2018 (9) TMI 1790 - SC - Indian Laws

Discrimination - Imposition of restriction on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine - violation of Articles 15 25 and 26 of the Constitution of India - Validity of declaration of 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 - essential practises test - doctrine of equality - Constitutional Morality - Untouchability - scope of Article 17 of the Constitution - Whether directions can be issued by this Court to the Devaswom Board and the Government of Kerala to restrict the entry of such woman to the temple HELD THAT - The character of the temple at Sabarimala is unique on the basis of centuries old religious practises followed to preserve the manifestation of the deity and the worship associated with it. Any interference with the mode and manner of worship of this religious denomination or sect would impact the character of the Temple and affect the beliefs and practises of the worshippers of this Temple. Based on the material adduced before this Court the Respondents have certainly made out a plausible case that the practise of restricting entry of women between the age group of 10 to 50 years is an essential religious practise of the devotees of Lord Ayyappa at the Sabarimala Temple being followed since time immemorial. All forms of exclusion would not tantamount to untouchability. Article 17 pertains to untouchability based on caste prejudice. Literally or historically untouchability was never understood to apply to women as a class. The right asserted by the Petitioners is different from the right asserted by Dalits in the temple entry movement. The restriction on women within a certain age-band is based upon the historical origin and the beliefs and practises of the Sabarimala Temple. In the present case women of the notified age group are allowed entry into all other temples of Lord Ayyappa. The restriction on the entry of women during the notified age group in this Temple is based on the unique characteristic of the deity and not founded on any social exclusion. The analogy sought to be drawn by comparing the rights of Dalits with reference to entry to temples and women is wholly misconceived and unsustainable. The right asserted by Dalits was in pursuance of right against systematic social exclusion and for social acceptance per se. In the case of temple entry social reform preceded the statutory reform and not the other way about. The social reform was spearheaded by great religious as well as national leaders like Swami Vivekananda and Mahatma Gandhi. The reforms were based upon societal morality much before Constitutional Morality came into place. Article 11 of the Draft Constitution corresponds to Article 17 of our present Constitution. A perusal of the Constituent Assembly debates on Article 11 of the Draft Constitution would reflect that untouchability refers to caste-based discrimination faced by Harijans and not women as contended by the Petitioners. It is clear that Article 17 refers to the practise of Untouchability as committed in the Hindu community against Harijans or people from depressed classes and not women as contended by the Petitioners. Not a single precedent has been shown to interpret Article 17 in the manner contended by the Petitioners. Rule 3(b) is a statutory recognition of a pre-existing custom and usage being followed by this Temple. Rule 3(b) is within the ambit of the proviso to Section 3 of the 1965 Act as it recognises pre-existing customs and usages including past traditions which have been practised since time immemorial qua the Temple. The Travancore Devaswom Board submits that these practises are integral and essential to the Temple. The Petitioners have not challenged the proviso to Section 3 as being unconstitutional on any ground. The proviso to Section 3 makes an exception in cases of religious denominations or sects thereof to manage their affairs in matters of religion. The Notification dated November 27 1956 issued by the Travancore Devaswom Board restricts the entry of women between the ages of 10 to 55 years as a custom and practise integral to the sanctity of the Temple and having the force of law under Article 13(3)(a) of the Constitution. The High Court in S. Mahendran v. The Secretary Travancore Devaswom Board Thiruvananthapuram Ors. (supra) noted that this practise of restricting the entry of women is admitted to have been prevalent since the past several centuries. These practises are protected by the proviso to Section 3 of the 1965 Act which is given effect to by Rule 3(b) of the 1965 Rules. 15.6. The contention of the Petitioners that Rule 3(b) is ultra vires Section 3 of the 1965 Act fails to take into consideration the proviso to Section 3 of the 1965 Act. Section 3 applies to all places of public worship whereas the proviso applies to temples founded for the benefit of any religious denomination or sect thereof. Hence the contentions of the Petitioners that Rule 3(b) is ultra vires Section 3 of the 1965 Act is rejected. The summary of the aforesaid analysis is as follows (i) The Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the Petitioners and Intervenors involved herein. (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 Respondents and the Intervenors have made out a plausible case that 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. This is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction. (v) The limited restriction on the entry of women during the notified agegroup 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. Thus the Writ Petition cannot be entertained on the grounds enumerated hereinabove. It is ordered accordingly.

Summary

Issues Involved:
1. Constitutional validity of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, and the Orissa Freedom of Religion Act, 1967.
2. Interpretation of the term "propagate" in Article 25(1) of the Constitution.
3. Definition and scope of "religious denomination" under Article 26 of the Constitution.
4. Essential religious practices and their protection under Articles 25 and 26.
5. Gender discrimination and the right to worship under Articles 14, 15, and 17.
6. Concept of constitutional morality in relation to religious practices.
7. Role of courts in adjudicating religious matters.

Detailed Analysis:

1. Constitutional Validity of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, and the Orissa Freedom of Religion Act, 1967:
The court upheld the constitutional validity of both statutes, stating that they fall within the exception of "public order" as they prohibit conversion from one religion to another by use of force, allurement, or other fraudulent means.

2. Interpretation of the Term "Propagate" in Article 25(1) of the Constitution:
The court held that the word "propagate" in Article 25(1) does not include the right to convert another person to one's own religion. It grants the right to transmit or spread one's religion by an exposition of its tenets. The court emphasized that Article 25(1) guarantees "freedom of conscience" to every citizen, which does not include the right to convert others.

3. Definition and Scope of "Religious Denomination" Under Article 26 of the Constitution:
The court referred to several judgments to define a "religious denomination." In S.P. Mittal v. Union of India, the court laid down three conditions for a religious denomination:
1. A collection of individuals with a system of beliefs or doctrines conducive to their spiritual well-being.
2. Common organization.
3. Designation by a distinctive name.

The court further elaborated on this in cases like Acharya Jagdishwaranand Avadhuta and Ors. v. Commissioner of Police, Calcutta, and Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of U.P.

4. Essential Religious Practices and Their Protection Under Articles 25 and 26:
The court examined whether certain practices are essential to the religion. In Acharya Jagdishwaranand Avadhuta, the court held that the Tandava dance was not an essential religious rite of the Ananda Margis. Similarly, in N. Adithayan v. Travancore Devaswom Board, the court held that the appointment of a non-Malayala Brahmin as a priest was valid, emphasizing that customs violating constitutional mandates cannot be upheld.

5. Gender Discrimination and the Right to Worship Under Articles 14, 15, and 17:
The court addressed the issue of gender discrimination in the context of religious practices. In the Sabarimala case, the court held that the exclusion of women based on menstrual status is a form of untouchability and violates constitutional values of equality and dignity. The court struck down the custom of excluding women from the Sabarimala temple as unconstitutional.

6. Concept of Constitutional Morality in Relation to Religious Practices:
The court emphasized that constitutional morality must prevail over religious practices that violate fundamental rights. The court held that practices derogatory to the dignity of women and their entitlement to equal citizenship cannot be constitutionally protected.

7. Role of Courts in Adjudicating Religious Matters:
The court reiterated that while it must respect religious beliefs and practices, it has the duty to ensure that these practices do not violate fundamental rights. The court emphasized that it must balance the rights of religious denominations with individual rights guaranteed under Part III of the Constitution.

Conclusion:
The court's judgment comprehensively addressed the balance between religious freedom and constitutional values, emphasizing that practices violating fundamental rights of equality, dignity, and non-discrimination cannot be protected under the guise of religious freedom. The court upheld the constitutional validity of statutes prohibiting forced conversions and clarified the scope of "propagate" under Article 25(1). It also provided a detailed analysis of what constitutes a "religious denomination" and the protection of essential religious practices, while ensuring that these practices do not infringe upon constitutional rights.