The Apex Court verdict on Sabarimala temple - Whether a conflict of religion with law or a conflict of law with law?

I. Religion and law:

The Constitution of India has guaranteed the freedom to every citizen to practise any religion of his or her choice also protected are the essential practises of every religion. Article 25 & 26 of the Constitution of India grants the freedom to practise and propagate one’s religion and also safeguards the rights of various denominations of any religion and also permits the administration of the affairs of the religion including purchase of properties for religious purposes. Whenever conflicts arose within religious denominations or groups with regard to administration of its affairs be it from Christianity, Islam, Jainism, Hinduism etc as the case may be, since the issue is touched upon constitutional rights, the Apex court intervened in the past to resolve the issues amidst the disputing sects and also condemned wrong practices to regulate any deviation from the laws of the land in the name of customary religious practices. In the past, the dispute regarding administration of a Malankara Orthodox Syrian Catholic church namely St.Mary’s Church, Kattachira in Kerala was taken up to the Apex court and the Apex court rendered its verdict in favour of one faction. Likewise, in another temple namely, Shani Shingnapur Temple in Maharashtra, where women were denied entry and it was the High Court of Bombay, which permitted entry of women into the said temple and the said judgment has been enforced in its true letter and spirit. Similarly, the prevention of women to visit the sanctum at Haji Ali Dargah, Mumbai was interfered by the High Court of Bombay wherein women were permitted against the customary practice and it was challenged before the Honourable Supreme Court, which did not change the decision of the Bombay High Court and the appellants decided to abide by the High Court order by conceding to the said position before the Supreme Court. Even the sensitive issue of ‘Santhara’ a practise of fasting unto death to attain Moksha amongst Jains was considered as an attempt to commit suicide and those who assisted and encouraged such a practise were to be treated as abettors to the crime according to a Judgment from the Honble High Court of Rajasthan and the said Judgment is under challenge before the Apex court as well. Thus, when a conflicting situation arose within the religion or against any religious practise, the High Courts and the Honourable Supreme Court being the Constitutional Courts  were approached in the past for guidance and resolution by all religions.

II. The practice of prohibition of women of a specified age group (between 10 & 50 years):

The practice of prohibition of women of a specified age group ( between 10 & 50 years) was sought to be stopped and such women shall also be permitted to enter the temple was the main relief sought by the writ petitioners before the Hon’ble Supreme Court in a writ petition underArticle 32 of the Constitution ofIndia. Opposing the said relief the contesting respondent (i.e., The Travancore Devaswom Board, Kerala) presented various special and distinguishing aspects of Sabarimala temple and its distinct customary practise of denying entry to such women falling within the above mentioned age group. The right of the deity and various reasons as to why such a prohibition was in practise was also argued vehemently before the Hon’ble Apex court. Mainly, reliance was placed on stone inscriptions depicting the strict “Vridhams” (Penance/rituals to be observed for 41 days) couldn’t be followed scrupulously by women due to the intervention of menstruation in between the said 41 days, a doctoral thesis on the practises and rituals to be followed for undertaking pilgrimage within the existing customary practises to the sacred shrine of Lord Ayyappa submitted by a Ph.D scholar and the hyper-masculinity of the deity himself were the salient features which compelled the continuation of such practise of preventing women of the said age group to enter the temple of Lord Ayyappa. The focus of this section of this article is to analyse the Supreme Court judgment which allowed the entry of women of the specified age group also into the iconic temple of Sabarimala, the doors of which were closed to such women from time immemorial. This case came up before a 5-judge Constitutional bench of the Honourable Supreme Court headed by former Chief Justice of India Dipak Misra J., and decided in favour of granting entry to such women also into the temple by a 4-1 majority verdict. The questions before the Hon’ble Supreme Court was whether the practice of denial of entry of women between the age of 10 & 50 years is in accordance with the laws in force in India and whether it is within their power and jurisdiction of the Supreme Court of India to give directions to the concerned authorities. These questions were analysed in detail in 3 different assenting judgments written by Chief justice Dipak Misra, JJ., R F Nariman, JJ., and D Y Chandrachud, JJ., apart from the only dissenting judgment given by Indu Malhotra,J.,. This article attempts to address the legal reasoning behind the judgment and tries to a put across a balanced analysis on the same.

The Apex court judgment first assessed whether the issue in question was as per laws in force more specifically under Article 13.of the Constitution of India, by citing the case of State of Bombay v Narasu Appa Mali (AIR 1952 Bom 84) and the learned judge was of the opinion that the rationale adopted by Justice Gajendragadkar in Narasu’s case to exclude custom and usage from the ambit of article 13(1) read with 13(3) (b) is unsustainable both doctrinally and prospectively. He reasoned that all customs have the sanction of law and are enforceable. Thus, he concluded that all customs and usage in practice for the time being in force are subject to judicial scrutiny and any custom in violation of Part-III (Fundamental rights) of the Constitution of India shall be struck down as unconstitutional. The Hon’ble judge (in one of the assenting judgment) was of the opinion that the impugned custom is in direct violation of the fundamental rights guaranteed under Articles 14 and 21 of the Constitution of India and hence void.

III. Reference to Articles 14 and 15 of the Constitution of India and the reasoning of the Supreme Court to protect the rights guaranteed under the said Articles:

The main test of Article 14 of the Constitution of India is that for any law in force there has to be an intelligible differentia which is in nexus with the object sought to be achieved by the act in question. The relevant law in the present case is the Kerala Hindu Places of Worship (Authorization of Entry) Act, 1965 and the Rules made thereunder. The Apex court has reasoned that, the classification of women based on age could be intelligible but the object sought to be achieved was to avoid the alleged impurity caused by entry of women of specified age group, into the temple was constitutionally invalid.  Relying on the principles laid down in the case of Shayara Bano v Union of India, it was held by the Apex court in the present case that the exclusionary practice of excluding women on the basis of a purely physiological process of the body is manifestly arbitrary and hence in violation of Article 14. The Apex court further reasoned that this is against Article 15 which prohibits discrimination based on sex as this classification is based on the menstrual cycle which is found only in the female gender.

IV. Whether it is an essential practice of Religion?

The Test of “Essential Practise”:

The term ‘Essential Religious Practice test’ was coined by the Supreme Court in 1945. It incorporates those practices that are found out with reference to the fundamentals and regulations of the religion itself.

From the dissenting judgment, the preclusion of women from entering the sanctuary is in vogue for time immemorial and is thus, qualified to be an essential practice. The status of Ayyappa devotees was upheld as that of a separate denomination as they are designated by distinctive names and they should be given the freedom to practice their religion and beliefs.

To the contrary, former Chief Justice of India Justice Dipak Misra states that to allow Hindu women devotee to enter into a temple and offer their prayers to the deity is an essential practice of Hindu religion. The exclusionary practice followed cannot be seen as an essential practice or as an integral part of the Hindu religion, as there is no scriptural or textual evidence to back it up. 

For a particular group to be considered as a separate religious denomination there shall be certain beliefs and practices which are strictly conducive to their spiritual well-being. That not being the case in the present matter, devotees of Lord Ayyappa cannot be considered as a separate denomination as their practices are common to that of Hindu religion. The practice of allowing women into the temple does alter the fundamentals of Hindu religion. The expression ‘all persons’ in Article 25(1) includes women as well. The right given under Article 25(1) does not restrict women from freely practicing or propagating their religion of choice.

Hence the Apex court observed that it is right to state that the exclusionary practice followed at Sabarimala Temple cannot be seen as that which alters the nature of Hindu religion and the same cannot be imposed as it has not been observed with unhindered continuity as the Devaswom Board had accepted in S. Mahendran v The Secretary, Travancore.  However, the same practice was backed by Section 3 and Section 4 of the Kerala Hindu Places of Public Worship (Authorization Entry) Act, 1965 and by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization Entry) Rules, 1965. The same was deemed ultra vires by Justice DY Chandrachud.

Considering the previous instances where there has been entry of women into the temple, the practice of prohibition of women from entering the Sabarimala Temple cannot be seen as an essential part of the Hindu religion and therefore the former Chief Justice of India Justice Dipak Misra, Justice RF Nariman and Justice DY Chandrachud were of the opinion that woman should be granted entry into the temple. However the dissenting judge Justice Indu Malhotra opined otherwise.

V. Whether the temple is administered by a denomination/family or it is administered in full sense by the government?

The Pandalam royal dynasty was a branch of Chera Kingdom which existed in Kerala during the Kollam era. The Pandalam Kingdom included parts of Konni, Achankovil, Tenkasi and the forest areas of Sabarimala, the abode of Ayyappa.

The Pandalam royal family practices its own customs and beliefs related to Sabarimala temple. They have certain privileges given which includes the privilege of the Valiya Thampuran to be the last to offer the prayer at the shrine on Makaravilakku day, the royal members are exempted from carrying the Irumudikettu on the Sabarimala pilgrimage and the temple will be closed for 12 days upon the demise of any royal family member. However, the women between 10 & 50 years of age of the royal family were neither allowed to enter the Sabarimala temple nor to undertake the pilgrimage.

After the kingdom of Pandalam merged with Travancore, the administrative rights of the Sabarimala temple, along with other temples were transferred to Travancore Government and later to Travancore Devaswom Board. The Covenant of 1949 was entered into by the rulers of Travancore and Cochin and the Union Government represented by VP Menon. It was entered into for the formation of the United States of Travancore and Cochin. The Covenant transferred the administration, funds and properties of the temples under the Travancore and Cochin kingdoms to an independent body called the Devaswom Board. The legal rights of the Sabarimala temple went to the Travancore Devaswom Board.

The Devaswom Boards were formed based on the Travancore – Cochin Hindu Religious Institution Act, 1950. This Act specifically states that the Devaswoms are independent bodies and the government does not have the authority to intervene in their working. Quoting Nalinakshan Nair, former Travancore Devaswom Board Commissioner, the Thantri has rights, where rituals are concerned.  He states that according to Sections 3 and 15 of Chapter 2 of the 1950 Act, the Devaswom Board was formed to follow the prevalent usage and customs and that the Government has no rights to override it.

However, the members of the Devaswom Boards are nominated by the Kerala Government. The Board comprises President and two members. The President and one Member is nominated by the Hindu members of the Kerala Council of Ministers and the other Member is nominated by the Hindu members of the State Legislature. This essentially implies that, though the government does not hold any powers over the temples directly, indirectly the Kerala State Legislature does hold certain powers over the temples that are under the Devaswom.

The Kerala Government needs to provide funds for the administration of the temples and the government also takes the revenue from the Devaswom, but it has to be used solely for the purpose of administration of the temple. Whether it has been happening in the manner prescribed by the law is debatable.

Thus it could be seen clearly that the Temple is solely administered by the Travancore Devaswom Board over which the Kerala State Government has implicit control.

VI. The special law by the state of Kerala related to the practice of prohibition of women of a specified age group in a place of worship

Article 25(2)(b) enables the state legislation to throw open places of worship to all classes and sections of that religion, accordingly the Kerala Legislature enacted The Kerala Hindu Places of Worship (Authorisation of Entry) Act 1965. The preamble of above-mentioned Act specifically lays down it’s objectives (i.e.,) to allow / regulate the entry of people into places of public worship. Thus, this act is intended to end the age-old practice of discrimination and oppression prevailing in India in all its form. Further section 3 of the said Act expressly provides that notwithstanding anything contained in any other law or any custom or usage prevailing for the time being in force, every places of public worship which is open to Hindus generally, shall be open to all sections or class thereof, the section further provides that “no Hindu” shall in anyway be prohibited or discouraged from offering prayers or any form of religious services therein. Thus, preventing entry of women of such age group from entering the temple, in the opinion of the Hon’ble court, is a clear violation of the act per se.

The Apex court further examines Section 4 of the act which on the face of it gives powers to the temple authorities, to regulate the internal matters for maintaining order and decorum of the temple, but the court emphasises that the proviso clause of the same section expressly prohibits any form of discrimination against “any Hindu”. The court thus reasoned that it is not justified to discriminate women on the basis of a natural physiological process of a particular age group.

The Apex court in its detailed analysis goes on to say that Rule 3(b) of the 1965 Rules which allows prohibition of women of the said age group from offering worship based on custom and usage is beyond the scope of the sections 3 and 4 of the said Act and held it as discriminatory in nature and therefore the said rule is ultra vires to the Act.

VII. Kerala High court view on the same issue on an earlier occasion

The earlier writ petition on the same issue before the Kerala High Court originated from a letter sent by S. Mahandran to one of the judges of the Kerala High Court, Justice Paripoornan, which was converted into a writ petition and was then treated as PIL. The PIL pointed out a specific instance where the first rice-feeding ceremony of the granddaughter of the former Devaswom Commissioner conducted at Sabarimala temple in the presence of the mother of the child and other women relatives. The photograph of the same was published in a magazine.

The question posed to the Kerala High Court was whether it was open to all women, irrespective of their age, to trek the hill and worship at the temple, and how far it is permissible as per existing ‘acharas’, beliefs and custom.  While addressing this question the Court considered the basis for the restriction of the entry of the women between the age of 10 & 50 years and whether it was only a blind belief handed down from generation to generation without any rationale behind the said practice.

Answering these, the Travancore Devaswom Board  states that in olden days, pilgrims to the temple had to carry the Irumudikettu with them and had to trek to reach the temple. Currently they have to trek 5kms to reach the temple. For the same purpose, the pilgrims have to observe a penance of 41 days. The women within the restricted age bracket cannot observe the penance continuously due to physiological reasons. The High Court insisted that there has never been any distinction of caste, creed or colour in Sabarimala temple. Thus the reason seems to be only based on the purity.

The High Court stated that the restriction imposed were not violative of Articles 15, 25 and 26 of the Constitution of India and is also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 as it only specifies 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 while the matter at hand only prohibits women of a particular age group and not women as a class.

In this case, the High Court of Kerala had specifically directed the Travancore Devaswom Board not to permit women between 10 & 50 years of age to trek the Sabarimala hill and enter the Sabarimala temple during any period of the year. They also directed the Government of Kerala to provide all necessary assistance including police protection for the proper implementation of the Court’s direction.

VIII. Who are the petitioners before the Supreme Court?

Naushad Ahmad Khan is the president of the Young Lawyers Association who were the petitioners in the present case. According to Mr. Khan the Public Interest Litigation was filed by the women’s cell of the association in the year 2006 and were being represented by Adv. Ravi Prakash Gupta. It appears that even at the earlier stage of the petition Adv. Khan had been getting threat calls and a 3-judge bench headed by the then Justice Dipak Misra (subsequently CJI) had directed the Delhi city police chief to ensure his protection. Even at that point the Apex court was of the opinion that if these allegations are true then it dents the concept of Rule of Law which is fundamental to any democratic polity and thus cannot and shall not be entertained or encouraged and under the said circumstances specific directions have been given to the Delhi Police in this regard. It’s also claimed on the social media that he had been receiving more than 500 threats calls from both India and abroad specifically from the Middle East ever since the present judgment of the Apex Court came to be passed.

IX. Less of conflict of religion with law and more of conflict of law with law:

From the above exhaustive analysis of the various legal aspects that emanated from the historic judgment of the Hon’ble Supreme Court permitting entry of women between the age of 10 & 50 into the Sabarimala temple one can understand that no challenge to the samskara (culture), achara (practices), sambradhaya (customs) etc., of the Hindu religion or even more specifically to the denomination of people or sect claiming to be exclusive devotees of Lord Ayyappa – the resident abode in the sanctum sanctorum of the Sabarimala Ayyappan temple was ever taken up before the Hon’ble Supreme Court of India. From a careful reading of the judgment of the Supreme Court it can be clearly seen that statue legislated by the state of Kerala with regard to Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 and a subsequent direct judgment of the Hon’ble High Court of Kerala upholding the validity of the Rules and Act of 1965 and proactively issuing direction to the Devaswom Board directing not to permit women between 10 & 50 years of age to trek the Sabarimala hill and enter the Sabarimala temple during any period of the year and also further directing the Government of Kerala to provide all necessary assistance including police protection for the proper implementation of the said direction of the High Court of Kerala, were infact the crucial legal aspects dealt with extensively by the Hon’ble Supreme Court by testing the vires of the rules framed under the said Act with the Act itself and the provisions related to the Act concerning prevention of women of the specified age group from entering the Sabarimala temple was violative of certain Articles of the Constitution of India, primarily relating to untouchability (Article 17) and equality (Articles 14 and 15) and religious freedom (Articles 25 and 26) guaranteed under the Constitiution of India to every citizen of India. During the course of detailed hearing several aspects related to the age-old custom on one side which can only be tested under Law by adopting the test of essential practice which originated in the year 1945 when the Supreme Court had an occasion to deal with a customary practice of a particular denomination of Hindu religion. It is not as if the said issue was not argued and not addressed by the Hon’ble Supreme Court, but the compass of the challenge before the Supreme Court covered legal issues primarily as stated above. What was unlawful could have only been termed as unlawful. Therefore, the Supreme Court had to check the legal compliance of a State Law and the Rules framed under the said Law and the subsequent judgment of the relevant High Court which upheld the said state law in toto and in its necessity to provide legal answers in the lis before it in the form of a writ petition under Article 32 of the Constitution of India, had to inevitably compare the Rules and the Act and the judgment with the utmost sanctified Articles of the Constitution of India, being the guardian of the Constitution of India, which is the primary function of the Hon’ble Supreme Court. This article does not venture into the need to protect an age-old custom and the rights and wrongs of the impact caused to the faith of a particular denomination of people pursuant to the passing of the said judgment and has only attempted to analyse the aspect in the legal parlance so as to find out as to whether the Hon’ble Supreme Court of India, in fact, tried to resolve a conflict of religion with law or whether it was indeed resolving a conflict of law with law. The irresistible conclusion from an unbiased analysis appears to be that the Supreme Court dealt with a legislation which was not constitutionally compliant and a judgment which was not constitutional.


on 27 October 2018
Published in Constitutional Law
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