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

p. 850 Copy page pinpoint

A “…old women and young girls, may approach the temple, but those who have attained puberty and to a certain time of life are forbid to approach, as all sexual intercourse in that vicinity is averse to this deity…”9 (iii) Dr.Singhvisubmitted that a practise started in hoary antiquity, and continued since time immemorial without interruption, becomes a usage and custom. Reliance, in this regard, was placed on the judgments of Ewanlangki-E-Rymbaiv. Jaintia Hills District Council & Ors.10 , Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa11 , and Salekh Chand (Dead) by LRs v. Satya Gupta & Ors.12. The custom and usage of restricting the entry of women in the age group of 10 to 50 years followed in the Sabarimala Temple is pre- constitutional. As per Article 13(3)(a) of the Constitution, “law” includes custom or usage, and would have the force of law. The characteristics and elements of a valid custom are that it must be of immemorial existence, it must be reasonable, certain and continuous. The customs and usages, religious beliefs and practises as mentioned above are peculiar to the Sabarimala Temple, and have admittedly been followed since centuries. (iv) The exclusion of women in this Temple is not absolute or universal. It is limited to a particular age group in one particular temple, with the view to preserve the character of the deity. Women outside the age group of 10 to 50 years are entitled to worship at the Sabarimala Temple. The usage and practise is primary to preserve the sacred form and character of the deity. It was further submitted that the objection to this custom is not being raised by the worshippers of Lord Ayyappa, but by social activists. F (v) It was further submitted that there are about 1000 temples dedicated to the worship of Lord Ayyappa, where the deity is not in the form of a ‘Naishtik Brahmachari’. In those temples, the mode and manner of worship differs from Sabarimala Temple, since the deity has manifested himself in a different form. There is no similar restriction on G the entry of women in the other Temples of Lord Ayyappa, where women of all ages can worship the deity. 9 Lieutenants Ward and Conner, Memoir of the Survey of the Travancore and Cochin States (First Reprint 1994, Government of Kerala) at p. 137 10 (2006) 4 SCC 748 11 (2006) 13 SCC 627 H 12 (2008) 13 SCC 119

p. 851 Copy page pinpoint

[INDU MALHOTRA, J.]

(vi) Mr. Parasaran, Senior Advocate submitted that the restriction A on entry of women is a part of the essential practise of this Temple, and the pilgrimage undertaken. It is clearly intended to keep the pilgrims away from any distraction related to sex, as the dominant objective of the pilgrimage is the creation of circumstances in all respects for the successful practise of the spiritual self-discipline. B The limited restriction on the entry of women from 10 to 50 years, in the Sabarimala Temple is a matter of ‘religion’ and ‘religious faith and practise’, and the fundamental principles underlying the ‘prathishtha’ (installation) of the Sabarimala Temple, as well as the custom and usage of worship of the deity - Lord Ayyappa. C (vii) With respect to the contention that the custom is violative of women’s right to gender equality, Mr. V. Giri, Senior Advocate interalia submitted that if women as a class were prohibited from participation, it would amount to social discrimination. However, this is not so in the present case. Girls below 10 years, and women after 50 years can freely enter this Temple, and offer worship Further, there is no similar restriction D on the entry of women at the other Temples of Lord Ayyappa. The classification of women between the ages of 10 to 50 years, and men of the same age group, has a reasonable nexus with the object sought to be achieved, which is to preserve the identity and manifestation of the Lord as a ‘Naishtik Brahmachari’. E

(viii) It was submitted by the Respondents that in order to preserve the character of the deity, and the sanctity of the idol at the Sabarimala Temple, the limited restriction is imposed on the entry of women only during the period notified by the Travancore Devaswom Board. There is no absolute restriction on women per se. Such practise is consistent F with the ‘Nishta’or ‘Naishtik Buddhi’ of the deity. This being the underlying reason behind the custom, there is no derogation of the dignity of women. It is only to protect the manifestation and form of the deity, which is sacred and divine, and preserve the penance undertaken by the devotees. G (ix) It was further submitted that it is the duty of the Travancore Devaswom Board under Section 31 of the Travancore - Cochin Hindu Religious Institutions Act, 1950 to administer the temple in accordance with the custom and usage of the Temple. H

p. 852 Copy page pinpoint

A (x) It was submitted that issues of law and fact should be decided by a competent civil court, after examination of documentary and other evidence. (xi) Mr. Parasaran, Senior Advocate further submitted that religion is a matter of faith. Religious beliefs are held to be sacred by those who B have faith. Reliance was placed on the judgment of this Court in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar Thirtha Swamiar of Shirur Mutt (supra) wherein the definition of religion from an American case was extracted i.e. “the term ‘religion’ has reference to one’s views of his relation to his Creator and to the obligations they impose of reverence for C His Being and character and of obedience to His Will”. Learned Senior Counsel also relied upon the case of Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors. (supra) wherein it was observed as follows: D “The Gods have distinct forms ascribed to them and their worship at home and in temples is ordained as certain means of attaining salvation.” In Tilkayat Shri Govindlalji Maharaj etc.v. State of Rajasthan & Ors.13, emphasis was laid on the mode of worship adopted when E Lord Krishna was worshipped in the form of a child. Religion does not merely lay down a code of ethical rules for its followers to accept, but also includes rituals and observances, ceremonies and modes of worship which are regarded as integral parts of the religion. (xii) The words ‘religious denomination’ in Article 26 of the F Constitution must take their colour from the word “religion”; and if this be so, the expression ‘religious denomination’ must satisfy three conditions as laid down in S.P. Mittal v. Union of India & Ors. (supra): “80. (1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive G to their spiritual well-being, that is, a common faith; (2) common organisation; and (3) designation by a distinctive name.” 13 (1964) 1 SCR 561 at 582 : AIR 1963 SC 1638 H

p. 853 Copy page pinpoint

[INDU MALHOTRA, J.]

Religious maths, religious sects, religious bodies, sub-sects or any A section thereof have been held to be religious denominations. Reliance was placed on the judgments in Commissioner., Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra); Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors.,14 and Dr. Subramanian Swamy v. State of T.N. & Ors.15. B Relying on the judgment in Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors. case (supra), Dr. Singhvi submitted that religion, in this formulation, is a much wider concept, and includes: • Ceremonial law relating to the construction of Temples; C • Installation of Idols therein; • Place of consecration of the principle deity; • Where the other Devatas are to be installed; • Conduct of worship of the deities; D • Where the worshippers are to stand for worship; • Purificatory ceremonies and their mode and manner of performance; • Who are entitled to enter for worship; where they are entitled to E stand and worship; and, how the worship is to be conducted. (xiii) It was categorically asserted by the Respondents that the devotees of Lord Ayyappa constitute a religious denomination, who follow the ‘Ayyappan Dharma’, where all male devotees are called ‘Ayyappans’ and all female devotees below 10 years and above 50 F years of age are called ‘Malikapurams’. A devotee has to abide by the customs and usages of this Temple, if he is to mount the ‘pathinettupadikal’ and enter the Sabarimala Temple. This set of beliefs and faiths of the ‘Ayyappaswamis’, and the organization of the worshippers of Lord Ayyappa constitute a distinct religious denomination, having distinct practises. G

(xiv) It was further submitted that the status of this temple as a religious denomination, was settled by the judgment of the Division Bench of the Kerala High Court in S. Mahendran v. The Secretary, 14 (1962) 1 SCR 383 : AIR 1961 SC 1402 15 (2014) 5 SCC 75 H

p. 854 Copy page pinpoint

A Travancore Devaswom Board & Ors. (supra). The High Court decided the case after recording both documentary and oral evidence. The then Thanthri – Sri Neelakandaru, who had installed the deity was examined by the High Court as C.W.6, who stated that women during the age group of 10 to 50 years were prohibited from entering the temple much before the 1950s. B This judgment being a declaration of the status of this temple as a religious denomination, is a judgment in rem. The said judgment has not been challenged by any party. Hence, it would be binding on all parties, including the Petitioners herein. The following observation from the judgment of this Court in Dr. C Subramanian Swamy v. State of Tamil Nadu & Ors. (supra) was relied upon: “The declaration that Dikshitars are religious denomination or section thereof is in fact a declaration of their status and making such declaration is in fact a judgment in rem.” D (Internal quotations omitted) (xv) Unlike Article 25, which is subject to the other provisions of Part III of the Constitution, Article 26 is subject only to public order, morality, and health, and not to the other provisions of the Constitution. As a result, the Fundamental Rights of the denomination is not subject to E Articles 14 or 15 of the Constitution. With respect to Article 25(1), it was submitted that the worshippers of Lord Ayyappa are entitled to the freedom of conscience, and the right to profess, practise and propagate their religion. The right to profess their faith by worshipping at the Sabarimala Temple, can be guaranteed F only if the character of the deity as a ‘Naishtik Brahmachari’ is preserved. If women between the age of 10 to 50 years are permitted entry, it would result in changing the very character/nature of the deity, which would directly impinge on the right of the devotees to practise their religion guaranteed by Article 25(1) of the Constitution. G The right of the devotees under Article 25(1) cannot be made subject to the claim of the Petitioners to enter the temple under Articles 14 and 15 of the Constitution, since they do not profess faith in the deity of this Temple, but claim merely to be social activists. (xvi) Article 25(2)(b) declares that nothing in Article 25(1) shall prevent the State from making any law providing for social welfare and H

p. 855 Copy page pinpoint

[INDU MALHOTRA, J.]

reform or the throwing open of Hindu religious institutions of a public A character to all classes and sections of Hindus. The ‘throwing open’ to ‘all classes and sections of Hindus’ was intended to redress caste-based prejudices and injustices in society. Article 25(2)(b) cannot be interpreted to mean that customs and usages forming an essential part of the religion, are to be overridden. B Article 25(2)(b) would have no application since there is no ban, but only a limited restriction during the notified period, based on faith, custom and belief, which has been observed since time immemorial. (xvii) The Respondents submitted that the plea of the Petitioners with reference to Article 17, was wholly misconceived. The object and C core of Article 17 was to prohibit untouchability based on ‘caste’ in the Hindu religion. No such caste-based or religion-based untouchability is practised at the Sabarimala Temple. The customs practised by the devotees at the Sabarimala Temple do not flow from any practise associated with untouchability under Article D

17. The custom is not based on any alleged impurity or disability. Hence, the contention was liable to be rejected.

6. DISCUSSION AND ANALYSIS We have heard the arguments of the Counsel representing various parties, and perused the pleadings and written submissions filed by them. E 6.1. The issues raised in the present Writ Petition have far-reaching ramifications and implications, not only for the Sabarimala Temple in Kerala, but for all places of worship of various religions in this country, which have their own beliefs, practises, customsand usages, which may be considered to be exclusionary in nature. In a secular polity, issues which are matters of deep religious faith and sentiment, must not ordinarily F be interfered with by Courts. 6.2. In the past, the Courts,in the context of Hindu temples, have been asked to identify the limits of State action under Articles 25 and 26 on the administration, control and management of the affairs of temples, including the appointment of archakas. For instance, in the case of Adi G Saiva Sivachariyargal Nala Sangam & Ors. v. Government of Tamil Nadu & Anr.16, this Court was asked to consider the issue of appointment of archakas in Writ Petitions filed by an association of archakas and individual archakas of Sri Meenakshi Amman Temple of Madurai. 16 (2016) 2 SCC 725 H

p. 856 Copy page pinpoint

A The present case is a PIL filed by an association of lawyers, who have invoked the writ jurisdiction of this Court to review certain practises being followed by the SabarimalaTemple on the grounds of gender discrimination against women during the age-band of 10 to 50 years.

p. 857 Copy page pinpoint

[INDU MALHOTRA, J.]

7.4. In matters of religion and religious practises,Article 14 can be invoked only by persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect. The Petitioners do not state that they are devotees of Lord Ayyappa, who are aggrieved by the practises followed in the Sabarimala Temple. The right to equality under Article 14 in matters of religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the worshippers of a particular religion or shrine, who are aggrieved by certain practises which are found to be oppressive or pernicious. 7.5. Article 25(1) confers on every individual the right to freely profess, practise and propagate his or her religion.19 The right of an individual to worship a specific manifestation of the deity, in accordance with the tenets of that faith or shrine, is protected by Article 25(1) of the Constitution. If a person claims to have faith in a certain deity, the same has to be articulated in accordance with the tenets of that faith. In the present case, the worshippers of this Temple believe in the manifestation of the deity as a ‘Naishtik Brahmachari’. The devotees of this Temple have not challenged the practises followed by this Temple, based onthe essential characteristics of the deity. 7.6. The right to practise one’sreligion is a Fundamental Right guaranteed by Part III of the Constitution, without reference to whether religion or the religious practisesare rational or not. Religious practises are Constitutionally protected under Articles 25 and 26(b). Courts normally do not delve into issues of religious practises, especially in the absence of an aggrieved personfrom that particular religious faith, or sect. In Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta &Ors.20, this Court held that a person can impugn a F particular law under Article 32 only if he is aggrieved by it. This list includes the Nizamuddin Dargah in New Delhi, Lord Kartikeya Temple in Pehowa, Haryana and Pushkar, Rajasthan; Bhavani Deeksha Mandapam in Vijaywada; Patbausi Satra in Assam; Mangala Chandi Temple in Bokaro, Jharkhand. Annexure C-7 in the Non-Case Law Convenience Compilation submitted by Dr. A.M. Singhvi, Senior Advocate enlists places of worship where women are not G allowed. This list includes the Temple of Lord Brahma in Pushkar, Rajasthan; the Bhagati Maa Temple in Kanya Kumari, Kerala; the Attukal Bhagavathy Temple in Kerala; the Chakkulathukavu Temple in Kerala; and the Mata Temple in Muzaffarpur, Bihar. 19 H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4th Ed., Reprint 1999), at Pg. 1274, para 12.35. 20 (1955) 1 SCR 1284 : AIR 1955 SC 367. H

p. 858 Copy page pinpoint

A 7.7. Precedents under Article 25 have arisen against State action, and not been rendered in a PIL. An illustrative list of such precedents is provided hereinbelow: (i) In Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshimdra Thirtha Swamiar of Sri Shirur Mutt (supra), this B Court had interpreted Articles 25 and 26 at the instance of the Mathadhipati or superior of the Shirur Mutt who was in-charge of managing its affairs. The Mathadhipati was aggrieved by actions taken by the Hindu Religious Endowments Board, which he claimed were violative of Articles 25 and 26. C (ii) In Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors.(supra), this Court dealt with the question whether the rights under Article 26(b) are subject to Article 25(2)(b), at the instance of the Temple of Sri Venkataramana and its trustees who belonged to the sect known as Gowda Saraswath Brahmins. D (iii) In Mahant Moti Das v. S.P. Sahi, The Special Officer In Charge of Hindu Religious trust & Ors.21, this Court considered the Constitutional validity of actions taken by the Bihar State Board of Religious Trusts under the Bihar Hindu Religious Trusts Act, 1950 as being violative of the Fundamental Rights of Mahants of certain Maths E or Asthals guaranteed, inter alia, under Articles 25 and 26. (iv) In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. (supra), this Court was called upon to decide the Constitutionality of the Durgah Khwaja Saheb Act, 1955 in view of Articles 25 and 26, inter alia, at the instance of Khadims of the Tomb of Khwaja F Moin-ud-din Chisti of Ajmer. The Khadims claimed to be a part of a religious denomination by the name of Chishtia Soofies. (v) In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (supra), this Court was called upon to test the Constitutionality of the Bombay Prevention of Excommunication Act, 1949 on the ground that it violated Fundamental Rights guaranteed under Articles 25 and 26 to the G petitioner who was the Dai-ul-Mutlaq or Head Priest of the Dawoodi Bohra Community. (vi) In Bijoe Emmanuel & Ors. v. State of Kerala & Ors.22, three children belonging to a sect of Christianity called Jehovah’s 21 1959 Supp (2) SCR 563 :AIR 1959 SC 942 H 22 (1986) 3 SCC 615

p. 859 Copy page pinpoint

[INDU MALHOTRA, J.]

Witnesses had approached the Kerala High Court by way of Writ Petitions A to challenge the action of the Headmistress of their school, who had expelled them for not singing the National Anthem during the morning assembly. The children challenged the action of the authorities as being violative of their rights under Articles 19(1)(a) and Article 25. This Court held that the refusal to sing the National Anthem emanated from the B genuine and conscientious religious belief of the children, which was protected under Article 25(1). In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain PILs challenging religious practises followed by any group, sect or denomination, could cause serious damage to the Constitutional and secular fabric of this country. C

8. APPLICABILITY OF ARTICLE 14 IN M ATTERS OF RELIGION AND RELIGIOUS PRACTISES 8.1. Religious customs and practises cannot be solely tested on the touchstone of Article 14 and the principles of rationality embedded D therein. Article 25 specifically provides the equal entitlement of every individual to freely practise their religion. Equal treatment under Article 25 is conditioned by the essential beliefs and practises of any religion. Equality in matters of religion must be viewed in the context of the worshippers of the same faith. E 8.2. The twin-test for determining the validity of a classification under Article 14 is: • The classification must be founded on an intelligible differentia; and • It must have a rational nexus with the object sought to be achieved by the impugned law. The difficulty lies in applying thetests under Article 14 to religious practises which are also protected as Fundamental Rights under our Constitution. The right to equality claimed by the Petitioners under Article 14 conflicts with the rights of the worshippers of this shrine which is also a Fundamental Right guaranteed by Articles 25, and 26 of the Constitution. It would compel the Court to undertake judicial review under Article 14 to delineate the rationality of the religious beliefs or practises, which would be outside the ken of the Courts. It is not for the courts to determine which of these practises of a faith are to be struck H

p. 860 Copy page pinpoint

A down, except if they are pernicious, oppressive, or a social evil, like Sati. 8.3. The submissions made by the Counsel for the Petitioners is premised on the view that this practise constitutes gender discrimination against women. On the other hand, the Respondents submit that the present case deals with the right of the devoteesof this denomination or B sect, as the case may be, to practise their religion in accordance with the tenets and beliefs, which are considered to be “essential” religious practises of this shrine. 8.4. The Petitioners and Intervenors havecontended that the age group of 10 to 50 years is arbitrary, and cannot stand the rigours of C Article 14. This submission cannot be accepted, since the prescription of this age-band is the only practical way of ensuring that the limited restriction on the entry of women is adhered to. 8.5. The right to gender equality to offer worship to Lord Ayyappais protected by permitting women of all ages, to visit temples where he has D not manifested himself in the form of a ‘Naishtik Brahamachari’, and there is no similar restriction in those temples.It is pertinent to mention that the Respondents, in this context, have submitted that there are over 1000 temples of Lord Ayyappa, where he has manifested in other forms, and this restriction does not apply.

E 8.6. The prayers of the Petitioners if acceded to, in its true effect, amounts to exercising powers of judicial review in determining the validity of religious beliefs and practises, which would be outside the ken of the courts.The issue of what constitutes an essential religious practise is for the religious community to decide.

F 9. APPLICABILITY OF ARTICLE 15 9.1. Article 15 of the Constitution prohibits differential treatment of persons on the ground of ‘sex’ alone. The limited restriction on the entry of women during the notified age-groupbut in the deep-rooted belief of the worshippers that the deity in the Sabarimala Temple has manifested in the form of a ‘Naishtik Brahmachari’. 9.2. With respect to the right under Article 15, Mr. Raju Ramachandran, Amicus Curiae had submitted that the Sabarimala Temple would be included in the phrase “places of public resort”, as it occurs in Article 15(2)(b).

p. 861 Copy page pinpoint

[INDU MALHOTRA, J.]

In this regard, reference may be made to the debates of the A Constituent Assembly on this issue. Draft Article 9 which corresponds to Article 15 of the Constitution, is extracted for ready reference: “9.Prohibition of discrimination on grounds of religion, race, caste or sex – The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or any of them (1) In particular, no citizen shall, on grounds only of religion, race, caste, sex or any of them, be subject to any disability, liability, restriction or condition with regard to— a. access to shops, public restaurants, hotels and places of public entertainments, or b. the use of wells, tanks, roads and places of public resort maintained wholly or partly out of the revenues of the State or dedicated to the use of the general public. D (2) Nothing in this article shall prevent the State from making any special provision for women and children.”23 Professor K.T. Shah proposed Amendment No. 293 for substitution of sub-clauses (a) & (b) as follows: “any place of public use or resort, maintained wholly or partly out of the revenues of the State, or in any way aided, recognised, encouraged or protected by the State, or place dedicated to the use of general public like schools, colleges, libraries, temples, hospitals, hotels and restaurants, places of public entertainment, recreation or amusement, like theatres and cinema-houses or concert-halls; public parks, gardens or museums; roads, wells, tanks or canals; bridges, posts and telegraphs, railways, tramways and bus services; and the like.” 24 (Emphasis supplied) G 23 Draft Constitution of India, Drafting Committee of the Constituent Assembly of India (Manager Government of India Press, New Delhi, 1948) available at http:// 14.139.60.114:8080/jspui/bitstream/123456789/966/7/ Fundamental%20Rights%20%285-12%29.pdf 24 Statement of Professor K.T. Shah, Constituent Assembly Debates (November 29, 1948) H

p. 862 Copy page pinpoint

A The Vice-President took up Amendment No. 296 for vote, which was moved for addition to sub-clause (a). The Amendment was proposed as under: “After the words of Public entertainment the words or places of worship be inserted.”25 B (Emphasis supplied and internal quotations omitted) Amendment No. 301 was also proposed by Mr. Tajamul Hussain for inclusion of: “places of worship”, “Dharamshalas, and Musafir khanas”at the end of sub-clause (a).26 All these proposals were voted upon, and rejected by the C Constituent Assembly.27 The Assembly considered it fit not to include ‘places of worship’ or ‘temples’ within the ambit of Draft Article 9 of the Constitution. The conscious deletion of “temples” and “places of worship” from the Draft Article 9(1) has to be given due consideration. The contention of the learned Amicus Curiae that the Sabarimala Temple D would be included within the ambit of ‘places of public resort’ under Article 15(2) cannot be accepted.

p. 863 Copy page pinpoint

[INDU MALHOTRA, J.]

The Constitution protects religion within a community A organised under a Constitution, so that the continuance of such protection necessarily assumes the continuance of the community so organised. This view makes it possible to reconcile religious freedom with ordered government. It does not mean that the mere fact that the Commonwealth B Parliament passes a law in the belief that it will promote peace, order and good government of Australia precludes any consideration by a court of the question whether that question by Parliament would remove all reality from the constitutional guarantee. That guarantee is intended to limit the sphere of action of the legislature. The interpretation and application of the guarantee cannot, under our Constitution, be left to Parliament. If the guarantee is to have any real significance it must be left to the courts of justice to determine its meaning and to give effect to it by declaring the invalidity of laws which infringes it and by declining to enforce them. The courts will therefore have the responsibility of determining whether a particular law can fairly be regarded, as a law to protect the existence of the community, or whether, on the other hand, it is a law for prohibiting the free exercise of any religion… What Latham, C.J. has said about the responsibility of the court accords with what we have said about the function of the court when a claim to the Fundamental Rights guaranteed by Article 25 is put forward… …20…In Ratilal’s case we also notice that Mukherjea, J. quoted as appropriate Davar, J.’s following observations in F Jamshed Ji v. Soonabai: If this is the belief of the Zoroastrian community, - a secular Judge is bound to accept that belief – it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of G what he believes to be the advancement of his religion and the welfare of his community or mankind. We do endorse the view suggested by Davar, J.’s observation that the question is not whether a particular religious belief H

p. 864 Copy page pinpoint

A is genuinely and conscientiously held as a part of the profession or practise of religion. Our personal views and reactions are irrelevant. If the belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject, of course, to the inhibitions contained therein.” B (Emphasis supplied; internal quotations and footnotes omitted) 10.2. At this juncture, it would be apposite to deal with certain observations made by Gajendragadkar, J. in Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. (supra), and Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (supra). C In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. (supra), a reference was made as to how practises emanating from superstition “…may in that sense be extraneous, and unessential accretions to religion itself…”.28

D Similarly, in Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (supra), an argument was made by Senior Advocate G.S. Pathak relying on the statement of Latham, C.J. in Adelaide Company of Jehovah’s Witnesses Incorporated v. The Commonwealth (supra) that “…what is religion to one is superstition to another…”29. The argument was rejected by Gajendragadkar, J. as being “…of no E relevance…”.30 Mr. H.M. Seervai, well-known Constitutional expert and jurist, in his seminal treatise titled ‘Constitutional Law of India: A Critical Commentary’, has remarked that the observations of Gajendragadkar, J. in Durgah Committee, Ajmer &Anr. v. Syed Hussain Ali & Ors. (supra) F are obiter. It is inconsistent with the observations of Mukherjea, J. in the previous decision of a Constitution Bench of seven Judges in Commissioner, Hindu Religious Endowments, Madrasv. Shri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra), and a Constitution Bench of five Judges in RatilalPanachand Gandhi v. The G State of Bombay & Ors.31. Mr. Seervai comments as under:

28 (1962) 1 SCR 383 :AIR 1961 SC 1402 : at paragraph 33 29 (1964) 1 SCR 561 : AIR 1963 SC 1638, at paragraph 59 30 (1964) 1 SCR 561 : AIR 1963 SC 1638, at paragraph 59 31 1954 SCR 1055 : AIR 1954 SC 388 H

p. 865 Copy page pinpoint

[INDU MALHOTRA, J.]

“12.18…Although it was wholly unnecessary to do so, A Gajendragadkar, J. said: …it may not be out of place incidentally to strike a note of caution and observe that in order that the practises in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practises which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practises within the meaning of Article 26. Similarly, even practises though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practises are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practises as are an essential and an integral part of it and no other. It is submitted that the above obiter runs directly counter to the judgment of Mukherjea, J.in the Shirur Mutt Case and substitutes the view of the court for the view of the denomination on what is essentially a matter of religion. The reference to superstitious practises is singularly unfortunate, for what is ‘superstition’ to one section of the public may be a matter of fundamental religious belief to another. Thus, for nearly 300 years bequests for masses for the soul of a testator were held void as being for superstitious uses, till that view was overruled by the House of Lords in Bourne v. Keane. It is submitted that in dealing with the practise of religion protected by provisions like those contained in s. 116, Commonwealth of Australia Act or in Article 26(b) of our Constitution, it is necessary to bear in mind the observations of Latham C.J. G quoted earlier, namely, that those provisions must be regarded as operating in relation to all aspects of religion, irrespective of varying opinions in the community as to the truth of a particular religious doctrine or the goodness of conduct prescribed by a particular religion or as to the propriety of H

p. 866 Copy page pinpoint

A any particular religious observance. The obiter of Gajendragadkar J. in the Durgah Committee case is also inconsistent with the observations of Mukherjea J. in Ratilal Gandhi Case, that the decision in Jamshedjiv.Soonabai afforded an indication of the measure of protection given by Article 26(b).”32 B (Emphasis supplied) Mr. Seervai also criticised the observations of this Court in Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (supra) as follows: C “12.66 In Tilkayat Shri Govindlalji v. Rajasthan Gajendragadkar J. again adverted to the rights under Arts. 25(1) and 26(b) and stated that if a matter was obviously secular and not religious, a Court would be justified in rejecting its claim to be a religious practise, as based on D irrational considerations. It is submitted that the real question is whether the religious denomination looks upon it as an essential part of its religion, and however irrational it may appear to persons who do not share that religious belief, the view of the denomination must prevail, for, it is not open to a court to describe as irrational that which is a part of a E denomination’s religion. The actual decision in the case, that the right to manage the property was a secular matter, is correct, but that is because, as pointed out by Mukherjea J., Art. 26(b) when constrasted with Art. 26(c) and (d) shows that matters of religious belief and practises are distinct and separate from the management of property of a religious denomination. The distinction between religious belief and practises which cannot be controlled, and the management of the property of a religious denomination which can be controlled to a limited extent, is recognised by the Article itself and must be enforced. But this distinction is not relevant to the question whether a religious practise is itself irrational or secular.” 33 (Emphasis supplied) 32 H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4th Ed., Reprint 1999), paragraph 12.18 at p. 1267-1268 H 33 Id. at paragraph 12.66 at p. 1283

p. 867 Copy page pinpoint

[INDU MALHOTRA, J.]

J. Duncan M. Derrett, a well-known Professor of Oriental Laws, A highlights the problems in applying the “essential practises test” in his book titled ‘Religion, Law and State in Modern India’as follows: “In other words the courts can determine what is an integral part of religion and what is not. The word essential is now in familiar use for this purpose. As we shall there is a context in which the religious community is allowed freedom to determine what is ‘essential’ to its belief and practise, but the individual has no freedom to determine what is essential to his religion, for if it were otherwise and if the law gave any protection to religion as determined on this basis the State’s power to protect and direct would be at an end. Therefore, the courts can discard as non-essentials anything which is not proved to their satisfaction – and they are not religious leaders or in any relevant fashion qualified in such matters—to be essential, with the result that it would have no Constitutional protection. The Constitution does not say freely to profess, practise and propagate the essentials of religion, but this is how it is construed.” 34 (Emphasis supplied and internal quotations omitted) 10.3. The House of Lords in Regina v. Secretary of State for Education and Employment & Ors.35, held that the court ought not to embark upon an enquiry into the validity or legitimacy of asserted beliefs on the basis of objective standards or rationality. The relevant extract from the decision of the House of Lords is reproduced hereinbelow: “It is necessary first to clarify the court’s role in identifying a religious belief calling for protection under article 9. When F the genuineness of a claimant’s professed belief is an issue in the proceedings the court will enquire into and decide this issue as a question of fact. This is a limited inquiry. The Court is concerned to ensure an assertion of religious belief is made in good faith: neither fictitious, nor capricious, and that it is G not an artifice, to adopt the felicitous phrase of Iacobucci J in the decision of the Supreme Court of Canada in Syndicat Northcrest v. Amselem (2004) 241 DLR (4th) 1, 27, para 52. But, emphatically, it is not for the Court to embark on an 34 J. Duncan M. Derett, Religion, Law and the State in India (1968), at p. 447 35 [2005] UKHL 15 H

p. 868 Copy page pinpoint

A inquiry into the asserted belief and judge its validity by some objective standard such as the source material upon which the claimant founds his belief or the orthodox teaching of the religion in question or the extent to which the claimant’s belief conforms to or differs from the views of others professing the same religion. Freedom of religion protects the subjected belief B of an individual. As Iacobucci J also noted, at page 28, para 54, religious belief is intensely personal and can easily vary from one individual to another. Each individual is at liberty to hold his own religious beliefs, however irrational or inconsistent they may seem to some, however surprising. The C European Court of Human Rights has rightly noted that in principle, the right to freedom of religion as understood in the Convention rules out any appreciation by the State of the legitimacy of religious beliefs or of the manner in which these are expressed: Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 306, 335, para 117. The relevance of D objective factors such as source material is, at most, that they may throw light on whether the professed belief is genuinely held.” (Emphasis supplied and internal quotations omitted) E 10.4. In Eddie C. Thomas v. Review Board of the Indiana Employment Security Division36, the U.S. Supreme Court was dealing with a case where the Petitioner, who had terminated his job on account of his religious beliefs which forbade him from partaking in the production of armaments, was denied unemployment compensation benefits by the State. The Court noted that the determination of what constitutes a F religious belief or practise is a very “difficult and delicate task”, and noted as follows about the role of a Constitutional Court: “…The determination of what is a religious belief or practise is more often than not a difficult and delicate task…However, the resolution of that question is not to turn upon a judicial G perception of the particular belief or practise in question; religious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection… 36 450 U.S. 707 (1981) H

p. 869 Copy page pinpoint

[INDU MALHOTRA, J.]

…The Indiana court also appears to have given significant weight to the fact that another Jehovah’s Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was scripturally acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences in relation to the Religious Clauses…Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.” C (Emphasis supplied; internal quotations, and footnotes omitted) This view was re-iterated by the U.S. Supreme Court in the following decisions: • United States v. Edwin D. Lee37, wherein it was held as follows: D “…It is not within the judicial function and judicial competence, however, to determine whether appellee or the Government has the proper interpretation of the Amish faith; courts are not arbiters of scriptural interpretation…” (Emphasis supplied; internal quotations omitted) E

• Robert L. Hernandez v. Commissioner of Internal Revenue38, wherein the Court noted: “…It is not within the judicial ken to question the centrality ofparticular beliefs or practises to a faith or the validity F of particular litigants interpretations of those creeds...” (Emphasis supplied; internal quotations omitted) • Employment Division, Department of Human Resources of Oregon v. Alfred L. Smith39, wherein Scalia, J. noted as follows: G “…It is no more appropriate for judges to determine the centrality of religious beliefs before applying a compelling interest test in the free exercise field, than it would be for 37 455 U.S. 252 (1982) 38 490 U.S. 680 (1989) 39 494 U.S. 872 (1990) H

p. 870 Copy page pinpoint

A them to determine the importance of ideas before applying the compelling interest test in the free speech field. What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is central to his personal faith? Judging the centrality of different religious practises is akin to the unacceptable business of evaluating the relative merits of differing religious claims…As we reaffirmed only last Term, it is not within the judicial ken to question the centrality of particular beliefs or practises to a faith, or the validity of particular litigants interpretations of those creeds…Repeatedly and in many different contexts we have warned that courts must not presume to determine the place of a particular belief in a religion or the plausibility of a religious claim…” (Emphasis supplied; internal quotations omitted) D 10.5. The observations of Chinnappa Reddy, J. in Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (supra) are instructive in understanding the nature of the protection afforded under Article 25, and the role of the Court in interpreting the same. The relevant extract from the opinion of Chinnappa Reddy, J. is extracted hereinbelow: E “18. Article 25 is an article of faith in the Constitution, incorporated in recognition of the principle that the real test of a true democracy is the ability of even an insignificant minority to find its identity under the country’s Constitution. This has to borne in mind in interpreting Article 25…” F 10.6. A reference to the following extracts from the judgment of Khehar, C.J.I. in Shayara Bano v. Union of India & Ors.40 is also instructive with respect to the role of Courtsin matters concerning religious faiths and beliefs: “389. It is not difficult to comprehend what kind of challenges G would be raised by rationalist assailing practises of different faiths on diverse grounds, based on all kinds of enlightened sensibilities. We have to be guarded lest we find our conscience traversing into every nook and corner of religious practises, and Personal Law. Can a court, based on a righteous 40 (2017) 9 SCC 1 H

p. 871 Copy page pinpoint

[INDU MALHOTRA, J.]

endeavour, declare that a matter of faith be replaced, or be completely done away with?...This wisdom emerging from judgments rendered by this Court is unambiguous namely, that while examining the issues falling in the realm of religious practises or Personal Law, it is not for a court to make a choice of something which it considers as forward-looking or non-fundamentalist. It is not for a court to determine whether religious practises were prudent or progressive or regressive. Religion and Personal Law, must be perceived, as it is accepted by the followers of the faith…” (Emphasis supplied and internal quotations omitted) C 10.7. The following extract from the concurring judgment of Chinnappa Reddy, J. in S.P. Mittal v. Union of India & Ors. (supra) is pertinent with respect to the approach to be adopted by Courts whilst dealing with matters concerning religion: “2…What is religion to some is pure dogma to others and what is religion to others is pure superstition to some others…But my views about religion, my prejudices and my predilections, if they be such, are entirely irrelevant. So are the views of the credulous, the fanatic, the bigot and the zealot. So also the views of the faithful, the devout, the acharya, the moulvi, the padre and the bhikhshu each of whom may claim his as the only true or revealed religion. For our purpose, we are concerned with what the people of the Socialist, Secular, Democratic Republic of India, who have given each of its citizens freedom of conscience and the right to freely profess, practise and propagate religion and who have given every religious denomination the right to freely manage its religious affairs, mean by the expressions religion and religious denomination. We are concerned with what these expressions are designed to mean in Articles 25 and 26 of the Constitution. Any freedom or right involving the conscience must naturally receive a wide interpretation and the expression religion and religious denomination must therefore, be interpreted in no narrow, stifling sense but in a liberal, expansive way.” (Emphasis supplied and internal quotations omitted)

p. 872 Copy page pinpoint

A 10.8. The Constitution lays emphasis on social justice and equality. It has specifically provided for social welfare and reform, and throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus through the process of legislation in Article 25(2)(b) of the Constitution. Article 25(2)(b) is an enabling provision which permits the State to redress social inequalities and injustices by B framing legislation. It is therefore difficult to accept the contention that Article 25(2)(b) is capable of application without reference to an actual legislation. What is permitted by Article 25(2) is State made law on the grounds specified therein, and not judicial intervention. C 10.9. In the present case, the 1965 Act is a legislation framed in pursuance of Article 25(2)(b) which provides for the throwing open of Hindu places of public worship. The proviso to Section 3 of the 1965 Act carves out an exception to the applicability of the general rule contained in Section 3, with respect to religious denominations, or sect(s) D thereof, so as to protect their right to manage their religious affairs without outside interference. Rule 3(b) gives effect to the proviso of Section 3 insofar as it makes a provision for restricting the entry of women at such times when they are not by custom or usage allowed to enter of place of public worship. 10.10. The Respondents claim the right to worship in the Sabarimala Temple under Article 25(1) in accordance with their beliefs and practises as per the tenets of their religion. These practises are considered to be essential or integral to that Temple. Any interference with the same would conflict with their right guaranteed by Article 25(1) to worship Lord Ayyappa in the form of a ‘Naishtik Brahmachari’. 10.11. In other jurisdictions also, where State made laws were challenged on grounds of public morality, the Courts have refrained from striking down the same on the ground that it is beyond the ken of the G Courts. 10.12. For instance, the U.S. Supreme Court in Church of Lukumi Babalu Aye v. City of Hialeah,41 an animal cruelty law made by the City Council was struck down as being violative of the Free Exercise clause. The Court held: 41 H 508 U.S. 520 (1993)

p. 873 Copy page pinpoint

[INDU MALHOTRA, J.]

“The extent to which the Free Exercise clause requires A Government to refrain from impeding religious exercise defines nothing less than the respective relationships in our Constitutional democracy of the individual to Government, and to God. ‘ Neutral, generally applicable ’ laws, drafted as they are from the perspective of the non-adherent, have the B unavoidable potential of putting the believer to a choice between God and Government. Our cases now present competing answers to the question when Government, while pursuing secular ends may compel disobedience to what one believes religion commands.” (Emphasis supplied) C

10.13. Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its morality or rationality with respect to the form of worship of a deity. Doing so would negate the freedom to practise one’s religion according to one’s faith and beliefs. It would amount to rationalising religion, faith and beliefs, which is outside the ken of Courts.

11. CONSTITUTIONAL MORALITY IN MATTERS OF RELIGION IN A SECULAR POLITY 11.1. The Petitionershave contended that the practise of restricting women of a particular age group runs counter to the underlying theme of equality and non-discrimination, which is contrary to Constitutional Morality. Rule 3(b) of the 1965 Rules has been challenged as being violative ofConstitutional Morality. 11.2. India is a country comprising of diverse religions, creeds, sects each of which have their faiths, beliefs, and distinctive practises. Constitutional Morality in a secular polity would comprehend the freedom of every individual, group, sect, or denomination to practise their religion in accordance with their beliefs, and practises. 11.3. The Preambleto the Constitution secures to all citizens of this country liberty of thought, expression, belief, faith and worship. Article 25 in Part III of the Constitution make freedom of conscience a Fundamental Right guaranteed to all persons who are equally entitled to the right to freely profess, practise and propagate their respective religion. This freedom is subject to public order, morality and health, and to the other provisions of Part III of the Constitution. H

p. 874 Copy page pinpoint

A Article 26 guarantees the freedom to every religious denomination, or any sect thereof, the right to establish and maintain institutions for religious purposes, manage its own affairs in matters of religion, own and acquire movable and immovable property, and to administer such property in accordance with law. This right is subject to public order, morality and health. The right under Article 26 is not subject to Part III B of the Constitution. 11.4. The framers of the Constitution were aware of the rich history and heritage of this country being a secular polity, with diverse religions and faiths, which were protected within the fold of Articles 25 and 26. State interference was not permissible, except as provided by C Article 25(2)(b) of the Constitution, where the State may make law providing for social welfare and reform. 11.5. The concept of Constitutional Morality refers to the moral values underpinning the text of the Constitution, which are instructive in ascertaining the true meaning of the Constitution, and achieve the objects contemplated therein. 11.6. Constitutional Morality in a pluralistic society and secular polity would reflect that the followers of various sects have the freedom to practise their faith in accordance with the tenets of their religion. It is irrelevant whether the practise is rational or logical. Notions of rationality cannot be invoked in matters of religion by courts. 11.7. The followers of this denomination, or sect, as the case may be, submit that the worshippers of this deity in Sabarimala Temple even individually have the right to practise and profess their religion under Article 25(1) in accordance with the tenets of their faith, which is protected as a Fundamental Right. 11.8. Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and non- discrimination in matters of religion cannot be viewed in isolation. Under our Constitutional scheme, a balance is required to be struck between the principles of equality and non-discrimination on the one hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by Articles 25 and 26 to persons belonging to all religions in a secular polity, on the other hand. Constitutional morality requires the harmonisation or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined. H

p. 875 Copy page pinpoint

[INDU MALHOTRA, J.]

A Constitution Bench of five-Judges in Sahara India Real Estate A Corporation Limited & Ors. v. Securities and Exchange Board of India & Anr.42 had highlighted the role of this Court as an institution tasked with balancing the various Fundamental Rights, guaranteed under Part III. It was noted that: “25. At the outset, it may be stated that Supreme Court is not B only the sentinel of the fundamental rights but also a balancing wheel between the rights, subject to social control…under our Constitution no right in Part III is absolute. Freedom of expression is not an absolute value under our Constitution. It must not be forgotten that no single value, no matter exalted, can bear the full burden of upholding a C democratic system of government. Underlying our constitutional system are a number of important values, all of which help to guarantee our liberties, but in ways which sometimes conflict. Under our Constitution, probably, no values are absolute. Allimportant values, therefore, must be D qualified and balanced against other important, and often competing, values.” The Constitutional necessity of balancing various Fundamental Rights has also been emphasised in the decision of this Court in Subramaniam Swamy v. Union of India, Ministry of Law & Ors.43. E In Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj & Ors. v. The State of Gujarat & Ors.44, a Constitution Bench, in the context of Article 26, noted that it is a duty of this Court to strike a balance, and ensure that Fundamental Rights of one person co-exist in harmony with the exercise of Fundamental Rights of others. F It is the Constitutional duty of the Court to harmonise the rights of all persons, religious denominations or sects thereof, to practise their religion according to their beliefs and practises.

12. RELIGIOUS DENOMINATION G 12.1. Article 26 of the Constitution guarantees the freedom to every religious denomination, or sect thereof, the right to establish and maintain institutions for religious or charitable purposes, and to manage 42 (2012) 10 SCC 603 43 (2016) 7 SCC 221 44 (1975) 1 SCC 11 H

p. 876 Copy page pinpoint

A their own affairs in matters of religion. The right conferred under Article 26 is subject to public order, morality and health, and not to any other provisions in Part III of the Constitution. 12.2. A religious denomination or organisation enjoys complete autonomy in matters of deciding what rites and ceremonies are essential according to the tenets of that religion. The only restriction imposed is on the exercise of the right being subject to public order, morality and health under Article 26. The Respondents assert that the devotees of the Sabarimala Temple constitute a religious denomination, or a sect thereof, and are entitled to claim protection under Article 26 of the Constitution. 12.3. Article 26 refers not only to religious denominations, but also to sects thereof. Article 26 guarantees that every religious denomination, or sect thereof, shall have the right inter alia to manage its own affairs in matters of religion. This right is made subject to public order, morality, and health. The Travancore Devaswom Board, and the other Respondents have asserted that the followers of the Sabarimala Temple constitute a religious denomination having a distinct faith, well- identified practises, being followed since time immemorial. The worshippers of this shrine observe the tenets of this faith, and are addressed as “Ayyappans.” The Notifications issued by the Travancore Devaswom Board in 1955 and1956 refer to the devotees of the Sabarimala Temple as “Ayyappans”. Given the identical phraseology, only the Notification dated November 27, 1956 is set out herein below for ready reference: F “ NOTIFICATION In accordance with the fundamental principles underlying the Prathishta (installation) of the venerable holy and ancient temple of Sabarimala, Ayyappans who had not observed the usual vows as well as women who had attained maturity were not in the habit of entering the above mentioned temple for Darsan (worship) by stepping the Pathinettampadi. But of late, there seems to have been a deviation from this custom and practise. In order to maintain the sanctity and dignity of this great temple and keep up the past traditions, it is hereby notified that Ayyappans who do not observe the usual Vritham

p. 877 Copy page pinpoint

[INDU MALHOTRA, J.]

(vows) are prohibited from entering the temple by stepping A the pathinettampadi and women between the ages of ten and fifty five are forbidden from entering the temple. Ambalapuzha 27-11-‘56 Assistant Devaswon Commissioner.” (Emphasis supplied) B The worshippers of Lord Ayyappa at the Sabarimala Temple together constitute a religious denomination, or sect thereof, as the case maybe,follow a common faith, and have common beliefs and practises. These beliefs and practises are based onthe belief that Lord Ayyappahas manifested himself in the form of a ‘Naishtik Brahmachari’.The practises include the observance by the Ayyappans of the 41-day C ‘Vratham’,which includes observing abstinence and seclusion from the women-folk, including one’s spouse, daughter, or other relatives. This pilgrimage includes bathing in the holy River Pampa, and ascending the 18 sacred steps leading to the sanctum sanctorum. The restriction on women between the ages of 10 to 50 years D from entering the Temple has to be understood in this context. 12.4. The expression “religious denomination” as interpreted in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra), was “a collection of individuals classed together under the same name : a E religious sect or body having a common faith and organisation and designated by a distinctive name”.45 The Court held that each of the sects or sub-sects of the Hindu religion could be called a religious denomination, as such sects or sub-sects, had a distinctive name. 12.5. In S.P. Mittal v. Union of India & Ors. (supra), this Court, F while relying upon the judgment in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar Thirtha Swamiar of Shirur Mutt (supra), held that the words ‘religious denomination’ in Article 26 of the Constitution must take their colour from the word ‘religion’, and if this be so, the expression ‘religious denomination’ must G satisfy three conditions: “80.(1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith; 45 1954 SCR 1005, at paragraph 15 H

p. 878 Copy page pinpoint

A (2) common organisation; and (3) designation by a distinctive name.” 12.6. On a somewhat different note, Ayyangar, J. in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay (supra) in his separate judgment, expressed this term to mean identity of its doctrines, creeds, and tenets, which are intended to ensure the unity of the faith which its adherents profess, and the identity of the religious views which bind them together as one community. 12.7. The meaning ascribed to religious denomination by this Court in Commissioner, Hindu Religious Endowments case (supra), and subsequent cases is not a strait-jacket formula, but a working formula.It provides guidance to ascertain whether a group would fall within a religious denomination or not. 12.8. If there are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and practises, and having a D collection of followers who follow the same faith, it would be identified as a ‘religious denomination’. In this context, reference may be made to the concurring judgment of Chinnappa Reddy, J. in the decision of this Court in S.P. Mittal v. Union of India & Ors. (supra) wherein he noted that the judicial definition E of a religious denomination laid down by this Court is, unlike a statutory definition, a mere explanation. After observing that any freedom or right involving the conscience must be given a wide interpretation, and the expressions ‘religion’ and ‘religious denomination’ must be interpreted in a “liberal, expansive way”: F “21…the expression religious denomination may be defined with less difficulty. As we mentioned earlier Mukherjea, J., borrowed the meaning of the word denomination from the Oxford Dictionary and adopted it to define religious denomination as a collection of individuals classed together under the same name, a religious sect or body having a G common faith and organisation and designated by a distinctive name. The followers of Ramanuja, the followers of Madhwacharya, the followers of Vallabha, the Chistia Soofies have been found or assumed by the Court to be religious denominations. It will be noticed that these sects possess no H distinctive names except that of their founder-teacher and

p. 879 Copy page pinpoint

[INDU MALHOTRA, J.]

had no special organisation except a vague, loose – un-knit one. The really distinctive feature about each one of these sects was a shared belief in the tenets taught by the teacher- founder. We take care to mention here that whatever the ordinary features of a religious denomination may be considered to be, all are not of equal importance and surely the common faith of the religious body is more important than the other features…Religious denomination has not to owe allegiance to any parent religion. The entire following of a religion may be no more than the religious denomination. This may be particularly be so in the case of small religious groups or developing religions, that is, religions in the formative stage.” (Emphasis supplied and internal quotationsomitted) 12.9. The Respondents have made out a strong and plausible case that the worshippers of the Sabarimala Temple have the attributes of a religious denomination, or sect thereof, for the reasons enumerated hereinbelow: i. The worshippers of Lord Ayyappaat Sabarimala Temple constitute a religious denomination, or sect thereof, as the case maybe, following the ‘Ayyappan Dharma’. They are designated by a distinctive name wherein all male devotees are called E ‘Ayyappans’; all female devotees below the age of 10 years and above the age of 50 years, are called ‘Malikapurnams’. A pilgrim on their maiden trip to Sabarimala Temple is called a ‘Kanni Ayyappan’. The devotees are referred to as‘Ayyappaswamis’. A devotee has to observe the ‘Vratham’, F and follow the code of conduct, before embarking upon the ‘Pathinettu Padikal’ to enter the Temple at Sabarimala. ii.Thedevotees follow an identifiable set of beliefs, customs and usages,and code of conduct which are being practised since time immemorial, and are founded in a common faith.The G religious practises being followed in this Temple are founded on the belief that the Lord has manifested himself in the form of a ‘Naishtika Brahmachari’. It is because of this nishtha, that women between the ages of 10 to 50 years, are not permitted to enter the temple. H

p. 880 Copy page pinpoint

p. 881 Copy page pinpoint

[INDU MALHOTRA, J.]

12.10. The issue whether the Sabarimala Temple constitutes a A ‘religious denomination’, or a sect thereof, is a mixed question of fact and law. It is trite in law that a question of fact should not be decided in writ proceedings. The proper forum to ascertain whether a certain sect constitutes a religious denomination or not, would be more appropriately determined by a civil court, where both parties are given the opportunity of leading evidence to establish their case. In Arya Vyasa Sabha & Ors. v. Commissioner of Hindu Charitable and Religious Institutions & Endowments, Hyderabad &Ors.48, this Court had noted that the High Court was correct in leaving the question open, of whether the petitioners constituted a religious denomination for determination by a competent civil court on the ground that it was a disputed question of fact which could not be appropriately determined in proceedings under Article 226. 12.11. This Court has identified the rights of a group of devotees as constituting a religious denomination in the context of a single temple, as illustrated hereinbelow: D

In (supra), the Sri Venkataramana Temple at Moolky was considered to be a denominational temple, and the Gowda Saraswath Brahmins were held to constitute a religious denomination. Similarly, in Dr. Subramaniam Swamy v. State of Tamil Nadu E (supra) the Podhu Dikshitars were held to constitute a religious denomination in the context of the Sri Sabanayagar Temple at Chidambaram. 12.12. The contention of the Petitioners that since the visitors to the temple are not only from the Hindu religion, but also from other F religions, the worshippers of this Temple would not constitute a separate religious sect. This argument does not hold water since it is not uncommon for persons from different religious faiths to visit shrines of other religions. This by itself would not take away the right of the worshippers of this G Temple who may constitute a religious denomination, or sect thereof. 12.13. TheConstitution ensures a place for diverse religions, creeds, denominations and sects thereof to co-exist in a secular society. It is necessary that the term ‘religious denomination’ should receive an 48 (1976) 1 SCC 292 H

p. 882 Copy page pinpoint

A interpretation which is in furtherance of the Constitutional object of a pluralistic society.

p. 883 Copy page pinpoint

[INDU MALHOTRA, J.]

the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire, all these would be regarded as parts of religion…all of them are religious practises and should be regarded as matters of religion within the meaning of Article 26(b)… …23. Under Article 26(b), therefore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.” (Emphasis supplied) 13.2. The ‘essential practises test’ was reiterated in Ratilal Panachand Gandhi v. The State of Bombay & Ors. 50, where the narrow definition of “religion” given by the Bombay High Court was discarded.It was held that all religious practises or performances of acts in pursuance of religious beliefs were as much a part of religion, as faith or belief in particular doctrines. This Court re-iterated the ‘essential practises test’ in the following words: E “13…Thus if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at certain times and in a particular manner, it cannot be said that these are secular activities partaking of commercial or economic character simply because they involve expenditure of money or employment of priests or the use of marketable commodities. No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate…We may refer in this connection to the observation of Davar, J. in the case of Jamshed ji v. Soonabai and although they were made in a case where the question was whether the bequest of property by a Parsi testator for the purpose of perpetual celebration of ceremonies like Muktad 50 (1954) SCR 1055 : AIR 1954 SC 388 H

p. 884 Copy page pinpoint

A bag, Vyezashni, etc., which are sanctioned by the Zoroastrian religion were valid and charitable gifts, the observations, we think, are quite appropriate for our present purpose. If this is the belief of the community thus observed the learned judge, and it is proved undoubtedly to be the belief of the Zoroastrian community, - a secular judge is bound to accept that belief – B it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience of a donor who makes a gift in favour of what he believes to be the advancement of the religion and the welfare of his community or mankind. These observations do in our opinion afford an indication of C the measure of protection that is given by Article 26(b) of our Constitution.” (Emphasis supplied and internal quotations omitted) 13.3. In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. (supra), the ‘essential practises test’ was discussed by a D Constitution Bench in the following words: “33…Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practises in question should be treated as a part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practises which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practises within the meaning of Article 26. Similarly, even practises though religious may have sprung from merely superstitious beliefs and may in that sense be extraneous and unessential accretions to religion itself. Unless such practises are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practises as are an essential and an integral part of it and no other.” (Emphasis supplied) This Court affirmed the ‘essential practises test’ as laid in the previous decisions in Commissioner, Hindu Religious Endowments, H

p. 885 Copy page pinpoint

[INDU MALHOTRA, J.]

Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt A (supra), and Ratilal Panachand Gandhi v. The State of Bombay & Ors.(supra) insofar as it emphasised on the autonomy of religions to identify essential or integral practises. 13.4. In Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (supra), it was clarified that courts will intervene where conflicting evidence is produced in respect of rival contentions as to competing religious practises. It was held that: “57. In deciding the question as to whether a given religious practise is an integral part of the religion or not, the test always would be whether it is regarded as such by the community following the religion or not. This formula may in some cases present difficulties in its operation. Take the case of a practise in relation to food or dress. If in a given proceeding, one section of the community claims that while performing certain rites white dress is an integral part of the religion itself, whereas another section contends that yellow dress and not the white dress is the essential part of religion, how is the Court going to decide the question? Similar disputes may arise in regard to food. In cases where conflicting evidence is produced in respect of rival contentions as to competing religious practises the Court may not be able to resolve the dispute by a blind application of the formula that the community decides which practise in [sic] an integral part of its religion, because the community may speak with more than one voice and the formula would, therefore, break down. This question will always have to be decided by the Court and in doing so, the Court may have to enquire whether the practise in question is religious in character, and if it is, whether it can be regarded as an integral or essential part of the religion, and the finding of the Court on such an issue will always depend upon the evidence adduced before it as to the conscience of the community and the tenets of its religion…” (Emphasis supplied) 13.5. In Bijoe Emmanuel &Ors. v. State of Kerala & Ors. (supra), this Court emphasised that for a religious practise to receive H

p. 886 Copy page pinpoint

A protection under Article 25(1) it must be “genuinely”, and “conscientiously” held by persons claiming such rights. This Court had noted that such religious beliefs and practises must be consistently and not “idly” held, and should not emanate out of “perversity”. In doing so, it re-affirmed that the Constitutional fabric of our country permits religious beliefs and practises to exist, regardless of whether or not they appeal to the rational sensibilities of this Court, or others. It would also be instructive to refer to the decision of the Supreme Court of Alaska in Carlos Frank v. State of Alaska51 wherein the use of moose meat at a funeral potlatch, a religious ceremony, was held to be a practise deeply rooted in religion, based on the evidence adduced before the District Court. The Court had noted that the State of Alaska had failed to illustrate any compelling interest which would justify its curtailment, with the result that the case was remanded with instructions to dismiss the complaint against Frank for unlawful transportation of moose meat. The Court had underscored the importance of the sincerity of Frank’s religious belief, and held that it would be sufficient that a practise be deeply rooted in religious belief for it to receive the protection of the free exercise clause under the U.S. Constitution. 13.6. Reference is required to be made to the doctrines and tenets of a religion, its historical background, and the scriptural texts to ascertain the ‘essentiality’ of religious practises. The ‘essential practisestest’ in its application would have to be determined by the tenets of the religion itself. The practises and beliefs which are considered to be integral by the religious community are to be regarded as “essential”, and afforded protection under Article 25. F The only way to determine the essential practises test would be with reference to the practises followed since time immemorial, which may have been scripted in the religious texts of this temple. If any practise in a particular temple can be traced to antiquity, and is integral to the temple, it must be taken to be an essential religious practise of that temple. G 13.7. The Temple Thanthri, the Travancore Devaswom Board, and believers of Lord Ayyappahave submitted that the limited restriction on access of women during the notified age of 10 to 50 years,is a religious practise which is centraland integral to the tenets of this shrine, since the deity has manifested himself in the form of a ‘Naishtik Brahmachari’. 51 604 P.2d 1068 (1979) H

p. 887 Copy page pinpoint

[INDU MALHOTRA, J.]

13.8. The practise of restricting the entry of women belonging to the age-group of 10 to 50 years, was challenged as being violative of Articles 15, 25, and 26 of the Constitution before a Division Bench of the Kerala High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvanathapuram & Ors. (supra). The Court held that the issue whether the practises were an integral part of the religion or not had to be decided on the basis of evidence. The High Court relied on the decision of this Court in Tilkayat Shri Govindalji Maharaj v. State of Rajasthan (supra) wherein it was held that the question whether the practise is religious in character, and whether it can be regarded as an integral or essential part of the religion, will depend upon the evidence adduced before a court, with respect to the tenets of the religion. The High Court held that the restriction on the entry of women between the ages of 10 to 50 years was in accordance with the practise prevalent since time immemorial, and was not violative of Articles 15, 25, and 26 of the Constitution. D

A religion can lay down a code of ethics, and also prescribe rituals, observances, ceremonies and modes of worship. These observances and rituals are also regarded as an integral part of religion. If the tenets of a religion lay down that certain ceremonies are to be performed at certain times in a particular manner, those ceremonies are matters of religion, and are to be protected as a religious belief. The High Court took into consideration the testimony of three persons who had direct and personal knowledge about the practises of the temple. One of them was the then Thanthri of the Temple, who could authoritatively testify about the practises of the temple. His personal knowledge extended to a period of more than 40 years. The second Affidavit was affirmed by the Secretary of the AyyappaSevaSangham who had been a regular pilgrim of the shrine for a period of 60 years. A senior member of the Pandalam Palace also testified about the practise followed, and the views of the members of the Palace who have constructed the Temple. The testimony of these witnesses established that the practiseof restriction on the entry of women during the notified age-group was being followed since the past several centuries. The High Court recorded that a vital reason for imposing this restriction on young women as deposed by the Thanthri of the Temple, H

p. 888 Copy page pinpoint

A as well as other witnesses, was that the deity at the Sabarimala Temple was in the form of a ‘Naishtik Brahmachari’ which means a student who has to live in the house of his preceptor, and studies the Vedas, living the life of utmost austerity and discipline. The deity is in the form of a ‘Yogi’ or ‘Naishtik Brahmachari’. The High Court noted that this practiseof restricting the entry of women is admitted to have been prevalent since the past several centuries. The High Court concluded by holding: “Our conclusions are as follows: (1) The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage prevalent from time immemorial. (2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of D India. (3) Such restriction is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one section and another section or between one class and another class among the Hindus in the matter of entry to a Temple whereas the prohibition is only in respect of women of a particular age group and not women as a class.” In view of the conclusions summarised above, the High Court directed the Travancore Devaswom Board not to permit women belonging to the age-group of 10 to 50 years “… to trek the holy hills of Sabarimala in connection with the pilgrimage…”. The Judgment of the Kerala High Court was not challenged any further, and has attained finality. The findings contained in the Judgment of the Kerala High Court G deciding a Writ Petition under Article 226 were findings in rem, and the principle of res judicata would apply.52 In thiscontext, it is pertinent to note that this Court, in Daryao & Ors. v. State of U.P. & Ors.53, had held as follows: 52 Dr Subramaniam Swamy v. State of Tamil Nadu & Ors., (2014) 5 SCC 75. 53 (1962) 1 SCR 574 : AIR 1961 SC 1457 H

p. 889 Copy page pinpoint

[INDU MALHOTRA, J.]

“26. We must now proceed to state our conclusion on the preliminary objection raised by the respondents. We hold that if a writ petition filed by a party under Article 226 is considered on the merits as a contested matter and is dismissed the decision thus pronounced would continue to bind the parties unless it is otherwise modified or reversed by appeal or other appropriate proceedings permissible under the Constitution. It would not be open to a party to ignore the said judgment and move this Court under Article 32 by an original petition made on the same facts and for obtaining the same or similar orders or writs.” Thus viewed, such findings of fact ought not to be re-opened in a C Petition filed under Article 32. 13.9. The practise of celibacy and austerity is the unique characteristic of the deity in the Sabarimala Temple. Hindu deities have both physical/temporal and philosophical form. D The same deity is capable of having different physical and spiritual forms or manifestations. Worship of each of these forms is unique, and not all forms are worshipped by all persons. The form of the deity in any temple is of paramount importance. For instance, Lord Krishna in the temple at Nathdwara is in the form of E a child. In Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan (supra), this Court noted that Lord Krishna was the deity who was worshipped in the Shrinathji Temple in Nathdwara. It was noted that: “…believing in the paramount importance and efficacy of Bhakti, the followers of Vallabha attend the worship and services of the Nidhi Swaroops or idols from day-to-day in the belief that such devotional conduct would ultimately lead to their salvation.” In Venkataramana Devaru & Ors. v. State of Mysore & Ors. (supra), this Court had observed that Gods have distinct forms ascribed to them, and their worship at home, and in temples, is ordained as certain means of salvation. Worship has two elements – the worshipper, and the worshipped. The right to worship under Article 25 cannot be claimed in the absence of the deity in the particular form in which he has manifested himself. H

p. 890 Copy page pinpoint

A 13.10. Religion is a matter of faith, and religious beliefs are held to be sacred by those who share the same faith. Thought, faith and belief are internal, while expression and worship are external manifestations thereof. 13.11. In the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution. The phrase “equally entitled to”, as it occurs in Article 25(1), must mean that each devotee is equally entitled to profess, practise and propagate his religion, as per the tenets of that religion. 13.12. In the present case, the celibate nature of the deity at the Sabarimala Temple has been traced by the Respondents to the Sthal Purana of this Temple chronicled in the ‘Bhuthanatha Geetha’. Evidence of these practises are also documented in the Memoir of the D Survey of the Travancore and Cochin States54 written by Lieutenants Ward and Conner published in two parts in 1893 and 1901. 13.13. The religious practise of restricting the entry of women between the ages of 10 to 50 years, is in pursuance of an ‘essential religious practise’ followed by the Respondents. The said restriction has been consistently, followed at the Sabarimala Temple, as is borne out from the Memoir of the Survey of the Travancore and Cochin Statespublished in two parts in 1893 and 1901. The Kerala High Court in the case of S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram & Ors. (supra) has recorded as follows: “The testimony of three persons who have direct and personal knowledge about the usage in the temple is therefore available before this Court. Of them one is the Thanthri of the temple who can authoritatively speak about the usage followed in the temple. His knowledge extends to a period of more than 40 years. The Secretary of the AyyappaSevaSangham had been a regular pilgrim to Sabarimala shrine for a period of 60 years. A senior member of the Pandalam palace has also testified about the practise followed and the view of the members of the palace to which the temple at one time belonged. The testimony of these witnesses would therefore 54 Supra note 9 H

p. 891 Copy page pinpoint

[INDU MALHOTRA, J.]

conclusively establish the usage followed in the temple of not A permitting women of the age group 10 to 50 to worship in the temple. It necessarily flows that women of that age group were also not permitted either to enter the precincts of the temple or to trek Sabarimala for the purpose of pilgrimage.” (Emphasis supplied) B 13.14. In the present case, the character of the temple at Sabarimala is unique on the basis of centuries old religious practises followed to preserve the manifestation of the deity, and the worship associated with it. Any interference with the mode and manner of worship of this religious denomination, or sect, would impact the character of the C Temple, and affect the beliefs and practises of the worshippers of this Temple. 13.15. Based on the material adduced before this Court, the Respondents have certainly made out a plausible case that the practise of restricting entry of women between the age group of 10 to 50 years is D an essential religious practise of the devotees of Lord Ayyappa at the Sabarimala Temple being followed since time immemorial.

14. ARTICLE 17 14.1. The contention of the Petitioners that the restriction imposed on the entry of women during the notified age group, tantamounts to a E form of ‘Untouchability’ under Article 17 of the Constitution, is liable to be rejected for the reasons stated hereinafter. 14.2. All forms of exclusion would not tantamount to untouchability. Article 17 pertains to untouchability based on caste prejudice.Literally or historically, untouchability was never understood to apply to women as a class.The right asserted by the Petitioners is different from the right asserted by Dalits in the temple entry movement. The restriction on women within a certain age-band, is based upon the historical origin and the beliefs and practises of the Sabarimala Temple. 14.3. In the present case, women of the notified age group are allowed entry into all other temples of Lord Ayyappa. The restriction on the entry of women during the notified age group in this Temple is based on the unique characteristic of the deity, and not founded on any social exclusion. The analogy sought to be drawn by comparing the rights of Dalits with reference to entry to temples and women is wholly misconceived and unsustainable. H

p. 892 Copy page pinpoint

A The right asserted by Dalits was in pursuance of right against systematic social exclusion and for social acceptance per se. In the case of temple entry, social reform preceded the statutory reform, and not the other way about. The social reform was spearheaded by great religious as well as national leaders like Swami Vivekananda B and Mahatma Gandhi. The reforms were based upon societal morality, much before Constitutional Morality came into place. 14.4. Article 11 of the Draft Constitution corresponds to Article 17 of our present Constitution.55 A perusal of the Constituent Assembly debates on Article 11 of the Draft Constitution would reflect that “untouchability” refers to caste-based discrimination faced by Harijans, C and not women as contended by the Petitioners. During the debates, Mr. V.I. Muniswamy Pillai had stated: “…Sir, under the device of caste distinction, a certain section of people have been brought under the rope of untouchability, who have been suffering for ages under tyranny of so-called caste Hindus, and all those people who style themselves as landlords and zamindars, and were thus not allowed the ordinary rudimentary facilities required for a human being… I am sure, Sir, by adoption of this clause, many a Hindu who is a Harijan, who is a scheduled class man will feel that he has been elevated in society and has now got a place in society…”56 Dr. Monomohan Das, quotes Mahatma Gandhi while undeniably accepting the meaning of “Untouchability” as intended under the Constitution: F “…Gandhiji said I do not want to be reborn, but if I am reborn, I wish that I should be born as a Harijan, as an untouchable, so that I may lead a continuous struggle, a life-long struggle against the oppressions and indignities that have been heaped upon these classes of people. 55 “11. “Untouchability” is abolished and its practice in any form is forbidden. The G enforcement of any disability arising out of “Untouchability” shall be an offence punishable in accordance with law.” Draft Constitution of India, Drafting Committee of the Constituent Assembly of India (Manager Government of India Press, New Delhi, 1948) available at http:// 14.139.60.114:8080/jspui/bitstream/123456789/966/7/ Fundamental%20Rights%20%285-12%29.pdf 56 Statement of Shri V.I. Muniswamy Pillai, Constituent Assembly Debates (November H 29, 1948)

p. 893 Copy page pinpoint

[INDU MALHOTRA, J.]

… Not only Mahatma Gandhi, but also great men and philosophers of this ancient land, Swami Vivekananda, Raja Ram Mohan Roy, Rabindranath Tagore and others, who led a relentless struggle against this heinous custom, would also be very much pleased today to see that independent India, Free India, has at last finally done away with this malignant sore on the body of Indian Society.”57 Mr. Seervai, in his seminal commentary, states that “Untouchability” must not be interpreted in its literal or grammatical sense, but refers to the practise as it developed historically in India amongst Hindus. He further states that Article 17 must be read with the Untouchability (Offences) Act, 1955, which punishes offences committed in relation to a member of a Scheduled Caste.58 Professor M.P. Jain also interprets Article 17 in a similar manner. He states: “Therefore, treating of persons as untouchables either temporarily or otherwise for various reasons, e.g., suffering from an epidemic or a contagious disease, or social observances associated with birth or death, or social boycott resulting from caste or other disputes do no come within the purview of Art. 17. Art. 17 is concerned with those regarded untouchables in the course of historic developments.”59 E