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

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A communities which were classed as untouchables. A custom which denied to large sections of Hindus the right to use public roads and institutions to which all the other Hindus had a right of access, purely on grounds of birth could not be considered reasonable and defended on any sound democratic principle, and efforts were being made to secure B its abolition by legislation. This culminated in the enactment of Article 17, which is as follows: “Untouchability” is abolished and its practise in any form is forbidden. The enforcement of any disability arising out of ‘Untouchability’ shall be an offence punishable in accordance with law.” C 14.7. Not a single precedent has been shown to interpret Article 17 in the manner contended by the Petitioners. It is also relevant to mention that the Counsel for the State of Kerala did not support this submission.

15. RULE 3(B) OF THE 1965 RULES IS NOT ULTRAVIRES THE ACT D 15.1. Section 3 of the 1965 Act reads as follows: “3.Places of public worship to be open to all sections and classes of Hindus:-Nothwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrumenthaving effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or perform: Provided that in the case of a place of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall be subject to the right of that religious denomination or section, as the case may be, to manage its own affair in matters of religion” H (Emphasis supplied)

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[INDU MALHOTRA, J.]

The relevant extract of Rule 3 of the 1965 Rules is also reproduced hereinbelow: “Rule 3. The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bath 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 outside precincts thereof, or any sacred place including a hill or hill lock, or a road, street or pathways which is requisite for obtaining access to the place of public worship- (a) ….. C (b) Women at such time during which they are not by custom and usage allowed to enter a place of public worship. (c)….. (d)…. D (e)….. (f)….. (g)….” (Emphasis supplied) E Section 3(b) of the 1965 Act provides that every place of public worship which is open to Hindus generally, or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner be prevented, obstructed or discouraged from entering such place of public worship or from worshipping or from offering prayers there or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may enter, worship, pray or perform. The proviso to Section 3 of the 1965 Act carves out an exception in the case of public worship in a temple founded for the benefit of any religious denomination or section thereof. The provisions of the main section would be subject to the right of a religious denomination or section to manage its own affairs in the matters of religion.

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A Section 2(c)60 of the 1965 Act, defines “section or class” to include any division, sub-division, caste, sub caste, sect, or denomination whatsoever. Section 4(1)61, empowers the making of regulations for the maintenance of orders and decorum in the place of public worship and the due observance of the religious rites and ceremonies performed therein. The proviso to Section 3 of the 1965 Act provides that no such regulation shall discriminate in any manner whatsoever, against any Hindu on the ground that he belongs to a particular section or class. 15.2. The proviso carves out an exception to the Section 3 itself. The declaration that places of public worship shall be open to Hindus of all sections and classes is not absolute, but subject to the right of a religious denomination to “manage its own affairs in matters of religion”. Section 3 must be viewed in the Constitutional context where the legislature has framed an enabling legislation under Article 25(2)(b) which has been made expressly subject to religious practises peculiar to a denomination under Article 26(b). D 15.3. Rule 3(b) is a statutory recognition of a pre-existing custom and usage being followed by this Temple. Rule 3(b) is within the ambit of the proviso to Section 3 of the 1965 Act, as it recognises pre-existing customs and usages including past traditions which have been practised since time immemorial qua the Temple. The Travancore Devaswom E Board submits that these practises are integral and essential to the Temple. 15.4. The Petitioners have not challenged the proviso to Section 3 as being unconstitutional on any ground. The proviso to Section 3 makes an exception in cases of religious denominations, or sects thereof to manage their affairs in matters of religion. F 15.5. The Notification dated November 27, 1956 issued by the Travancore Devaswom Board restricts the entry of women between 60 "2. Definitions – …(c) “section or class” includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever.” G 61 "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 H therein…”

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[INDU MALHOTRA, J.]

the ages of 10 to 55 years as a custom and practise integral to the sanctity of the Temple, and having the force of law under Article 13(3)(a) of the Constitution. The High Court in S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram & Ors. (supra) noted that this practise of restricting the entry of women is admitted to have been prevalent since the past several centuries. These practises are protected by the proviso to Section 3 of the 1965 Act which is given effect to by Rule 3(b) of the 1965 Rules. 15.6. The contention of the Petitioners that Rule 3(b) is ultra vires Section 3 of the 1965 Act, fails to take into consideration the proviso to Section 3 of the 1965 Act. Section 3 applies to all places of public worship, whereas the proviso applies to temples founded for the benefit of any religious denomination or sect thereof. Hence, the contentions of the Petitioners that Rule 3(b) is ultravires Section 3 of the 1965 Act is rejected.

16. The summary of the aforesaid analysis is as follows: D (i) The Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the Petitioners and Intervenors involved herein. (ii) The equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion. (iii) Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights,which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical. (iv) The Respondents and the Intervenors have made out a plausible case that the Ayyappans or worshippers of the Sabarimala Temple satisfy the requirements of being a religious denomination, or sect thereof, which is entitled to the protection provided by Article 26. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction.

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A (v) The limited restriction on the entry of women during the notified age-group does notfall within the purview of Article 17 of the Constitution. (vi) Rule 3(b) of the 1965 Rules is not ultra vires Section 3 of the 1965 Act, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect B thereof, to manage their affairs in matters of religion.

17. In light of the aforesaid discussion and analysis, the Writ Petition cannot be entertained on the grounds enumerated hereinabove. It is ordered accordingly.

C Nidhi Jain Writ Petition allowed.