Indian Young Lawyers Association Vs State of Kerala & Ors

CASE BRIEF

Indian Young Lawyers Association & Ors…………………Petitioners

v.

The State of Kerala & Ors………………..Respondents

(2019) 11 SC (Supreme Court, Writ Petition No. 373 of 2006)

Decided on- 28.09.2018

 

CASES REFERRED-

1. A K Gopalan v. State of Madras
2. Acharya Jagadishwarananda Avadhuta and others v. Commissioner of Police, Calcutta
3. Adi Saiva Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and others
4. Anuj Garg and others v. Hotel Association of India and others
5. Deepak Sibal v. Punjab University and another
6. Durgah Committee, Ajmer v. Syed Hussain Ali
7. Government of NCT of Delhi v. Union of India and others
8. Justice K.S. Puttaswamy and another v. Union of India and others
9. Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthpuram and others
10. Maharashtra State Board of Secondary and Higher Education v. Paritosh Bhupeshkumar Sheth
11. N. Adithayan v. Travancore Devaswom Board and others
12. Nallor Marthandam Vellalar and others v. Commissioner, Hindu Religious and Charitable Endowment and others
13. Nar Hari Shastri and others v. Shri Badrinath Temple Committee
14. National Legal Services Authority v. Union of India
15. Navtej Singh Johar and others v. Union of India and others
16. Ratilal Panachand Gandhi v. State of Bombay and Ors.
17. S.P. Mittal v. Union of India and Ors
18. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay
19. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay
20. Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya
21. Seshammal and Ors. v. State of Tamil Nadu
22. Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and Ors. v. State of U.P. and Ors.
23. Sri Venkatramana Devaru v. State of Mysore and others
24. State of Karnataka v. Appa Balu Ingale
25. State of T.N. and another v. P. Krishnamurthy and others
26. State of West Bengal and others v. Ashutosh Lahiri and others
27. T.M.A. Pai Foundation and others v. State of Karnataka and others
28. The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt
29. Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan and Ors

STATUTES REFERRED-

1. Civil Rights Act, 1955
2. Constitution of India
3. Kerala Hindu Places of Worship (Authorisation of Entry) Act, 1965
4. Kerala Hindu Places of Worship (Authorisation of Entry) Rules, 1965
5. Travancore- Cochin Hindu Religious Institutions Act, 1950

STATEMENT OF FACTS-

1. That a writ petition was filed under Article 32 of the Constitution of India to the Supreme Court to issue directions against the Government of Kerala, Devaswom Board of Travancore, Chief Thantri of Sabarimala Temple and the District Magistrate of Pathanamthitta to ensure entry of female devotees between the age group of 10 – 50 years to the Lord Ayappa Temple at Sabarimala which has been denied to them on the basis of certain usage and customs.
2. That the petition seeked declaration of Rule 3(b) of the Kerala Hindu Places of Worship (Authorisation of Entry) Rules, 1965 as ultra vires of Section 3 of the Kerala Hindu Places of Worship (Authorisation of Entry) Act, 1965 and violative of Articles 14, 15, 25 and 51A(e) of the Constitution.

ISSUES INVOLVED-

1. Whether exclusion of women amounts to ‘discrimination’ and thereby violates Articles 14, 15 and 17 and not protected by Articles 25 and 26 of the Constitution?
2. Whether this exclusionary practice constitutes to ‘an essential religious practice’ and cannot be parted with under Article 25 of the Constitution?
3. Whether the Ayappa Temple is a ‘religious denomination’, and if so, it is permissible to a religious denomination to violate the constitutional principles embedded under Articles 14, 15, 39(a) and 51A(e)?
4. Whether Rule 3 of the Kerala Hindu Places of Worship (Authorisation of Entry) Rules, 1965 permits a religious denomination to ban entry of female devotees between ages 10-50 years and if so, whether it is violative of Articles 14 and 15(1) as discrimination on the basis of sex?
5. Whether Rule 3(b) of the Kerala Hindu Places of Worship (Authorisation of Entry) Rules, 1965 is ultra vires of Section 3 of the Kerala Hindu Places of Worship (Authorisation of Entry) Act, 1965 and violative of Articles 14, 15, 25 and 51A(e) of the Constitution?

• In this case, apart from the petitioners and respondents, the Court also appointed Amicus Curiae to assist the Court in deciding the case. Also, Intervenors filed their applications. “Intervenors are persons who are not a party to the suit but have filed an application to be heard in the case, or join the ongoing litigation with the permission of the Court”.

CONTENTIONS ADVANCED-

1. BY THE PETITIONERS:
2. It was submitted that after the enactment of the Travancore- Cochin Hindu Religious Institutions Act, 1950, all Devaswoms and other Hindu religious Institutions have come under the purview of a single Devaswom Board, and receive funding from the State. Therefore, the Sabarimala Temple no longer has a distinct character of a ‘religious denomination’ and cannot carry out any ill-practice which is againt the constitutional principles.
3. It was further contended that Sabarimala Temple is not a religious denomination as it does not have any distinct character outside any religion, or a set of followers having common faith, and neither does it have a separate administration as it is governed by the 1950 Act.
4. Thereafter, it was contended that if it is not a religious denomination, it cannot claim protection of Article 26, coming under the purview of Article 12. Even if it is a religious denomination, there has to be a harmonious construction between Articles 25 and 26 and women of age 10-50 years cannot be completely barred from entering the temple.
5. It was put forth that Article 26 of the Constitution does not create any right in favor of a religious denomination; it is only to safeguard their rights. Even if any practice, by virtue of its historical value has become a touchstone of such religion, it cannot stand if it’s against the basic rights under the Constitution.
6. Further, stating the history of the Sabarimala Temple, the Petitioners averred that the mere sight of women does not affect the celibacy of Lord Ayappa. And the very argument of the temple administration that women cannot perform the rites of the religion during menstrual period is simply abhorring and unjustified.
7. Also, it was submitted that any temple cannot completely prohibit or exclude the entry of a particular class of people, herein the women of age 10 – 50 years from the temple.
8. BY THE INTERVENOR (I.A. No. 10/ 2016, 34/ 2017)
9. It was submitted that the practice of excluding females of age 10-50 years on the basis of gender, especially on physiological factors such as menstruation is violative of Article 14 of the Constitution, as such classification does not have a valid constitutional object. Also, such exclusion being based on gender is violative of Article 15(1) as well.
10. Further, it was contended that the temple considered menstruating women as impure and polluted which castes a stigma upon them, violating Article 17 of the Constitution which can be expanded to include the concept of menstrual discrimination against women.
11. Also, exclusion of women from entering the temple because of their gender and menstruation is against their dignity, violating Article 21 of the Constitution and further violative of Article 25 as every person has the right to enter Hindu temples dedicated to the public.
12. Thereafter, it was submitted that earlier, women were allowed in the temple for the first rice-feeding cermony of their children. It was only after the passing of notification of 1955 that it was barred. Therefore, it cannot be said that this practice has been going on since time immemorial.
13. It was also put forth that Rule 3(b) of the Kerala Hindu Places of Worship (Authorisation of Entry) Rules, 1965 is violative of Articles 14, 15, 17, 21 and 25 of the Constitution as it is not an essential practice protected by Article 26.
14. BY THE INTERVENOR (I.A. No.s 12 and 13)

It was maintained that the Court may remove the restriction on women between 10 – 50 years of age from entering Sabarimala Temple for all days except the period of 16 November to 14 January as during this period Lord Ayappa sits in the temple.

During the said period, the Vruthum may be observed by the pilgrims visiting the temple in its full form. In this way there won’t be any violation of Articles 14, 15, 17, 25 and 26 of the Constitution.

1. BY THE AMICUS CURIAE
2. Senior Advocate Mr. Raju Ramchandran
3. It was submitted that a public Hindu Temple gives the right to entry to every devotee. It is a universal right and not a permissive right depending upon the temple authorities. The right under Article 25 is a non-discriminatory right and available to all, irrespective of their gender.
4. Further, Article 17 prohibits ‘untouchability’ and exclusion of women from entry of a particular age group because of menstruation should be under its purview.
5. Also, Section 3(a) of the Civil Rights Act, 1955 criminalizes exclusion of people to those places where every person has a right to enter who profess the same religion. A temple is a public place; having a denominational character or not, it cannot prohibit anyone from entering it.
6. Furthernore, he contended that exclusion of a particular sect of woman forces them to disclose their menstrual status, thereby violating their right to dignity under Article 21. Also, such a practice must be proved by the Respondents to be an essential religious practice without which the religion cannot survive.
7. He also submitted that Section 3 of the 1965 Act is a non-obstante clause that makes the temple open for all, irrespective of their gender, which is the feature embodied under Article 25(2)(b). Also, Rule 3(b) of the 1965 Rules is ultra vires Sections 3 and 4 of the Act as Section 3 expressly overrides any custom or usage and Rule 6(c) is unconstitutional in the same way as Rule 3(b).
8. Senior Advocate Mr. K. Ramamoorthy
9. It was submitted that in prominent Hindu Temples in India, there are religious activities that are essential to the religion and are being followed since time immemorial. So, the devotees of Ayyappa should also be considered as a separate denomination that follows a tradition that is essential to their religion.
10. Further, he maintained that Articles 25 and 26 also cover those traditions and rituals that have been an integral part of the religion since centuries and therefore, those essential traditions should be considered a part of the religion.
11. He also stated that the Sabarimala Temple is by itself a separate denomination under Article 26 considering the nature of its practices; so its devotees should also be considered a part of the denomination. Further, after such a long time, the said practices cannot be contended to be violative of the fundamental rights now.
12. BY THE RESPONDENTS:
13. It was submitted that the 1965 Act and Rules were framed in consonance with Article 25(2)(b) and the state does not discriminate against women in any manner.
14. Further, it was put forth that the Sabarimala Temple is open during specific periods in which a 41-day Vruthum has to be observed. And the said custom can be traced back to the time when the temple was established. Also, the women cannot fully observe the 41-day vruthum as their periods eventually fall within the period during which time they cannot take part in any religious activities, so they cannot be allowed in the Temple.
15. It was also contended that this prohibition is not discrimination but only an essential practice that has to be followed. Even men have to be celibate, and stay away from any sexual distractions. Furthermore, it was the will of the deity, Lord Ayyappa that women should not be allowed in the temple as it leads to distractions because he was a Naishtik Brahmachari.
16. Attention of the Court was drawn to the history of the Sabarimala Temple and why it was established. It was further reiterated that the pilgrims coming to the Temple are referred to as Ayyappans, therefore they are a collection of people with a distinct name, and a separate religious denomination.

JUDGMENT-

The Supreme Court Bench comprising CJI Dipak Misra, and Justices A.M. Khanwilkar, R.F. Nariman, D.Y. Chandrachud and Indu Malhotra by a majority of 4:1 uplifted the ban:

1. It was held that the Ayyappans are not a distinct sect, and every Hindu devotee can go to the temple, therefore, the Sabarimala Temple is not a separate religious denomination with exclusive followers of the sect. Mere observance of certain practices for a long time period does not make it so.
2. Further, it was reiterated that Article 25(1) contains a non-discriminatory right whereby every person has the right to profess his religion. Therefore, the exclusionary practice of the Sabarimala Temple violates the fundamental right of the female devotees to exercise their freedom of religion.
3. It was further held that Rule 3(b) of the 1965 Rules that stipulates exclusion of females of age 10-50 years from the Temple is violative of their right to practise their religious beliefs under Article 25. Also, the notions of public order, health and morality cannot be exercised in a colorable fashion to exclude the women of such age from exercising their right.
4. The Court undoubtedly held that in no case can such an exclusionary practice be held to be an essential practice of Hindu religion without which the religion cannot survive. Further, in the absence of any scriptural evidence, it cannot be accorded such a status.
5. Lastly, the Court held that Rule 3(b) of the 1965 Rules is ultra vires both Sections 3 and 4 of the 1965 Act for the clear reason that these sections indicate that the fundamental rights of a person override any usage or custom of a religion.

DISSENTING OPINION: J. Indu Malhotra delivered a dissenting opinion stating that the Sabarimala temple fulfils all conditions of a religious denomination under Article 26 and therefore, has a right to manage its own affairs. She further said that the State must respect the rights of certain sects and their freedom to practice their faith.

She opined that Article 14 cannot override the freedom under Article 25. She also iterated that Rule 3(b) does not conflict with the 1965 Act and dismissing the Article 17 argument she held that untouchability is to be construed only in reference to ‘caste’ and not discrimination on the basis of ‘gender’.

RULE OF LAW-

The main point in conflict was whether exclusion of women from entering Sabarimala Temple is violative of Articles 14, 15, 17, 21 and 51A(e) of the Constitution or justified under Article 26 as being the right of a religious denomination. Also, the validity of Rule 3(b) of the 1965 Rules was under challenge.

CONCLUSION-

In a rather bold judgment, the Hon’ble Court has upheld that the fundamental rights under Articles 14, 15, 17 and 21 enshrined in the Constitution override the right under Article 26. This was a war between traditions and fundamental rights of a person in India where traditions and customs always been given a higher pedestal than anything else.

Women in India have always been given a lower position than men but this judgment has upheld the moral and fundamental right of women in our society. The Court by removing the ban on women to enter Sabarimala Temple has once again established the superiority of the Constitution above all.

Although the Court upheld the dignity of women, still there can be conflicting opinions as to the religious ethics and practices in our country where it may be said that the Court should not interfere in the religious matters.