The instant writ petition preferred under Article 32 of the Constitution seeks issuance of directions against Government of Kerala, Devaswom Board of Travancore, to ensure entry of female devotees between the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala which has been denied to them on the basis of certain custom and usage; to declare Rule 3(b) of the Kerala Hindu Places of Public Worship Rules, 1965 framed in exercise of the powers conferred by the Kerala Hindu Places of Public Worship Act, 1965 as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the Constitution of India.
97. Having stated that the devotees of Lord Ayyappa do not constitute a religious denomination within the meaning of Article 26 and that Sabarimala Temple is a public temple by virtue of the fact that Section 15 of the 1950 Act vests all powers of direction, control and supervision over it in the Travancore Devaswom Board which, in our foregoing analysis, has been unveiled as “other authority‟ within the meaning of Article 12, resultantly fundamental rights including those guaranteed under Article 25(1) are enforceable against the Travancore Devaswom Board and other incorporated Devaswoms including the Sabarimala Temple.
98. Now adverting to the rights guaranteed under Article 25(1), be it clarified that Article 25(1), by employing the expression “all persons” demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women.
99. By allowing women to enter into the Sabarimala temple for offering prayers, it cannot be imagined that the nature of Hindu religion would be fundamentally altered or changed in any manner. Therefore, the exclusionary practice, which has been given the backing of a subordinate legislation in the form of Rule 3(b) of the 1965 Rules, framed by virtue of the 1965 Act, is neither an essential nor an integral part of the Hindu religion without which Hindu religion, of which the devotees of Lord Ayyappa are followers, will not survive.
100. Nobody can say that essential part or practice of one’s religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the ‘core’ of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non-essential part or practices.
101. This view of ours is further substantiated by the fact that where a practice changes with the efflux of time, such a practice cannot be regarded as a core upon which a religion is formed. There has to be unhindered continuity in a practice for it to attain the status of essential practice.
The Devaswom Board had accepted before the High Court that female worshippers of the age group of 10 to 50 years used to visit the temple and conduced poojas in every month for five days for the first rice feeding ceremony of their children.
126. Therefore, there seems to be no continuity in the exclusionary practice followed at the Sabarimala temple and in view of this, it cannot be treated as an essential practice.
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144. In view of our aforesaid analysis, we record our conclusions in seriatim:
145. In view of the aforesaid analysis and conclusions, the writ petition is allowed.
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The Sabarimala Temple Entry Judgment: Indian Young Lawyers Association v. State of Kerala [2018 SC]
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16. The summary of the aforesaid analysis is as follows:
(ii) The equality doctrine enshrined under Article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion.
(iii) Constitutional Morality in a secular polity would imply the harmonisation of the Fundamental Rights, which include the right of every individual, religious denomination, or sect, to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practise is rational or logical.
(iv) The 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.
(v) The limited restriction on the entry of women during the notified age-group does not fall within the purview of Article 17 of the Constitution.
(vi) Rule 3(b) of the 1965 Rules is not ultra vires Section 3 of the 1965 Act, since the proviso carves out an exception in the case of public worship in a temple for the benefit of any religious denomination or sect thereof, to manage their affairs in matters of religion.
17. In light of the aforesaid discussion and analysis, the Writ Petition cannot be entertained.
(28 September 2018)
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