KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSOCIATION THR. ITS GENERAL SECRETARY AND ORS.

The Judgments of the Court were delivered by RANJAN GOGOI, CJI*

1Copy pinpoint1. Ordinarily, review petitions ought to proceed on the principle predicated in Order XLVII in Part IV of the Supreme Court Rules,

2013. However, along with review petitions several fresh writ petitions have been filed as a fall out of the judgment under review. All these petitions were heard together in the open Court. *Ed. Note : Judgment delivered by Ranjan Gogoi, CJI (for himself and for A.M. H Khanwilkar and Indu Malhotra, JJ.)

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THR. ITS GENERAL SECRETARY [RANJAN GOGOI, CJI.]

2Copy pinpoint2. The endeavour of the petitioners is to resuscitate the debate about – what is essentially religious, essential to religion and integral part of the religion. They would urge that ‘Religion’ is a means to express ones ‘Faith’. In the Indian context, given the plurality of religions, languages, cultures and traditions, what is perceived as faith and essential practices of the religion for a particular deity by a section of the religious group, may not be so perceived (as an integral part of the religion) by another section of the same religious group for the same deity in a temple at another location. Both sections of the same religious group have a right to freely profess, practise and propagate their religious beliefs as being integral part of their religion by virtue of Article 25 of the Constitution of India. It matters not that they do not constitute C a separate religious denomination. Further, as long as the practice (ostensibly restriction) associated with the religious belief is not opposed to public order, morality and health or the other provisions of Part III of the Constitution of India, the section of the religious group is free to profess, practise and propagate the same as being integral part of their religion. The individual right to worship in a temple cannot outweigh the rights of the section of the religious group to which one may belong, to manage its own affairs of religion. This is broadly what has been contended.

3Copy pinpoint3. Concededly, the debate about the constitutional validity of practices entailing into restriction of entry of women generally in the place of worship is not limited to this case, but also arises in respect of entry of Muslim women in a Durgah/Mosque as also in relation to Parsi women married to a non-Parsi into the holy fire place of an Agyari. There is yet another seminal issue pending for consideration in this Court regarding the powers of the constitutional courts to tread on question as to whether a particular practice is essential to religion or is an integral of the religion, in respect of female genital mutilation in Dawoodi Bohra community.

4Copy pinpoint4. It is time that this Court should evolve a judicial policy befitting to its plenary powers to do substantial and complete justice and for an authoritative enunciation of the constitutional principles by a larger bench of not less than seven judges. The decision of a larger bench would put at rest recurring issues touching upon the rights flowing from Articles 25 and 26 of the Constitution of India. It is essential to adhere to judicial discipline and propriety when more than one petition is pending on the same, similar or overlapping issues in the same court for which all cases must proceed together. Indubitably, decision by a larger bench will also H

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A pave way to instil public confidence and effectuate the principle underlying Article 145(3) of the Constitution - which predicates that cases involving a substantial question of law as to the interpretation of the Constitution should be heard by a bench of minimum five judges of this Court. Be it noted that this stipulation came when the strength of the Supreme Court Judges in 1950 was only seven Judges. The B purpose underlying was, obviously, to ensure that the Supreme Court must rule authoritatively, if not as a full court (unlike the US Supreme Court). In the context of the present strength of Judges of the Supreme Court, it may not be inappropriate if matters involving seminal issues including the interpretation of the provisions of the Constitution touching upon the right to profess, practise and propagate its own religion, are heard by larger bench of commensurate number of Judges. That would ensure an authoritative pronouncement and also reflect the plurality of views of the Judges converging into one opinion. That may also ensure consistency in approach for the posterity.

5Copy pinpoint5. It is our considered view that the issues arising in the pending cases regarding entry of Muslim Women in Durgah/Mosque (being Writ Petition (Civil) No.472 of 2019); of Parsi Women married to a non- Parsi in the Agyari (being Special Leave Petition (Civil) No. 18889/ 2012); and including the practice of female genital mutilation in Dawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017) E may be overlapping and covered by the judgment under review. The prospect of the issues arising in those cases being referred to larger bench cannot be ruled out. The said issues could be: (i) Regarding the interplay between the freedom of religion under Articles 25 and 26 of the Constitution and other provisions in Part III, particularly Article 14. (ii) What is the sweep of expression ‘public order, morality and health’ occurring in Article 25(1) of the Constitution. (iii) The expression ‘morality’ or ‘constitutional morality’ has not been defined in the Constitution. Is it over arching morality in reference to preamble or limited to religious beliefs or faith. There is need to delineate the contours of that expression, lest it becomes subjective. (iv) The extent to which the court can enquire into the issue of a particular practice is an integral part of the religion or religious practice of a particular religious denomination or

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THR. ITS GENERAL SECRETARY [RANJAN GOGOI, CJI.]

should that be left exclusively to be determined by the head of the section of the religious group. (v) What is the meaning of the expression ‘sections of Hindus’ appearing in Article 25(2)(b) of the Constitution. (vi) Whether the “essential religious practices” of a religious denomination, or even a section thereof are afforded constitutional protection under Article 26. (vii) What would be the permissible extent of judicial recognition to PILs in matters calling into question religious practices of a denomination or a section thereof at the instance of persons who do not belong to such religious denomination? C

6Copy pinpoint6. In a legal framework where the courts do not have any epistolary jurisdiction and issues pertaining to religion including religious practices are decided in exercise of jurisdiction under Section 9 of the Civil Procedure Code or Article 226/32 of the Constitution the courts should tread cautiously. This is time honoured principle and practice. D

7Copy pinpoint7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt)1 holding that what are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself and the subsequent view of a Five Judges bench in E Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors.2 carving out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.

8Copy pinpoint8. While deciding the questions delineated above, the larger bench may also consider it appropriate to decide all issues, including the question as to whether the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 govern the temple in question at all. Whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered.

9Copy pinpoint9. The subject review petitions as well as the writ petitions may, accordingly, remain pending until determination of the questions indicated above by a Larger Bench as may be constituted by the Hon’ble the Chief Justice of India. 1 (1954) SCR 1005 2 (1962) 1 SCR 383 H

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A R. F. NARIMAN, J.*

1. Having read the judgment of the learned Chief Justice of India, I regret my inability to agree with the same. The learned Chief Justice has spoken of various matters which are sub judice in this Court in relation to entry of Muslim women in a dargah/mosque; to Parsi women married to non-Parsis and their entry into a fire temple; and issues relating to female genital mutilation in the Dawoodi Bohra community. He has then outlined seven issues which may be referred to a larger 7-judge bench as also the apparent conflict between a 7-judge bench in the Shirur Mutt case 1954 SCR 1005 and the Durgah Committee case, (1962) 1 SCR 383. He then goes on to state, “the prospect of the issues arising in those cases being referred to a larger bench cannot be ruled out.” The larger bench may then also consider it appropriate to decide all issues including the question as to whether the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 governs the temple in question at all. He then states, “whether the aforesaid consideration will require grant of a fresh opportunity to all interested parties may also have to be considered.” Hence the conclusion is that the review petitions and the fresh writ petitions may remain pending until determination of the questions indicated above by a larger bench as may be constituted by the Chief Justice of India in any of the aforesaid pending matters.

2. What this Court has before it is review petitions arising out of this Court’s judgment in Indian Young Lawyers Association and Ors. v. State of Kerala W.P. (C) No.373 of 2006, which was delivered on 28 September, 2018, with regard to the Sabarimala temple dedicated to Lord Ayyappa. What a future constitution bench or larger bench, if constituted by the learned Chief Justice of India, may or may not do when considering the other issues pending before this Court is, strictly speaking, not before this Court at all. The only thing that is before this Court is the review petitions and the writ petitions that have now been filed in relation to the judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018. As and when the other matters are heard, the bench hearing those matters may well refer to our judgment in Indian Young Lawyers Association and Ors. v. State of Kerala, dated 28 September, 2018, and may either apply such judgment, distinguish such judgment, or refer an issue/issues which arise from the said judgment for determination by a larger bench. All this is for future Constitution benches or larger benches to do. *Ed. Note : Judgment delivered by R.F. Nariman, J. (for himself and D.Y. H Chandrachud, JJ.)

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THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

Consequently, if and when the issues that have been set out in the A learned Chief Justice’s judgment arise in future, they can appropriately be dealt with by the bench/benches which hear the petitions concerning Muslims, Parsis and Dawoodi Bohras. What is before us is only the narrow question as to whether grounds for review and grounds for filing of the writ petitions have been made out qua the judgment in Indian B Young Lawyers Association and Ors. v. State of Kerala. Consequently, this judgment will dispose of the said review petitions and writ petitions keeping the parameters of judicial intervention in such cases in mind.

3. A number of points have been urged before us by a large number of counsel appearing on behalf of the review petitioners. A C review petition that is filed under Article 137 of the Constitution of India, read with Order XLVII of the Supreme Court Rules, 2013, has to be within certain parameters of a limited jurisdiction which is to be exercised. In a pithy one-paragraph judgment by Krishna Iyer, J., reported as Sow Chandra Kante and Ors. v. Sheikh Habib, (1975) D 1 SCC 674, this Court laid down: “…… A review of a judgment is a serious step and reluctant resort to it is proper only where a glaring omission or patent mistake or like grave error has crept in earlier by judicial fallibility. A mere repetition, through different Counsel, of old and overruled arguments, a second trip over ineffectually covered ground or minor mistakes of inconsequential import are obviously insufficient. The very strict need for compliance with these factors is the rationale behind the insistence of Counsel’s certificate which should not be a routine affair or a habitual step. It is neither fairness to the Court which decided nor awareness of the precious public time lost what with a huge backlog of dockets waiting in the queue for disposal, for Counsel to issue easy certificates for entertainment of review and fight over again the same battle which has been fought and lost. The Bench and the Bar, we are sure, are jointly concerned in the conservation of judicial time for maximum use. We regret to say that this case is typical of the unfortunate but frequent phenomenon of repeat performance with the review label as passport. Nothing which we did not hear then has been heard now, except a couple of rulings on points earlier put forward. May be, as Counsel now urges and then pressed, our order refusing special leave was H

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A capable of a different course. The present stage is not a virgin ground but review of an earlier order which has the normal feature of finality.” (at page 675)

4. In Kamlesh Verma v. Mayawati (2013) 8 SCC 320, this B Court undertook an exhaustive review of the case law on review petitions and finally summarised the principles laid down by these judgments as follows: “Summary of the principles

20. Thus, in view of the above, the following grounds of review are maintainable as stipulated by the statute: 20.1. When the review will be maintainable: (i) Discovery of new and important matter or evidence which, after the exercise of due diligence, was not within knowledge of the petitioner or could not be produced by him; (ii) Mistake or error apparent on the face of the record; (iii) Any other sufficient reason. The words “any other sufficient reason” have been interpreted in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW E 37 : AIR 1922 PC 112] and approved by this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean “a reason sufficient on grounds at least analogous to those specified in the rule”. The same principles have been reiterated in Union F of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC 337 : JT (2013) 8 SC 275] 20.2. When the review will not be maintainable: (i) A repetition of old and overruled argument is not enough to reopen concluded adjudications. G (ii) Minor mistakes of inconsequential import. (iii) Review proceedings cannot be equated with the original hearing of the case. (iv) Review is not maintainable unless the material error, manifest on the face of the order, undermines its H soundness or results in miscarriage of justice.

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THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

(v) A review is by no means an appeal in disguise whereby an erroneous decision is reheard and corrected but lies only for patent error. (vi) The mere possibility of two views on the subject cannot be a ground for review. (vii) The error apparent on the face of the record should not be an error which has to be fished out and searched. (viii) The appreciation of evidence on record is fully within the domain of the appellate court, it cannot be permitted to be advanced in the review petition. (ix) Review is not maintainable when the same relief sought at the time of arguing the main matter had been negatived.”

5. It is strictly within these parameters that the arguments that have been made before us have to be judged. Before stating what these arguments are, it is important to first set down the summary of conclusions by all the Judges who formed the five-Judge Bench which delivered the judgment of 28.09.2018. Dipak Misra, C.J., speaking for himself and for Khanwilkar, J., formulated their conclusions in paragraph 144 of the judgment as follows: “144. In view of our aforesaid analysis, we record our conclusions in seriatim: E

(i) In view of the law laid down by this Court in Shirur Mutt [The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt, [1954] SCR 1005] and S.P. Mittal [S.P. Mittal v. Union of India, (1983) F 1 SCC 51], the devotees of Lord Ayyappa do not constitute a separate religious denomination. They do not have common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well- being, other than those which are common to the Hindu G religion. Therefore, the devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination. (ii) Article 25(1), by employing the expression ‘all persons’, demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion H

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A is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. The right guaranteed under Article 25(1) has nothing to do with gender or, for that matter, certain physiological factors specifically attributable to women. B (iii) The exclusionary practice being followed at the Sabrimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. This denial denudes them of their right to worship. The right to practise religion under Article C 25(1) is equally available to both men and women of all age groups professing the same religion. (iv) The impugned Rule 3(b) of the 1965 Rules, framed under the 1965 Act, that stipulates exclusion of entry of women of the age group of 10 to 50 years, is a clear violation of the right of Hindu women to practise their religious beliefs which, in consequence, makes their fundamental right of religion under Article 25(1) a dead letter. (v) The term ‘morality’ occurring in Article 25(1) of the Constitution cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean. Since the Constitution has been adopted and given by the people of this country to themselves, the term public morality in Article 25 has to be appositely understood as being synonymous with constitutional morality. (vi) The notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple. (vii) The practice of exclusion of women of the age group of 10 to 50 years being followed at the Sabarimala Temple cannot be regarded as an essential part as claimed by the respondent Board.

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THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

(viii) In view of the law laid down by this Court in the second Ananda Marga case, the exclusionary practice being followed at the Sabarimala Temple cannot be designated as one, the non-observance of which will change or alter the nature of Hindu religion. Besides, the exclusionary practice has not been observed with unhindered continuity as the Devaswom Board had accepted before the High Court that female worshippers of the age group of 10 to 50 years used to visit the temple and conducted poojas in every month for five days for the first rice feeding ceremony of their children. (ix) The exclusionary practice, which has been given the backing of a subordinate legislation in the form of Rule 3(b) of the 1965 Rules, framed by the virtue of the 1965 Act, is neither an essential nor an integral part of the religion. (x) A careful reading of Rule 3(b) of the 1965 Rules makes it luculent that it is ultra vires both Section 3 as well as Section 4 of the 1965 Act, for the simon pure reason that Section 3 being a non-obstante provision clearly stipulates that every place of public worship shall be open to all classes and sections of Hindus, women being one of them, irrespective of any custom or usage to the contrary. (xi) Rule 3(b) is also ultra vires Section 4 of the 1965 Act as the proviso to Section 4(1) creates an exception to the effect that the regulations/rules made under Section F 4(1) shall not discriminate, in any manner whatsoever, against any Hindu on the ground that he/she belongs to a particular section or class. (xii) The language of both the provisions, that is, Section 3 and the proviso to Section 4(1) of the 1965 Act clearly G indicate that custom and usage must make space to the rights of all sections and classes of Hindus to offer prayers at places of public worship. Any interpretation to the contrary would annihilate the purpose of the 1965 Act and incrementally impair the fundamental right to practise religion guaranteed under Article 25(1). H

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A Therefore, we hold that Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act.”

6. Nariman, J. concurred with these views, and concluded, in paragraph 172, that the Ayyappa temple at Sabarimala cannot claim to be a religious denomination which can then claim the protection of B Article 26 of the Constitution of India as follows: “172. In these circumstances, we are clearly of the view that there is no distinctive name given to the worshippers of this particular temple; there is no common faith in the sense of a belief common to a particular religion or section thereof; or common organization of the worshippers of the Sabarimala temple so as C to constitute the said temple into a religious denomination. Also, there are over a thousand other Ayyappa temples in which the deity is worshipped by practicing Hindus of all kinds. It is clear, therefore, that Article 26 does not get attracted to the facts of this case.” D The learned Judge thereafter concluded as follows: “177. The facts, as they emerge from the writ petition and the aforesaid affidavits, are sufficient for us to dispose of this writ petition on the points raised before us. I, therefore, concur in the judgment of the learned Chief Justice of India in allowing the E writ petition, and declare that the custom or usage of prohibiting women between the ages of 10 to 50 years from entering the Sabarimala temple is violative of Article 25(1), and violative of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 made under Article 25(2)(b) of the Constitution. Further, it is also declared that Rule 3(b) of the Kerala Hindu F Places of Public Worship (Authorisation of Entry) Rules, 1965 is unconstitutional being violative of Article 25(1) and Article 15(1) of the Constitution of India.”

7. Chandrachud, J. concluded, in paragraph 291, that Article 25 of the Constitution of India implies equal entitlement of all persons to profess, practice, and propagate religion, as follows: “291. The Constitution protects the equal entitlement of all persons to a freedom of conscience and to freely profess, protect and propagate religion. Inhering in the right to religious freedom, is the equal entitlement of all persons, without exception, to profess, practice and propagate religion. Equal participation of

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THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

women in exercising their right to religious freedom is a A recognition of this right. In protecting religious freedom, the framers subjected the right to religious freedom to the overriding constitutional postulates of equality, liberty and personal freedom in Part III of the Constitution. The dignity of women cannot be disassociated from the exercise of religious freedom. In the B constitutional order of priorities, the right to religious freedom is to be exercised in a manner consonant with the vision underlying the provisions of Part III. The equal participation of women in worship inheres in the constitutional vision of a just social order.” (emphasis in original) C Thereafter, the learned Judge stated his conclusions as follows: “296. I hold and declare that: 1) The devotees of Lord Ayyappa do not satisfy the judicially enunciated requirements to constitute a religious denomination under Article 26 of the D Constitution; 2) A claim for the exclusion of women from religious worship, even if it be founded in religious text, is subordinate to the constitutional values of liberty, dignity and equality. Exclusionary practices are contrary to constitutional morality; 3) In any event, the practice of excluding women from the temple at Sabarimala is not an essential religious practice. The Court must decline to grant constitutional legitimacy to practices which derogate from the dignity of women and to their entitlement to an equal citizenship; 4) The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of “purity and pollution”, which stigmatize individuals, have no place in a G constitutional order; 5) The notifications dated 21 October 1955 and 27 November 1956 issued by the Devaswom Board, prohibiting the entry of women between the ages of ten and fifty, are ultra vires Section 3 of the Kerala Hindu H

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A Places of Public Worship (Authorisation of Entry) Act, 1965 and are even otherwise unconstitutional; and 6) Hindu women constitute a ‘section or class’ of Hindus under clauses (b) and (c) of Section 2 of the 1965 Act. Rule 3(b) of the 1965 Rules enforces a custom contrary B to Section 3 of the 1965 Act. This directly offends the right of temple entry established by Section 3. Rule 3(b) is ultra vires the 1965 Act.”

8. Indu Malhotra, J. dissented. The summary of her conclusions is reflected in paragraph 312 of the judgment as follows: C “312. The summary of the aforesaid analysis is as follows: (i) The Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non- justiciable at the behest of the Petitioners and Intervenors involved herein. D (ii) The equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion. E (iii) Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical. (iv) The Respondents and the Intervenors have made out a plausible case that the Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction. (v) The limited restriction on the entry of women during the notified age-group does not fall within the purview of H Article 17 of the Constitution.

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(vi) Rule 3(b) of the 1965 Rules is not ultra vires Section 3 A of the 1965 Act, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion.”

9. What emerges on a reading of the aforesaid four majority B judgments is that there is a clear consensus on the following issues:

9.1. The devotees of Lord Ayyappa do not constitute a separate religious denomination and cannot, therefore, claim the benefit of Article 26 or the proviso to Section 3 of the Kerala Hindu Places of Public C Worship (Authorisation of Entry) Act, 1965 [“1965 Act”]. This is outlined in paragraph 144(i) of the judgment of the learned C.J.; paragraph 172 of the judgment of Nariman, J.; and paragraph 296(1) of the judgment of Chandrachud, J. The judgment of Malhotra, J. records an opposite tentative conclusion in paragraph 312(iv). D 9.2. The four majority judgments specifically grounded the right of women between the ages of 10 to 50, who are excluded from practicing their religion, under Article 25(1) of the Constitution, emphasizing the expression “all persons” and the expression “equally” occurring in that Article, so that this right is equally available to both E men and women of all ages professing the same religion. This proposition becomes clear from paragraph 144(ii) and (iii) of the judgment of the learned C.J.; from paragraph 174 read with paragraph 177 of the judgment of Nariman, J.; and paragraph 291 of the judgment of Chandrachud, J. As against this, the judgment of Malhotra, J. is contained in paragraph 312(ii). F

9.3. Section 3 of the 1965 Act traces its origin to Article 25(2)(b) of the Constitution of India, and would apply notwithstanding any custom to the contrary, to enable Hindu women the right of entry in all public temples open to Hindus, so that they may exercise the right of worship therein. As a concomitant thereof, Rule 3(b) of the Kerala Hindu Places G of Public Worship (Authorisation of Entry) Rules, 1965 [“1965 Rules”] is violative of Article 25(1) of the Constitution of India and ultra vires Section 3 of the 1965 Act. This proposition flows from paragraph 144(iii), (iv), (x), and (xii) of the judgment of the learned C.J.; paragraph 177 of the judgment of Nariman, J.; and paragraph 296(6) of the H

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A judgment of Chandrachud, J. As against this, Malhotra, J. states the opposite conclusion in paragraph 312(vi) of her judgment. 1

10Copy pinpoint10. In Rajnarain Singh v. The Chairman, Patna Administration Committee, Patna and Ors., (1955) 1 SCR 290, this Court had to consider the judgment in Re Delhi Laws Act, [1951] SCR B 747, in which seven separate judgments were delivered on the vexed question of the legislature’s power to delegate essential legislative functions. In attempting to cull out a common ratio, this Court enunciated a working test as follows: “Now what exactly does section 3(1)(f) authorise? After its C amendment it does two things : first, it empowers the delegated authority to pick any section it chooses out of the Bihar and Orissa Municipal Act of 1922 and extend it to “Patna”; and second, it empowers the Local Government (and later the Governor) to apply it with such “restrictions and modifications” as it thinks fit. D In the Delhi Laws Act case [[1951] S.C.R. 747], the following provision was held to be good by a majority of four to three : “The Provincial Government may …… extend with such restrictions and modifications as it thinks fit …… any enactment which is in force in any part of British India at the date of such notification.” Mukherjea and Bose JJ., who swung the balance, held that not only could an entire enactment with modification be extended but 1 In the judgment of the learned Chief Justice, whether the 1965 Rules govern the temple in question at all is raised, which the larger bench, if constituted, may consider it appropriate to decide. This is will result in a piecemeal adjudication as a fresh opportunity to interested parties may then have to be given in the pending review petitions. The necessity for going into this question in the review petitions filed is itself questionable. On the assumption that the aforesaid Rule does not apply, the striking down of an inapplicable rule does not in any manner detract from the ratio of the majority judgment. The ratio of the majority judgment, insofar as this aspect of the case is concerned, is that Section 3 of the 1965 Act will apply by reason of the non-obstante clause contained therein, as a result of which every place of public worship which is open to Hindus or any section or class thereof is open to all Hindus to worship therein in the like manner and to the like extent as any other Hindu; and no Hindu of whatsoever section or class shall in any manner be prevented, obstructed or discouraged from entering any such place of public worship or from worshipping or offering prayers thereat or performing religious service therein.

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also a part of one; and indeed that was the actual decision in A Burah’s case [5 I.A. 178], on which the majority founded : (see Mukherjea J. at page 1000 and Bose J. at pages 1106 and 1121). But Mukherjea and Bose JJ., both placed a very restricted meaning on the words “restriction” and “modification” and, as they swung the balance, their opinions must be accepted as the decision of the Court because their opinions embody the greatest common measure of agreement among the seven Judges.” (at pp. 302-303)

11Copy pinpoint11. The greatest common measure of agreement among the majority judgments, being the test enunciated by this decision, is the three propositions outlined above, to which all the four majority Judges agree. On whether the exclusion of women from Hindu temples is an essential part of the Hindu religion, three Judges clearly held that it is not, with Nariman, J. assuming that such exclusionary practice is an essential part of the Hindu religion. It is with these prefatory remarks that we now begin to examine the arguments of counsel for the review petitioners.

12Copy pinpoint12. Shri K. Parasaran, who led the attack on behalf of the review petitioners, placed at the forefront of his arguments the judgment of this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar Poulose Athanasius, (1955) 1 SCR 520, and relied strongly on the following passage: “ …… It does not appear that either of the two majority Judges of the High Court adverted to either of these aspects of the matter, namely, service of notice to all churches and competency of the persons who issued the notice of the Karingasserai meeting and in any case did not come to a definite finding on that question. The majority judgments, therefore, are defective on the face of them in that they did not effectively deal with and determine an important issue in the case on which depends the title of the plaintiffs and the maintainability of the suit. This, in our opinion, is certainly an error apparent on the face of the record.” G (at page 534)

13Copy pinpoint13. Based on this judgment, Shri Parasan argued that two learned Judges, viz., Dipak Misra, C.J., and Khanwilkar, J., did not at all opine on Article 15 of the Constitution of India. Also, they did not effectively deal with arguments based on Article 17 of the Constitution. H

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A The same goes for Nariman, J., when it comes to Article 17. Chandrachud, J. alone expounded on Article 17, and according to Shri Parasaran, this exposition amounts to an error apparent on the face of the record inasmuch as the expression “untouchability” would refer only to the discrimination meted out to Harijans, regardless of their sex, and would, therefore, not embrace members of the female sex alone who are regarded as “untouchables” during their period of menstruation. According to him, the judgment of Malhotra, J. correctly referred to the Constituent Assembly Debates on this issue and arrived at the correct conclusion. Since the view of Chandrachud, J. cannot be said to be a possible view, it would amount to an error apparent on the face of the record. Shri Parasaran argued that “untouchability” is nomen juris and relied upon State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd., 1959 SCR 379, which held that the expression “sale of goods”, being nomen juris, would not include works contracts. He further argued that it took a constitutional amendment to add Article 366(29-A) to expand the definition of “sale of goods” so as to include D a works contract.

14Copy pinpoint14. The majority judgments of Dipak Misra, C.J., Khanwilkar, J., and Nariman, J. did not find it necessary to opine on Article 15(2) and Article 17 of the Constitution in view of their findings on various other points. Nariman, J. alone referred to Article 15(1) of the E Constitution when it came to striking down Rule 3(b) of the 1965 Rules. The observations of Chandrachud, J. on Article 17 of the Constitution cannot be said to be a material error manifest on the face of the record which undermines the soundness of the three conclusions reached by all the majority judgments supra. Further, since the view of Chandrachud, J. on Article 17 of the Constitution is a possible view, it F cannot be a subject matter of review. As stated hereinabove, the interpretation of Article 15 and Article 17 of the Constitution were not treated as central issues in the present case by at least three learned Judges, namely, Dipak Misra, C.J., Khanwilkar, J., and Nariman, J. In this view of the matter, these arguments have necessarily to be rejected.

15Copy pinpoint15. Other learned counsel have essentially reargued the case on all other points. They argued that the Ayyappa temple at Sabarimala constituted a religious denomination and could, therefore, claim the protection of Article 26 of the Constitution of India as well as the proviso to Section 3 of the 1965 Act. This argument is a re-argument of what H was argued before us before the judgment of 28.09.2018 was delivered.

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16Copy pinpoint16. Ms. Indira Jaising, learned Senior Advocate appearing on behalf of the intervenors in I.A. Nos. 21515 and 21521 of 2019, specifically referred to and relied upon the judgment of one of us, Nariman, J., where it was made clear that the judgment of Chinnappa Reddy, J. in S.P. Mittal v. Union of India, (1983) 1 SCC 51, was a dissenting judgment [see paragraph 171]. According to her, in two places, the dissenting judgment of Malhotra, J. has strongly relied upon the judgment of Chinnappa Reddy, J. (in paragraphs 306.7 and 308.8), stating that the judgment of Chinnappa Reddy, J. is a concurring judgment on the aspect of religious denomination. Therefore, on the contrary, the conclusion of Malhotra, J., based on the observations contained in the dissenting judgment of Chinnappa Reddy, J., could not be said to be a possible view on this aspect. Without entering further into this controversy, we may only reiterate that the majority Judges have correctly held that the views of Chinnappa Reddy, J. are dissentient, as was recognized by Chinnappa Reddy, J. himself. The learned Judge in his first paragraph states: D “I have the good fortune of having before me the scholarly judgment of my brother Misra, J. I agree with my brother Misra, J. that the writ petitions must fail. With much that he has said, also, I agree. But with a little, to my own lasting regret, I do not agree. It is, therefore, proper for me to explain the points of my E disagreement.” (at page 59)

17Copy pinpoint17. The majority view of four Judges on this aspect is contained in paragraphs 110 to 122. In paragraphs 121 and 122, the majority concluded as follows: F

“121. On the basis of the materials placed before us viz. the Memorandum of Association of the Society, the several applications made by the Society claiming exemption under Section 35 and Section 80 of the Income Tax Act, the repeated utterings of Sri Aurobindo and the Mother that the Society and G Auroville were not religious institutions and host of other documents there is no room for doubt that neither the Society nor Auroville constitute a religious denomination and the teachings of Sri Aurobindo only represented his philosophy and not a religion. H

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A 122. Even assuming but not holding that the Society or the Auroville were a religious denomination, the impugned enactment is not hit by Articles 25 or 26 of the Constitution. The impugned enactment does not curtail the freedom of conscience and the right freely to profess, practise and propagate religion. Therefore, there is no question of the enactment being hit by Article 25.” B This point also has to be rejected as there is no error, let alone material error, manifest on the face of the record of the majority view.

18Copy pinpoint18. A great deal of argument was devoted to whether the practice of excluding women between the ages of 10 to 50 from the shrine at C Sabarimala would constitute an essential religious practice. Three of the majority Judges held that such a religious practice, having no basis in the Hindu religion, could not be held to be an essential religious practice – see paragraphs 122 and 123 of the judgment of the learned C.J., and paragraph 227 read with paragraph 296(3) of the judgment of Chandrachud, J. Here again, it cannot be said that there is any error apparent. What has to be seen in the judgments of this Court is whether such practice is an essential practice relatable to the Hindu religion, and not the practice of one particular temple. Nothing has been shown to us, as was correctly pointed out by the learned Chief Justice, from any textual or other authorities, to show that exclusion of women from ages 10 to 50 from Hindu temples is an essential part of the Hindu religion. This again is a ground that must be rejected, both because there is no error apparent, and because the same ground that was argued in extenso before the original judgment was delivered, is being reargued in review.

19Copy pinpoint19. It was then stated that the judgments of Dipak Misra, C.J. and Chandrachud, J., in relying upon “constitutional morality”, suffered from an error apparent, in that constitutional morality is a vague concept which cannot be utilised to undermine belief and faith. Here again, apart from the fact that “constitutional morality” has now reached the level of stare decisis, and has been explained in several Constitution Bench G judgments, reliance thereon cannot be said to suffer from any error apparent. Constitutional law and constitutional interpretation stand on a different footing from interpretation of statutes. Constitutional law keeps evolving keeping in view, among other things, the felt necessities of the time. As has been explained in some of our judgments, H “constitutional morality” is nothing but the values inculcated by the

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THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

Constitution, which are contained in the Preamble read with various other parts, in particular, Parts III and IV thereof. This again is a mere rehash of what was argued earlier, and can by no means be said to be an error apparent on the face of the record.

20Copy pinpoint20. Extreme arguments were made by some learned counsel stating that belief and faith are not judicially reviewable by courts, and that this Court cannot interfere by stating that a particular section of persons shall not hold a particular belief and act in accordance thereto. Such arguments need to be rejected out of hand. Not only do they not constitute “errors apparent”, but are arguments that fly in the face of Article 25. Article 25, as has been held by the majority judgments, is not an Article that gives a carte blanche to one particular section of persons to trample upon the right of belief and worship of another section of persons belonging to the same religion. The delicate balance between the exercise of religious rights by different groups within the same religious faith that is found in Article 25 has to be determined on a case by case basis. The slippery-slope argument, that this judgment will be used to undermine the religious rights of others, including religious minorities, is wholly without basis. The ratio of the majority judgments in this case is only that the exclusionary practice of keeping women from the ages of 10 to 50 from exercising their right of worship in a particular Hindu temple falls foul of Article 25 of the Constitution of India inasmuch as (i) all persons are equally entitled, when they belong to the same religious group, to exercise their fundamental right of practicing religion; and (ii) that this is a case covered by Article 25(2)(b), which deals with throwing open all Hindu religious institutions of a public character to all classes and sections of Hindus. The majority judgments have held that Section 3 of the 1965 Act is a legislation in pursuance of this part of Article 25(2)(b), which expressly comes in the way of any custom which interferes with the rights of women from the ages of 10 to 50 from worshipping in a Hindu religious institution of a public character. Article 25(1) also contains two other exceptions, namely, that this right is (a) subject to public order, morality, and health; and (b) is also subject to the other provisions of Part III, as has been explained in the majority judgments. This argument must also, therefore, be rejected.

21Copy pinpoint21. References were made to the Hindi text of Article 26, and arguments were based on the Hindi expression “sampradaya” as opposed to the English expression “denomination”. This again is a new H

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A argument, made for the first time in review. This argument cannot be countenanced for the reason that we are bound by a large number of Constitution Bench decisions on what constitutes a religious denomination. Having followed the aforesaid judgments, which are binding upon us, we cannot be said to have committed any error.

22Copy pinpoint22. Emotive arguments were made on how women between the ages of 10 to 50 are not kept out on account of menstruation as a polluting agent, but on account of the deity being a Naisthik Brahmachari, who would be disturbed by the presence of women between the ages of 10 to 50, as the deity has undertaken a vow of celibacy. These are all arguments that have been made at the initial stage, and are fully dealt with by all the judgments. Re-arguing this aspect of the matter obviously does not fall within the parameters of a review petition.

23Copy pinpoint23. One more extreme argument that was made is that since worshippers from all faiths come to Sabarimala, Sabarimala cannot be held to be a Hindu temple. This argument, again, has no legs to stand on. A Christian church cannot be said to be any the less a church on account of allowing persons of all faiths to enter and worship therein. There is no doubt that the temple at Sabarimala, being dedicated to a Hindu idol – Lord Ayyappa – is a Hindu public religious institution, like the other temples dedicated to Lord Ayyappa, which are undoubtedly Hindu public religious institutions. This argument must also be rejected.

24Copy pinpoint24. An argument was made that there are gender restrictions in other places of worship, which, being essential religious practices, have not been interfered with. This is a general argument which needs to be rejected on the ground of vagueness, apart from the fact that this is not an argument which could be made in reviewoiation from this high C . As and when such gender restrictions in other places of worship are tested, they will be decided on their own merits keeping in view the provisions of the Constitution.

25Copy pinpoint25. Another plea of some of the review petitioners is that the Division Bench judgment in S. Mahendran v. Secretary, Travancore Devaswom Board, Thiruvananthapuram, AIR 1993 Ker 42 would be res judicata, as it was a Public Interest Litigation in which all necessary parties were joined and heard, and the same issues that were H raised before this Court were decided by the Division Bench.

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26Copy pinpoint26. It is true that the Division Bench judgment in Mahendran A (supra), was a complaint which was converted into an original petition under Article 226 of the Constitution as a PIL. The Secretary, Travancore Devaswom Board, and the Chief Secretary to the Government of Kerala were made respondents to the petition. Further, the Indian Federation of Women Lawyers, Kerala Branch and the President of the Kerala Kshetra Samrakshana Samithi were impleaded B and permitted to participate in the proceedings. As a matter of law, there is no doubt whatsoever that res judicata as a principle does apply to public interest litigation. However, this Court in V. Purushotham Rao v. Union of India & Ors., (2001) 10 SCC 305, set out the law as stated in Rural Litigation and Entitlement Kendra v. State of U.P., C 1989 Supp. (1) SCC 504, which it followed, and stated: “We may not be taken to have said that for public interest litigations, procedural laws do not apply. At the same time it has to be remembered that every technicality in the procedural law is not available as a defence when a matter of grave public importance is for consideration before the Court. Even if it is said that there was a final order, in a dispute of this type it would be difficult to entertain the plea of res judicata. Thus even in the selfsame proceeding, the earlier order though final, was treated not to create a bar inasmuch as the controversy before the Court was of grave public interest. The learned counsel appearing for the appellants drew our attention to the decision of this Court in the case of Forward Construction Co. v. Prabhat Mandal, AIR 1986 SC 391, whereunder the Court did record a conclusion that Section 11 of the Civil Procedure Code applied to public interest litigation. In our considered opinion, therefore, the principle of constructive res judicata cannot be made applicable in each and every public interest litigation, irrespective of the nature of litigation itself and its impact on the society and the larger public interest which is being served.” (at page 331) G This Court, in Mathura Prasad Bajoo Jaiswal & Ors. v. Dossibai N.B. Jeejeebhoy, (1970) 3 S.C.R. 830, [“Mathura Prasad”], had held: “Where, however, the question is one purely of law and it relates to the jurisdiction of the Court or a decision of the Court H

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A sanctioning something which is illegal, by resort to the rule of res judicata a party affected by the decision will not be precluded from challenging the validity of that order under the rule of res judicata, for a rule of procedure cannot supersede the law of the land.” B (at page 836) In a recent judgment, namely, Canara Bank v. N.G. Subbaraya Setty & Anr., AIR 2018 SC 3395, this Court after referring to Mathura Prasad (supra), held: “(ii) An issue of law which arises between the same parties in a C subsequent suit or proceeding is not res judicata if, by an erroneous decision given on a statutory prohibition in the former suit or proceeding, the statutory prohibition is not given effect to. This is despite the fact that the matter in issue between the parties may be the same as that directly and substantially in issue in the previous suit or proceeding. This is for the reason that in such cases, the rights of the parties are not the only matter for consideration (as is the case of an erroneous interpretation of a statute inter parties), as the public policy contained in the statutory prohibition cannot be set at naught. This is for the same reason as that contained in matters which pertain to issues of law that raise jurisdictional questions. We have seen how, in Natraj Studios (AIR 1981 SC 537), it is the public policy of the statutory prohibition contained in Section 28 of the Bombay Rent Act that has to be given effect to. Likewise, the public policy contained in other statutory prohibitions, which need not necessarily go to jurisdiction of a Court, must equally be given effect to, as otherwise special principles of law are fastened upon parties when special considerations relating to public policy mandate that this cannot be done.” (at page 3414)

27Copy pinpoint27. When it comes to important issues as to the interpretation of the Constitution, which is entrusted by the Constitution under Article 145(3) to a Bench consisting of a minimum of five Supreme Court Judges, it is obvious that an erroneous interpretation of the Constitution by a High Court (which affects the general public much more than an erroneous interpretation of a statutory prohibition enacted in public interest) cannot possibly be res judicata as against a judgment of a

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Constitution Bench of the Supreme Court, as a rule of procedure cannot be exalted over Article 145(3) of the Constitution of India. By the judgment dated 28.09.2018 of a Constitution Bench of this Court, this Court has interpreted Article 25(1) to mean that all persons are equally entitled to practice the Hindu religion, which would include women between the ages of 10 and 50. A previous decision by a High Court, erroneously interpreting Article 25 in an earlier PIL, can obviously not stand in the way, by resort to a rule of procedure, of a judgment of five Judges of the Supreme Court declaring the law of the land on this aspect. This objection also does not disclose any error apparent on the face of the record.

28Copy pinpoint28. The issue of locus-standi to file a public-interest litigation was re-argued by some of the review petitioners. Indu Malhotra, J. in her dissenting judgment, has held that to entertain a public-interest litigation at the behest of persons who are not worshippers at Sabrimala temple would open the floodgates of petitions to be filed questioning the validity of religious beliefs and practices followed by other religious sects. We have pointed out in this judgment that the majority judgment cannot be used to undermine the religious rights of others, including, in particular, religious minorities. Besides, busybodies, religious fanatics, cranks and persons with vested interests will be turned down by the Court at the threshold itself, by applying the parameters laid down in State of Uttaranchal v. Balwant Singh Chaufal and Ors. (2010) 3 E SCC 402 (at paragraph 181). The fear expressed by the learned dissenting judge is therefore quite unfounded. As has been pointed by Nariman, J. in the majority judgment (at paragraph 175), the present case raises grave issues which relate to gender bias on account of a physiological or biological function which is common to all women. It F is for this reason that a bonafide public-interest litigation was entertained by the majority judgment, having regard to women’s rights, in the context of women worshippers as a class, being excluded on account of such physiological/biological functions for the entirety of the period during which a woman enters puberty until menopause sets in. G

29Copy pinpoint29. Given the consensus on the three issues delineated above by the four majority judgments, we find that no ground for review of the majority judgments has been made out. The review petitions are hence dismissed. Equally, all writ petitions filed under Article 32 of the Constitution, that have been filed directly attacking the majority judgments dated 28.09.2018, are dismissed as not being maintainable in view of H

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A Naresh Shridhar Mirajkar v. State of Maharashtra, (1966) 3 SCR 744, as followed in Rupa Ashok Hurra v. Ashok Hurra, (2002) 4 SCC 388 [see paragraphs 7 to 14].

30Copy pinpoint30. An argument was made by some of the review petitioners that, given the fact that there have been mass protests against implementation of this judgment, we ought to have a re-look at the entire problem. On the other hand, Ms. Indira Jaising, learned Senior Advocate appearing on behalf of certain ladies, including Scheduled Caste ladies who have been obstructed from entering the Sabarimala temple, or having entered the temple, have been subjected to physical and other abuses, has made a fervent plea before us to ensure that our judgment is implemented in both letter and in spirit.

31Copy pinpoint31. The arguments and counter-arguments so made, need us to restate a few constitutional fundamentals. Under our constitutional scheme, the Supreme Court is given a certain pride of place. Under Article 129, the Supreme Court shall be a court of record and shall have all the powers of such a Court, including the power to punish for contempt of itself. Under Article 136, the Supreme Court has been granted a vast jurisdiction by which it may interfere with any judgment, decree, determination, sentence, or order made by any court or tribunal in the territory of India. Indeed, by Article 140, Parliamentary law may confer upon the Supreme Court such supplemental powers as may be necessary or desirable for the purpose of enabling the Court to exercise the jurisdiction conferred upon it by the Constitution more effectively. By Article 141 of the Constitution, the law declared by the Supreme Court shall be binding on all courts, which includes tribunals, within the territory of India, which ensures that the Supreme Court, being the final arbiter of disputes, will lay down law which will then be followed as a precedent by all courts and tribunals within the territory of India. Article 142 of the Constitution confers upon the Supreme Court the power to make such decree or order as is necessary for doing complete justice in any cause or matter pending before it. By Article 145(3), a minimum number of five Judges are the last word on the interpretation of the Constitution, as any case involving a substantial question of law as to interpretation of the Constitution must be decided by this minimum number of Judges.

32Copy pinpoint32. What is of particular importance in this case is Article 144 H of the Constitution of India, which is set out herein below: