report, decided to add the words “in any form” after the word “Untouchability”. This was done specifically in order “to make the prohibition of practice [of “untouchability”] C comprehensive”76. Subsequently, on 21 April 1947, the clause proposed by the Sub- Committee on Fundamental Rights was dealt with by the Advisory Committee, where Jagjivan Ram had an incisive query. While noting that ordinarily, the term “untouchability” referred to a practice prevalent in Hindu society, he queried whether the intention of the committee was to abolish untouchability among Hindus, Christians or other communities or whether it applied also to ‘inter-communal’ untouchability. Shiva Rao has recounted that the Committee came to the general conclusion that “the purpose of the clause was to abolish untouchability in all its forms— whether it was untouchability within a community or between various communities”77. In the proceedings, K M Panikkar elaborated the point by observing that the clause intended to abolish various disabilities arising out of untouchability, irrespective of religion.78 He remarked: “If somebody says that he is not going to touch me, that is not a F civil right which I can enforce in a court of law. There are certain complex of disabilities that arise from the practice of untouchability in India. Those disabilities are in the nature of civil obligations or civil disabilities and what we have attempted to provide for is that 75 Ibid 76 G B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at page 202 77 B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration (1968), at page 202 78 B Shiva Rao has remarked that Panikkar’s reference was to the depressed classes who had been converted to Christianity in Travancore-Cochin and Malabar. See B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public H Administration (1968), at page 202

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A Will you make the practice of their religion by the followers of the Prophetan offence? Again there are many ceremonies in connection with funerals and obsequies which make those who have taken part in them untouchables for a while. I do not wish to inflict a lecture upon this House on anthropological or connected matters; but I would like it to be brought to the notice that the B lack of any definition of the term ‘untouchability’ makes it open for busy bodies and lawyers to make capital out of a clause like this, which I am sure was not the intention of the Drafting Committee to make.”86 (Emphasis supplied) C Dr Ambedkar neither accepted Naziruddin Ahmad’s amendment nor replied to the points raised by KT Shah. The amendment proposed by Ahmad was negatived by the Constituent Assembly and the draft Article as proposed by Dr Ambedkar was adopted. Draft Article 11 has been renumbered as the current Article 17 of the Constitution. D The refusal of the Constituent Assembly to provide any definite meaning to “untouchability” (despite specific amendments and proposals voicing the need for a definition) indicates that the framers did not wish to make the term restrictive. The addition of the words “in any form” in the initial draft prepared by the Sub-Committee on Fundamental Rights E is an unambiguous statement to the effect that the draftspersons wanted to give the term “untouchability” a broad scope. A reconstruction of the proceedings of the Constituent Assembly suggests that the members agreed to the Constitutional Advisor’s insistence that the law which is to be enacted for implementing the provision on “untouchability” would provide a definition of the term. The rejection of Naziruddin Ahmad’s F amendment by the members of the Constituent Assembly reflects a conscious effort not to limit the scope of the legislation to be enacted.

73. In order to fully understand the constitutional philosophy underlying the insertion of Article 17, this Court must also deal with one specific instance during the proceedings of the Constituent Assembly. G As mentioned above, while Professor KT Shah gave specific examples of acts of “untouchability”, including that of women being considered untouchables “in certain periods”, and argued for a specific definition, Dr Ambedkar furnished no reply. This raises the question as to why Dr Ambedkar did not accept Naziruddin Ahmad’s amendment and refused 86 Constituent Assembly Debates (29 November 1948) H

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to reply to KT Shah’s remarks. One member of the Constituent Assembly, A Monomohan Das, remarked during the debate on the draft Article on “untouchability”: “…It is an irony of fate that the man who was driven from one school to another, who was forced to take his lessons outside the class room, has been entrusted with this great job of framing the B Constitution of free and independent India, and it is he who has finally dealt the death blow to this custom of untouchability, of which he was himself a victim in his younger days.”87 The answers lie in the struggle for social emancipation and justice which was the defining symbol of the age, together with the movement for attaining political freedom but in a radical transformation of society as well. To focus on the former without comprehending the latter would be to miss the inter-connected nature of the document as a compact for political and social reform.

74. Reading Dr Ambedkar compels us to look at the other side of the independence movement. Besides the struggle for independence from the British rule, there was another struggle going on since centuries and which still continues. That struggle has been for social emancipation. It has been the struggle for the replacement of an unequal social order. It has been a fight for undoing historical injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India E is the end product of both these struggles. It is the foundational document, which in text and spirit, aims at social transformation namely, the creation and preservation of an equal social order. The Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified existence. It contains a vision of social justice and lays down a F roadmap for successive governments to achieve that vision. The document sets out a moral trajectory, which citizens must pursue for the realization of the values of liberty, equality, fraternity and justice. It is an assurance to the marginalized to be able to rise to the challenges of human existence. The Constituent Assembly was enriched by the shared wisdom and experiences gathered by its members from the ongoing G social struggle for equality and justice. In particular, as the Chairman of the Drafting Committee, Dr Ambedkar brought with himself ideas, values and scholarship, which were derived from the experiences and struggles which singularly were his own. He drew as well from other social 87 Constituent Assembly Debates (29 November 1948) H

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A reformers in their movements against social injustice. Some of these experiences and literature ought to be discussed in order to understand the vision behind the philosophy of the Constitution and, particularly, Article 17. Having himself faced discrimination and stigmatization, Dr B Ambedkar had launched an active movement against “untouchability”. In 1924, he founded the Bahishkrut Hitkarani Sabha, aimed at advancing the rights of those who were neglected by society. Over the following years, Dr Ambedkar organised marches demanding rights for untouchables to drinking water from public resources, and their right to enter temples. These movements were part of the larger demand of C equality for the untouchables. In his profound work, “Annihilation of Caste”, while advocating the destruction of the caste system, Dr Ambedkar recorded some of the “untouchability” practices by which the Untouchables were subjected to inhuman treatment: D “Under the rule of the Peshwas in the Maratha country, the Untouchable was not allowed to use the public streets if a Hindu was coming along, lest he should pollute the Hindu by his shadow. The Untouchable was required to have a black thread either on his wrist or around his neck, as a sign or a mark to prevent the E Hindus from getting themselves polluted by his touch by mistake. In Poona, the capital of the Peshwa, the Untouchable was required to carry, strung from his waist, a broom to sweep away from behind himself the dust he trod on, lest a Hindu walking on the same dust should be polluted. In Poona, the Untouchable was F required to carry an earthen pot hung around his neck wherever he went—for holding his spit, lest his spit falling on the earth should pollute a Hindu who might unknowingly happen to tread on it.”88 His autobiographical notes published after his death with the title “Waiting for a Visa”89, contain reminiscences drawn by Dr Ambedkar G on his own experiences with “untouchability”. Dr Ambedkar mentions several experiences from his childhood. No barber would consent to 88 Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 1 (2014), at pages 39 89 Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 12 (2014), at pages 661-691 H

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shave an untouchable. During his days as an Officer in Baroda State, he was denied a place to stay in quarters.In another note, which was handwritten by Dr Ambedkar and was later published with the title “Frustration”, he wrote: “The Untouchables are the weariest, most loathed and the most miserable people that history can witness. They are a spent and sacrificed people… To put it in simple language the Untouchables have been completely overtaken by a sense of utter frustration. As Mathew Arnold says “life consists in the effort to affirm one’s own essence; meaning by this, to develop one’s own existence fully and freely... Failure to affirm ones own essence is simply another name for frustration… “ Many people suffer such frustrations in their history. But they soon recover from the blight and rise to glory again with new vibrations. The case of the Untouchables stands on a different footing. Their frustration is frustration for ever. It is unrelieved by space or time. In this respect the story of the Untouchables stands in strange contrast with that of the Jews.”90 In his writing titled “Slaves and Untouchables”91, he described “untouchability” to be worse than slavery. In his words: “.. untouchability is obligatory. A person is permitted to hold another as his slave. There is no compulsion on him if he does not want to. E But an Untouchable has no option. Once he is born an Untouchable, he is subject to all the disabilities of an Untouchable… [U]ntouchability is an indirect and therefore the worst form of slavery… It is enslavement without making the Untouchables conscious of their enslavement.”92 F Dr Ambedkar’s thoughts and ideas bear an impact of other social reformers who preceded him, in particular Jyotirao Phule and Savitribai Phule. In 1873, in the preface to his book titled “Gulamgiri” (Slavery), Jyotirao Phule made a stinging critique on the cause of “untouchability”: “[The] Sudras and Atisudras were regarded with supreme hatred G and contempt, and the commonest rights of humanity were denied 90 Ibid, at pages 733-735 91 Dr Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 5 (2014), at pages 9-18 92 Ibid, at page 15 H

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A [to] them. Their touch, nay, even their shadow, is deemed a pollution. They are considered as mere chattels, and their life of no more value than that of meanest reptile… How far the Brahmins have succeeded in their endeavours to enslave the minds of the Sudras and Atisudras... For generations past [the Sudras and Atisudras] have borne these chains of slavery and bondage… B This system of slavery, to which the Brahmins reduced the lower classes is in no respect inferior to that which obtained a few years ago in America. In the days of rigid Brahmin dominancy, so lately as that of the time of the Peshwa, my Sudra brethren had even greater hardships and oppression practiced upon them than what even the slaves in America had to suffer. To this system of selfish superstition and bigotry, we are to attribute the stagnation and all the evils under which India has been groaning for many centuries past.” 93 Savitribai Phule expresses the feeling of resentment among the marginalized in form of a poem: “Arise brothers, lowest of low shudras wake up, arise. Rise and throw off the shackles put by custom upon us. Brothers, arise and learn… We will educate our children and teach ourselves as well. F We will acquire knowledge of religion and righteousness. Let the thirst for books and learning dance in our every vein. G Let each one struggle and forever erase our low-caste stain.”94 93 India Dissents: 3,000 Years of Difference, Doubt and Argument, (Ashok Vajpeyi ed.), Speaking Tiger Publishing Private Limited (2017), at pages 86-88 94 Ibid, at page 88 H

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75. The consistent discourse flowing through these writings reflects A a longstanding fight against subjugation and of atrocities undergone by the victims of an unequal society. Article 17 is a constitutional recognition of these resentments. The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find catharsis in the face of historic horrors. It is an attempt to make reparations to those, whose identity was subjugated by society. Article 17 is a revolt against social norms, which subjugated individuals into stigmatised hierarchies. By abolishing “untouchability”, Article 17 protects them from a repetition of history in a free nation. The background of Article 17 thus lies in protecting the dignity of those who have been victims of discrimination, prejudice and social exclusion. Article 17 must be construed from the perspective of its position as a powerful guarantee to preserve human dignity and against the stigmatization and exclusion of individuals and groups on the basis of social hierarchism. Article 17 and Articles 15(2) and 23, provide the supporting foundation for the arc of social justice. Locating the basis of Article 17 in the protection of dignity and preventing stigmatization and social exclusion, would perhaps be the apt answer to Professor KT Shah’s unanswered queries. The Constitution has designedly left untouchability undefined. Any form of stigmatization which leads to social exclusion is violative of human dignity and would constitute a form of “untouchability”. E The Drafting Committee did not restrict the scope of Article 17. The prohibition of “untouchability”, as part of the process of protecting dignity and preventing stigmatization and exclusion, is the broader notion, which this Court seeks to adopt, as underlying the framework of these articles.

76. The practice of “untouchability”, as pointed out by the members of the Constituent Assembly, is a symptom of the caste system. The root cause of “untouchability” is the caste system. 95 The caste system represents a hierarchical order of purity and pollution enforced by social 95 In his paper on “Castes in India: Their Mechanism, Genesis and Development” (1916) presented at the Columbia University, Dr Ambedkar wrote: “The caste problem is a vast one, both theoretically and practically. Practically, it is an institution that portends tremendous consequences. It is a local problem, but one capable of much wider mischief, for as long as caste in India does exist, Hindus will hardly intermarry or have any social intercourse with outsiders; and if Hindus migrate to other regions on earth, Indian caste would become a world problem”. See Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 1 (2014), at pages 5-6 H

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A compulsion. Purity and pollution constitute the core of caste. While the top of the caste pyramid is considered pure and enjoys entitlements, the bottom is considered polluted and has no entitlements. Ideas of “purity and pollution” are used to justify this distinction which is self-perpetuality. The upper castes perform rituals that, they believe, assert and maintain their purity over lower castes. Rules of purity and pollution are used to reinforce caste hierarchies.96 The notion of “purity and pollution” influences who people associate with, and how they treat and are treated by other people. Dr Ambedkar’s rejection of privileges associated with caste, in “Annihilation of Caste”97, is hence a battle for human dignity. Dr Ambedkar perceived the caste system to be violative of individual dignity.98In his last address to the Constituent Assembly, he stated that the caste system is contrary to the country’s unity and integrity, and described it as bringing “separation in social life”.99 Individual dignity cannot be based on the notions of purity and pollution. “Untouchability” against lower castes was based on these notions, and violated their dignity. It is for this reason that Article 17 abolishes “untouchability”, which arises out of caste hierarchies. Article 17 strikes at the foundation of the notions about “purity and pollution”.

77. Notions of “purity and pollution”, entrenched in the caste system, still continue to dominate society. Though the Constitution abolished untouchability and other forms of social oppression for the marginalised and for the Dalits, the quest for dignity is yet a daily struggle. The conditions that reproduce “untouchability” are still in existence. Though the Constitution guarantees to every human being dignity as inalienable to existence, the indignity and social prejudices which Dalits face continue to haunt their lives. Seventy years after independence, a F section of Dalits has been forced to continue with the indignity of manual scavenging. In a recent work, “Ants Among Elephants: An Untouchable Family and the Making of Modern India”, Sujatha Gidla describes the indignified life of a manual scavenger: “As their brooms wear down, they have to bend their backs lower and lower to sweep. When their baskets start to leak, the [human] G 96 Diane Coffey and Dean Spears, Where India Goes: Abandoned Toilets, Stunted Development and the Costs of Caste, Harper Collins (2017), at pages 74-79 97 See Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 1 (2014), at pages 23-96 98 See Dr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.) Government of Maharashtra, Vol. 12 (2014), at pages 661-691. H 99 Constituent Assembly Debates (25 November 1949)

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shit drips down their faces. In the rainy season, the filth runs all A over these people, onto their hair, their noses, their moths. Tuberculosis and infectious diseases are endemic among them.”100 The demeaning life of manual scavengers is narrated by Diane Coffey and Dean Spears in “Where India Goes: Abandoned Toilets, Stunted Development and the Costs of Caste”101. The social reality of B India is that manual scavenging castes face a two-fold discrimination- one, by society, and other, within the Dalits: “[M]anual scavengers are considered the lowest-ranking among the Dalit castes. The discrimination they face is generally even worse than that which Dalits from non-scavenging castes face.”102 C Manual scavengers have been the worst victims of the system of “purity and pollution”. Article 17 was a promise to lower castes that they will be free from social oppression. Yet for the marginalized communities, little has changed. The list of the daily atrocities committed against Dalits is endless. Dalits are being killed for growing a moustache, D daring to watch upper-caste folk dances, allegedly for owning and riding a horse and for all kinds of defiance of a social order that deprives them of essential humanity.103The Dalits and other oppressed sections of society have been waiting long years to see the quest for dignity fulfilled. Security from oppression and an opportunity to lead a dignified life is an issue of existence for Dalits and the other marginalized. Post- E independence, Parliament enacted legislations104 to undo the injustice done to oppressed social groups. Yet the poor implementation105 of law results in a continued denial which the law attempted to remedy.

78. Article 17 is a social revolutionary provision. It has certain features. The first is that the Article abolishes “untouchability”. In F abolishing it, the Constitution strikes at the root of the institution of 100 Sujatha Gidla, Ants among Elephants: An Untouchable Family and the Making of Modern India, Harper Collins (2017), at page 114 101 Diane Coffey and Dean Spears, Where India Goes: Abandoned Toilets, Stunted Development and the Costs of Caste, Harper Collins (2017), at pages 74-79 G 102 Ibid, at page 78 103 Rajesh Ramachandran, Death for Moustache, Outlook (16 October 2017), available at https://www.outlookindia.com/magazine/story/death-for-moustache/299405 104 Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989; Prohibition of Manual Scavenging Act, 2013 105 As observed in National Campaign for Dalit Human Rights v. Union of India, (2017) 2 SCC 432 H

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A untouchability. The abolition of untouchability can only be fulfilled by dealing with notions which it encompasses. Notions of “purity and pollution” have been its sustaining force. In abolishing “untouchability”, the Constitution attempts a dynamic shift in the social orderings upon which prejudice and discrimination were institutionalized. The first feature is a moral re-affirmation of human dignity and of a society governed by equal entitlements. The second important feature of Article 17 is that the practice of “untouchability” is forbidden. The practice is an emanation of the institution which sustains it. The abolition of the practice as a manifestation is a consequence of the abolition of the institution of “untouchability”. The third significant feature is that the practice of untouchability” is forbidden “in any form”. The “in any form” prescription has a profound significance in indicating the nature and width of the prohibition. Every manifestation of untouchability without exception lies within the fold of the prohibition. The fourth feature of Article 17 is that the enforcement of disabilities founded upon “untouchability” shall constitute an offence punishable in accordance with law. The long arms of the criminal law will lend teeth to the enforcement of the prohibition.

79. The Constitution has carefully eschewed a definition of “untouchability”. The draftspersons realized that even a broadly couched definition may be restrictive. A definition would become restrictive if the words used or the instances depicted are not adequate to cover the manifold complexities of our social life through which prejudice and discrimination is manifest. Hence, even though the attention of the framers was drawn to the fact that “untouchability” is not a practice referable only to the lowest in the caste ordering but also was practiced against women (and in the absence of a definition, the prohibition would cover all its forms), the expression was designedly left undefined. The Constitution uses the expression “untouchability” in inverted comas. The use of a punctuation mark cannot be construed as intent to circumscribe the constitutional width of the expression. The historical backdrop to the inclusion of the provision was provided by centuries of subjugation, discrimination and social exclusion. Article 17 is an intrinsic part of the social transformation which the Constitution seeks to achieve. Hence in construing it, the language of the Constitution should not be ascribed a curtailed meaning which will obliterate its true purpose. “Untouchability” in any form is forbidden. The operation of the words used by the Constitution cannot be confined to a particular form or manifestation of H “untouchability”. The Constitution as a constantly evolving instrument

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has to be flexible to reach out to injustice based on untouchability, in any of its forms or manifestations. Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion principle, it cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution.

80. The provisions of Article 17 have been adverted to in judicial decisions. In Devarajiah v B Padmanna106, a learned single judge of the Mysore High Court observed that the absence of a definition of the expression “untouchability in the Constitution and the use of inverted commas indicated that “the subject-matter of that Article is not untouchability in its literal or grammatical sense but the practice as it had developed historically in this country”. The learned single judge held : C

“18.Comprehensive as the word ‘untouchables’ in the Act is intended to be, it can only refer to those regarded as untouchables in the course of historical development. A literal construction of the term would include persons who are treated as untouchables either temporarily or otherwise for various reasons, such as their D suffering from an epidemic or contagious disease or on account of social observances such as are associated with birth or death or on account of social boycott resulting from caste or other disputes.”107 In Jai Singh v Union of India108,a Full Bench of the Rajasthan E High Court followed the decision of the Mysore High Court in Devarajiah while upholding the constitutional validity of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989. In State of Karnataka v Appa Balu Ingale109, a two judge Bench of this Court traced the origins of untouchability. The court held that F “untouchability is an indirect form of slavery and only an extension of caste system”. The court held: “36. The thrust of Article 17 and the Act is to liberate the society from blind and ritualistic adherence and traditional beliefs which lost all legal or moral base. It seeks to establish a new ideal for G society – equality to the Dalits, on a par with general public, absence 106 AIR 1958 Mys 84 107 Ibid, at page 85 108 AIR 1993 Raj 177 109 1995 Supp (4) SCC 469 H

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A of disabilities, restrictions or prohibitions on grounds of caste or religion, availability of opportunities and a sense of being a participant in the mainstream of national life.”110 In a more recent decision in Adi Saiva Sivachariyargal Nala Sangam v Government of Tamil Nadu111,a two judge Bench construed B Article 17 in the context of exclusionary caste based practices: “47.The issue of untouchability raised on the anvil of Article 17 of the Constitution stands at the extreme opposite end of the pendulum. Article 17 of the Constitution strikes at caste-based practices built on superstitions and beliefs that have no rationale or logic…” C While these judgments focus on “untouchability” arising out of caste based practices, it is important to note that the provisions of Article 17 were enforced by means of the Protection of Civil Rights Act 1955 [earlier known as the Untouchability (Offences) Act]. Clauses (a) and (b) of Section 3 penalise the act of preventing any person from entering D a place of public worship and from worshiping or offering prayers in such a place. Section 3 reads thus: “Section 3 - Punishment for enforcing religious disabilities: Whoever on the ground of “untouchability” prevents any person— E (a) from entering any place of public worship which is open to other persons professing the same religion of any section thereof, as such person; or (b) from worshipping or offering prayers or performing any religious service in any place of public worship, or bathing in, F or using the waters of, any sacred tank, well, spring or water- course [river or lake or bathing at any ghat of such tank, water- course, river or lake] in the same manner and to the same extent as is permissible to the other persons professing the same religion or any section thereof, as such person, G [shall be punishable with imprisonment for a term of not less than one month and not more than six months and also with fine which shall be not less than one hundred rupees and not more than five hundred rupees]. 110 Ibid, at page 486 H 111 (2016) 2 SCC 725

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

Explanation: For the purposes of this section and section 4 persons A professing the Buddhist, Sikh or Jaina religion or persons professing the Hindu religion in any of its forms or developments including Virashaivas, Lingayats, Adivasis, followers of Brahmo, Prarthana, Arya Samaj and the Swaminarayan Sampraday shall be deemed to be Hindus.” B (Emphasis supplied) Section 4 contains a punishment for enforcing social disability: “Section 4 - Punishment for enforcing social disabilities: Whoever on the ground of “untouchability” enforces against any person any disability with regard to— C

(v) the use of, or access to, any place used for a charitable or a public purpose maintained wholly or partly out of State funds or dedicated to the use of the general public or [any section thereof]; or D (x) the observance of any social or religious custom, usage or ceremony or [taking part in, or taking out, any religious, social or cultural procession]; or [Explanation.—For the purposes of this section, “enforcement of any disability” includes any discrimination on the ground of E “untouchability”.].” (Emphasis supplied) Section 7 provides for punishment for other offences arising out of untouchability. Section 7(1)(c) criminalises the encouragement and incitement to the practice of untouchability in “any form whatsoever”. F Explanation II stipulates that: “[Explanation II.—For the purpose of clause (c) a person shall be deemed to incite or encourage the practice of “untouchability”— (i) if he, directly or indirectly, preaches “untouchability” or its practice in any form; or G

(ii) if he justifies, whether on historical, philosophical or religious grounds or on the ground of any tradition of the caste system or on any other ground, the practice of “untouchability” in any form.]” (Emphasis supplied) H

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A “Untouchability” as such is not defined. Hence, a reference to “untouchability” must be construed in the context of the provisions of the Civil Rights Act to include social exclusions based on notions of “purity and pollution”. In the context of political freedom, Articles 14, 19 and 21 represent as it were, a golden triangle of liberty. On a different plane, in facing up to the struggle against exclusion or discrimination in B public places of worship, Articles 15(2)(b), 17 and 25(2)(b) constitute the foundation. The guarantee against social exclusion based on notions of “purity and pollution” is an acknowledgment of the inalienable dignity of every individual. Dignity as a facet of Article 21 is firmly entrenched after the decision of nine Judges in K S Puttaswamy v Union of India C (“Puttaswamy”)112.

81. The caste system has been powered by specific forms of subjugation of women.113 The notion of “purity and pollution” stigmatizes the menstruation of women in Indian society. In the ancient religious texts114 and customs, menstruating women have been considered as polluting the surroundings. Irrespective of the status of a woman, menstruation has been equated with impurity, and the idea of impurity is then used to justify their exclusion from key social activities. Our society is governed by the Constitution. The values of constitutional morality are a non-derogable entitlement. Notions of “purity and pollution”, which stigmatize individuals, can have no place in a constitutional regime. Regarding menstruation as polluting or impure, and worse still, imposing exclusionary disabilities on the basis of menstrual status, is against the dignity of women which is guaranteed by the Constitution. Practices which legitimise menstrual taboos, due to notions of “purity and pollution”, limit the ability of menstruating women to attain the freedom of movement, the right to education and the right of entry to 112 (2017) 10 SCC 1 113 In his 1916 paper, “Castes in India: Their Mechanism, Genesis and Development”, Dr Ambedkar speaks about the practice of subjugating and humiliating women for the purpose of reinforcement of the caste system. He advances that women have been used as a medium to perpetuate caste system by citing the specific examples of Sati (the practice of burning of the widow on the funeral pyre of her deceased husband), enforced widowhood by which a widow is not allowed to remarry, and pre-pubertal marriage of girls. He believed that the caste-gender nexus was the main culprit behind the oppression of the lower castes and women and that it had to be uprooted. SeeDr. Babasaheb Ambedkar: Writings and Speeches, (Vasant Moon ed.), Government of Maharashtra (2014), Vol. 1, at pages 3-22 114 Manusmriti H

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

places of worship and, eventually, their access to the public sphere. A Women have a right to control their own bodies. The menstrual status of a woman is an attribute of her privacy and person. Women have a constitutional entitlement that their biological processes must be free from social and religious practices, which enforce segregation and exclusion. These practices result in humiliation and a violation of dignity. B Article 17 prohibits the practice of “untouchability”, which is based on notions of purity and impurity, “in any form”. Article 17 certainly applies to untouchability practices in relation to lower castes, but it will also apply to the systemic humiliation, exclusion and subjugation faced by women. Prejudice against women based on notions of impurity and pollution associated with menstruation is a symbol of exclusion. The C social exclusion of women, based on menstrual status, is but a form of untouchability which is an anathema to constitutional values. As an expression of the anti-exclusion principle, Article 17 cannot be read to exclude women against whom social exclusion of the worst kind has been practiced and legitimized on notions of purity and pollution. Article D 17 cannot be read in a restricted manner. But even if Article 17 were to be read to reflect a particular form of untouchability, that article will not exhaust the guarantee against other forms of social exclusion. The guarantee against social exclusion would emanate from other provisions of Part III, including Articles 15(2) and 21.Exclusion of women between the age groups of ten and fifty, based on their menstrual status, from entering the temple in Sabarimala can have no place in a constitutional order founded on liberty and dignity.

82. The issue for entry in a temple is not so much about the right of menstruating women to practice their right to freedom of religion, as about freedom from societal oppression, which comes from a stigmatized understanding of menstruation, resulting in “untouchability”. Article 25, which is subject to Part III provisions, is necessarily therefore subject to Article 17. To use the ideology of “purity and pollution” is a violation of the constitutional right against “untouchability”. J The ultra vires doctrine G

83. Section 2 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 provides thus: “2. Definitions – In this Act, unless the context otherwise requires,- (a) “Hindu” includes a person professing the Buddhist, Sikh or Jaina religion; H

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A (b) “place of public worship” means a place, by whatever name known or to whomsoever belonging, which is dedicated to, or for the benefit of, or is used generally by, Hindus or any section or class thereof, for the performance of any religious service or for offering prayers therein, and includes all lands and subsidiary shrines, mutts, devasthanams, namaskara mandapams and B 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- C caste, sect or denomination whatsoever.” Section 2(c) provides an inclusive definition of the expression “section or class”. As a principle of statutory interpretation, the term “includes” is used to expand the scope of the words or phrases which accompany. When “includes” is employed in a definition clause, the D expression must be given a broad interpretation to give effect to the legislative intent. “Includes” indicates that the definition must not be restricted.

84. In Ardeshir H Bhiwandiwala v State of Bombay,115 a Constitution Bench of this Court considered whether the Petitioner’s E salt works could be included within the definition of ‘factory’ in Section 2(m) of the Factories Act, 1948. Section 2(m) defines ‘factory’ as “any premises including the precincts thereof”. This Court rejected the appellant’s claim that the salt works could not have precincts, being open lands and not premises: F “6.The expression “premises including precincts” does not necessarily mean that the premises must always have precincts. Even buildings need not have any precincts. The word “including” is not a term restricting the meaning of the word “premises” but is a term which enlarges the scope of G the word “premises”. We are therefore of opinion that even this contention is not sound and does not lead to the only conclusion that the word “premises” must be restricted to mean buildings and be not taken to cover open land as well.” (Emphasis supplied) 115

(1961) 3 SCR 592

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[DR. DHANANJAYA Y CHANDRACHUD, J.]

In CIT v Taj Mahal Hotel, Secunderabad116 a two judge Bench A of this Court considered whether sanitary and pipeline fittings would fall within the definition of ‘plant’ under Section 10(5) of the Income Tax Act, 1922. Section 10(5) of the Act provided inter alia that in Section 10(2) the word “plant” includes “vehicles, books, scientific apparatus and surgical equipment purchased for the purpose of the business, profession or vocation”. While answering the above question in the affirmative, this Court held that: “6.The word “includes” is often used in interpretation clauses in order to enlarge the meaning of the words or phrases occurring in the body of the statute. When it is so used, those words and phrases must be construed as comprehending not only such things as they signify according to their nature and import but also those things which the interpretation clause declares that they shall include.”117 (Emphasis supplied) In Geeta Enterprises v State of U P,118 a three judge Bench of this Court considered whether Section 2(3) of the United Provinces D Entertainment and Betting Tax Act, 1937 which provided that “entertainment includes any exhibitional performance, amusement, game or sport to which persons are admitted for payment”, would include video shows which were being played on video machines at the premises of the Petitioner. Affirming the above position, this Court cited with E approval, the following interpretation of the word “includes” by the Allahabad High Court in Gopal Krishna Agrawal v State of U P119: “The context in which the word ‘includes’ has been used in the definition clauses of the Act does not indicate that the legislature intended to put a restriction or a limitation on words like F ‘entertainment’ or ‘admission to an entertainment’ or ‘payment for admission’.” The same view was expressed by a three judge Bench in Regional Director, ESIC v High Land Coffee Works of P.F.X. Saldanha & Sons 120. G 116 (1971) 3 SCC 550 117 Ibid, at pages 552-553 118 (1983) 4 SCC 202 119 (1982) All. L.J. 607 120 (1991) 3 SCC 617 H

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