TEAM CODE: VII C

CASE COMMENTARY

Indian Young Lawyers Association & Ors. …Petitioners

v/s
State of Kerela & Ors. …
Respondents

Subject: Civil Procedure Code-II

SUBMITTED TO
MOHAMMAD SALEEM SIR
Assistant Professor, Faculty of Law
CONTENTS

INTRODUCTION

FACTS OF THE CASE

ARGUMENTS

JUDGEMENT

IMPACT ON THE SOCIETY

COMMENT

CONCLUSION
INTRODUCTION

Sabarimala Temple, devoted to Lord Ayyappa, is a temple of great antiquity. The temple is

situated over one of the eighteen mountains spread over the Western Ghats known as
Sannidhanam. Situated in the district of Pathanamthitta in Kerala. The faithful believe that Lord
Ayyappa’s powers derive from his asceticism, in particular from his being celibate. Celibacy is a
practice adopted by pilgrims before and during the pilgrimage. Those who believe in Lord
Ayyappa and offer prayers are expected to follow a strict ‘Vratham’ or a vow over a period of 41
days which lays down a set of practices. The practise of prohibiting the entry of women and
barring their participation in the 41 days penance ‘vratham’ has been observed by the Ayyapan
community since time immemorial as claimed by the Thantri of the temple.   The deity at
Sabarimala takes the form of a Naishtika Brahmacharya. Along with observing a penance, the
followers are supposed to wear black clothes and cut all family ties while observing the
‘vratham’. It is claimed that a deviation from the celibacy and austerity observed by the
followers would be caused by the presence of women. Women have not been allowed to be a
part of this pilgrimage due to their physiological features, considering them weak and unfit for
the arduous journey. Women are also considered to be impure while menstruating according to
Hindu traditions and therefore the temple authorities have placed restrictions on the entry of
women between the ages 10 and 50 to preserve the temple’s sanctity.

In 1990, S Mahendran filed a  plea in Kerala High Court seeking a ban on women’s exclusion of
entry to the temple. But, Kerala High Court upheld the age-old restriction on women of a certain
age-group entering the temple. On August 4, 2006, the Indian Young Lawyers Association filed
a plea in the Supreme Court seeking to ensure entry of female devotees between the age group of
10 to 50 at the Lord Ayyappa Temple at Sabarimala.  On September 28, 2018, the Supreme
Court passed a verdict that allows entry of women in Sabarimala temple. This judgment
addressed various issues before coming to this verdict, the article will further address the issues
raised by the petitioners and discussed in the case.
FACTS OF THE CASE

The Petitioners state that the present case pertains to a centuries old custom of prohibiting entry
of women between the ages of 10 years to 50 years into the Sabarimala Temple of Lord
Ayyappa. The customary practise, as codified in Rule 3(b) of the 1965 Rules read with the
Notifications issued by the Travancore Devaswom Board dated October 21, 1955 and November
27, 1956, does not meet the tests of Articles 14, 15 and 21 of the Constitution. This exclusionary
practice violates Article 14 as the classification lacks a Constitutional object. It is manifestly
arbitrary as it is based on physiological factors alone and does not serve any valid object. The
customary practice violates Article 15(1) of the Constitution as it is based on ‘sex’ alone. The
practice also violates Article 15(2)(b) since the Sabarimala Temple is a public place of worship
being open and dedicated to the public and is partly funded by the State under Article 290A.
Article 25 guarantees the Fundamental Right to an individual to worship or follow any religion.
The 1965 Act has been passed in furtherance of the goals enshrined in Article 25(2)(b) as a
‘measure of social reform’. The Act contains no prohibition against women from entering any
public temple. Rule 3(b) of the 1965 Rules is ultra vires the Act insofar as it prohibits the entry
of women. It was contended that the devotees of Lord Ayyappa do not constitute a religious
denomination under Article 26 as they do not have a common faith, or a distinct name. The
devotees of Lord Ayyappa are not unified on the basis of some distinct set of practises. Every
temple in India has its own different set of rituals. It differs from region to region. A minor
difference in rituals and ceremonies does not make them a separate religious denomination. It
was further submitted that there are no exclusive followers of this Temple except general Hindu
followers visiting any Hindu temple. Even if the Sabarimala Temple is taken to be a religious
denomination, the restriction on the entry of women is not an essential religious practise. The
prohibition on women between the ages of 10 to 50 years from entering the temple does not
constitute the core foundation of the assumed religious denomination. Any law or custom to be
protected under Article 26 must have Constitutional legitimacy. The exclusionary practise is
violative of Article 21, as it has the impact of casting a stigma on women as they are considered
to be polluted, which has a huge psychological impact on them, and undermines their dignity
under Article 21. The exclusionary practise is violative of Article 17 as it is a direct form of
“Untouchability”. Excluding women from public places such as temples, based on menstruation,
is a form of ‘untouchability’. This Article is enforceable both against non-State as well as State
actors. The Travancore Devaswom Board is a statutorily created authority under the Travancore
– Cochin Hindu Religious Institutions Act, 1950, and receives an annual payment from the
Consolidated Fund of India under Article 290A. It would squarely fall within the ambit of “other
authorities” in Article 12, and is duty bound to give effect to the Fundamental Rights. Article 17
prohibits untouchability “in any form” in order to abolish all practises based on notions of purity,
and pollution. The exclusion of menstruating women is on the same footing as the exclusion of
oppressed classes. The term “morality” used in Articles 25 and 26 refers to Constitutional
Morality, and not an individualised or sectionalised sense of morality. It must be informed by
Articles 14, 15, 17, 38, and 51A. Mr. Ramachandran, learned Amicus Curiae submitted that Rule
3(b) of the 1965 Act is ultra vires Section 3 of the 1965 Act insofar as it seeks to protect customs
and usages, which Section 3 specifically over-rides. The justification for Rule 3 cannot flow
from the proviso to Section 3, since the proviso can only be interpreted in line with the decision
of this Court in Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors. It is ultra vires
Section 4 since it provides that the Rules framed thereunder cannot be discriminatory against any
section or class.
ARGUMENTS

In favour
Those in favour of allowing women entry to Sabarimala temple argue that menstruation is not
impure, and that women have equal right to enter the temple. Some pointed out that women are
allowed to enter other temples of Ayyappan, so that the exception for Sabarimala is unusual and
inconsistent. A frequent criticism is that claims that women are impure, based on the
physiological process of menstruation, is gender discrimination.
According to the leftist historian, Rajan Gurukkal, there is "neither ritual sanctity nor scientific
justification" for the argument of menstrual pollution. He opines that the shrine was originally a
"cult spot" for a tribal deity, Ayyanar of local forest dwellers before it became a place of worship
for Ayyappa in the 15th century. Unlike traditional Hindu beliefs that menstruation is impure, the
tribals considered it to be auspicious and a symbol of fertility. They thronged to the temple along
with their women and children of all ages until the 1960s. Gurukkal also argues that there is
documented evidence of young savarna women making their way into the temple till the 1980s.
The chief minister of Kerala, Pinarayi Vijayan, said that his party (LDF) has always stood for
gender equality and therefore will provide facilities and protection for women pilgrims to
Sabarimala.

Against

Some believe that such religious restriction is not odd as they are as per traditions to respect the
deity of the temple; similar to this there are restrictions against men too in several prominent
temples, for example Bramha temple, Pushkar. Sai Deepak, the lawyer representing two women's
groups and a devotee sangam in the Supreme Court case has argued that the deity Ayyappan
should be considered as a person, and should be given the Constitutional right to privacy under
Article 21, thus restricting women of menstruating age from visiting him per his
will. Prominent Jain Acharya Yugbhushan Suri Maharaj, also known as Pandit Maharaj, has said
that sanctity was a religious issue and that it was connected to fundamental religious rights.
Commenting on the Sabarimala temple row, Pandit Maharaj told IndiaToday.in, "Whether it is
Sabarimala or Jharkhand's Shikharji, the agitations are for sanctity," adding, "Religion talks
about inner belief and sanctity. This should be respected. I am not against the judiciary or the
Supreme Court, but they should not overlook the belief of the people." Also, Art of Living
founder Ravi Shankar batted for the rules that have been traditionally followed at the sanctum
sanctorum of the Ayyappa Temple in Sabarimala. Some women choose to not enter the temple
believing that it would be an insult to Malikappurathamma's love and sacrifice. Others believe
that Ayyappan himself placed restrictions on women entering the temple because he wanted to
be celibate, and the presence of women of reproductive age group would distract him from this
cause. Others simply cite the at least 500-year-old tradition should be continued to be practised.
Another point that was raised against the women was the fact that there are multiple temples
dedicated to the Hindu deity Ayyappa . Out of the many templed dedicated to Ayyappa, only one
temple restricts the entry of the women in reproductive age. Some believe in the sexist taboo that
menstruation is impure (thereby making women of menstruating age also impure), and that it is a
sin to visit a Hindu god while they are impure. Another argument founded on sexism is that
Sabarimala temple is situated on the top of a hill surrounded by mountains and dense forests,
which some regard as physically challenging to women to navigate. An official of Sabarimala
has pointed out that there will be lack of adequate sanitation facilities for women, thus making
their journey difficult. Hospital facilities are also spars. Some arguments centre on the male-as-
norm perspective that relegates the lived experience of women to that of the "other". These
include arguments that female pilgrims will 'distract' the male pilgrims who follow a 41-day
period of strict abstinence from sex,  and a statement by the Travancore Dewaswom Board
president that allowing women to the temple will lead to 'immoral activities' and turn the place
into 'a spot for sex tourism like Thailand'. A US-based cardiologist pointed out that menstruating
women are barred from visiting temples because it can lead to endometriosis, but her arguments
were later dismissed as being pseudoscientific.
 JUDGEMENT
The court by considering and deliberating over every important factor delivered a judgment in
favour of the petitioner in a 4:1 majority. The court’s reasoning is discussed below.

Majority views on all the issues

 Justice DY Chandrachud in his judgment stated that restricting only women from the right to
worship signifies the subordination of women. He further comments that the exclusionary
practise which is based on ‘physiological factors’  that are non-religious in nature, suggesting
that women cannot keep the ‘vrutham’ and take part in the pilgrimage is to stigmatize and
stereotype them and therefore is a form of social discrimination. The reason because
menstruate for their exclusion is unconstitutional, says Chandrachud. Justice Mishra declared
any rule which differentiates and undermines women’s dignity shall be struck down as
violative of Article 14 and 15. The judges holding the majority opinion considered this
exclusion of women as discriminatory under Article 25 which equally grants all the people
irrespective of their sex, right to freely practise religion. The petitioners, especially women
NGO “Happy to bleed ”brings in question ‘Article 17’ has also been talked about. Article 17
proscribes untouchability in any form and the exclusion of women from religious places and
practices because they menstruate and are considered impure during that time is no less than a
form of discrimination than exclusion of oppressed castes as untouchables. This approach held
by the judges broadens the ambit of Article 17 and stresses that the Constitution should not
become an instrument for the perpetuation of patriarchy.
 The respondents submitted that since celibacy is the foremost requirement for all the
followers, women between the ages of ten and fifty must not be allowed in Sabarimala. Justice
Chandrachud’s view on this contention was that if a practice of religion is essential to a
religion, it rules out the process of testing the practice for Constitutional morality. This could
lead to the perpetuation of an immoral and unconstitutional practice to exist in the name of
religious freedom. Thus it is more important that “The test instead of considering whether the
practice is essential or not, it should consider whether the practice is constitutional or not”.At
the threshold, Chandrachud J. found that the Respondents had failed to establish that the
 exclusion of women from Sabarimala is either an obligatory part of religion or has been
consistently practiced over the years. This is because no scriptural or textual evidence has
been shown to back up this practice, and it is not possible to say that the very character of
Hinduism would be changed if women were to be allowed entry into Sabarimala (paragraph
123). This practice appeared to have been commenced only in 1950, and therefore can’t be
called as the ageless practice running since time immemorial and can’t be held as an “essential
religious practice”.
 Under article 26, a separate denomination requires a system of distinctive beliefs, a separate
name, and a common organisation. The Sabarimala Temple’s public character (where all
Hindus, and even people from other faiths) can go and worship, along with other temples to
Lord Ayappa where the prohibition of women does not apply, leads the two judges to hold that
it does not constitute a separate “denomination.” Misra CJI and Khanwilkar J. then hold that
the fundamental rights chapter applies to the Temple, as it is governed by a statutory body (the
Devaswom Board). It gets state funding under Article 290-A of the Constitution. The religious
ceremonies at Sabarimala Temple are not distinct from any other Hindu temples. Devotees of
Lord Ayyappa do not form separate religious denominations, Justice Chandrachud said and
added that any custom or religious practice if violates the dignity of women by denying them
entry due to her physiology is unconstitutional.  
 Rule 3 of the Kerala Hindu Places of Public Worship(Authorisation of Entry) 1965 have been
found in direct contradiction with the proviso of its parent act. Section 3 of the 1965 Act
prohibits discrimination against “any class” of Hindus. Judges Misra, Nariman and
Chandrachud buttressed that women between the ages 10 and 50 did form a “class” of Hindus
and as discussed earlier the exclusionary practise amounts to ‘discrimination’ on the ground of
sex. The exclusion of women is destructive of their dignity and is fundamentally at odds with
the constitutional values. Therefore, rule 3(b) of the said act is ultra vires with the Kerala
Hindu Places of Public Worship(Authorisation of Entry) Act 1965.Moreover,  Justice Nariman
holds it directly contrary to Article 15(1) and strikes it down along with Justices Misra,
Khanwilkar and Chandrachud. Equality in all matters, including religious matters and right to
worship and opportunity, gives true meaning to the liberty of belief, faith and worship were
ascertained by this judgment.
 Dissenting views of Justice Indu Malhotra:

 Justice Indu Malhotra was the only judge who gave a dissenting opinion and the only woman
on the bench. She forced her opinion that Article 25 guarantees to every individual the right to
freely profess, practise and propagate their faith, in accordance with the tenets of their
religion’ and the exclusionary practise was in accordance with the tenets of the ‘Ayappan’
community, therefore is not violative of Article 25. Further, she said that the Ayappan
community is a  separate religious denomination or sect which is protected under Article 26 to
manage its own religious affairs. She said that this matter is an amalgamated question of both
fact and law and should be decided before a competent court of civil jurisdiction. Justice
Malhotra opined that courts do not have power to intervene in religious personal matters and
unless very dire religious practices should not be viewed with rationality. She ruled that Rule
3(b) of the 1965 Rules is not ultra vires Section 3 of the 1965 Act but just an exception for the
benefit of the religious denomination. She stated that Judicial review of religious practises
should not be taken care of by the court as it is outside the ambit of the court to rationalize
religion.
IMPACT ON THE SOCIETY
The Supreme Court verdict in the Sabarimala temple case has created profound disquiet in
southern India. Contrary to cosmopolitan wisdom that viewed the majority judgment as a leap
forward for gender equality, there have been protests by women against the right of unrestricted
entry to the shrine. What is being dubbed the #PreparedToWait campaign may well be debunked
in some circles as evidence of either ‘false consciousness’ or a short-lived conservative backlash.
But the protests have gathered enough momentum to force political parties to demand both a
judicial review and a reaffirmation of Sabarimala’s traditions by the legislature. A larger battle, it
would seem, has just begun.

Changes in religious practice are an ongoing process. Most Hindu shrines, especially those
associated with the Shakta traditions, have over the decades abandoned animal sacrifice. In many
temples, it is no longer considered obligatory to have worship conducted by Brahmin priests.
There are instances— admittedly few— of women priests conducting Hindu marriages.

Apart from rituals, the changes have embraced religious custom. Backed by legislation, Hindu
temples no longer have caste restrictions on entry and worship. The Supreme Court has mooted a
proposal to even allow the entry of non-Hindus to the Jagannath temple in Puri. Traditional
Hindu laws have yielded way to gender equality in matters of inheritance and society has
accepted it without fuss. Indeed, traditional discriminatory practices — while still not totally
eradicated — are on the retreat in Hindu society.

Thanks to the convergence between everyday religion and the media, the lived Hindu religion is
evolving very rapidly. With greater prosperity, traditional pilgrimages have been embellished by
organised tourism. A combination of Bollywood and media has seen localised customs such as
Karva Chauth and fasting on Tuesdays acquire a pan-Indian character. The Santoshi Ma cult was
entirely a celluloid creation. Ganesh has emerged as a national deity, with an appeal cutting
across class and geography. In eastern India, community Durga Pujas have become more
widespread and certainly more opulent. Although the maha aartis that were fleetingly witnessed
in Mumbai in the wake of the 1992-93 riots haven’t caught on, today’s Hinduism is definitely
more communitarian, more participative and definitely less inclined to exclude people on
grounds of theological or other schisms. In the modern temples that have mushroomed in urban
India, worship of Krishna, Shiva and other deities is conducted side by side and harmoniously,
often by the same set of priests. At the onset of the 20th century, this would have been
unimaginable.

It is important to remember that most of the socio-religious changes in the Hindu communities
aren’t only due to legislation. Certainly, changes in the law played an important role in edging
out child marriage, according inheritance rights to women and regulating the terms of marriage
and divorce. But these are issues that any modern state has an obligation to regulate. Apart from
the legal strictures against caste-based oppression and the rights of all castes to worship in
temples, the shifts in the religious life of Hindus have seamlessly evolved. Urbanisation, the
emergence of a diaspora, filmi culture and even Hindutva have contributed to the shifts. While
some may lament that the changes have played havoc with the more devotional facets of the
Hindu inheritance— partly compensated by the appeal of modern spiritual gurus— none can
deny that the reformation of popular Hinduism was mostly internally generated. There was no
overriding state and no overriding pope to steer the course of a way of life.
COMMENT
The choice by the Supreme Court to keep a ultimate choice on audit request on the Sabarimala
issue in hold is in reality bizarre and phenomenal. New issues and contentions are commonly not
permitted and just show blunders are considered. By alluding the issue to a bigger seat, the
summit court has permitted the request to fill the need of an allure. Of late, the court has gave off
an impression of being wincing from its prime obligation of looking at issues absolutely through
the crystal of sacred standards. A hesitance to cause some disruption the decision administration
excessively is perceptible. The judgment will undoubtedly put the Kerala government in a bind.
A stay might have been the better alternative. It would have been important if the Constitution
Bench had fixed a quick date for a bigger Bench to hear the survey requests thinking about that
the mandala puja is to initiate right away. Since two of the adjudicators have communicated their
dissatisfaction to hear the issue over again, there is a solid chance that the audit request may fall
flat. On the off chance that the Constitution is sacrosanct, strict confidence is additionally
consecrated. Legal obstruction in certain since quite a while ago held strict practices is neither
able nor feasible. There are media reports that there is a drop in Sabarimala appointments.
Notwithstanding, the genuine reason for worry here is the chance of ladies enthusiasts getting
presented to actual assault and misuse. Keeping up peace will be an intense undertaking when
there is an unexpected flood of male lovers who may dwarf ladies aficionados.

All things considered, it was some comfort that it didn't opposite or remain its judgment
permitting the section of ladies of any age into the Sabarimala sanctuary. Despite the fact that
ladies in the 10-50 age gathering can in any case legitimately enter the sanctuary, the possibility
of them being permitted to have Ayyappa darshan looks dreary. Antagonistic rivals of ladies'
entrance appear to be resolved to set up bars to keep ladies of bleeding age from entering the
sanctuary and 'to safeguard the sacredness' of the sanctuary. Last time, there were excited
assaults and 'cleansing ceremonies' stood out as truly newsworthy. It isn't clear when the first
decision stands why the State government presently regards it option to request that ladies get
Supreme Court's organization for 'security'. The Left government appears to have created cold
feet for dread that it should confront a political reaction from the 'genuine Ayyappa aficionados'.
Conservatives contradict ladies' quality in the sanctuary in light of the fact that the divinity is 'in
abstinent state'. In any case, nonconformists believe that the entryways of the houses, all things
considered, should be opened up to all, regardless of sex and age. Concerning viewing ladies as
'debased and messy', it must be clarified that the progression of blood from a lady's belly augurs
reproduction. It is an indication of life; propagation of life. The top court's choice to section
ladies' entrance into with different issues of sexual orientation imbalance and allude it to a bigger
Bench 'to consider all issues' relating to confidence versus ladies' privileges and sex balance is
unquestionably amiable to be deciphered as a weakening from its previous position. Parsi and
Muslim ladies excessively should have the option to enter their places of love; it isn't clear why
the current case should be stirred up mind with the disavowal of rights to those ladies. Sexual
orientation segregation or rejection of ladies from a spot or love can't be supported by agama or
attribution of any human condition to a god.. The 'revamping of India' needs the liberation and
strengthening of ladies.

There are always two sides to a decision like to that of coin and there certainly are negative
aspects to the Sabarimala verdict as well. The verdict may for example sow the impetus of a
feeling of insecurity among devotees of the religion and other religions which entails
discriminatory practices. To few the the verdict might seem an unnecessary meddling in the
religious affairs of a community by the judiciary. There must have been some substance to Judge
Indu Malhotra’s dissenting judgment. The verdict has in addition paved way for chaos and
turmoil in Kerala particularly as devotees of Sabarimala in collaboration with devotees from
other temples across Kerala expressed their concerns against the pronouncement However,
irrespective of how many con’s the judgement might entail the pro’s shall have a more
permanent basis to it . Particularly in bestowing women, who always have composed the
disadvantaged and ostracised sections of the populace, their share of dignity and honour.
Change is the law of nature and the nature of law. And to affect a person’s morality tremendous
change in social order is necessary. Change in itself is a kind of rebellion or insurrection. And
history stands witness that people realise the drawbacks of a revolution much sooner than they
do it’s benefits, therefore the positive impact the verdict vouchsafed to be realised and credited
will take time. It is undoubtedly a monumental and prodigious leap by the Supreme Court to
ensure the country’s prosperity by decimating any instances of bigotry.The issue that needs
notification in the verdict is not an entry, but equality. That the embargo has a public character to
it, and that the issue is not one of a sacred tradition purely but of the civil rights, and notions of
material and symbolic equality as well. It might be considered calamitous and cataclysmic that
the courts have become the arbiter of what constitutes “true religion”. However one cannot
escape the fact this situation of chaos and confusion has arisen because the Indian state and
citizenry has been for the last two millennium the agent for the reform and management of
Hinduism and its tenants. Of course beliefs and customs of devotees can never be altered through
a judicial process since the change should stem from within oneself and so long as that does not
happen, we are likely to see religious issues being repeatedly taken to court on charges of
violating principals of fairness and non-discrimination .
CONCLUSION

This judgment comes as a landmark judgment especially during a time when the country is
religiously divided. India is a country where religion plays a very crucial role in shaping society.
The judgment is a progressive one and set an example that the orthodoxy, superstition, and
patriarchy would never undermine the spirit of constitutional morality. Though while looking
into the petitions court has agreed to consider different matters concerned to it in the future but it
again upheld the same principle and did not take away women’s rights which were given to them
in 2018 ruling. The Supreme Court has thus shown that the basic essence of equality and
morality is above any other principle and will be upheld always and forever above all.It is
difficult to imagine a secular court anywhere else in the world ruling on theological creeds and
canons. But until now, the courts in India have determined the scope of the freedom of religion
clauses in India’s Constitution by engaging in precisely such an analysis, by determining whether
a practice over which protection is sought is essential to religion or not. The courts have seen this
as the only alternative they really have. But, as I’ve shown here, there are better alternatives
available. One such alternative is the anti-exclusion test. To adopt this test, the courts must do
two things. First, they must altogether consign to history the essential practices doctrine; and
second, they must put in place a mechanism to determine contested questions of fact and use
such determinations, as Chandrachud J has proposed, to rule on whether a practice, regardless of
its essentiality to religion, is in any manner exclusionary or offensive to human dignity. Such an
approach will allow the courts to respect religious autonomy while, at the same time, striking
down practices that impair people’s access to basic civil rights.