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

A 85. The use of the term ‘includes’ in Section 2(c) indicates that the scope of the words ‘section or class’ cannot be confined only to ‘division’, ‘sub-division’, ‘caste’, ‘sub-caste’, ‘sect’ or ‘denomination’. ‘Section or class’, would be susceptible to a broad interpretation that includes ‘women’ within its ambit. Section 2(b) uses the expression “Hindus or any section or class thereof”. Plainly, individuals who profess and practise the faith are Hindus. Moreover, every section or class of Hindus is comprehended within the expression. That must necessarily include women who profess and practise the Hindu religion. The wide ambit of the expression “section or class” emerges from Section 2(c). Apart from the inclusive definition, the expression includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever. Women constitute a section or class. The expression ‘section or class’ must receive the meaning which is ascribed to it in common parlance. Hence, looked at from any perspective, women would be comprehended within that expression. D The long title of the Act indicates that its object is “to make better provisions for the entry of all classes and sections of Hindus into places of public worship”. The long title is a part of the Act and is a permissible aid to construction.121 The Act was enacted to remedy the restriction on the right of entry of all Hindus in temples and their right to worship in them. The legislation is aimed at bringing about social reform. The E legislature endeavoured to strike at the heart of the social evil of exclusion and sought to give another layer of recognition and protection to the fundamental right of every person to freely profess, practice and propagate religion under Article 25. Inclusion of women in the definition of ‘section and class’ in Section 2(c) furthers the object of the law, and F recognizes the right of every Hindu to enter and worship in a temple. It is an attempt to pierce through imaginary social constructs formed around the practice of worship, whose ultimate effect is exclusion. A just and proper construction of Section 2(c) requires that women be included within the definition of ‘section or class’.

G 86. The notifications dated 21 October 1955 and 27 November 1956 were issued by the Travancore Devaswom Board before the 1965 Act was enacted. The notifications were issued by the Board under Section 31 of the Travancore-Cochin Hindu Religious Institutions Act 1950 (“1950 Act”). Section 31 of the 1950 Act reads: 121 H Union of India v Elphinstone Spinning and Weaving Co Ltd, (2001) 4 SCC 139

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A classes of Hindus. No Hindu of any section or class whatsoever, shall be prevented, obstructed or discouraged from entering a place of public worship or from worshipping or offering prayers or performing any religious service in that place of public worship. Hence, all places of public worship which are open to Hindus or to any section or class of Hindus generally have to be open to all sections and classes of Hindus B (including women). Hindu women constitute a ‘section or class’ under Section 2(c). The proviso to Section 3 creates an exception by providing that if the place of public worship is a temple which is founded for the benefit of any religious denomination or section thereof, Section 3 would be C subject to the right of that religious denomination or section to manage its own affairs in matters of religion. The proviso recognises the entitlement of a religious denomination to manage its own affairs in matters of religion. However, the proviso is attracted only if the following conditions are satisfied: D (i) The place of public worship is a temple; and (ii) The temple has been founded for the benefit of any religious denomination or section thereof.

87. We have held that the devotees of Lord Ayyappa do not E constitute a religious denomination and the Sabarimala temple is not a denominational temple. The proviso has no application. The notifications which restrict the entry of women between the ages of ten and fifty in the Sabarimala temple cannot stand scrutiny and plainly infringe Section

3. They prevent any woman between the age of ten and fifty from entering the Sabarimala temple and from offering prayers. Such a F restriction would infringe the rights of all Hindu women which are recognized by Section 3. The notifications issued by the Board prohibiting the entry of women between ages ten and fifty-five, are ultra vires Section 3.

88. The next question is whether Rule 3(b) of the 1965 Rules is G ultra vires the 1965 Act. Rule 3 provides: “The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bathe in or use the water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situate within or H

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outside precincts thereof, or any sacred place including a hill or A hill lock, or a road, street or pathways which is requisite for obtaining access to the place of public worship- (a) Persons who are not Hindus. (b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship. B

(c) Persons under pollution arising out of birth or death in their families. (d) Drunken or disorderly persons. (e) Persons suffering from any loathsome or contagious disease. C (f) Persons of unsound mind except when taken for worship under proper control and with the permission of the executive authority of the place of public worship concerned. (g) Professional beggars when their entry is solely for the purpose of begging.” (Emphasis supplied) By Rule 3(b), women are not allowed to offer worship in any place of public worship including a hill, hillock or a road leading to a place of public worship or entry into places of public worship at such time, if they are, by custom or usage not allowed to enter such place of public worship. Section 4 provides thus: “4. Power to make regulations for the maintenance of order and decorum and the due performance of rites and ceremonies in places of public worship – (1) The trustee or any other person in charge of any place of public worship shall have power, subject to the control of the competent authority and any rules which may be made by that authority, to make regulations for the maintenance of order and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein: Provided that no regulation made under this sub-section shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class. H

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A (2) The competent authority referred to in sub-section (1) shall be,- (i) In relation to a place of public worship situated in any area to which Part I of the Travancore-Cochin Hindu Religious Institutions Act, 1950 (Travancore-Cochin Act XV of 1950), extends, the B Travancore Devaswom Board; (ii) in relation to a place of public worship situated in any area to which Part II of the said Act extends, the Cochin Devaswom Board; and (iii) in relation to a place of public worship situated in any other area in the State of Kerala, the Government.” Section 4(1) empowers the trustee or a person in charge of a place of public worship to make regulations for maintenance of order and decorum and for observance of rites and ceremonies in places of public worship. The regulation making power is not absolute. The proviso to Section 4(1) prohibits discrimination against any Hindu in any manner whatsoever on the ground that he or she belongs to a particular section or class.

89. When the rule-making power is conferred by legislation on a delegate, the latter cannot make a rule contrary to the provisions of the parent legislation. The rule-making authority does not have the power to make a rule beyond the scope of the enabling law or inconsistent with the law.122 Whether delegated legislation is in excess of the power conferred on the delegate is determined with reference to the specific provisions of the statute conferring the power and the object of the Act F as gathered from its provisions.123

90. Hindu women constitute a ‘section or class’ of Hindus under clauses b and c of Section 2 of the 1965 Act. The proviso to Section 4(1) forbids any regulation which discriminates against any Hindu on the ground of belonging to a particular section or class. Above all, the mandate of Section 3 is that if a place of public worship is open to Hindus generally G or to any section or class of Hindus, it shall be open to all sections or classes of Hindus. The Sabarimala temple is open to Hindus generally and in any case to a section or class of Hindus. Hence it has to be open 122 Additional District Magistrate v Siri Ram, (2000) 5 SCC 451 123 Maharashtra State Board of Secondary and Higher Education v Paritosh H Bhupeshkumar Sheth, (1984) 4 SCC 27

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to all sections or classes of Hindus, including Hindu women. Rule 3(b) A gives precedence to customs and usages which allow the exclusion of women “at such time during which they are not… allowed to enter a place of public worship”. In laying down such a prescription, Rule 3(b) directly offends the right of temple entry established by Section 3. Section 3 overrides any custom or usage to the contrary. But Rule 3 B acknowledges, recognises and enforces a custom or usage to exclude women. This is plainly ultra vires. The object of the Act is to enable the entry of all sections and classes of Hindus into temples dedicated to, or for the benefit of or used by any section or class of Hindus. The Act recognizes the rights of all sections and classes of Hindus to enter places of public worship and C their right to offer prayers. The law was enacted to remedy centuries of discrimination and is an emanation of Article 25(2)(b) of the Constitution. The broad and liberal object of the Act cannot be shackled by the exclusion of women. Rule 3(b) is ultra vires. K The ghost of Narasu124 D

91. The Respondents have urged that the exclusion of women from the Sabarimala temple constitutes a custom, independent of the Act and the 1965 Rules.125 It was contended that this exclusion is part of ‘institutional worship’ and flows from the character of the deity as a Naishtika Brahmachari. During the proceedings, a submission was addressed on the ambit of Article 13 and the definition of ‘laws in force’ in clause 1 of that Article. Article 13 of the Constitution reads thus: “13. (1) All laws in force in the territory of India immediately before the commencement of this Constitution, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void. 124 Indira Jaisingh, ‘The Ghost of Narasu Appa Mali is stalking the Supreme Court of India’, Lawyers Collective, 28 May, 2018 125 Written Submissions of Senior Advocate Shri K. Parasaran, at paras 4, 6, 10, 15, 29, 39, 41; Additional Affidavit of Travancore Devaswom Board at para 1 H

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A (3) In this article, unless the context otherwise requires,— (a) “law” includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law; (b) “laws in force” includes laws passed or made by a Legislature B or other competent authority in the territory of India before the commencement of this Constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. (4) Nothing in this article shall apply to any amendment of this C Constitution made under article 368.”

92. A Division Bench of the Bombay High Court in The State of Bombay v Narasu Appa Mali (“Narasu”),126 considered the ambit of Article 13, particularly in the context of custom, usage and personal law. The constitutional validity of the Bombay Prevention of Hindu Bigamous D Marriages Act 1946 was considered. It was contended that a provision of personal law which permits polygamy violates the guarantee of non- discrimination under Article 15, and that such a practice had become void under Article 13(1) after the Constitution came into force. The Bombay High Court considered the question of “whether in the expression E ‘all laws in force’ appearing in Article 13(1) ‘personal laws’ were included”. Chief Justice Chagla opined that ‘custom or usage’ would be included in the definition of ‘laws in force’ in Article 13(1). The learned Chief Justice held: “15…The Solicitor General’s contention is that this definition of F “law” only applies to Article 13(2) and not to Article 13(1). According to him it is only the definition of “laws in force” that applies to Article 13(1). That contention is difficult to accept because custom or usage would have no meaning if it were applied to the expression “law” in Article 13(2). The State cannot make any custom or usage. Therefore, that part of the definition can G only apply to the expression “laws” in Article 13(1). Therefore, it is clear that if there is any custom or usage which is in force in India, which is inconsistent with the fundamental rights, that custom or usage is void.” 126 AIR 1952 Bom 84; In the proceedings before the Sessions Judge of South Satara, the accused was acquitted and the Bombay Prevention of Hindu Bigamous Marriages H Act 1946 was held invalid. The cases arise from these proceedings

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Hence, the validity of a custom or usage could be tested for its conformity with Part III. However, the learned Chief Justice rejected the contention that personal law is ‘custom or usage’: “15…Custom or usage is deviation from personal law and not personal law itself. The law recognises certain institutions which are not in accordance with religious texts or are even opposed to them because they have been sanctified by custom or usage, but the difference between personal law and custom or usage is clear and unambiguous.” Thus, Justice Chagla concluded that “personal law is not included in the expression “laws in force” used in Article 13(1).” C

93. Justice Gajendragadkar (as the learned Judge then was) differed with the Chief Justice’s view that custom or usage falls within the ambit of Article 13(1). According to Justice Gajendragadkar, ‘custom or usage’ does not fall within the expression ‘laws in force’ in Article 13(1): D “26…If custom or usage having the force of law was really included in the expression “laws in force,” I am unable to see why it was necessary to provide for the abolition of untouchability expressly and specifically by Article 17. This article abolishes untouchability and forbids its practice in any form. It also lays down that the enforcement of any disability arising out of untouchability shall be an offence punishable in accordance with law. Untouchability as it was practised amongst the Hindus owed its origin to custom and usage, and there can be no doubt whatever that in theory and in practice it discriminated against a large section of Hindus only on the ground of birth. If untouchability thus clearly offended against the provisions of Article 15(1) and if it was included in the expression “laws in force”, it would have been void under Article 13(1). In that view it would have been wholly unnecessary to provide for its abolition by Article 17. That is why I find it difficult to accept the argument that custom or usage having the force of law should be deemed to be included in the expression “laws in force.”” The learned Judge opined that the practice of untouchability owed its origins to custom and usage. If it was intended to include ‘custom or usage’ in the definition of ‘laws in force’ in Article 13(3)(b), the custom H

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A of untouchability would offend the non-discrimination guarantee under Article 15 and be void under Article 13(1). The learned Judge concluded that this renders Article 17 obsolete. The learned Judge concluded that it was thus not intended to include ‘custom or usage’ within the ambit of ‘laws in force’ in Article 13(1) read with Article 13(3)(b). B Justice Gajendragadkar held that “even if this view is wrong, it does not follow that personal laws are included in the expression “laws in force””: “26…It seems to me impossible to hold that either the Hindu or the Mahomedan law is based on custom or usage having the force C of law.” The learned Judge read in a statutory requirement for ‘laws in force’ under Article 13(1): “23…There can be no doubt that the personal laws are in force in a general sense; they are in fact administered by the Courts in D India in matters falling within their purview. But the expression “laws in force” is, in my opinion, used in Article 13(1) not in that general sense. This expression refers to what may compendiously be described as statutory laws. There is no doubt that laws which are included in this expression must have been passed or made by E a Legislature or other competent authority, and unless this test is satisfied it would not be legitimate to include in this expression the personal laws merely on the ground that they are administered by Courts in India.” The learned Judges differed on whether ‘laws in force’ in Article F 13(1) read with Article 13(3)(b) includes ‘custom or usages’. The reasoning of the High Court in recording this conclusion merits a closer look.

94. In A K Gopalan v State of Madras,127 a seven judge Bench dealt with the constitutionality of the Preventive Detention Act 1950. The majority upheld the Act on a disjunctive reading of the Articles in G Part III of the Constitution. In his celebrated dissent, Justice Fazl Ali, pointed out that the scheme of Part III of the Constitution suggested the existence of a degree of overlap between Articles 19, 21, and 22. The dissent adopted the view that the fundamental rights are not isolated and separate but protect a common thread of liberty and freedom: H 127 1950 SCR 88

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“58.To my mind, the scheme of the Chapter dealing with the fundamental rights does not contemplate what is attributed to it, namely, that each Article is a code by itself and is independent of the others. In my opinion, it cannot be said that Articles 19, 20, 21 and 22 do not to some extent overlap each other. The case of a person who is convicted of an offence will come under Articles 20 and 21 and also under Article 22 so far as his arrest and detention in custody before trial are concerned. Preventive detention, which is dealt with in Article 22, also amounts to deprivation of personal liberty which is referred to in Article 21, and is a violation of the right of freedom of movement dealt with in Article 19(1)(d)...” C (Emphasis supplied) The view adopted in Justice Fazl Ali’s dissent was endorsed in Rustom Cavasjee Cooper v Union of India.128 An eleven judge Bench dealt with the question whether the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance, 1969, and the Banking D Companies (Acquisition and Transfer of Undertakings) Act, 1969 impaired the Petitioner’s rights under Articles 14, 19 and 31 of the Constitution. Holding the Act to be unconstitutional, Justice J C Shah held: “52…The enunciation of rights either express or by implication does not follow a uniform pattern. But one thread runs through them: they seek to protect the rights of the individual or groups of individuals against infringement of those rights within specific limits. Part III of the Constitution weaves a pattern of guarantees on the texture of basic human rights. The guarantees delimit the protection of those rights in their allotted fields: they do not attempt to enunciate distinct rights.”129 Similarly, in Maneka,a seven judge Bench was faced with a constitutional challenge to Section 10(3)(c) of the Passports Act 1967. Striking the section down as violating Article 14 of the Constitution, Justice P N Bhagwati held: G “5…It is said that the freedom to move freely is carved out of personal liberty and, therefore, the expression ‘personal liberty’ in Article 21 excludes that attribute. In our view, this is not a 128 (1970) 1 SCC 248 129 Ibid, at page 289 H

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A correct approach. Both are independent fundamental rights, though there is overlapping. There is no question of one being carved out of another. The fundamental right of life and personal liberty has many attributes and some of them are found in Article 19. If a person’s fundamental right under Article 21 is infringed, the State can rely upon a law to sustain the action, but that cannot be a complete answer unless the said law satisfies the test laid down in Article 19(2) so far as the attributes covered by Article 19(1) are concerned.”130 (Emphasis supplied) In the Special Courts Bill Reference,131 a seven judge Bench of this Court, considered a reference under Article 143(1) on the question whether the Special Courts Bill, 1978 or any of its provisions, if enacted, would be constitutionally invalid. Justice Y V Chandrachud (writing for himself, Justice P N Bhagwati, Justice R S Sarkaria, and Justice Murtaza Fazl Ali) held that an attempt must be made to “to harmonize the various provisions of the Constitution and not to treat any part of it as otiose or superfluous.” The learned Judge held: “49…Some amount of repetitiveness or overlapping is inevitable in a Constitution like ours which, unlike the American Constitution, is drawn elaborately and runs into minute details. There is, therefore, all the greater reason why, while construing our E Constitution, care must be taken to see that powers conferred by its different provisions are permitted their full play and any one provision is not, by construction, treated as nullifying the existence and effect of another.”132 In Puttaswamy, a unanimous verdict by a nine judge Bench F declared privacy to be constitutionally protected, as a facet of liberty, dignity and individual autonomy. The Court held that privacy traces itself to the guarantee of life and personal liberty in Article 21 of the Constitution as well as to other facets of freedom and dignity recognized and guaranteed by the fundamental rights contained in Part III. The judgment of four judges held thus: G “259…The coalescence of Articles 14, 19 and 21 has brought into being a jurisprudence which recognises the inter-relationship 130 Ibid, at page 279 131 (1979) 1 SCC 380 132 Ibid, at page 413 H

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between rights. That is how the requirements of fairness and non- A discrimination animate both the substantive and procedural aspects of Article 21…133 260…At a substantive level, the constitutional values underlying each Article in the Chapter on fundamental rights animate the meaning of the others. This development of the law has followed B a natural evolution. The basis of this development after all is that every aspect of the diverse guarantees of fundamental rights deals with human beings. Every element together with others contributes in the composition of the human personality. In the very nature of things, no element can be read in a manner disjunctive from the composite whole.”134 C

Responding to the reasoning employed in Narasu, A M Bhattacharjee in his work ‘Matrimonial Laws and the Constitution’,135 writes: “…the provisions of Article 15(3) may also appear to be unnecessary to the extent that it refers to “children”. Article 15(1) prohibiting discrimination on the ground of religion, race, caste, sex or place of birth does not prohibit any differential treatment on the ground of age. And, therefore, if age is thus not a prohibited basis for differentiation, it was not necessary to provide any express saving clause in Article 15(3) to the effect that “nothing in this Article shall prevent the State from making any special provisions for children,” because nothing in Article 15(1) or Article 15(2) would forbid such special provision…There, the mere fact that some matter has been specifically dealt with by one or more Articles in Part III or anywhere else, would not, by itself, warrant the conclusion that the same has not been or cannot be covered by or included or dealt with again in any other Article or Articles in Part III or elsewhere.”

95. The rights guaranteed under Part III of the Constitution have the common thread of individual dignity running through them. There is G a degree of overlap in the Articles of the Constitution which recognize fundamental human freedoms and they must be construed in the widest 133 Ibid, at page 477 134 Ibid, at page 478 135 A M Bhattacharjee, Matrimonial Laws and the Constitution, Eastern Law House (1996) at page 32 H

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A sense possible. To say then that the inclusion of an Article in the Constitution restricts the wide ambit of the rights guaranteed, cannot be sustained. Article 17 was introduced by the framers to incorporate a specific provision in regard to untouchability. The introduction of Article 17 reflects the transformative role and vision of the Constitution. It brings focus upon centuries of discrimination in the social structure and posits the role of the Constitution to bring justice to the oppressed and marginalized. The penumbra of a particular article in Part III which deals with a specific facet of freedom may exist elsewhere in Part III. That is because all freedoms share an inseparable connect. They exist together and it is in their co-existence that the vision of dignity, liberty and equality is realized. As noted in Puttaswamy, “the Constituent Assembly thought it fit that some aspects of liberty require a more emphatic declaration so as to restrict the authority of the State to abridge or curtail them”. The rationale adopted by Justice Gajendragadkar in Narasu for excluding custom and usage from ‘laws in force’ under Article 13(1) read with Article 13(3)(b) is unsustainable both doctrinally and from the perspective of the precedent of this Court.

96. Both Judges in Narasu relied on the phraseology of Section 112 of the Government of India Act 1915 which enjoined the High Courts in Calcutta, Madras, and Bombay to decide certain matters in the exercise of their original jurisdiction in accordance with the personal law or custom of the parties to the suit, and of the defendant, where the plaintiff and defendant are subject to different personal laws or custom: “112. The High Courts at Calcutta, Madras and Bombay, in the exercise of their original jurisdiction in suits against inhabitants of Calcutta, Madras or Bombay, as the case may be, shall, in matters of inheritance and succession to lands, rents and goods, and in matters of contract and dealing between party and party, when both parties are subject to the same personal law or custom having the force of law, decide according to that personal law or custom, and when the parties are subject to different personal laws or custom having the force of law, decide according to the law or custom to which the defendant is subject.” (Emphasis supplied) Relying on the disjunctive use of ‘personal law’ and ‘custom having the force of law’ (separated by the use of the word ‘or’), Chief Justice H Chagla opined that despite the legislative precedent of the 1915 Act, the

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Constituent Assembly deliberately omitted a reference to ‘personal law’ A in Article 13. Chief Justice Chagla held that this “is a very clear pointer to the intention of the Constitution making body to exclude personal law from the purview of Article 13.” The Constituent Assembly also had a legislative precedent of the Government of India Act 1935, from which several provisions of the B Constitution are designed. Section 292 of that Act, which corresponds broadly to Article 372(1) of the Constitution reads thus: “292. Notwithstanding the repeal by this Act of the Government of India Act, but subject to the other provisions of this Act, all the law in force in British India immediately before the C commencement of Part III of this Act shall continue in force in British India until altered or repealed or amended by a competent Legislature or other competent authority.” (Emphasis supplied) Section 292 of the Act saved ‘all the law in force’ in British India D immediately before the commencement of Part III of that Act. The expression “law in force” in that Section was interpreted by the Federal Court in TheUnited Provinces v Mst.Atiqa Begum.136 The question before the Court was whether the legislature of the United Provinces was competent to enact the Regularization of Remissions Act 1938. While construing Section 292 of the Government of India Act 1935 and E adverting to the powers of the Provincial Legislature and the Central Legislature, Justice Suleman held: “Even though we are not concerned with the wisdom of the Legislature, one cannot help saying that there appears to be no adequate reason why the power to give retrospective effect to a F new legislation should be curtailed, limited or minimized, particularly when S. 292 applies not only to statutory enactments then in force, but to all laws, including even personal laws, customary laws, and common laws.”137 (Emphasis supplied) G The definitional terms ‘law’ and ‘laws in force’ in Article 13(3)(a) and 13(3)(b) have an inclusive definition. It is a settled position of statutory interpretation, that use of the word ‘includes’ enlarges the meaning of 136 AIR 1941 FC 16 137 Ibid, at page 31 H

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A the words or phrases used.138 In his seminal work, ‘Principles of Statutory Interpretation’, Justice G P Singh writes that: “where the word defined is declared to ‘include’ such and such, the definition is prima facie extensive.”139

97. In Sant Ram v Labh Singh140, a Constitution Bench of this B Court dealt with whether ‘after coming into operation of the Constitution, the right of pre-emption is contrary to the provisions of Art. 19(1)(f) read with Art. 13 of the Constitution’. It was contended that the terms ‘law’ and ‘laws in force’ were defined separately and ‘custom or usage’ in the definition of ‘law’ cannot be included in the definition of ‘laws in force’. Rejecting this contention, the Court relied on the expansive C meaning imported by the use of ‘includes’ in the definition clauses: “4…The question is whether by defining the composite phrase “laws in force” the intention is to exclude the first definition. The definition of the phrase “laws in force” is an inclusive definition and is intended to include laws passed or made by a Legislature D or other competent authority before the commencement of the Constitution irrespective of the fact that the law or any part thereof was not in operation in particular areas or at all. In other words, laws, which were not in operation, though on the statute book, were included in the phrase “laws in force”. But the second E definition does not in any way restrict the ambit of the word “law” in the first clause as extended by the definition of that word. It merely seeks to amplify it by including something which, but for the second definition, would not be included by the first definition…Custom and usage having in the territory of India the force of the law must be held to be contemplated by the expression F “all laws in force.” The use of the term ‘includes’ in the definition of the expression ‘law’ and ‘laws in force’ thus imports a wide meaning to both. Practices having the force of law in the territory of India are comprehended within “laws in force.” Prior to the adoption of Article 13 in the present form, G 138 Ardeshir H Bhiwandiwala v State of Bombay (1961) 3 SCR 592; CIT v Taj Mahal Hotel, Secunderabad (1971) 3 SCC 550; Geeta Enterprises v State of U P (1983) 4 SCC 202; Regional Director, ESIC v High Land Coffee Works of P.F.X. Saldanha & Sons (1991) 3 SCC 617 139 Justice G P Singh, Principles of Statutory Interpretation, Lexis Nexis (2016) at page 198 140

(1964) 7 SCR 756

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draft Article 8 included only a definition of ‘law’.141 In October 1948, A the Drafting Committee brought in the definition of ‘laws in force’. The reason for proposing this amendment emerges from the note142 of the Drafting Committee: “The expression “laws in force” has been used in clause (1) of 8, but it is not clear if a law which has been passed by the Legislature B but which is not in operation either at all or in particular areas would be treated as a law in force so as to attract the operation of clause (1) of this article. It is accordingly suggested that a definition of “law in force” on the lines of Explanation I to article 307 should be inserted in clause (3) of this article.” C The reason for a separate definition for ‘laws in force’ is crucial. The definition of ‘laws in force’ was inserted to ensure that laws passed by the legislature, but not in operation at all or in particular areas would attract the operation of Article 13(1). Justice Gajendragadkar, however, held that ‘laws in force’ in Article 13(1) is a compendious expression for statutory laws. In doing so, the learned Judge overlooked the wide ambit D that was to be attributed to the term ‘laws in force’, by reason of the inclusive definition. The decision of the Constitution Bench in Sant Ram emphasizes precisely this facet. Hence, the view of Justice Gajendragadkar as a judge of the Bombay High Court in Narasu cannot be held to be correct. E

98. Recently, in Shayara Bano, a Constitution Bench considered whether talaq – ul – biddat or ‘triple talaq’, which authorised a Muslim man to divorce his wife by pronouncing the word “talaq” thrice, was 141 Shiva Rao, The Framing of India’s Constitution, Vol III, at pages 520, 521. Draft Article 8 reads: F “8(1) All laws in force immediately before the commencement of this Constitution in the territory of India, in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void. (2) The State shall not make any law which takes away or abridges the rights conferred by this Part and any law made in contravention of this clause shall, to the extent of the contravention, be void: *Provided that nothing in this clause shall prevent the State from making any G law for the removal of any inequality, disparity, disadvantage or discrimination arising out of any existing law. (3) In this article, the expression “law” includes any ordinance, order, bye- law, rule, regulation, notification, custom or usage having the force of law in the territory of India or any part thereof.” 142 Shiva Rao, The Framing of India’s Constitution, Vol IV, at pages 26, 27 H

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A legally invalid. In a 3-2 verdict, the majority ruled that triple talaq is not legally valid. Justice Rohinton Fali Nariman (writing for himself and Justice Lalit) held that the Muslim Personal Law (Shariat) Application Act, 1937 codified the practice of Triple Talaq. The learned Judge proceeded to examine whether this violated the Constitution: B “47.It is, therefore, clear that all forms of Talaq recognized and enforced by Muslim personal law are recognized and enforced by the 1937 Act. This would necessarily include Triple Talaq when it comes to the Muslim personal law applicable to Sunnis in India…143 C 48.As we have concluded that the 1937 Act is a law made by the legislature before the Constitution came into force, it would fall squarely within the expression “laws in force” in Article 13(3)(b) and would be hit by Article 13(1) if found to be inconsistent with the provisions of Part III of the Constitution, to the extent of such inconsistency.”144 D Having concluded that the 1937 Act codified the practice of triple talaq and that the legislation would consequently fall within the ambit of ‘laws in force’ in Article 13(1) of the Constitution, it was held that it was “unnecessary…to decide whether the judgment in Narasu Appa (supra) is good law.”145 Justice Nariman, however, doubted the correctness of E Narasu in the following observation: “However, in a suitable case, it may be necessary to have a re- look at this judgment in that the definition of “law and “laws in force” are both inclusive definitions, and that at least one part of the judgment of P.B. Gajendragadkar, J., (para 26) in which the learned Judge opines that the expression “law” cannot be read into the expression “laws in force” in Article 13(3) is itself no longer good law.”

99. Custom, usages and personal law have a significant impact on the civil status of individuals. Those activities that are inherently connected with the civil status of individuals cannot be granted constitutional immunity merely because they may have some associational features which have a religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the Constitution. 143 Ibid, at page 65 144 Ibid, at page 65 H 145 Ibid, at para 51

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Our Constitution marks a vision of social transformation. It marks A a break from the past – one characterized by a deeply divided society resting on social prejudices, stereotypes, subordination and discrimination destructive of the dignity of the individual. It speaks to the future of a vision which is truly emancipatory in nature. In the context of the transformative vision of the South African Constitution, it has been observed that such a vision would: “require a complete reconstruction of the state and society, including a redistribution of power and resources along egalitarian lines. The challenge of achieving equality within this transformation project involves the eradication of systemic forms of domination and material disadvantage based on race, gender, class and other grounds of inequality. It also entails the development of opportunities which allow people to realise their full human potential within positive social relationships.”146

100. The Indian Constitution is marked by a transformative vision. Its transformative potential lies in recognizing its supremacy over all bodies of law and practices that claim the continuation of a past which militates against its vision of a just society. At the heart of transformative constitutionalism, is a recognition of change. What transformation in social relations did the Constitution seek to achieve? What vision of society does the Constitution envisage? The answer to these questions lies in the recognition of the individual as the basic unit of the Constitution. This view demands that existing structures and laws be viewed from the prism of individual dignity. Did the Constitution intend to exclude any practice from its scrutiny? Did it intend that practices that speak against its vision of dignity, equality and liberty of the individual be granted immunity from scrutiny? F Was it intended that practices that detract from the transformative vision of the Constitution be granted supremacy over it? To my mind, the answer to all these, is in the negative. The individual, as the basic unit, is at the heart of the Constitution. All rights and guarantees of the Constitution are operationalized and are G aimed towards the self-realization of the individual. This makes the anti- exclusion principle firmly rooted in the transformative vision of the Constitution, and at the heart of judicial enquiry. Irrespective of the 146 Cathi Albertyn and Beth Goldblatt, Facing the Challenge of Transformation: Difficulties in the Development of an Indigenous Jurisprudence of Equality, Vol. 14, South African Journal of Human Rights (1988), at page 249 H

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A source from which a practice claims legitimacy, this principle enjoins the Court to deny protection to practices that detract from the constitutional vision of an equal citizenship.

101. The decision in Narasu, in restricting the definition of the term ‘laws in force’ detracts from the transformative vision of the B Constitution. Carving out ‘custom or usage’ from constitutional scrutiny, denies the constitutional vision of ensuring the primacy of individual dignity. The decision in Narasu, is based on flawed premises. Custom or usage cannot be excluded from ‘laws in force’. The decision in Narasu also opined that personal law is immune from constitutional scrutiny. This detracts from the notion that no body of practices can claim supremacy C over the Constitution and its vision of ensuring the sanctity of dignity, liberty and equality. This also overlooks the wide ambit that was to be attributed to the term ‘laws in force’ having regard to its inclusive definition and constitutional history. As H M Seervai notes147: “there is no difference between the expression “existing law” D and “law in force” and consequently, personal law would be “existing law” and “law in force …custom, usage and statutory law are so inextricably mixed up in personal law that it would be difficult to ascertain the residue of personal law outside them.” The decision in Narasu, in immunizing uncodified personal law and construing the same as distinct from custom, deserves detailed reconsideration in an appropriate case in the future.

102. In the quest towards ensuring the rights guaranteed to every individual, a Constitutional court such as ours is faced with an additional task. Transformative adjudication must provide remedies in individual instances that arise before the Court. In addition, it must seek to recognize and transform the underlying social and legal structures that perpetuate practices against the constitutional vision. Subjecting personal laws to constitutional scrutiny is an important step in this direction. Speaking of the true purpose of liberty, Dr B R Ambedkar stated: G “What are we having this liberty for? We are having this liberty in order to reform our social system, which is so full of inequities, so full of inequalities, discriminations and other things, which conflict with our fundamental rights.”148 147 H M Seervai, Constitutional Law of India, Vol. I, at page 677 148 Parliament of India, Constituent Assembly Debates, Vol. VII, at page 781 H

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Practices, that perpetuate discrimination on the grounds of characteristics that have historically been the basis of discrimination, must not be viewed as part of a seemingly neutral legal background. They have to be used as intrinsic to, and not extraneous to, the interpretive enquiry. The case before us has raised the question of whether it is constitutionally permissible to exclude women between the ages of ten and fifty from the Sabarimala Temple. In the denial of equal access, the practice denies an equal citizenship and substantive equality under the Constitution. The primacy of individual dignity is the wind in the sails of the boat chartered on the constitutional course of a just and egalitarian social order. C

L Deity as a bearer of constitutional rights

103. Mr J Sai Deepak, learned Counsel, urged that the presiding deity of the Sabarimala Temple, Lord Ayyappa, is a bearer of constitutional rights under Part III of the Constitution. It was submitted that the right D to preserve the celibacy of the deity is a protected constitutional right and extends to excluding women from entering and praying at the Sabarimala Temple. It was urged that the right of the deity to follow his Dharma flows from Article 25(1) and Article 26 of the Constitution and any alteration in the practice followed would have an adverse effect on the fundamental rights of the deity. E

104. The law recognizes an idol or deity as a juristic persons which can own property and can sue and be sued in the Court of law. In Pramatha Nath Mullick v Pradyumna Kumar Mullick149, the Privy Council dealt with the nature of an idol and services due to the idol. Speaking for the Court, Lord Shaw held thus: F “A Hindu idol is, according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by Courts of law, a “juristic entity.” It has a juridical status with the power of suing and being sued.”150 G In Yogendra Nath Naskar v Commissioner of the Income- Tax, Calcutta151, this Court held thus: 149 (1925) 27 Bom LR 1064 150 Ibid, at page 250 151 (1969) 1 SCC 555 H

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A “6.But so far as the deity stands as the representative and symbol of the particular purpose which is indicated by the donor, it can figure as a legal person. The true legal view is that in that capacity alone the dedicated property vests in it. There is no principle why a deity as such a legal person should not be taxed if such a legal person is allowed in law to own property even though in the ideal B sense and to sue for the property, to realize rent and to defend such property…in the ideal sense.”152 B K Mukherjea in his seminal work ‘The Hindu Law of Religious and Charitable Trusts’ writes thus: C “An idol is certainly a juristic person and as the Judicial Committee observed in Promotha v Prayumna, “it has a juridical status with the power of suing and being sued.” An idol can hold property and obviously it can sue and be sued in respect of it…[Thus] the deity as a juristic person has undoubtedly the right to institute a suit for the protection of its interest.”153 D

105. The word ‘persons’ in certain statutes have been interpreted to include idols. However, to claim that a deity is the bearer of constitutional rights is a distinct issue, and does not flow as a necessary consequence from the position of the deity as a juristic person for certain purposes. Merely because a deity has been granted limited rights as E juristic persons under statutory law does not mean that the deity necessarily has constitutional rights. In Shirur Mutt, Justice B K Mukherjea writing for the Court, made observations on the bearer of the rights under Article 25 of the Constitution: F “14.We now come to Article 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate G or disseminate his ideas for the edification of others. A question is raised as to whether the word “persons” here means individuals only or includes corporate bodies as well….Institutions, as such 152 Ibid, at page 560 153 B K Mukherjea “The Hindu Law of Religious and Charitable Trust”, at pages 257, H 264

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cannot practise or propagate religion; it can be done only A by individual persons and whether these persons propagate their personal views or the tenets for which the institution stands is really immaterial for purposes of Article 25. It is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in B a temple or parlour meeting.” (Emphasis supplied) In Shri A S Narayana Deekshitulu v State Of Andhra Pradesh 154 , a two judge Bench of this Court considered the constitutionality of Sections 34, 35, 37, 39 and 144 of the Andhra Pradesh Charitable and Hindu Religious Institutions and Endowments Act, 1987 C which abolished the hereditary rights of archakas, mirasidars, gamekars and other office-holders. Upholding the Act, the Court held: “85.Articles 25 and 26 deal with and protect religious freedom. Religion as used in these articles must be construed in its strict and etymological sense. Religion is that which binds a man with D his Cosmos, his Creator or super force. It is difficult and rather impossible to define or delimit the expressions ‘religion’ or “matters of religion” used in Articles 25 and 26. Essentially, religion is a matter of personal faith and belief of personal relations of an individual with what he regards as Cosmos, his Maker E or his Creator which, he believes, regulates the existence of insentient beings and the forces of the universe.” 155 (Emphasis supplied)

106. A religious denomination or any section thereof has a right under Article 26 to manage religious affairs. This right vests in a F collection of individuals which demonstrate (i) the existence of a religious sect or body; (ii) a common faith shared by those who belong to the religious sect and a common spiritual organisation; (iii) the existence of a distinctive name and (iv) a common thread of religion. Article 25 grants the right to the freedom of conscience and free profession, practice and propagation of religion. Conscience, as a cognitive process that elicits G emotion and associations based on an individual’s beliefs rests only in individuals. The Constitution postulates every individual as its basic unit. The rights guaranteed under Part III of the Constitution are geared 154 1996 9 SCC 548 155 Ibid, at pages 592-593 H

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A towards the recognition of the individual as its basic unit. The individual is the bearer of rights under Part III of the Constitution. The deity may be a juristic person for the purposes of religious law and capable of asserting property rights. However, the deity is not a ‘person’ for the purpose of Part III of the Constitution. The legal fiction which has led to the recognition of a deity as a juristic person cannot be extended to the gamut of rights under Part III of the Constitution. In any case, the exclusion of women from the Sabarimala temple effects both, the religious and civic rights of the individual. The anti- exclusion principle would disallow a claim based on Article 25 and 26 which excludes women from the Sabarimala Temple and hampers their exercise of religious freedom. This is in keeping with over-arching liberal values of the Constitution and its vision of ensuring an equal citizenship. M A road map for the future

107. The decision in Shirur Mutt defined religion to encompass matters beyond conscience and faith. The court recognized that religious practices are as much a part of religion. Hence, where the tenets of a religious sect prescribe ceremonies at particular hours of the day or regular offerings of food to the deity, this would constitute a part of religion. The mere fact that these practices involve the expenditure of money would not take away their religious character. The precept that religion encompasses doctrine and ceremony enabled the court to allow religion a broad autonomy in deciding what according to its tenets is integral or essential. Shirur Mutt was followed by another decision in Ratilal. Both cases were decided in the same year.

108. As the jurisprudence of the court evolved, two separate issues came to the fore. The first was the divide between what is religious and secular. This divide is reflected in Article 25(2)(a) which allows the state to enact legislation which would regulate or restrict economic, financial, political or “other secular activities” which may be associated with religious practice. A second distinct issue, however, was addressed by this Court. That was whether a practice is essential to religion. While the religious versus secular divide finds support in constitutional text, neither Article 25 nor Article 26 speaks about practices which are essential to religion. As the jurisprudence of this Court unfolded, the court assumed the function of determining whether or not a practice constitutes an essential and integral part of religion. This set the determination up at the threshold. Something which the court holds not

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to be essential to religion would not be protected by Article 25, or as the A case may be, Article 26. Matters of religion under Article 26(b) came to be conflated with what is an essential part of religion. In Qureshi (1959), a Constitution Bench (of which Justice Gajendragadkar was a part) emphasised the non-obligatory nature of the practice and held that the sacrificing of cows at Bakr-Id was not an essential practice for the B Muslim community. Durgah Committee (1962), Tilkayat (1964) and Sastri Yagnapurushadji (1966),Justice Gajendragadkar reserved to the court the authority to determine whether a practice was religious and, if it is, whether the practice can be regarded as essential or integral to religion. In Durgah Committee, Justice Gajendragadkar sought to justify the exercise of that adjudicatory function by stating that otherwise, practices which may have originated in “merely superstitious beliefs” and would, therefore, be “extraneous and unessential accretions” to religion would be treated as essential parts of religion. In Sastri Yagnapurushadji, Chief Justice Gajendragadkar propounded a view of Hinduism which in doctrinal terms segregates it from practices which could be isolated from a rational view of religion. The result which followed was that while at a formal level, the court continued to adopt a view which placed credence on the role of the community in deciding what constitutes a part of its religion, there is a super imposed adjudicatory role of the court which would determine as to whether something is essential or inessential to religion. In the case of the Avadhuta II, the assumption of this role by the Court came to the forefront in allowing it to reject a practice as not being essential, though it had been prescribed in a religious text by the founder of the sect. By reserving to itself the authority to determine practices which are essential or inessential to religion, the Court assumed a reformatory role which would allow it to cleanse religion of practices which were derogatory to individual dignity. Exclusions from temple entry could be regarded as matters which were not integral to religion. While doing so, the Court would set up a progressive view of religion. This approach is problematic. The rationale for allowing a religious community to define what constitutes an essential aspect of its religion is to protect the autonomy of religions and religious denominations. Protecting that autonomy enhances the liberal values of the Constitution. By entering upon doctrinal issues of what does or does not constitute an essential part of religion, the Court has, as a necessary consequence, been required to adopt a religious mantle. The Court would determine as to whether a H

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A practice is or is not an essential part of religion. This has enabled the Court to adopt a reformist vision of religion even though it may conflict with the views held by the religion and by those who practice and profess the faith. The competence of the Court to do so and the legitimacy of the assumption of that role may be questionable. The Court discharges a constitutional (as distinct from an ecclesiastical) role in adjudication. B Adjudicating on what does or does not form an essential part of religion blurs the distinction between the religious-secular divide and the essential/ inessential approach. The former has a textual origin in Article 25(2)(a). The latter is a judicial creation.

109. The assumption by the court of the authority to determine whether a practice is or is not essential to religion has led to our jurisprudence bypassing what should in fact be the central issue for debate. That issue is whether the Constitution ascribes to religion and to religious denominations the authority to enforce practices which exclude a group of citizens. The exclusion may relate to prayer and worship, but may extend to matters which bear upon the liberty and dignity of the individual. The Constitution does recognise group rights when it confers rights on religious denominations in Article 26. Yet the basic question which needs to be answered is whether the recognition of rights inhering in religious denominations can impact upon the fundamental values of dignity, liberty and equality which animate the soul of the Constitution. E In analysing this issue, it is well to remind ourselves that the right to freedom of religion which is comprehended in Articles 25, 26, 27 and 28 is not a stand alone right. These Articles of the Constitution are an integral element of the entire chapter on fundamental rights. Constitutional articles which recognise fundamental rights have to be understood as a F seamless web. Together, they build the edifice of constitutional liberty. Fundamental human freedoms in Part III are not disjunctive or isolated. They exist together. It is only in cohesion that they bring a realistic sense to the life of the individual as the focus of human freedoms. The right of a denomination must then be balanced with the individual rights to which each of its members has a protected entitlement in Part III.

110. Several articles in the chapter on fundamental rights are addressed specifically to the state. But significantly, others have a horizontal application to state as well non-state entities. Article 15(2) embodies a guarantee against discrimination on grounds of religion, race, caste, sex or birth place in access to listed public places. Article 17

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which abolishes untouchability has a horizontal application which is available against the state as well as non-state entities. Article 23, Article 24 and Article 25(1) are illustrations of horizontal rights intended to secure the dignity of the individual. All these guarantees rest in equilibrium with other fundamental freedoms that the Constitution recognizes: equality under Article 14, freedoms under Article 19 and life and personal liberty under Article 21. The individual right to the freedom of religion under Article 25 must rest in mutual co-existence with other freedoms which guarantee above all, the dignity and autonomy of the individual. Article 26 guarantees a group right – the right of a religious denomination. The co-existence of a group right in a chapter on fundamental rights which places the individual at the forefront of its focus cannot be a matter without significance. Would the Constitution have intended to preserve the assertion of group rights even at the cost of denigrating individual freedoms? Should the freedom conferred upon a group - the religious denomination under Article 26(b) – have such a broad canvas as would allow the denomination to practice exclusion that would be destructive of individual freedom? The answer to this, in my view, would have to be in the negative for the simple reason that it would be impossible to conceive of the preservation of liberal constitutional values while at the same time allowing group rights to defy those values by practicing exclusion and through customs which are derogatory to dignity. This apparent contradiction can be resolved by postulating that notwithstanding the recognition of group rights in Article 26, the Constitution has never intended that the assertion of these rights destroy individual dignity and liberty. Group rights have been recognized by the Constitution in order to provide a platform to individuals within those denominations to realize fulfilment and self-determination. Gautam Bhatia156 in a seminal article on the subject succinctly observes: “While it is true that Article 26(b) makes groups the bearers of rights, as pointed out above, the Constitution does not state the basis of doing so. It does not clarify whether groups are granted rights for the instrumental reason that individuals can only achieve self-determination and fulfilment within the ‘context of choice’157 G 156 Gautam Bhatia, Freedom from community: Individual rights, group life, state authority and religious freedom under the Indian Constitution, Global Constitutionalism, Cambridge University Press (2016). 157 C Taylor, The Politics of Recognition in Multiculturalism: Examining the Politics of Recognition (A Gutmann ed.) Princeton University Press (1994) H

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A provided by communities, or whether the Constitution treats groups, along with individuals, as constitutive units worthy of equal concern and respect.158 The distinction is crucial, because the weight that must be accorded to group integrity, even at the cost of blocking individual access to important public goods, can only be determined by deciding which vision the Constitution subscribes to.” Relevant to the subject which this section explores, Bhatia’s thesis is that the essential religious practices doctrine, which lacks a sure constitutional foundation, has led the court into a maze in the process of unraveling theological principles. While deciding what is or is not essential to religion, the court has ventured into areas where it lacks both the competence and legitimacy to pronounce on the importance of specific doctrines or beliefs internal to religion. In making that determination, the court essentially imposes an external point of view. Imposition of an external perspective about what does or does not constitute an essential part of religion is inconsistent with the liberal values of the Constitution which recognize autonomy in matters of faith and belief.

111. A similar critique of the essential religious practices doctrine has been put forth by Professors Faizan Mustafa and Jagteshwar Singh Sohi in a recent publication titled “Freedom of Religion in India: Current E Issues and Supreme Court Acting as Clergy”.159 Along similar lines, Jaclyn L Neo in an article titled “Definitional Imbroglios: A critique of the definition of religion and essential practice tests in religious freedom adjudication”160 has dealt with the flaws of the essential religious practices doctrine. The author notes that definitional tests such as the essential religious practices doctrine are formalistic in nature, leading F the court to draw an arbitrary line between protected and non-protected religious beliefs or practices: “The key distinction between adjudicating religious freedom claims by examining whether the restrictions are permissible under the limitation clauses and adjudicating claims through a definitional G 158 R Bhargava, Introduction Multiculturalism in Multiculturalism, Liberalism and Democracy (R Bhargava et al. eds), Oxford University Press (2007) 159 Faizan Mustafa and Jagteshwar Singh Sohi, Freedom of Religion in India: Current Issues and Supreme Court Acting as Clergy, Brigham Young University Review (2017) 160 Jaclyn L Neo, Definitional imbroglios: A critique of the definition of religion and H essential practice tests in religious freedom adjudication, International Journal of Constitutional Law, Vol. 16 (2018), at pages 574-595

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test is that the latter precludes a religious freedom claim by determining that it falls outside the scope of a constitutional guarantee, before any consideration could be made concerning the appropriate balance between the right and competing rights or interests. Definitional tests are often formalistic in that courts select a particular set of criteria and make a decision on the religious freedom claim by simply considering whether the religion, belief or practice falls within these criteria. In doing so, the courts therefore could be said to risk drawing an arbitrary line between protected and non-protected religions, beliefs or practices.”161 Associated with this conceptual difficulty in applying the essential religious practices test is the issue of competence and legitimacy for the court to rule on religious tenets: “While it may be legitimate for religious courts to apply internal religious doctrines, civil courts are constitutionally established to adjudicate upon secular constitutional statutory and common law issues. In a religiously pluralistic society, judges cannot presume to have judicial competence to have theological expertise over all religions.”162 She suggests a two stage determination which is explained thus: “Accordingly, there would be a two-stage test in adjudicating religious freedom claims that adopts a more deferential approach to definition, bearing in mind…a workable approach to religious freedom protection in plural societies. In the first stage, as mentioned, the courts should accept a group’s self-definition except in extreme cases where there is clearly a lack of sincerity, fraud or ulterior motive. At the second stage, the courts should apply a F balancing, compelling reason inquiry, or proportionality analysis to determine whether the religious freedom claim is outweighed by competing state or public interest.”163 A deferential approach to what constitutes a part of religious tenets would free the court from the unenviable task of adjudicating upon G religious texts and doctrines. The deference, however, that is attributed to religion is subject to the fundamental principles which emerge from 161 Ibid, at pages 575, 576 162 Ibid, at page 589 163 Ibid, at page 591 H

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A the quest for liberty, equality and dignity in Part III of the Constitution. Both Article 25(1) and Article 26 are subject to public order, morality and health. Acting under the rubric of these limitations even the religious freedom of a denomination is subject to an anti-exclusion principle: “the anti-exclusion principle holds that the external norm of constitutional anti-discrimination be applied to limit the autonomy of religious groups in situations where these groups are blocking access to basic goods.”164 The anti-exclusion principle stipulates thus: “…that the state and the Court must respect the integrity of religious group life (and thereby treat the internal point of religious adherents as determinative of the form and content of religious practices) except where the practices in question lead to the exclusion of individuals from economic, social or cultural life in a manner that impairs their dignity, or hampers their access to basic goods.”165

112. The anti-exclusion principle allows for due-deference to the ability of a religion to determine its own religious tenets and doctrines. At the same time, the anti-exclusion principle postulates that where a religious practice causes the exclusion of individuals in a manner which impairs their dignity or hampers their access to basic goods, the freedom of religion must give way to the over-arching values of a liberal constitution. The essential religious practices test should merit a close look, again for the above reasons, in an appropriate case in the future. For the present, this judgment has decided the issues raised on the law as it stands. F N Conclusion

113. The Constitution embodies a vision of social transformation. It represents a break from a history marked by the indignation and discrimination attached to certain identities and serves as a bridge to a vision of a just and equal citizenship. In a deeply divided society marked G by intermixing identities such as religion, race, caste, sex and personal 164 Gautam Bhatia, Freedom from community: Individual rights, group life, state authority and religious freedom under the Indian Constitution, Global Constitutionalism, Cambridge University Press (2016) at page 374 165 Gautam Bhatia, Freedom from community: Individual rights, group life, state authority and religious freedom under the Indian Constitution, Global H Constitutionalism, Cambridge University Press (2016) at page 382

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characteristics as the sites of discrimination and oppression, the A Constitution marks a perception of a new social order. This social order places the dignity of every individual at the heart of its endeavours. As the basic unit of the Constitution, the individual is the focal point through which the ideals of the Constitution are realized. The framers had before them the task of ensuring a balance between individual rights and claims of a communitarian nature. The Constituent Assembly recognised that the recognition of a truly just social order situated the individual as the ‘backbone of the state, the pivot, the cardinal center of all social activity, whose happiness and satisfaction should be the goal of every social mechanism.’166 In forming the base and the summit of the social pyramid, the dignity of every individual illuminates the constitutional order and its aspirations for a just social order. Existing structures of social discrimination must be evaluated through the prism of constitutional morality. The effect and endeavour is to produce a society marked by compassion for every individual.

114. 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 women in exercising their right to religious freedom is 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 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.

115. The discourse of freedom in the Constitution cannot be denuded of its context by construing an Article in Part III detached from the part within which it is situated. Even the right of a religious denomination to manage its own affairs in matters of religion cannot be exercised in isolation from Part III of the Constitution. The primacy of the individual, is the thread that runs through the guarantee of rights. In 166 Pandit Govind Ballabh Pant (Member, Constituent Assembly) in a speech to the Constituent Assembly on 24 January, 1947 H

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A being located in Part III of the Constitution, the exercise of denominational rights cannot override and render meaningless constitutional protections which are informed by the overarching values of a liberal Constitution.

116. The Constitution seeks to achieve a transformed society based on equality and justice to those who are victims of traditional belief systems founded in graded inequality. It reflects a guarantee to protect the dignity of all individuals who have faced systematic discrimination, prejudice and social exclusion. Construed in this context, the prohibition against untouchability marks a powerful guarantee to remedy the stigmatization and exclusion of individuals and groups based on hierarchies of the social structure. Notions of purity and pollution have been employed to perpetuate discrimination and prejudice against women. They have no place in a constitutional order. In acknowledging the inalienable dignity and worth of every individual, these notions are prohibited by the guarantee against untouchability and by the freedoms that underlie the Constitution. In civic as in social life, women have been subjected to prejudice, stereotypes and social exclusion. In religious life, exclusionary traditional customs assert a claim to legitimacy which owes its origin to patriarchal structures. These forms of discrimination are not mutually exclusive. The intersection of identities in social and religious life produces a unique form of discrimination that denies women an equal citizenship under the E Constitution. Recognizing these forms of intersectional discrimination is the first step towards extending constitutional protection against discrimination attached to intersecting identities.

117. In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other with substantive content, they provide a cohesion and unity which militates against practices that depart from the values that underlie the Constitution – justice, liberty, equality and fraternity. Substantive notions of equality require the recognition of and remedies for historical discrimination which has pervaded certain identities. Such a notion focuses on not only distributive questions, but on the structures of oppression and domination which exclude these identities from participation in an equal life. An indispensable facet of an equal life, is the equal participation of women in all spheres of social activity. The case at hand asks important questions of our conversation with the Constitution. In a dialogue about our public spaces, it raises the question of the boundaries of religion under the Constitution. The quest H

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for equality is denuded of its content if practices that exclude women are treated to be acceptable. The Constitution cannot allow practices, irrespective of their source, which are derogatory to women. Religion cannot become a cover to exclude and to deny the right of every woman to find fulfillment in worship. In his speech before the Constituent Assembly on 25 November 1949, Dr B R Ambedkar sought answers to these questions: ‘How long shall we continue to live this life of contradictions? How long shall we continue to deny equality in our social and economic life?’167 Sixty eight years after the advent of the Constitution, we have held that in providing equality in matters of faith and worship, the Constitution does not allow the exclusion of women.

118. Liberty in matters of belief, faith and worship, must produce C a compassionate and humane society marked by the equality of status of all its citizens. The Indian Constitution sought to break the shackles of social hierarchies. In doing so, it sought to usher an era characterized by a commitment to freedom, equality and justice. The liberal values of the Constitution secure to each individual an equal citizenship. This recognizes D that the Constitution exists not only to disenable entrenched structures of discrimination and prejudice, but to empower those who traditionally have been deprived of an equal citizenship. The equal participation of women in every sphere of the life of the nation subserves that premise.

119. I hold and declare that: E 1) The devotees of Lord Ayyappa do not satisfy the judicially enunciated requirements to constitute a religious denomination under Article 26 of the 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. 167 Dr. B R Ambedkar in a speech to the Constituent Assembly on 25 November 1949 H

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1. The present Writ Petition has been filed in public interest by a registered association of Young Lawyers. The Intervenors in the F Application for Intervention have averred that they are gender rights activists working in and around the State of Punjab, with a focus on issues of gender equality and justice, sexuality, and menstrual discrimination. The Petitioners have interalia stated that they learnt of the practise G of restricting the entry of women in the age group of 10 to 50 years in the Sabarimala Temple in Kerala from three newspaper articles written by BarkhaDutt (Scent of a Woman, Hindustan Times; July 1, 2006), Sharvani Pandit (Touching Faith, Times of India; July 1, 2006), and Vir Sanghvi (Keeping the Faith, Losing our Religion, Sunday Hindustan Times; July 2, 2006). H

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[INDU MALHOTRA, J.]

The Petitioners have challenged the Constitutional validity of Rule A 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (hereinafter referred to as “the 1965 Rules”), which restricts the entry of women into the Sabarimala Temple as being ultravires Section 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 (hereinafter referred to as “the 1965 B Act”). Further, the Petitioners have prayed for the issuance of a Writ of Mandamus to the State of Kerala, the Travancore Devaswom Board, the Chief Thanthri of Sabarimala Temple and the District Magistrate of Pathanamthitta to ensure that female devotees between the age group of 10 to 50 years are permitted to enter the Sabarimala Temple without C any restriction.

2. SUBMISSIONS OF PETITIONERS AND INTERVENORS The Petitioners and the Intervenors were represented by Mr. R.P. Gupta, and Ms. Indira Jaising, Senior Advocate. Mr. Raju Ramachandran, D learned Senior Advocate appeared as Amicus Curiae who supported the case of the Petitioners. (i) In the Writ Petition, the Petitioners state that the present case pertains to a centuries old customof prohibiting entry of women between the ages of 10 years to 50 years into the Sabarimala E Temple of Lord Ayyappa. The customary practise, as codified in Rule 3(b) of the 1965 Rules read with the Notifications issued by the Travancore Devaswom Board dated October 21, 1955 and November 27, 1956, does not meet the tests of Articles 14, 15 and 21 of the F Constitution. This exclusionary practise violates Article 14 asthe classification lacks a Constitutional object. It is manifestly arbitrary as it is based on physiological factors alone, and does not serve any valid object. G (ii) The customary practise violates Article 15(1) of the Constitution as it is based on ‘sex’ alone. The practise also violates Article 15(2)(b) since the Sabarimala Temple is a public place of worship being open and dedicated H

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A to the public and is partly funded by the State under Article 290A. (iii) Article 25 guarantees the Fundamental Right to an individual to worship or follow any religion. The 1965 Act has been passed in furtherance of the goals B enshrined in Article 25(2)(b) as a ‘measure of social reform’. The Act contains no prohibition against women from entering any public temple. (iv) Rule 3(b) of the 1965 Rules is ultravires the Act insofar as it prohibits the entry of women. C (v) The Petitioners contend that a religious denomination must have the following attributes: • It has its own property & establishment capable of succession by its followers. D • It has its distinct identity clearly distinguishable from any established religion. • It has its own set of followers who are bound by a distinct set of beliefs, practises, rituals or beliefs.

E • It has the hierarchy of its own administration, not controlled by any outside agency. It wascontended that the devotees of Lord Ayyappa do not constitute a religious denomination under Article 26 as they do not have a common faith, or a distinct name. The devotees of Lord Ayyappa are not unified on the basis of some distinct set of practises. Every temple in India has its own different set of rituals. It differs from region to region. A minor difference in rituals and ceremonies does not make them a separate religious denomination. The devotees of Lord Ayyappa do not form a religious denomination since the tests prescribed by this Court have not been satisfied in this case. Even assuming that the devotees of Lord Ayyappa constitute a religious denomination, their rights under Article 26(b) would be subject to Article 25(2)(b) in line with the decision of this Court in Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors.1. 1 1958 SCR 895 : AIR 1958 SC 255 H

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[INDU MALHOTRA, J.]

It was further submitted that there are no exclusive followers of A this Temple except general Hindu followers visiting any Hindu temple. Reliance was placed on the judgments of this Court in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay 2 , Raja Bira Kishore Deb, Hereditary Superintendent, Jagannath Temple, P.O. and District Puri v. State of Orissa3, and in S. P. Mittal v. Union of B India & Ors.4. (vi) Even if the Sabarimala Temple is taken to be a religious denomination, the restriction on the entry of women is not an essential religious practise. The prohibition on women between the ages of 10 to 50 years from entering the templedoes not constitute the core foundation of the assumed religious denomination. Any law or custom to be protected under Article 26 must have Constitutional legitimacy. (vii)The exclusionary practise is violative of Article 21, as it has the impact of casting a stigma on women as they are considered to be polluted, which has a huge psychological impact on them, and undermines their dignity under Article 21. The exclusionary practise is violative of Article 17 as it is a direct form of “Untouchability”. Excluding women from public places such as temples, based on menstruation, is a form of ‘untouchability’. This Article is enforceable both against non- State as well as State actors. (viii) Mr. Raju Ramachandran, learned Amicus Curiae, submitted that the Sabarimala Temple is a place of public worship. It is managed and administered by a statutory body i.e. the Travancore Devaswom Board. According to him, a public temple by its very character is established, and maintained for the benefit of its devotees. The right of entry emanates from this public character, and is a legal right which is not dependent upon the temple authorities. The Travancore Devaswom Board is a statutorily created authority under the Travancore – Cochin Hindu Religious 2 1962 Supp (2) SCR 496 : AIR 1962 SC 853 3 (1964) 7 SCR 32 : AIR 1964 SC 1501 4 (1983) 1 SCC 51 H

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A Institutions Act, 1950, and receives an annual payment from the Consolidated Fund of India under Article 290A. It would squarely fall within the ambit of “other authorities” in Article 12, and is duty bound to give effect to the Fundamental Rights. (ix) The Fundamental Right to worship under Article 25(1) is a B non-discriminatory right, and is equally available to both men and women alike. The right of a woman to enter the Temple as a devotee is an essential aspect of her right to worship, and is a necessary concomitant of the right to equality guaranteed by Articles 15. C The non-discriminatory right of worship is not dependent upon the will of the State to provide for social welfare or reform under Article 25(2)(b). Article 25(2)(b) is not merely an enabling provision, but provides a substantive right. The exclusion of women cannot be classified D as an essential religious practise in the absence of any scriptural evidence being adduced on the part of the Respondents. (x) The exclusionary practise results in discrimination against women as a class, since a significant section of women are excluded from entering the Temple. Placing reliance on the E “impact test” enunciated by this Court in Bennett Coleman & Co. & Ors. v. Union of India & Ors.5, he submitted that the discrimination is only on the ground of “sex” since the biological feature of menstruation emanates from the characteristics of the particular sex.

F (xi)Article 17 prohibits untouchability “in any form” in order to abolish all practises based on notions of purity, and pollution. The exclusion of menstruating women is on the same footing as the exclusion of oppressed classes. (xii)The term “morality” used in Articles 25 and 26 refers to Constitutional Morality, and not an individualised or sectionalised G sense of morality. It must be informed by Articles 14, 15, 17, 38, and 51A. (xiii) Mr. Ramachandran, learned Amicus Curiae submitted that Rule 3(b) of the 1965 Act is ultravires Section 3 of the 1965 5 (1972) 2 SCC 788 H

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[INDU MALHOTRA, J.]

Act insofar as it seeks to protect customs and usages,which A Section 3 specifically over-rides. The justification for Rule 3 cannot flow from the proviso to Section 3, since the proviso can only be interpreted in line with the decision of this Court in Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors. (supra). It is ultravires Section 4 since it provides that B the Rules framed thereunder cannot be discriminatory against any section or class.

3. SUBMISSIONS OF THE RESPONDENTS The State of Kerala was represented by Mr. Jaideep Gupta, Senior Advocate. The Travancore Dewaswom Board was represented by Dr. C A.M. Singhvi, Senior Advocate.The Chief Thanthri was represented by Mr. V. Giri, Senior Advocate.The Nair Service Society was represented by Mr. K. Parasaran, Senior Advocate.The Raja of Pandalam was represented by Mr. K. Radhakrishnan.Mr. J. Sai Deepak appeared on behalf of Respondent No. 18 and Intervenor by the name of People for Dharma.Mr. Ramamurthy, Senior Advocate appeared as Amicus Curiae D who supported the case of the Respondents.

4. The State of Kerala filed two Affidavits in the present Writ Petition. The State of Kerala filed an Affidavit dated November 13, 2007 E supporting the cause of the Petitioners.The State however prayed for the appointment of an “appropriate commission” to submit suggestions/ views on whether entry of women between the ages of 10 to 50 years should be permitted. Some of the averments made in the said Affidavit are pertinent to note, and are being reproduced herein below for reference: F “…As such, Government cannot render an independent direction against the present prevailing custom, regard being had to the finality of the said judgment [Kerala High Court’s decision in S. Mahendran (supra)] over the disputed questions of facts which requires the necessity of adducing evidence also… G …Thus, Government is of the opinion that no body should be prohibited from their right to worship, but considering the fact that the matter of entry to Sabarimala is a practise followed for so many years and connected with the belief H

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A and values accepted by the people and since there is a binding High Court judgment in that regard, Government felt that this Hon’ble Court may be requested to appoint an appropriate commission consisting of eminent scholars with authentic knowledge in Hinduism and reputed and uncorrupt social reformers to submit suggestions/views on the issue whether it B is open to all women, irrespective of their age to enter the temple and make worship…” (Emphasis supplied) In the subsequent Additional Affidavit dated February 4, 2016 C filed by the State, it was submitted that the assertions made in the previous Affidavit dated November 13, 2007 erroneously sought to support the Petitioners. It was submitted that it was not open for the State Government to take a stand at variance with its position before the Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram & Ors. 6and in contravention of the D directions issued therein. It was asserted that the practise of restricting the entry of women between the ages of 10 to 50 years is an essential and integral part of the customs and usages of the Temple, which is protected under Articles 25 and 26 of the Constitution. Being a religious custom, it is also immune from challenge under other provisions of Part E III of the Constitution in light of the ruling of this Court in Riju Prasad Sharma & Ors. v. State of Assam & Ors.7. However, during the course of hearing before the three-Judge Bench at the time of reference, it was submitted that the State would be taking the stand stated in the Affidavit dated November 13, 2007.

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[INDU MALHOTRA, J.]

This is attributable to the manifestation of the deity at the A Sabarimala Temple which is in the form of a ‘Naishtik Bramhachari’, who practises strict penance, and the severest form of celibacy. According to legend, it is believed that Lord Ayyappa, the presiding deity of Sabarimala had his human sojourn at Pandalam as the son of the King of Pandalam, known by the name of Manikandan, who found B him as a radiant faced infant on the banks of the river Pampa, wearing a bead (‘mani’) around his neck. Manikandan’s feats and achievements convinced the King and others of his divine origin. The Lord told the King that he could construct a temple at Sabarimala, north of the holy river Pampa, and install the deity there. C The King duly constructed the temple at Sabarimala and dedicated it to Lord Ayyappa. The deity of Lord Ayyappa in Sabarimala Temple was installed in the form of a ‘Naishtik Brahmachari’ i.e. an eternal celibate. Lord Ayyappa is believed to have explained the manner in which the pilgrimage to the Sabarimala Temple is to be undertaken, after D observing a 41-day ‘Vratham’. It is believed that Lord Ayyappa himself undertook the 41-day ‘Vratham’ before he went to Sabarimala Temple to merge with the deity. The whole process of the pilgrimage undertaken by a pilgrim is to replicate the journey of Lord Ayyappa. The mode and manner of worship at this E Temple as revealed by the Lord himself is chronicled in the ‘Sthal Purana’ i.e. the ‘Bhuthanatha Geetha’. The 41 day “Vratham” is a centuries old custom and practise undertaken by the pilgrims referred to as ‘Ayyappans’. The object of this ‘Vratham’ is to discipline and train the devotees for the evolution of F spiritual consciousness leading to self-realization. Before embarking on the pilgrimage to this shrine, a key essential of the ‘Vratham’ is observance of a ‘Sathvic’ lifestyle and ‘Brahmacharya’ so as to keep the body and mind pure. A basic requirement of the ‘Vratham’ is to withdraw from the materialistic world and step onto the spiritual path. G When a pilgrim undertakes the ‘Vratham’, the pilgrim separates himself from the women-folk in the house, including his wife, daughter, or other female members in the family. The “Vratham” or penance consists of: H

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A • Forsaking all physical relations with one’s spouse; • Giving up anything that is intoxicating, including alcohol, cigarettes and ‘tamasic’ food; • Living separately from the rest of the family in an isolated room B or a separate building; • Refraining from interacting with young women in daily life, including one’s daughter, sister,or other young women relatives; • Cooking one’s own food;

C • Observing cleanliness, including bathing twice a day before prayers; • Wearing a black mundu and upper garments; • Having only one meal a day; D • Walking barefoot. On the 41st day, after puja, the pilgrim takes the irimudi (consisting of rice and other provisions for one’s own travel, alongwith a coconut filled with ghee and puja articles) and starts the pilgrimage to climb the 18 steps to reach the ‘Sannidhanam’, for darshan of the deity. This E involves walking from River Pampa, climbing 3000 feet to the Sannidhanam, which is a climb of around 13 kilometres through dense forests. As a part of this system of spiritual discipline, it is expressly stipulated that women between the ages of 10 to 50 years should not undertake this pilgrimage. F (ii) This custom or usage is understood to have been prevalentsince the inception of this Temple, which is since the past several centuries.Reliance was placed on a comprehensive thesis by Radhika Sekar on this Temple.8 Relevant extracts from the thesis are reproduced hereinbelow: G “The cultus members maintain the strictest celibacy before they undertake their journey through the forests to the Sabarimala shrine. This emphasis on celibacy could be in 8 Radhika Sekar, The Process of Pilgrimage: The AyyappaCultus and Sabarimalai Yatra (Faculty of Graduate Studies, Department of Sociology and Anthropology at H Carleton University, Ottawa, Ontario; October 1987)

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[INDU MALHOTRA, J.]

order to gain protection from other forest spirits, for as mentioned earlier, Yaksas are said to protect “sages and celibates… …Though there is no formal declaration, it is understood that the Ayyappa (as he is now called) will follow the strictest celibacy, abstain from intoxicants and meat, and participate only in religious activities. He may continue to work at his profession, but he may not indulge in social enterprises. Ayyappas are also required to eat only once a day (at noon) and to avoid garlic, onion and stale food. In the evening, they may eat fruit or something very light. As far as the dress code is concerned, a degree of flexibility is allowed during the vratam period. The nature of one’s profession does not always permit this drastic change in dress code. For example, Ayyappas in the army or police force wear their regular uniforms and change into black only when off duty. Black or blue vestis and barefootedness are, however, insisted upon during the actual pilgrimage… …The rule of celibacy is taken very seriously and includes celibacy in thought and action. Ayyappas are advised to look upon all women older than them as mothers and those younger as daughters or sisters. Menstrual taboos are now strictly imposed….. Sexual cohabitation is also forbidden. During the vratam, Ayyappas not only insist on these taboos being rigidly followed but they go a step further and insist on physical separation. It is not uncommon for a wife, daughter or sister to be sent away during her menses if a male member of the household has taken the vratam….” F

(Emphasis supplied) In the Memoir of the Survey of the Travancore and Cochin States written by Lieutenants Ward and Conner,reference has been made regarding the custom and usage prevalent at Sabarimala Temple. The G Memoir of the Survey was originally published in two parts in 1893 and 1901 giving details of the statistical and geographical surveys of the Travancore and Cochin States. Reference was sought to be made to the following excerpt from the survey: