GENDER JUSTICE, FREEDOM OF RELIGION AND

CONSTITUTIONAL MORALITY VIS-A-VIS TEMPLE ENTRY.

Abstract

The case comment attempts to provide food for thought to the mooted judgement
in throwing open of the Sabarimala Lord Ayyapa temple to women with active
menstrual cycle, irrespective of the continuous observation of the custom
followed since time immemorial. The focus is on elaborating substantial reasons
as to why the majority judgement failed to implement justice to the Sabarimala
devotees. The paper aims at creating a critical analysis of the Supreme Court
judgement on Sabarimala.

Keywords: Custom, Equality clause, Essential religious practice, Religious

denomination, Constitutional morality.

I. INTRODUCTION

A person who looks at the Sabarimala issue related to entry of women, in

isolation and without clarity cannot understand its colossal and legitimate picture. The
‘Sabarimala issue’ is about classifying people on rational basis to enter the temple which has
a nexus to the object sought to be achieved that is the protection of the deity in the very form
it was manifested. Thus it restricts the entry of women with active menstruation cycle and
there is no blanket ban to all women.

The Sabarimala temple, a dedication to the Lord Ayyapa, is a Hindu shrine

located at the Periyar Tiger Reserve in the Western Ghat mountain ranges of Pathanamthitta
district in Kerala. The deity is also referred to as ‘Dharmashastha’ or the ‘Lord of Dharma’
and is worshipped as an eternal celibate (‘NaishtikaBramhachari’).A devotee who desires to
visit the temple has to follow penance which is a hard and rigid life style for a period of 41
days prior to the pilgrimage where in purity in thought, word and deed is insisted. The 41
days penance starts by wearing a special chain and during the course of the same the devotee
is supposed to have a lacto-vegetarian diet, abstain from sexual relations, not to consume
alcohol and are not even allowed to style and dress their hair and nails. Therefore, the people
have to perform 41 days of purity before going there.

Since, a woman between the said age group has a menstrual cycle at least once
in 41 days; they are not allowed to enter the impugned temple unlike other temples including
many Ayyapa temples as it will not be physically capable of observing penance for 41 days
on physiological grounds.  The petitioners challenged that Rule 3(b) of the Kerala Hindu
Places of Worship (Authorization of Entry) Rules, 1965 that states “Women who are not by
custom and usage allowed to enter a place of public worship shall not be entitled to enter or
offer worship in any place of public worship” is ultra-vires Section 3 of the Kerala Hindu
Places of Public Worship (Authorisation of Entry) Act, 1965 which states that places of
public worship are to be receptive all sections and classes of Hindus and violative of Articles
14, 15, 17, 25 and 51A(e) the Constitution of India.

The Supreme Court in a 4:1 majority said that the temple practise violates the
rights of Hindu women and that banning entry of women to the temple is gender
discrimination.  The decision resulted in widespread debates and campaigns which lead to
filing multiple review petitions on various grounds including that there were apparent errors
in the 2018 Judgment. On 14 November 2019, a Constitution Bench by a narrow 3:2 majority
admitted the review petitions filed against the 2018 Judgement and set forth a continuance in
the legal battle.

II. Background

Customs and traditions form an essential ingredient in the sources of Hindu

law and is an integral part of the Indian culture. Under the Hindu system of law, clear proof
of usage will outweigh the written text of the law.1A custom is a rule, which in a particular
family or a particular class or community, or in a particular district, has from long usage,
obtained the force of law. It must be ancient, certain, and reasonable, and being in derogation

1
Collector of Madura v. MoottooRamalinga 12 MIA 397 (1869); VanniaKone v. VennichiAmmal AIR 299 Mad
(1928).
of the general rules of law, must be construed strictly.2Custom is having the force of law3and
the right to perform a religious practice may be acquired also by custom.

  A custom derives its force from the fact that it has, from long usage, obtained
the force of law. A judgment relating to the existence of a custom is admissible to corroborate
the evidence adduced to prove such custom in another case. 4Where, however, a custom is
repeatedly brought to the notice of the courts, the courts may hold that the custom was
introduced into law without the necessity of proof in each individual case. 5This issue of
restriction of women from entering the temple was challenged before the Kerala High Court
in 1991 in the case of S. Mahendran v. The Secretary, Travancore Devaswom Board,
Tiruvanathpuram and others.6 The division bench of the Kerala High Court recognized the
custom of restricting women with active menstrual cycle to the temple which was brought to
notice and upheld the custom and the essential religious practice and gave a decree stating
that the restrictions have been existing since time immemorial and the prohibition by the
Travancore Board does not violate the Constitution of India or the pertinent 1965 Kerala Law
on the basis of oral testimonies of three witnesses from their personal knowledge and
experience.

1. Evolution of essential religious practice.

There has been a plethora of case laws over the decades where the courts
considered the question whether a particular practice constituted to the scope of an essential
religious practice or not and the courts have come a long way in determining these practices.
There have been several cases over the years that led to the establishment of doctrines that
would determine the essentials of religions.

In Commissioner of Police v. Acharya Jagadishwarannada7 Supreme Court

held that Essential part means the core beliefs upon which a religion is founded. Essential
practice means those practices that are fundamental to follow a religious belief. Each

2
Hurpurshad v. SheoDyal  3 IA 259 (1876) 285.
3
Bhau Ram v. Baijnath, AIR 1476 SC (1962).
4
MstKesarbai v. Somasundaram  ILR Nag 1(1946):71 IA 190.
5
See Munnalal v. Rajkumar AIR 1493 SC (1962); Ujgar Singh v. Jeo AIR 1041 SC(1959); Rama Rao v. Rajah
of Pittapur  AIR 81 PC (1918);  HemendraNath Roy v. Jnanendra AIR 702 Cal (1935); Banarsi Das v. Sumat
Prasad  AIR 641 All (1936); Suganchand v. Mangibai AIR 185 Bom (1942)
6
AIR 42 Ker (1993)
7
12 SCC 770 (2004)
religious denomination or organization enjoys complete autonomy in the religious matters
(matter of deciding as to what rites and ceremonies are essential according to the tenets of the
religion they hold.)8
In GedelaSatekidananda Murthy v. Dy.Commr, Endowments Deptt.,9 Supreme Court held
that Religious practices vary from State to State, religion to religion, place to place and sect
to sect.
In Venkataramana Devaru & Ors. v. State of Mysore & Ors.,10 the Supreme
Court held that The Gods have distinct forms ascribed to them and their worship at home and
in temples is ordained as certain means of attaining salvation. The mode of worship adopted
when Lord Krishna was worshipped in the form of a child is distinct from other modes of
worship of the same Lord Krishna. 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. 11 Who are entitled to enter for
worship; where they are entitled to stand and worship; and, how the worship is to be
conducted12 and all these are matters of religion.13

The Hindu culture irrespective of all other beliefs is distinct in its mode of
worship and thus the construction of the worship place according to Hindu culture demands
various essentialities including specialities in magnetic fields respective to geographic
significance. It is not merely a prayer hall but it exhibits the form in which their deity is
manifested which may be one of thousand other forms of the same deity and each distinct
form requires specific, definite and unique nature of worship. This may appeal customs and
usages which are distinct for each temple corresponding to the deity and also the form in
which the same is manifested and Art 26 of the Constitution of India gives Constitutional
shelter for the same.

8
Sarup v. State of Punjab,AIR SC 860 (866) (1959).
9
AIR 1917 SC (2007)
10
AIR 255 (1958)
11
See also TilkayatShriGovindlaljiMaharaj etc. v. State of Rajasthan &Ors AIR 196 Raj (1962); Commr. H.R.E
v. Lakshmindra, 1005 SCR (1954); Rev. Stainislaus v. State of M.P., AIR 908 SC (1977); Mittal, S.P. v. UOI,
AIR 1 SC (1983); ER.J. Swami v. State of T.N., AIR 1586 SC (1972) (paras 11-12);
DigyadarshanRajendraRamdassjiVaru v. State of A.P., 181 SC (1970) (para 10) :1 SCC 844 (1969);
SarlaMudgal v. UOI, AIR 1650 SC (2000).
12
See also Quareshi v. State of Bihar, AIR 731 SC (1958); Suryapal v. State of U.P.,1056 SCR (1952).
13
Church of LukumiBabalu Aye v. City of Hialeah, 508 U.S. 520 (1993); Adelaide Company of Jehovah’s
Witnesses Incorporated v.The 56 Commonwealth, 67 CLR 116; Carlos Frank v. State of Alaska, 604 P.2d 1068
(1979);Bijoe Emmanuel &Ors. v. State of Kerala &Ors, AIR 748 (1987).
 In the Sabarimala judgement the majority decision failed to recognize the
matters of religion and the essential practice in worshipping Lord Ayyapa in the form of an
eternal celibate and shattered the essence of Article 25 and 26 of the constitution of India.

III. Analysis

The majority decision goes by abstract and objective principles of equality and
gender justice ignoring the pluralist hues of the nation unified in its diversity and the sole
dissenting judge, Indu Malhotra, J identified the same by saying that the right to equality in
Article 14 had to be harmonized with the right of people under Article 25 to follow their own
religious practices and added that issues which are matters of deep religious faith and
sentiment must not ordinarily be interfered with by the courts. Thus Article 25 of the
Constitution of India involves separation between religious activities on the one hand and
secular and social activities on the other. While the former are protected the latter are not.14

This practice of restricting the woman of the age group 10-50 to enter the
temple neither relates to any misconceptions or prejudices that women are impure so they
cannot enter the temple nor arise out of any patriarchal fruits as Hinduism and Kerala are
renowned for worshipping female Goddesses and matriarchal families respectively. It would
be pertinent to note that men are not allowed into Attukal Devi temple in Kerala, also called
as Sabarimala of Women. Thus the inference can be drawn as neither this is discrimination
against men nor Sabarimala a case of discrimination against women. There are lakhs of
temples and only a handful has certain restrictions and the same is based on the tenets of each
religious denomination or upon the custom as to the mode of worshipping a deity.

1. Is Art 32 door to frivolous litigations?

“A mere enumeration of rights, even if it is meticulously worded is not

enough. What is needed is a provision for its enforcement, an avenue for redressal. Art. 32 of
the Constitution of India enshrine this provision whereby individuals may seek redressal for
the violation of their fundamental rights.”15 But Article 32 ought not to be a door for
frivolous litigations. A Public Interest Litigation cannot be entertained where the stand taken
Krishna Singh v. Mathura Ahir, AIR 707 SC (1980)
14

15
NirmalenduBikashRakshit, Right to Constitutional Remedy: Significance of Article 32, Economic and
Political Weekly (Aug.05,2020,11:43 AM), https://www.epw.in/journal/1999/34-35/commentary/right-
constitutional-remedy.html
by the petitioner was contrary to the stand taken by those who are affected by any action. 16 In
the instant matter it is evident that the stand of the petitioners is in non-consonance with the
stand of the affected as the State of Kerala had witnessed large scale protests and gatherings
created by the devotees, aftermath the SC verdict and by the flooded Review petitions filed
which was admitted by the court. The right to move the Supreme Court under Article 32 for
the violation of Fundamental Rights must be based on a pleading that the Petitioner’s
personal rights to worship in a Temple have been violated. 17 The Hon’ble Supreme Court
held that a person can impugn a particular law under Article 32 only if he is aggrieved by it.18

In addition, 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 any deity of any
temple, 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.

2. Equality clause does not prohibit class legislation.

The principle of equality does not mean that every law must have universal
application for all19 who are not by, nature, attainment or circumstances, in the same position,
as the varying needs of different classes of persons often require separate treatment. Every
classification is in some degree likely to produce some inequality, and mere production of
inequality is not enough20 and does not per se amount to discrimination within the inhibition
of equal protection clause.21 Equality clause forbids discrimination and not classification. 22
What Art. 14 prohibits is class legislation and not reasonable classification for the purpose of
legislation.23 In the instant matter the latter is utilized and thus is not prohibited by Art.14.

16
Rameshwar Prasad v, UOI, AIR 980 SC (2006), para 274
17
Rameshwar v. Commr., AIR 498 SC (1939)
18
Hans Muller of Nurenburgv. Superintendent, Presidency Jail, Calcutta &Ors: AIR 367 SC (1955).
19
KedarNath v. State of W.B., AIR 404 (406) SC (1953).
20
CharanjitLal v. UOI (SCR 869 (1950)) Fazl Ai, J
21
State of Bombay v. Balsara, 682 SCR (708-09) (1951).
22
State of Bihar v. Bihar State +2 Lectures Association, AIR 1948 SC (2007).
23
Budhan v. State of Bihar,1 SCR 1045 (1049) (1955)
 The principle does not take away from the State the power of classifying
persons for legitimate purposes24 and the presumption of reasonableness is always in favour
of the Constitutionality of an enactment, since it must be assumed that the legislature
understands and correctly appreciates the needs of its own people, that its laws are directed to
problems made manifest by experience and its discriminations are based on adequate
grounds.25 If the Legislature takes care to reasonably classify persons for legislative purposes
and if it equally with all persons belonging to a well-defined class, it is not open to charge of
denial of equal protection on the ground that the law does not apply to other persons. 26 Hence
s.3 (b) of the Kerala Hindu Places of Worship (Authorization of Entry) Rules, 1965 is neither
ultra-vires the parent Act nor the Constitution of India.

Article 14 – a broader perspective.

Art. 14 do not insist that legislative classification should be scientifically

perfect or logically complete.27The difference which will warrant a reasonable classification
need not be great. What is required is that it must be real and substantial and must bear some
just and reasonable relation to the legislation. 28 The justification for classification may be
historical29 and age may form a rational basis in relation to the object of particular subjects of
legislation.30 It was held that 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
‘NaishtikBrahmachari’.31Alike protective discrimination32, the doctrine of equality eclipses
itself in many circumstances and one such is the instant matter. Also, the framers of the

24
Supra n. 16,17.
25
See also Prabhu Das v. UOI, AIR 1044 SC (1966); Ramkrishna v. Tendolkar, AIR 538 SC (1958) Casebook
(1), p. 109; Garg, R.K. v,. UOI, AIR 2138 SC (1981) (paras 7-8) (Bearer Bonds case); Gujarat Pravasi v.
Mahamandal, AIR 3894 SC (2004);G.K. Krishnan v. State of T.N. AIR 583 SC (1975) &Malwa Bus Service(P)
Ltd. v. State of Punjab AIR 1983 SC 634.
26
State of W.B. v. Anwar Ali, 284 SCR (1952).
27
Kameshwar Singh v. State of Bihar, AIR 91 Pat (1954); State of Bombay v. F.N. Balsara, AIR 318 SC (1951)
28
Ameeroonissa v. Mahboob, 404 SCR (1953); Suraj Mall v. Viswanath, AIR 545 SC (1953).
29
See Mohanlal v. Man Singh, AIR 73 SC (1962); Bhaiyalal v. State of M.P., AIR 981 SC (1962); Lachman v.
State of Punjab, AIR 223 (233) SC (1963); State of M.P. v. Bhopal Sugar Industries, AIR 1179 SC (1964).
30
See Chitralekha v. State of Mysore, AIR 1823 (1831) SC (1964); Sunil v. Delhi Administration, AIR 1675
SC (1978) (para 229).
31
See dissenting judgement of IndhuMalhotra .J ;Indian Young Lawyers Association & Ors v. The State of
Kerala &Ors.,Writ petition(Civil) No. 373 of 2006; See also MarkandeyaKatju,J, A dissenting view, The Hindu,
October 04 2018, (16 Aug 2020) , https://www.thehindu.com/opinion/op-ed/a-dissenting-
view/article25114433.ece
32
Ashok Kumar Thakur v. UOI, 6 SCC 1 (2008); See also J.S, Verma,J Report of the committee on amendments
to criminal Law. P.64 (23 Jan 2013) .
Constitution wanted to leave the personal laws outside the ambit of Part III of the
Constitution.33

Equality clauses in Art. 14, 15 and 16 must be read jointly. Sex is a sound basis for
classification.34 The classification on the ground of sex is permissible provided that
classification is the result of other considerations besides the fact that the persons belonging
to that class are of a particular sex.35 Reasonable discrimination between female and male for
an object sought to be achieved is permissible. It was found that 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 ‘NaishtikBrahmachari’36

a) Does temple come within the ambit of places of public resort under Article 15?

The Constitutional framers purposely excluded ‘religious institutions and places of

public worship’ in the expression ‘and place of public resort’ in Art 15. The fact that the
expression ‘and place of public resort’ is added to a specific enumeration of ‘wells, tanks,
bathing ghats, roads’ indicates that the expression is to be interpreted by the rule of ejusdem
generis.37 Hence, shops, clubs, cinemas and other places of public entertainment cannot come
within the scope of sub clause, (b) of Art. 15(1). For the same reason, religious institutions
and places of public worship appear to be excluded from the purview of Art. 15 (2) and that
is why they needed separate provision, in Arts. 25 (2) (b) and 26 (b).38 Also the compound of
a private temple, enclosed by a wall is not a place of public resort. 39 Thus in the instant matter
Art 15 cannot be invoked as religious institutions and places of public worship are excluded
from the ambit of the same. The Constituent Assembly considered it fit not to include ‘places
of worship’ or ‘temples’ within the ambit of Draft Article 9 40 of the Constitution. The

33
Gajendragadkar. J ,State of Bombay v. NarasuAppa Mali, AIR 84 Bom (1952)
34
Vijay Lakshmi v. Punjab University,AIR 3331 SC (2003) [2 Judges Bench],
35
DattatrayaMotiram More v. State of Bombay, AIR 311 Bom, (1953).
36
S.Mahendran v. The Secretary, Travancore, AIR 42 Ker (1993)
37
State of Karnataka v. AppaBalaIngale, 1029 Cr LJ SC (1993) (paras. 2, 40).
38
3,  DD Basu,  Commentry on the Constitution of India (9 th edn. Lexis Nexis,  2014) (Aug.21,  2020, 03:25
pm)https://advance.lexis.com/document/documentslider/?pdmfid=1523890&crid=c9cfe15c-
19cf4978aec5d0ad87e2dc59&pdistocdocslideraccess=true&config=&pddocfullpath=%2Fshared%2Fdocument
%2Fanalytical-materials-in%2Furn%3AcontentItem%3A5WKG-0GB1-FK0M-S3KF-00000-
00&pdcomponentid=505164&pdtocnodeidentifier=AABAABAABAAB&ecomp=xscbk&prid=a25d7e3c-398a-
4232-a77c-c86be7748a68
39
Khudi Sheikh v. K.E. 6 CWN 33 (1901).
40
Ind Const. art.15.
conscious deletion of “temples” and “places of worship” from the Article 15 has to be given
due consideration.

b) Can menstruating woman called as untouchables to invoke Art. 17?

There has been no such exclusionary practice to invoke Art.17. The term
untouchable is beyond the scope to bring it in the instant matter. The word “untouchability”
though not defined either in the Constitution or in the The Untouchability (Offences) Act,
1955, it unmistakably refers to the “despicable” obsolete attitude practiced towards persons
belonging to “lower” castes in the Pre-Constitution India, particularly to Harijans. 41 Art. 17,
places the word “untouchability” in inverted comes; accordingly the subject matter of the
article is not untouchability in its literal or grammatical sense, but the practices as it has
developed historically in India.42 Art. 17 is self-operating and if read with Art. 35(a) (ii), it
would follow that untouchability has been abolished and its practice in any form is
forbidden.43 Also Oxford Study Dictionary defines the expression “untouchable” as, a
member of the lower Hindu Group (non-caste) in India, held to defile members of a higher
caste on contact. Thus it is clear that invoking Art. 17 in this litigation are purely irrelevant.
The courts have indicated that untouchability does not include all instances in which a person
is treated unclean and a source of pollution. It does not include such temporary and expiable
states of pollution as those suffered by e.g., women on child birth, menstruating women,
mourners, persons with contagious diseases, persons who eat forbidden food or violate
prescribed cleanliness.44 “Untouchability means pollution by the touch of certain persons by
reason of their birth in a particular state of family. It is a phenomenon peculiar to Hinduism
and has got no warrant in reason or sastras”.45 Thus it would be absurd to bring the term
untouchable in the instant matter.

The Supreme Court has also declared that there is a fundamental distinction
between excluding persons from temples open for purpose of worship to Hindu public in
general on the ground that they belong to the excluded communities and excluding persons

41
N. Adithyan v. Travancore Dewaswam Board, in AIR 3538 SC (2002).
42
Devarajiah v. Padmanna, AIR 84 Mys (1958); State of M.P. v. Ram KrishanaBolathia, AIR 1198 SC (1995).
43
Jai Singh v. UOI, AIR 117 Raj (FB) (1993)
44
Marc Galanter, Competing Equalities – Law of Backward Classes in India, 1984 ,p. 145-46; State of M.P. v.
Puran Chand, AIR 352 MP (1958); Bangalore W&C&S Mills v. State of Mysore, AIR 85 Mys (1958), See
also, 3 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 3176 ( 8th Edn.
LexisNexis 2008)
45
Mahatma Gandhi, My Philosophy of Life 146 (A.T. Hingorani, 1961)
from denominational temples on the ground that they are not objects within the benefit of the
foundation. The former will be hit by Art. 17 and the latter are protected under Art. 26.46

Art. 15 (2) and 17 furnish historical and social dissatisfaction inflicted on

those who were treated as untouchables and this like and to provide them all rights as any
other citizen.47 Thus it is evident about the instances where the aforementioned articles were
invoked and hence it is irrelevant to invoke the same in the instant matter.

3. Ayyapas as a Religious denomination.

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 Articles 14 or 15 of the Constitution. Thus even if there is strong emphasis
on the infringement of fundamental rights there is Constitutional groundwork to eclipse the
same when a religious matter is in colloquium. Thus the religious denominations or sects
thereof has right to practise their religion according to their beliefs and practises discounting
other fundamental rights.Freedom guaranteed under Art. 25 is such freedom which does not
encroach upon a similar freedom of other persons.48 Every person has a fundamental right not
merely to entertain the religious belief of his choice but also exhibit this belief and ideas in a
manner which does not infringe the religious right and personal freedom of others.49

The word ‘denomination’ has been defined to mean “a collection of

individuals classed together under the same name; a religious sect or body having a common
faith and organization and designated by a distinctive name”. 50 In the case of Sabarimala the
devotees are classed together under the name of Lord Ayyapa and have a common faith and
are organized in the name of penance or vratham of 41 days. In addition the devotees who
visit the temple equate themselves with the Lord and are designated as Ayyapas. Thus they
have a common faith and organization and are also designated by a distinctive name.
Therefore, the devotees of the Sabarimala Lord Ayyapa fall under the category of a religious
denomination and have the Constitutional insulation to manage their own affairs.
46
Sri VenkataramanaDevaru v. State of Mysore, AIR 225 SC (1958).
47
Chatter Singh v. State of Rajasthan, AIR 303 SC (1997).
48
Acharya Maharajshri NarendraPrasadji ..& Ors. v. The State of Gujarat &Ors,1 SCC 11(1975)

Lili Thomas v. UOI, AIR 1650 SC (2000); SarlaMudgal v. UOI, 3 SCC 611 (1995).
49

Commr., H.R.E v. Lakshmindra, 1005 SCR (1954); S.P Mittial v. UOI, AIR 1 SC(1983) (20-21); Sri
50

AdiVisheshwara v. State of U.P.4 SCC 606 (1997).

 The meaning ascribed to religious denomination by this Court in
Commissioner, Hindu Religious Endowments51case, and subsequent cases is not a strait-jacket
formula, but a working formula. In S.P. Mittal v. Union of India & Ors,52it was observed 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. If there are clear attributes that there exists a sect, which is identifiable as
being distinct by its beliefs and practises, and having a collection of followers who follow the
same faith, it would be identified as a ‘religious denomination’”.

Thus in the instant matter the definition of a religious denomination extracting

in an expansive manner, encompasses the devotees of the Lord Ayyapa as the devotees of
Sabarimala satisfies the conditions to constitute a religious denomination. They are united in
the name of a common faith, organization, designated by a distinctive name (Ayyapas) and
have a collection of followers who follow the same faith. Thus the restriction imposed to
young women amounts to an essential practice.

a) Deity in the eyes of Law.

Despite formal recognition, in the sense of modern law, coming only with the
introduction of the common law into India, Hindus always seem to consider the Idol as a
person.53 In PramathaNathMullick v. Pradyumna Kumar Mullick54 it was held that the law
recognizes an idol or deity as a juristic person which can own property and can sue and be
sued in the Court of law. The law recognizes legal personality to the deity manifested in each
temple55 which extends to the protection of the form in which it is manifested and to shelter
itself from external hindrances restricting the same. In the instant matter to preserve the
manifestation of the deity, its rights are to be recognized to allow the religious practices for
the conservation of the same. Thus deity being a juristic person and possesses certain rights,
it is necessary to preserve his manifestation by observed traditions which is an essential
practice.

4. Constitutional morality-an icon to upheld constitutional values.

51
(1954) SCR 1005
52
See concurring judgment of Chinnappa Reddy, J. AIR 1 SC(1983) (20-21).
53
KartickMaheshwari & Vishnu Vardhan Shankar, Stone Gods and Earthly interests: The Jural relations and
consequences of attributing legal personality to Hindu Idols (2004); See also written submissions: Adv J Sai
Deepak, Indian Young Lawyers Association &Ors v. The State of Kerala &Ors., Writ petition (Civil) No. 373 of
2006.
54
27 BOM LR (1925)
55
YogendraNathNaskar v.Commissioner of the Income-Tax, Calcutta, AIR 1089 (1969).
 The Supreme Court invoked constitutional morality in Indian Young Lawyers
Association v. State of Kerala56 by defining the term as “moral values underpinning the text
of the constitution” which help ascertain the true meaning of the Constitution and help
achieve its objectives and added:

“Equality and non-discrimination is 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.57”

The term Constitutional morality simply means to stick on to the basic norms
or to the structure of the Constitution. It can be interpreted as an extended version of the
Basic Structure doctrine. The recent judgements shaping the golden triangle had stimulated
highlights on the principles of Constitutional morality. 58 For the fulfilment of one of the
fundamental rights, if another right is twisted or broken, then the Constitution itself is broken
according to the principle of Constitutional morality. Thus, there has to be an equity and
harmony when judicial decisions are pronounced when matters pertaining to fundamental
rights are considered.

IV. Conclusion

A temple is not merely a place of congregation, wherein decisions are made or

a public speaker recites something. It is a place where devotees gather for the glimpse of
divineness. Hindu temple is the abode of a deity where he or she is manifested in a peculiar
form and devotees respect this form by observing the traditions that has to be pursued for
each form. It is in this framework that the issue of Sabarimala temple entry must be viewed.
Conflicting to what has been propagated; there is no blanket ban on the entry of women into
the temple. There is only a restriction on the entry of women of active menstrual age and this
56
Writ petition(Civil) No. 373 of 2006 (India)
57
IndhuMalhotra,J , Id.
58
See, Justice K.S. Puttaswamy&Anr. v. UOI &Ors., W.P. (CIVIL) No. 494 of 2012 (India); Navtej Singh Johar
v. Union of India. W.P. (Crl.) No. 76 of 2016 (India); Government of NCT of Delhi v. Union of India,Civil
Appeal No.s. 2357 of 2017.
has been placed to cater to the unique manifestation of Lord Ayyappa in his
NaishtikaBrahmachari form.

The question of whether the devotees of Sabarimala constituted a religious

denomination played a crucial role to the case such that the answer for the same will remark
whether the restriction on women of age 10-50 was in accordance with the impugned Act and
is constitutional. Even though the majority ruled that the Sabarimala devotees do not
constitute a religious denomination, it is indeed a narrow interpretation. The sole dissent of J
Malhotra’s formulated a widespread significance among common people as well as to the
history of judicial decision in India. She recognized that the right in Article 25 is available to
every person; however, according to her, the right is subject to the tenets of that faith or
shrine and could only be claimed by devotees of that faith. This implies that the petitioners
shall claim the right based on the affirmation of a belief in the particular manifestation of the
deity (i,e. eternal celibate). She also held that the exclusionary practice amounts to a custom
as per the doctrine of Res Judicata on the findings of the Kerala High court’s decision based
upon direct evidence. Furthermore, she also relied on the memoir of survey of Travancore
and Cochin State to reiterate the same.

Thus in a Pluralist country like India unified incredibly in diversity, the

Constitution of India is the milestone to deliver justice among its citizens. It has to be
interpreted in consonance with the objectives set forth by the makers of the Constitution and
by taking into consideration the class which is going to be at the larger impact on
pronouncing the judgement. In the case of Sabarimala, the rights to be discussed should have
been discussed as a whole rather than viewing every single fundamental right as an isolated
one. Justice would only be attained when every right is considered conjointly as it is
interlocked in many a instances and in the absence of discussion of right X, when dealing
with right Y would cause gross injustice to the people at large as well as to the very aim of
each right. That is art of Constitutional forefathers which is the jurisprudence of the
Constitution of India.