Indian Young Lawyers Association v State of Kerala (Supreme Court, 2018) — the Sabarimala case

The case brings together every strand of the religion chapter: the essential-practices test, the definition of a denomination, the relation between Article 25(1) and the other fundamental rights, and the limits of judicial competence in matters of faith. Its review, Kantaru Rajeevaru (2020), was referred to a larger Bench, so the judgment must be stated with care.

By Writ Petition (Civil) No. 373 of 2006 a registered association of young lawyers asked the Court to ensure the entry of female devotees between ten and fifty to the temple of Lord Ayyappa at Sabarimala, which had been denied on the basis of custom and usage, and to declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 unconstitutional as violating Articles 14, 15, 25 and 51A(e). Section 3 of the 1965 Act opens places of public worship to all sections and classes of Hindus; Rule 3(b) excluded women "at such time during which they are not by custom and usage allowed to enter a place of public worship". The Kerala High Court had upheld the exclusion in S. Mahendran (1991), holding it in accordance with usage from time immemorial and not violative of Articles 15, 25 or 26. A three-judge Bench referred the questions to a Constitution Bench of Misra C.J., Nariman, Khanwilkar, Chandrachud and Malhotra JJ., which decided the petition on 28 September 2018.

1. Are the devotees of Lord Ayyappa a separate religious denomination entitled to manage their own affairs in matters of religion under Article 26?
2. Is the exclusion of women of the specified age an essential religious practice?
3. Is Rule 3(b) valid under the 1965 Act and the Constitution?
4. Should the Court decide such a question at all?

Misra C.J. and Khanwilkar J. Applying the tests for a denomination, the Court found no distinct sect: "we hold, without any hesitation, that Sabarimala temple is a public religious endowment and there are no exclusive identified followers of the cult." There was nothing to show that the devotees have religious tenets peculiar to themselves other than those common to Hinduism. The exclusion was not an essential practice of the Hindu religion. Custom and usage "must make space to the rights of all sections and classes of Hindus to offer prayers at places of public worship", and any other reading "would annihilate the purpose of the 1965 Act and incrementally impair the fundamental right to practise religion guaranteed under Article 25(1). Therefore, we hold that Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act." The writ petition was allowed.

Nariman J. (concurring) and Chandrachud J. (concurring) reached the same result. Chandrachud J. concluded that the notifications of 21 October 1955 and 27 November 1956 by which the Devaswom Board prohibited the entry of women between ten and fifty "are ultra vires Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act 1965 and are even otherwise unconstitutional", that "Hindu women constitute a ‘section or class’ of Hindus under clauses (b) and (c) of Section 2 of the 1965 Act", and that "Rule 3(b) of the 1965 Rules enforces a custom contrary 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." He also held that "social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values."

Malhotra J. (dissenting). The petition raised matters of faith which are not for a court: "It is not for a court to determine whether religious practises were prudent or progressive or regressive." The devotees of Ayyappa were a denomination entitled to Article 26; the restriction did not fall within Article 17; and "Rule 3(b) of the 1965 Rules is not ultra vires Section 3 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." In her view "the Writ Petition cannot be entertained".

By a majority of four to one, the devotees of Lord Ayyappa are not a separate religious denomination, the exclusion of women between ten and fifty is not an essential religious practice, and Rule 3(b) of the 1965 Rules, which enforced the exclusion, is ultra vires the 1965 Act; the majority also held the exclusion inconsistent with Article 25(1) and, in Chandrachud J.'s judgment, with the values behind Article 17. The dissent would have left questions of faith to the faithful and dismissed the petition. The review petitions were referred to a larger Bench in Kantaru Rajeevaru (2020).