Sabarimala Review Petitions & Reference to 9-Judge Bench

Saji Koduvath, Advocate.

Sabarimala Disputes

The time immemorial custom prevailing at Sabarimala Temple prohibits women, between the age group of 10 to 50 years, to enter this temple. The Kerala High Court, in 1991, upholding the prevailing custom, ruled in S. Mahendran Vs. The Secretary, Travancore Devaswom Board (AIR 1993 Ker 42) that the exclusion of women in their ‘menstruating years’, from Sabarimala Temple, was not violative of Art. 15, 25 and 26 of the Constitution of India.

Sabarimala Case & Constitutional Morality

On September 28, 2018, the Constitution Bench, headed by the Chief Justice allowed, in 4:1 majority (Indian Young Lawyers Association Vs. Union of India: 2019-1 SCC 1), the petition filed under Article 32 of the Constitution, holding that the exclusion of women from Sabarimala Temple violated the fundamental rights and that the custom of exclusion of women was unconstitutional. The Court struck down Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 [framed in exercise of the powers conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965].

Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits ‘religious denomination’ to ban entry of women between the age of 10 to 50 years. It was argued that this provision would play foul of Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex.

The Supreme Court held that the devotees of Lord Ayyappa do not constitute a separate religious denomination; and therefore they cannot claim the benefit of Article 26 of the Constitution of India.

The CJI, speaking also on behalf of Khanwilkar, J., allowed the Writ Petition and observed, inter alia, as under:

(i) Devotees, not constitute ‘denomination’. In view of the law laid down by the Supreme Court, in Commissioner, Hindu Religious Endowments, Madras Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt [1954 SCR 1005: AIR 1954 SC 282] and SP Mittal Vs. Union of India [AIR 1983 SC 1] the devotees of Lord Ayyappa do not constitute a separate religious denomination and, therefore, they cannot claim the benefits of Article 26 of the Constitution of India.;
(ii) Physiological factors of women cannot be raised. The right guaranteed under Article 25(1) of the Constitution has nothing to do with gender. For that matter, physiological factors specifically attributable to women cannot be raised;
(iii) Violation of fundamental rights. Rule 3(b) of the 1965 Rules, framed under the 1965 Act, that stipulates exclusion of entry of women of the age group of 10 to 50 years, was a clear violation of the right of Hindu women to practise their religious beliefs which, in consequence, makes their fundamental right of religion under Article 25(1) a dead letter;
(iv) Morality in Art. 25(1) is Constitutional Morality. the term ‘morality’ occurring in Article 25(1) of the Constitution has to be understood as being synonymous with constitutional morality; and
(v) Not be an essential religious practice. The exclusion of women between ages 10-50 by the Sabarimala Temple could not be an essential religious practice.

Justice Rohinton Nariman concurred the views of CJI, in his separate judgment. He further observed that the exclusion of women from the temple would render their rights under Article 25 meaningless. He stated that there was no deficiency of evidence to conclude that the exclusion of women from Sabarimala violated Article 25(1) of the Constitution.

Justice DY Chandrachud also concurred the views of CJI. He also pointed out that the exclusionary practices of women between age of 10-50 years from the Sabarimala Temple were contrary to constitutional morality. Even if a claim for the exclusion of women from religious worship could be founded in religious texts, it would be subordinate to the constitutional values of liberty, dignity and equality. In any event, the practice of excluding women from the temple at Sabarimala is not an essential religious practice. The Court must decline to grant constitutional legitimacy to practices which derogate from the dignity of women and to their entitlement to an equal citizenship. The social exclusion of women, based on menstrual status, is a form of untouchability which is an anathema to constitutional values. Notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order.

Justice Indu Malhotra handed down a dissenting Judgment holding, inter alia, the following:

(i) Article 14 would not override Article 25.The equality doctrine enshrined under Article 14 would 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.
(ii) The Constitutional Morality implies harmonisation. The Constitutional Morality in a secular polity in a pluralistic society 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.
(iii) The Ayyappans constitute a religious denomination. 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 by which it can manage its internal affairs and is not subject to the social reform mandate under Article 25(2)(b), which applies only to Hindu denominations. The court must respect such rights.
(iv) A working formula to be adopted to decide religious denomination. In the matters as to religious denomination there is no straight jacket formula; but a working formula to be adopted to decide if it is a religious denomination.
(v) Notions of Court should not be the criterion. It is not for the court to see if such are rational or irrational.
(vi) Supreme Court must be a balancing wheel. Supreme Court is not just a guardian of fundamental rights but also a balancing wheel between rights and social control.
(vii) Article 25(2)(b) contemplates a State made law. What is permitted by Article 25(2)(b) is a State made law and not judicial Intervention.
(viii) The proper forum is civil court. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction. The proper forum to ascertain whether a sect constitutes a religious denomination or not would be more appropriately be decided by a civil court through leading evidences.
(ix) Rules are not ultra vires of its parent Act. Rule 3(b) of the 1965 Rules would not be ultra vires Section 3 of its parent Act, the Kerala Hindu Places of Public Worship Act, 1965, 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 thereof, to manage their affairs in matters of religion.
(x) Not fall within the purview of Article 17. The limited restriction on the entry of women during the notified age group would not fall within the purview of Article 17 of the Constitution. It was pointed out that Article 17 pertains to untouchability, refers to caste; and it does not extend to discrimination on the basis of gender.

Justice Indu Malhotra, in light of the discussions and analysis in her judgment, directed that the Writ Petition could not be entertained.

SABARIMALA REVIEW

More than 50 review petitions were filed challenging the ‘Sbarimala verdict’. On November 13, 2018, the Constitution Bench headed by Chief Justice began hearing the review petitions (Kantaru Rajeevaru v. Indian Young Lawyers’ Association) in open court. It was argued that several questions including the scope of the freedom of religion guaranteed under Articles 25 and 26 of the Constitution were yet to be resolved by a larger bench of not less than seven Judges. According to them, the determination of the questions of law referred to a larger bench would have a bearing on the pending writ petitions relating to entry of Muslim women in durgahs/mosques, the entry of Parsi women married to non-Parsis into the holy fire place of Agyari and the challenge to the practice of female genital mutilation in Dawoodi Bohra Community.

Also Read Blog: SABARIMALA REVIEW and Conflict in Findings between Shirur Mutt Case & Durgah Committee Case

Review Petitions – Reference to 9-Judge Bench

The matters involved in this case now stand referred to a higher bench of nine judges. According to the reference, the conflict of opinion between the Seven-judge-decision in Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt [1954 SCR 1005: AIR 1954 SC 282] and Five-judge-decision in Durgah Committee, Ajmer v. Syed Hussain Ali [1962-1 SCR 383: AIR 1961 SC 1402] pertaining to the scope and extent of judicial review with regard to a religious practice, had also to be resolved.

Seven issues were framed for consideration by the larger Bench. It is tagged to the matters relating to entry of Muslim women in durgahs/mosques, the entry of Parsi women married to non-Parsis into the holy fire place of Agyari and the challenge to the practice of female genital mutilation in Dawoodi Bohra Community.

Important Constitutional Questions Yet to be Resolved – Hence Review

There are differences of opinion, between the following two important decisions of the Supreme Court of India, as to the extent of protection ensured under Articles 25 and 26, and as to the restrictions.

The Commr, Hindu Religious Endowments Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (AIR 1954 SC 282); and
Durgah Committee, Ajmer Vs. Syed Hussain Ali (AIR 196 1SC 1402).

The difference is whether the following words in Article 25 and 26 confer ‘wider’ rights?

(i) Subject to public order, morality and health all persons are entitled to the right freely to practise religion (Article 25).

(ii) Subject to public order, morality and health every religious denomination or any section thereof have the right to manage its own affairs in matters of religion. (Article 26).

The divergences are on the following:

Whether protection is limited to practices that are ESSENTIAL and INTEGRAL part of religion (and no other)?	Do Article 25 and 26 that give right ‘to manage its own affairs in matters of religion’ and freedom to ‘practice of religion’ protect ‘Acts Done in pursuance of a religion?
Who determines – what constitutes the essential part of a religion? Is it the COURT?	Is it left to be determined by the Denomination or Section and no outside authority has any jurisdiction to interfere with their decision in such matters?
Whether the Protection is limited to ESSENTIAL and INTEGRAL part of ‘RELIGION’ in a strict sense (and no other)?	Whether it Extends to Religious practices of Denomination/Section, ‘Organization’, ‘Sect, Sub-sect‘, etc.? Whether freedom of religion is guaranteed to all practices, except that which run counter to public order, health and morality? A Religion or any section thereof hold the fundamental right to ‘manage its own affairs‘ (which no legislature can take away) and enjoy complete autonomy (so that no outside authority has any jurisdiction).

In the Sabarimala reference (to higher Bench) Judgment [on review petition in Indian Young Lawyers Association Vs. State of Kerala: 2018] it is observed that there is conflict between the Shirur Mutt Case and Durgah Committee Case as to the following:

Whether the determination on essential religious practices was a matter left to the denomination?
Whether the court has jurisdiction to determine it applying its own conscience?

The scope or extent of judicial review on ‘religious practice’ is the Crux of the review-matter.

In the Review Judgment it is shown-
- Shirur Mutt case [1954 SCR 1005: AIR 1954 SC 282 – Seven judges] held that the essential religious practices of a particular religious denomination should be left to be determined by the denomination itself.
- But Durgah Committee [1962-1 SCR 383: AIR 1961 SC 1402 – Five judges] carved out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs.

Another difference is also seen. It is, as to the extent-of-protection of religious practices given under these decisions.
- The Shirur Mutt case had stated that the extent of protection of essential religious practices extends to essential ‘religious practices’.
- But, the Durgah Committee decision said that the protection must be confined to such ‘religious’ practices as ‘are essential and integral part’ of the ‘RELIGION’ (rather than a sect or faction).

In the Review Judgment, Kantaru Rajeevaru v. Indian Young Lawyers’ Association, the court said as under:

“7. In this context, the decision of the Seven Judges bench of this Court in Commissioner, Hindu Religious Endowments, Madras vs. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur Mutt) holding that what are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself and the subsequent view of a Five Judges bench in Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors. carving out a role for the court in this regard to exclude what the courts determine to be secular practices or superstitious beliefs seem to be in apparent conflict requiring consideration by a larger Bench.”

The findings in these cases, on Article 25 and 26, can be summarised as under:

Durgah Committee (1961) Five Judge Bench. (Author: Gajendragadkar, J.)	Shirur Mutt (1954) Seven Judge Bench. (Author: BK Mukherjea, J.)
1. Limited to ESSENTIAL and INTEGRAL part of religion and no other. “Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.” (Wider application of religious practices is not recognised.)	The right ‘to manage its own affairs in matters of religion’ and the freedom to ‘practice of religion’protect Acts Done in pursuance of a religion. “The contention in broad terms that all secular activities (which may be associated with religion) which do not really constitute an essential part of it, are amenable to State regulation cannot be supported.” “Our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression “practice of religion”.
2. COURT determines “Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.” (That is court determines and ‘carefully scrutinises’. That is, there is scope for the court to apply its own conscience.)	Right of a Religion to ‘manage its own affairs‘ is a fundamental right which no legislature can take away. Denomination or organization enjoys complete autonomy. No outside authority has any jurisdiction. “What constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.” “A religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decision in such matters.” “The ‘right to manage its own affairs in matters’ of religion “is a fundamental right which no legislature can take away“.
3. Religious practices of ‘RELIGION’ in a strict sense. “Unless such practices are found to constitute an essential and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised. In other words, the protection must be confined to such religious practices as are an essential and an integral part of it (RELIGION) and no other.“ “If these practises were found to be purely secular practices or mere practices sprung from ‘superstitious beliefs and may in that sense is extraneous and UNESSENTIAL accretions to RELIGION’ the State was free to enact laws on such matters.“	Extends to religious denomination or a section thereof, and includes ‘Organization‘, ‘Sects, Sub-sects‘, etc. “After Sankara, … religious teachers … founded the different sects and sub-sects …. Each one of such sects or sub-sects can certainly be called a religious denomination …” “The word ‘’denomination’ … mean … a religious sect or body ….” “If the tenets of any religious sect of the Hindus prescribe that offerings of food … be regarded as parts of religion. “A religious denomination or organization enjoys complete autonomy …” “There could be other affairs of .. denomination or a section thereof .. not matters of religion … guarantee given ….”
4. Not refer to public order, health and morality “Unless such practices are found to constitute an ESSENTIAL and integral part of a RELIGION their claim for the protection under Art. 26 may have to be carefully scrutinised.” (That is, emphasis is given to (i) ESSENTIAL and integral part of a RELIGION and (ii) assigns serious role of the COURT.)	Freedom of religion is guaranteed to practices except when they run counter to public order, health and morality “What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.” “There could be other affairs of a religious denomination or a section thereof which are not matters of religion and to which the guarantee given by this clause would not apply.”
Observations in Sabarimala reference (to higher Bench) Judgment as to Durgah Committee Decision Courts determine – what religious practices are protected and what religious practices are to be excluded as “secular practices or superstitious beliefs”	Observations in Sabarimala reference (to higher Bench) Judgment as to Shirur Mutt Decision “What are essential religious practices of a particular religious denomination should be left to be determined by the denomination itself“

Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770.

It is the second Ananda Margi case. In the first Ananda Margi case (Acharya Jagdishwaranand Avadhuta v. Commr. of Police, 1983-4 SCC 522), the Supreme Court held that the Tandava dance in public (with knife, live snake, trident, skull, etc.) was not an essential rite of the Ananda Margi faith. In this second Ananda Margi case the majority rendered the decision following Durgah Committee, Ajmer vs. Syed Hussain Ali where it is held that the protection must be confined to such religious practices as are an essential and integral part of it and no other.

In the minority view rendered by AR Lakshmanan, J. it is laid down as under:

“This observation of this Court, in our view, runs counter to the observation of Mukherjee, J. in The Commissioner, Hindu Religious Endowment, Madras vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (supra). In this context, it is useful to reproduce a passage from the above judgment which explains the definition of religion in paragraphs 14 and 19 of the judgment which are –
- “We now come to Art. 25 which, as its language indicates, secures to every person, subject to public order, health and morality, a freedom not only to entertain such religious belief, as may be approved of by his judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to propagate or disseminate his ideas for the edification of others….
- ….If the tenets of any religious sect of the Hindus prescribe that offerings of food should be given to the idol at particular hours of the day, that periodical ceremonies should be performed in a certain way at certain periods of the year or that there should be daily recital of sacred texts or oblations to the sacred fire all these would be regarded as parts of religion…”
In a subsequent decision, namely, His Holiness Srimad Perarulala Ethiraja Ramanuja Jeeyar Swamietc. vs. The State of Tamil Nadu [AIR 1972 SC 1586], this Court has held that –
- ‘Worshippers lay great store by the rituals and whatever other people, not of the faith may think about these rituals and ceremonies, they are a part of the Hindu Religious faith and cannot be dismissed as either irrational or superstitious.’
The contention that the word ‘religion’ under Article 25(1) of the Constitution of India does not include sect of religion of Ananda Marga being declared as religious denomination does not qualify for the same protection as religion in our view is not tenable. The learned Judges of the Calcutta High Court in their judgment impugned in this appeal has categorically dealt with the question following the decision exactly on the same point in the case of Shirur Mutt (supra) and the National Anthem case (Bijoe Emmanuel v. State of Kerala) reported in [AIR 1987 SC 748] and Sri Venkataramana Devaru & Ors. Vs. State of Mysore & Ors., [AIR 1958 SC 255] held that a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rights and ceremonies are essential according to the tenets of the religion they hold and outside authority has no jurisdiction to interfere with their decision in such matters.”

The Nine-judge Bench Re-framed the Issues

The nine-judge Bench headed by Chief Justice has been constituted to hear the Reference. The Bench re-framed the issues referred, as under:

1. What is the scope and ambit of right to freedom of religion under Article 25 of the Constitution of India?
2. What is the inter-play between the rights of persons under Article 25 of the Constitution of India and rights of religious denomination under Article 26 of the Constitution of India?
3. Whether the rights of a religious denomination under Article 26 of the Constitution of India are subject to other provisions of Part III of the Constitution of India apart from public order, morality and health?
4. What is the scope and extent of the word ‘morality’ under Articles 25 and 26 of the Constitution of India and whether it is meant to include Constitutional morality?
5. What is the scope and extent of judicial review with regard to a religious practice as referred to in Article 25 of the Constitution of India?
6. What is the meaning of expression ‘Sections of Hindus’ occurring in Article 25 (2) (b) of the Constitution of India?
7. Whether a person not belonging to a religious denomination or religious group can question a practice of that religious denomination or religious group by filing a PIL?

Analysis and Conclusion

Besides the (i) right of entry of women in Sabarimala, the nine-judge-bench considers (ii) right of entry of Muslim women in durgahs/mosques, (iii) right of entry of Parsi women, married to non-Parsis, into the holy fire place of Agyari and (v) the challenge to the practice of female genital mutilation in Dawoodi Bohra Community.

The result of the combined inquisitive analysis of all the aforesaid cases and all the issues involved therein, in the constitutional ethos, by the nine-judge-bench may be in supportive of the so called ‘progressive view in favour of women’. If the effect of answers of each segregated case and each separated issue is anatomically explored and blended together, the outcome may be diametrically opposite. The nine-judge-bench will have to analyse the matter, both ways.

END NOTES

Article 25 and 26of the Constitution of India

Article 25 reads as under:

25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law –
- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
- (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II – In sub clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

Article 26 reads:

26. Freedom to manage religious affairs – Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
- (a) to establish and maintain institutions for religious and charitable purposes;
- (b) to manage its own affairs in matters of religion;
- (c) to own and acquire movable and immovable property; and
- (d) to administer such property in accordance with law.

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Sabarimala Review Petitions & Reference to 9-Judge Bench

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