Indian Young Lawyers Association v State of Kerala (2018)

For Module 3.2 this is the single best illustration in the syllabus of majority and minority judgments, and should be studied primarily for that purpose. Every other named case in the module was decided unanimously; Joseph Shine, decided by the same five Judges the day before, was unanimous with four concurrences. Sabarimala was 4:1: a majority speaking through three opinions on partly different grounds, and a fully reasoned dissent by Indu Malhotra J proceeding from a different premise about what a court may properly decide.

It is also a case in which the subsequent history qualifies the authority of the judgment without overruling it. Getting that right — decided, but referred, and not stayed — is a precision point of the kind this paper rewards.

The discussion below is confined to the constitutional questions and the opinions' reasoning, and takes no position on the religious question itself.

The Sabarimala temple in Kerala, dedicated to Lord Ayyappa, is administered by the Travancore Devaswom Board. By long usage women of a defined age band — in the proceedings, between ten and fifty years, that is, of menstruating age — were not permitted to enter; the Kerala High Court had upheld the usage in S. Mahendran v Secretary, Travancore Devaswom Board (1991). Statutory backing was said to lie in the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 and its Rules:

• Section 3 — places of public worship open to Hindus generally shall be open to all sections and classes of Hindus; proviso: a temple founded for a religious denomination or section thereof is subject to that denomination's right to manage its own affairs in matters of religion.
• Section 4 — the authority in charge may make regulations for order, decorum and the due performance of rites; proviso: no regulation shall discriminate against any Hindu because he belongs to a particular section or class.
• Rule 3(b) permitted exclusion from a place of public worship of "women at such time during which they are not by custom and usage allowed to enter a place of public worship."

In 2006 the Indian Young Lawyers Association and others filed a writ petition under Article 32 seeking entry for women of all ages. A three-Judge Bench referred the matter to a Constitution Bench in 2017.

1. Whether the exclusion is discrimination violating Articles 14, 15(1) and 17.
2. Whether the practice is an essential religious practice protected by Article 25(1).
3. Whether the worshippers are a religious denomination, or a section thereof, entitled to Article 26(b).
4. Whether Rule 3(b) is ultra vires the 1965 Act and unconstitutional.
5. Whether Article 25(2)(b) — throwing open Hindu religious institutions of a public character to all classes and sections of Hindus — extends to such a claim, and whether Article 26 is subject to it.

For the petitioners. The temple is a public place of worship supported by a statutory Board. The exclusion denies women the Art. 25(1) right to profess and practise religion, which belongs to the individual worshipper and not only the institution. The devotees are Hindus and not a denomination, so Art. 26 is not attracted; the practice is not essential; and Rule 3(b) exceeds a parent Act forbidding exclusion of any section or class of Hindus.

For the respondents and intervening devotee bodies. The deity is worshipped in the form of a Naishtika Brahmachari, and the character of the deity determines the character of the worship; the exclusion is an incident of the form of worship at this temple, not a statement about women generally, and is an essential practice protected by Art. 25(1). The devotees are a denomination or section within Art. 26, whose right the proviso to s. 3 preserves. Article 17 concerns caste-based untouchability.

The majority (Misra CJ for himself and Khanwilkar J; Nariman J and Chandrachud J concurring separately) held:

1. The devotees at Sabarimala do not constitute a separate religious denomination within Article 26; they are Hindus, and the temple is a public temple.
2. The exclusion is not an essential religious practice protected by Article 25(1).
3. It violates the Article 25(1) right of women worshippers, guaranteed to every person equally.
4. Rule 3(b) is ultra vires the 1965 Act — authorising the very exclusion which ss. 3 and 4 forbid — and unconstitutional; women of all ages are entitled to enter.

Indu Malhotra J dissented, on the grounds set out below.

The proposition supported by four Judges, and therefore the ratio, is:

The right under Article 25(1) to profess, practise and propagate religion belongs to the individual worshipper as much as to the institution; a public temple not shown to be a separate religious denomination within Article 26 cannot exclude a class of Hindus on the basis of a usage not shown to be an essential religious practice; and a subordinate rule authorising such exclusion is ultra vires a parent statute enacted to throw such temples open to all sections and classes of Hindus.

Which propositions commanded a majority.

• Devotees are not a denomination; the practice is not essential; Rule 3(b) is invalid: four Judges each (Misra CJ and Khanwilkar J, Nariman J, Chandrachud J).
• That Article 17 is attracted, exclusion founded on notions of menstrual impurity being untouchability: Chandrachud J alone. This did not command a majority, is not part of the ratio, and it is a common mistake to state it as the Court's holding.
• Constitutional morality was relied on by Misra CJ and Chandrachud J and answered by Malhotra J, who gave it a different content. Present it as reasoning, not an independent rule.

The doctrinal tools

Essential religious practices. The test originates in Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954): what is essential to a religion is ascertained with reference to the doctrines of that religion itself, and practice, not merely belief, may be protected. Durgah Committee, Ajmer v Syed Hussain Ali (1961) added that mere superstitious accretions are not protected. The doctrine is double-edged: it protects what is essential but requires a court to decide what that is — the difficulty the dissent identified.

Religious denomination. Article 26 rights belong to a "religious denomination or any section thereof". S.P. Mittal v Union of India (1983), following Shirur Mutt, requires a collection of individuals with a system of beliefs conducive to their spiritual well-being, a common organisation and a distinctive name. The majority held these unsatisfied: worship was open to Hindus generally, with no separate organisation or denominational identity.

Article 25(2)(b) enables the State to legislate for social welfare and reform and for throwing open Hindu religious institutions of a public character to all classes and sections of Hindus; the 1965 Act is such a law, to which the majority held Art. 26 must yield. Constitutional morality, in the majority's usage, means that religious usages before a court are tested against the values of the Constitution — dignity, liberty, equality — not against prevailing social practice.

The three majority opinions

Misra CJ (for himself and Khanwilkar J). Article 25(1) confers a right on every individual worshipper, held equally by women. The devotees are Hindus and not a denomination, so Art. 26 does not shield the practice; and even a denominational right must yield to the reform mandate of Art. 25(2)(b). The exclusion is not essential, and Rule 3(b) is contrary to the object and express terms of the parent Act.

Nariman J. He concurred on denomination and on the invalidity of Rule 3(b), placing his conclusion squarely on Art. 25(1): the exclusion renders the right of women worshippers meaningless. He held Art. 26 subject to Art. 25(2)(b) for a public Hindu temple, and did not rest on Art. 17.

Chandrachud J. His concurrence is the widest. He held the exclusion contrary to constitutional morality, articulated as an anti-exclusion principle: religious practice cannot subordinate the dignity, liberty and autonomy of the individual, and the Constitution does not permit enforcement of a stigma founded on physiology. He alone held Article 17 applicable, "untouchability" having been deliberately left undefined so the guarantee would not be frozen, and exclusion founded on purity and pollution falling within it.

The dissent of Indu Malhotra J — set out fully

The dissent must be stated on its own terms and fairly: the syllabus asks for the minority judgment, and it proceeds from a different premise about the judicial function.

1. Maintainability and locus standi. The petitioners were not devotees and asserted no denial of any right of their own. A public interest petition is not an appropriate vehicle for challenging a religious community's practices at the instance of strangers to the faith. Article 32 is available to a person whose fundamental right is infringed; in matters of religion the right to move the Court should ordinarily lie with those who profess that religion and are aggrieved. Otherwise any person could bring the usages of any religion before the courts.

2. Rationality has no place in matters of faith. Religious practices rest on belief, which need not satisfy a test of logic. A court asking whether a practice is rational substitutes its own view for the believer's. Article 25 protects the freedom to hold and act on beliefs, and that protection would be worth little if confined to beliefs a court found reasonable.

3. Constitutional morality in a pluralist society means tolerance. She accepted constitutional morality as a standard but gave it a different content. In a country of many faiths the morality of the Constitution is that of pluralism: the harmonious co-existence of diverse and sometimes mutually unintelligible practices, requiring the State and the courts to tolerate practices they do not share. Equality under Art. 14 cannot be used to level down Arts 25 and 26, themselves fundamental rights placed in Part III to protect difference.

4. The worshippers are a religious denomination. On the S.P. Mittal indicia she found a common system of belief, distinctive observances (the preparatory discipline and the mode of pilgrimage) and a distinctive identity, constituting a denomination or a section thereof, so that Art. 26(b) gave them the right to manage their own affairs in matters of religion. Article 26 is not, in her view, subject to Art. 25(2)(b); and the proviso to s. 3 preserved denominational rights, so Rule 3(b) was consistent with, not repugnant to, its parent Act.

5. Essential practice is for the community. Whether a practice is essential is determined by the tenets of the religion, and the community — not the court — is best placed to say so. On the material before the Court the exclusion was connected to the celibate character in which the deity is worshipped here: an incident of the form of worship at Sabarimala rather than a general disability on women, who were not excluded from other Ayyappa temples.

6. Article 17 is not attracted. "Untouchability" refers to the historical practice of caste-based untouchability the Constitution set out to abolish, as the Constituent Assembly proceedings bear out. To extend it to a gender-based restriction on entry to one temple was to detach the word from its constitutional context.

7. Consequences. The reasoning would not stop at this temple: the essential-practice and denomination findings would be invoked against other communities' practices, and such questions call for restraint.

How to read and compare opinions — the transferable skill

1. Identify the operative order first — here, Rule 3(b) struck down, the exclusion held unconstitutional.
2. Count the Judges behind each proposition, not the opinions. On Art. 17, one Judge; on denomination, four. A concurring Judge agrees with the result but may reach it on a narrower or wider ground, so the binding proposition is the narrowest ground a majority accepted.
3. Read the dissent for the premise, not the conclusion. Malhotra J disagreed not merely about Sabarimala but about whether the question was one for a court at all — the fault line that produced the later reference.
4. A dissent is not law, but it may be cited, may persuade a later Bench, and frames the questions a larger Bench must decide.

State this precisely and neutrally. The 2018 judgment has not been overruled; nor has it been affirmed by a larger Bench.

1. Kantaru Rajeevaru v Indian Young Lawyers Association (2019) — the review. On 14 November 2019 five Judges (Ranjan Gogoi CJ, A.M. Khanwilkar, R.F. Nariman, D.Y. Chandrachud and Indu Malhotra JJ) decided the review petitions 3:2.

• The majority (Gogoi CJ, Khanwilkar and Malhotra JJ) did not decide whether grounds for review were made out. They kept the reviews pending and referred broader questions to a larger Bench, the issues having a bearing on other pending matters concerning religious freedom.
• The minority (Nariman and Chandrachud JJ) would have dismissed the reviews and directed compliance, holding that no ground for review was shown and that a reference could not be made on questions not arising in the case.

The seven questions referred concerned, in substance: the interplay of Arts 25 and 26 with the rest of Part III, particularly Art. 14; the meaning of "public order, morality and health" in Art. 25(1); whether "morality" there means constitutional or religious morality; how far a court may enquire whether a practice is essential; "sections of Hindus" in Art. 25(2)(b); whether essential religious practices are protected under Art. 26; and the scope of public interest litigation questioning a religion's practices at the instance of outsiders. The majority did not stay the 2018 judgment.

2. The nine-Judge Bench on maintainability (2020). Objection was taken that questions of law cannot be referred in a review petition. On 10 February 2020 nine Judges presided over by S.A. Bobde CJ held the reference maintainable — the Court may refer a question of law to a larger Bench in a review proceeding — reasons following on 11 May 2020. That order decided only the competence of the reference.

3. The reference itself. The nine-Judge Bench, presided over by Surya Kant CJ, heard the referred questions over sixteen days from 7 April 2026 and reserved judgment on 14 May 2026. As at August 2026 no judgment has been delivered; verify before the examination.

4. The resulting position. The 2018 judgment stands — not overruled, not stayed. But the reviews remain pending, and the questions on which it rests are before nine Judges whose decision is awaited. Its authority is therefore qualified: a subsisting Constitution Bench decision whose foundations are under reconsideration by a larger Bench. That is the whole of what can properly be said.