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8/16/2019 Access to Religious Spaces | Indian Constitutional Law and Philosophy
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The Sabarimala Judgment – III: Justice

Chandrachud and Radical Equality
29 Saturday Sep 2018
P G B A R S ,A ₁₄, A ₂₁ R L ,
E ,E R P ,F R ,S E
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Tags
Gender Discrimination, gender equality, sabarimala, sex discrtimination, sex equality
Justice Indu Malhotra’s dissenting opinion sets up a crucial constitutional question: how do you
reconcile the Constitution’s commitment to pluralism – which entails respect for group autonomy – with
the claims of equality and non-discrimination, addressed from within those groups? It is this question
that is at the heart of Justice Chandrachud’s concurring opinion.
Chandrachud J. sets up the issue in the introductory part of his judgment, where he observes that the
Indian Constitution is transformative in two distinct ways: first, in se ing up the governing institutions
of an independent republic, transitioning from colonial rule; but also, “placing those who were denuded
of their human rights before the advent of the Constitution – whether in the veneer of caste, patriarchy
or otherwise – … in control of their own destinies by the assurance of the equal protection of law”
(paragraph 2). The reference to caste and patriarchy is important, because it acknowledges that
discrimination is not limited to State action, or even to hostile individual action, but that it also flows from
institutional design: caste and patriarchy are neither “State” nor an agglomeration of individual acts
where you can a ribute discriminatory agency to identifiable individuals. They are social institutions.
And because they are social institutions, their impact upon the lives of the people that they touch is not
merely a private ma er. In paragraph 5, therefore, Chandrachud J. observes:
“Essentially, the significance of this case lies in the issues which it poses to the adjudicatory role of
this Court in defining the boundaries of religion in a dialogue about our public spaces. (paragraph
5)”
https://indconlawphil.wordpress.com/category/freedom-of-religion/access-to-religious-spaces/ 1/26
The use of the word “public spaces” is crucial, and especially when you juxtapose it with Malhotra J.’s
dissenting opinion, which we discussed in the previous post. Recall that for Malhotra J., there was a
distinction between a “social evil” like Sati – where a Court could potentially intervene – and a case
like Sabarimala, where the challenge was based on irrationality or immorality. It is this public/private
binary – social evil (public) and bare immorality (private) – that Chandrachud J. rejects, by framing the
issue as about access to public spaces.
It is within this framework that Chandrachud J. begins his substantive analysis.
Essential Religious Practices
After surveying the body of precedent concerning the ERP test – and also noting the shift from
“essentially religious” to “essential religious”, that we have discussed on this blog – Chandrachud J.’s
judgment has a section titled “The engagement of essential religious practices with constitutional
values.” At the threshold, Chandrachud J. finds that the Respondents have 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. The evidence, at best, demonstrates the celibate nature of Lord Ayappa, but this
in itself does not establish that exclusion of women is part of ERP (paragraph 51).
However, apart from the traditional and straightforward analysis of whether or not a religious claim
amounts to an essential religious practice, Chandrachud J. also advances an important alternative
argument: that “the test of essentiality is infused with … necessary limitations” (paragraph 50),
limitations that are grounded in constitutional morality, and the constitutional values of dignity and
freedom. So, at paragraph 55, Chandrachud J. notes:
“The Respondents submi ed that the deity at Sabarimala is in the form of a Naishtika Brahmacharya:
Lord Ayyappa is celibate. It was submi ed 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. There is an
assumption here, which cannot stand constitutional scrutiny. The assumption in such a claim is that a
deviation from the celibacy and austerity observed by the followers would be caused by the presence
of women. Such a claim cannot be sustained as a constitutionally sustainable argument. Its effect is to
impose the burden of a man’s celibacy on a woman and construct her as a cause for deviation from
celibacy. This is then employed to deny access to spaces to which women are equally entitled. To
suggest that women cannot keep the Vratham is to stigmatize them and stereotype them as being
weak and lesser human beings. A constitutional court such as this one, must refuse to recognize such
claims. (paragraph 55)”
As a piece of discrimination law reasoning this is, of course, impeccable. But there is something more at
work here, which I want to highlight. Chandrachud J.’s observation that the effect of the celibacy
argument “is to impose the burden of a man’s celibacy on a woman” is the crucial link between the
denial of the right to worship (which Malhotra J., in her dissent, regards as a private, internal ma er to
religion) and the public aspect of this case. What Chandrachud J. recognises is that the justification offered
to exclude women is an integral part of a far broader discourse that is founded on the exclusion and
subordination of women in social and community life. This becomes clear two paragraphs down, where
he discusses the stigma around menstruation (another justification that was advanced by the
Respondents), and observes:
“The stigma around menstruation has been built up around traditional beliefs in the impurity of
menstruating women. They have no place in a constitutional order. These beliefs have been used to
shackle women, to deny them equal entitlements and subject them to the dictates of a patriarchal
order. (paragraph 57)”
The phrase “patriarchal order” is an important one. It indicates that the exclusion of women from
Sabarimala is not simply – as Malhotra J. would have it – a unique and particular feature of that specific
religious community, and something that can be isolated from the broader world around it. Rather, the
exclusion of women from Sabarimala on the grounds of celibacy and menstruation is one among
countless ways in which patriarchy – as a social institution – works to keep women in a position of
subordination.
Justice Malhotra and Justice Chandrachud, therefore, come at the issue from opposite angles. What
Malhotra J. sees as a claim requiring that religion be subordinated to the diktats of morality,
Chandrachud J. understands as challenge to one manifestation of patriarchal subordination itself.
According to Chandrachud J., you cannot divide social life into different silos, and say that
discrimination and subordination are fine as long as they stay within a defined silo. At least as far as
religion and society are concerned, in the context of India, the silos are forever merged. As Alladi
Krishnaswamy Iyer said in the Constitutional Drafting Commi ee, “there is no religious question that is
not also a social question.”
It perhaps needs to be noted that history is on Justice Chandrachud’s side. In India, temple-entry
movements have a long history, and have always been framed in the language of civil rights, and access
to public spaces. This was especially true of the great caste-based temple-entry movements of the 1920s
and 30s (which are discussed later in the judgment). This substantiates the argument that in India, the
“thick” character of religious life implies that you cannot simply wall it off from the rest of social life.
Consequently, discrimination within religion is hardly an isolated event, like – for example – the non-
appointment of a woman to a clerical post in an American Church, which was upheld by that Supreme
Court. Rather, at the heart of Chandrachud J.’s judgment is the understanding that discrimination within
religion both reinforces and is reinforced by, discrimination in broader social life.
Untouchability
This understanding is reinforced in what is undoubtedly the boldest and most radical part of
Chandrachud J.’s judgment. An argument was made by the intervenors that the exclusion of women
from Sabarimala amounts to “untouchability” within the meaning of Article 17. The Chief Justice and
Nariman J. do not address this argument, and Malhotra J. rejects it on the ground that “untouchability”
under the Indian Constitution is limited to caste-based untouchability.
Chandrachud J. disagrees. After a detailed survey of the Constituent Assembly Debates (which we have
discussed previously on this blog, here), he correctly observes that there was no consensus in the
Constituent Assembly over the precise scope and ambit of the phrase. But when you place the moment
of constitutional framing within broader history, you have an answer:
“The answers lie in the struggle for social emancipation and justice which was the defining symbol of
the age, together with the movement for a aining political freedom but in a radical transformation of
society as well. (paragraph 73)”
And:
“Reading Dr Ambedkar compels us to look at the other side of the independence movement. Besides
the struggle for independence from the British rule, there was another struggle going on since
centuries and which still continues. That struggle has been for social emancipation. It has been the
struggle for the replacement of an unequal social order. It has been a fight for undoing historical
injustices and for righting fundamental wrongs with fundamental rights. The Constitution of India is
the end product of both these struggles. It is the foundational document, which in text and spirit,
aims at social transformation namely, the creation and preservation of an equal social order. The
Constitution represents the aspirations of those, who were denied the basic ingredients of a dignified
existence. (paragraph 74)”
This reminiscent of Granville Austin’s famous line, that the fundamental rights chapter was framed
amidst a history of fundamental wrongs. In these paragraphs, Justice Chandrachud argues that the
meaning of fundamental rights ought be determined by asking the following question: what was the
legacy of injustice that the Constitution sought to acknowledge, and then transform? That legacy was defined by
social hierarchies and social subordination. At its most virulent form, this took the shape of caste
untouchability. However, caste was not the only axis for exclusion from, and subordination within, the
social order. There were others, prime among which was, of course, sex. Consequently, as Justice
Chandrachud observes:
“The incorporation of Article 17 into the Constitution is symbolic of valuing the centuries’ old
struggle of social reformers and revolutionaries. It is a move by the Constitution makers to find
catharsis in the face of historic horrors. It is an a empt to make reparations to those, whose identity
was subjugated by society. (paragraph 75)”
It is, of course, important not to overstate the case. Not every form of discrimination or prejudice can fall
within Article 17. The framers did after all use the specific word “untouchability”, limiting the sweep of
the Article only to the most horrific kind of discrimination. Chandrachud J. is aware of this, because he
then goes on to justify why exclusion based on menstruation falls within Article 17:
“The caste system represents a hierarchical order of purity and pollution enforced by social
compulsion. Purity and pollution constitute the core of caste. (paragraph 76)”
And of course, it is purity and pollution that are at the heart of excluding menstruating women – not just
from temples but, as regularly happens in our country – from all forms of human contact during the
menstrual period. Chandrachud J.’s important insight, therefore, is this: the social exclusion of a set of
people (who are in any event historically subjugated), grounded in ideas about purity and pollution,
amounts to a manifestation of the kind of “untouchability” that the Constitution seeks to prescribe. This
does not mean, of course, that it is not caste-based untouchability that is at the heart of Article 17; nor
does it seek to dilute the severity of that institution, or the Constitution’s commitment to wipe it out.
What it does acknowledge, however, is that the same logic that is at the base of caste-based
untouchability, also takes other forms and other manifestations. These manifestations may not be at
the core of Article 17, but they do deserve its protection:
“Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion

principle, it cannot be read to exclude women against whom social exclusion of the worst kind has
been practiced and legitimized on notions of purity and pollution. (paragraph 75)”
And therefore:
“The caste system has been powered by specific forms of subjugation of women. The notion of
“purity and pollution” stigmatizes the menstruation of women in Indian society. In the ancient
religious texts and customs, menstruating women have been considered as polluting the
surroundings. Irrespective of the status of a woman, menstruation has been equated with impurity,
and the idea of impurity is then used to justify their exclusion from key social activities. (paragraph
81) (internal footnotes omi ed)”
In an important way, this links back to the previous argument about essential religious practices. It is
obviously absurd to compare the exclusion of women (and mostly upper-caste women at that) from a
temple with “untouchability” as we understand it. But that is something that Chandrachud J. very
consciously does not do. What he does do is to link the underlying basis of the exclusion in Sabarimala
with something that goes far beyond, and permeates very layer of society: this is why he specifies that
the idea of impurity justifies exclusion from “key social activities.” In other words, it is not about
exclusion from worship, but – yet again – how that exclusion both reinforces and is reinforced by an
existing and overarching set of discriminatory institutions and systems.
Exist, Pursued by a Bear: Narasu Appa Mali
There is one more important thing that Chandrachud J. does in his concurrence. Noting that the
exclusion of women has also been justified on the basis of “custom”, he examines – and overrules –
the Narasu Appa Mali judgment on the specific point that customs are not subject to fundamental rights.
In terms of outcomes, this is not new: in Madhu Kishwar v State of Bihar, the Supreme Court has already
held that customs are subject to fundamental rights. However, that case did not examine Narasu: here,
Chandrachud J. does, and specifically finds that its reasoning is flawed.
This is very important, because Narasu also held that “personal law” – that is, uncodified religious law –
was outside the scope of fundamental rights review. The reasoning for that was the same, and so, also
stands discredited. As Chandrachud J. points out, the reasoning given by the Bombay High Court
in Narasu – that, for example, the existence of Article 17 shows that the framers intended to specifically
include customs that they wished to proscribe – does not hold water. More importantly, however, is the
affirmative case that Chandrachud J. advances:
“Custom, usages and personal law have a significant impact on the civil status of individuals. Those
activities that are inherently connected with the civil status of individuals cannot be granted
constitutional immunity merely because they may have some associational features which have a
religious nature. To immunize them from constitutional scrutiny, is to deny the primacy of the
Constitution. (paragraph 99)”
In other words, there cannot be islands of norms and prescriptions that are granted constitutional
immunity. As with the ERP and the untouchability argument, the rationale is the same: the individual is
the basic unit of the Constitution, and norms, practices, prescriptions, rules, commands and whatever
else that have the potential to impair individual dignity or block access to basic goods in society, must
pass constitutional scrutiny (paragraph 100).
And indeed, Chandrachud J. goes on step further with this thought, noting that the ERP test itself ought
– in future – give way to a test that asks not whether a practice is “essential” (which is, after all, a
question that the believers, and not the Court, should answer), but asks whether the impugned practice
is socially exclusionary, and denies individuals access to the basic goods required for living a dignified
life (Disclaimer: this part of the judgment cites an article of mine, and I will readily admit to being biased in favour
of the anti-exclusion argument.)
Conclusion
In the previous post, we discussed Malhotra J.’s dissent. We saw how Malhotra J. raises an important
question: how do we reconcile the Constitution’s commitment to pluralism with judicial intervention
into internal religious affairs? We have now seen how Chandrachud J. has answered it: the commitment
to pluralism and respect for group autonomy must be understood within a Constitutional framework
that places individual freedom and dignity at its heart. The Constitution recognises group autonomy
because, often, group life promotes individual freedom and dignity. Community, after all, is crucial to
self-development. But groups can also restrict freedom and dignity, and it is in those circumstances that a
Court must step in and balance the competing claims.
In Sabarimala, Chandrachud J. a empts to demonstrate how, in fact, the proscription in question does
restrict freedom and dignity, and therefore, should be judicially invalidated. He does so by telescoping
outwards from the singular event itself (exclusion from worship in one temple), and showing how this
single event of exclusion is nested in an entire social and institutional order that is characterised by hierarchy,
subordination, and exclusion. We may call this patriarchy, or we may call this something else, but the
argument is clear: it’s not about worship at Sabarimala (which is what Malhotra J. limits it to, and
therefore classifies it as simply about seeking morality or rationality), but about what exclusion from
worship means in a broader context. To take an example: think of a Whites-Only signboard outside a
restaurant in Apartheid South Africa. The point is not that one private restaurant owner has decided to
exclude blacks from his private property. The point, rather, is how that signboard is an integral element
of the practice and institution of apartheid. The crucial insight that Chandrachud J. brings in his judgment
is that recognition of the institutional character of discrimination and inequality, and how that must be
constitutionally comba ed. As he notes, towards the end:
“In the dialogue between constitutional freedoms, rights are not isolated silos. In infusing each other
with substantive content, they provide a cohesion and unity which militates against practices that
depart from the values that underlie the Constitution – justice, liberty, equality and fraternity.
Substantive notions of equality require the recognition of and remedies for historical discrimination
which has pervaded certain identities. Such a notion focuses on not only distributive questions, but
on the structures of oppression and domination which exclude these identities from participation in
an equal life. An indispensable facet of an equal life, is the equal participation of women in all
spheres of social activity. (paragraph 117)”
It is that which makes it a transformative judgment.
The Sabarimala Judgment – II: Justice Malhotra,

Group Autonomy, and Cultural Dissent
29 Saturday Sep 2018
P G B A R S ,A ₁₄, A ₁₅ ₍ ₎, E ,
E R P ,F R ,N - ,S D ,S
E
≈₈C
Tags
essential religious practices, freedom of religion, Gender Discrimination, gender equality, religious denominations,
religious freedom, sabarimala, sex discrimination, sex equality
I had originally intended this series to follow a more familiar chronology – moving through the
concurring opinions, and ending with Justice Indu Malhotra’s dissent. However, on a closer reading of
the judgment, it strikes me that Malhotra J.’s dissent raises some crucial points, which remain
unanswered in the opinions of the Chief Justice and Nariman J. – but are addressed in Chandrachud J.’s
concurrence. For this reason, I will use this post to discuss the dissenting opinion, and flag its
foundational arguments, and then – in the next post – examine Chandrachud J.’s concurrence.
Maintainability
How unusual – but how refreshing – to see a judge taking maintainability seriously, and that too in a
PIL! Malhotra J. starts her analysis with the following observation:
“The right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be
based on a pleading that the Petitioners’ personal rights to worship in this Temple have been
violated. The Petitioners do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa
is believed to have manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-
standing religious customs and usages of a sect, at the instance of an association/Intervenors who are
“involved in social developmental activities especially activities related to upliftment of women and
helping them become aware of their rights”, would require this Court to decide religious questions at
the behest of persons who do not subscribe to this faith. (paragraph 7.2).”
Malhotra J. goes on to warn that the issue of maintainability is not a “mere technicality” in this case, but
something more important. It would open the floodgates for “interlopers” to question all kinds of
religious beliefs and practices, something that would cause even graver peril for “religious minorities.”
(paragraph 7.3) Malhotra J. then sums up:
“The right to equality under Article 14 in ma ers 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. (paragraph 7.4).”
While Malhotra J.’s concern about the floodgates is well-taken, I am not sure that that, by itself, can be a
ground for rejecting the PIL on the basis of maintainability. However, I believe that in observing that
“[The Article 14 claim] has to be adjudged amongst the worshippers of a particular religion or shrine“,
Malhotra J. articulates a crucial point, which demonstrates why, even in the PIL era, the issue of
maintainability is particularly crucial to this case.
To understand why, let us examine the nature of the claim. The claim is for women between the ages of
ten and fifty to be allowed to enter Sabarimala. This claim is set up against the argument of the
Sabarimala priest (and certain other devotees), that the entry of women is barred by religious
custom. Sabarimala, therefore, is a classic example of what Madhavi Sundar calls “cultural dissent“:
norms and values defined and imposed by cultural gatekeepers and dominant groups, have been
challenged.
That cultural dissent is at the heart of Sabarimala is recognised by both the Chief Justice and Nariman J.,
in their opinions. The Chief Justice notes that Article 25(1) protects both inter-group and intra-group
rights. In a very interesting observation, Nariman J. suggests that when there is internal dissent about a
practice, its “essential” character to the religion (and therefore, its claim to protection under Article
25(1)) will be thrown in doubt. However, what is crucial to note is this: by its very nature, a claim to
cultural dissent has to be articulated by the dissenters themselves. Because what is under challenge – as
Justice Malhotra recognises – is the question of whether certain practices – internal to the religion – are
“oppressive” or not. And given that religions are self-contained and self-referential systems of belief and
practice, the question of what constitutes “oppression” will, in most cases, be an internal question.
Let me be clear: this is not an argument against the Courts interfering in religious practices on the
touchstone of equality and non-discrimination. Quite the opposite: when marginalised groups within
cultures or religions challenge oppressive norms or practices, more often than not, they will need an
external authority (such as Courts, acting under the Constitution) to support them in that struggle. But
what I am saying is that the claim must originate from the marginalised groups themselves. An external
authority cannot assume the mantle of speaking on their behalf.
There is, of course, a significant exception to this: when the marginalised group is (literally) silenced
from articulating its claims. But I feel considerable hesitation in applying that standard to Sabarimala. Are
we going to say that every woman devotee at Sabarimala is either too brainwashed or too terrorised to
approach the Court for her rights? That would seem to me to be not only factually incorrect, but highly
demeaning as well – a saviour complex redolent of Lila Abu-Lughod’s excoriation of liberal
interventionism in her tellingly-titled article, “Do Muslim Women Really Need Saving?“
I recognise that this is an unpopular position, I believe that the Majority should have voted with
Malhotra J. to dismiss the PIL on grounds of maintainability, while granting liberty to any affected party
to approach the Court through a writ petition.
Group Autonomy
Running through Malhotra J.’s judgment is a vision of group autonomy. She believes that the
Constitution’s religious freedom clauses act to insulate religious groups from having their beliefs and
practices subjected to constitutional scrutiny. As she observes:
“It would compel the Court to undertake judicial review under Article 14 to delineate the rationality
of the religious beliefs or practises, which would be outside the ken of the Courts. It is not for the
courts to determine which of these practises of a faith are to be struck down, except if they are
pernicious, oppressive, or a social evil, like Sati. (paragraph 8.2)”
The devil, of course, is in the detail. Malhotra J. concedes that practices that are “pernicious, oppressive,
or a social evil” can be reviewed by Courts. But that, indeed, was the Petitioners’ argument in Sabarimala:
excluding women from the temple was a pernicious and oppressive practice, even though it did not (of
course) reach the level of Sati. How does Malhotra J. respond to this? There is no immediate answer, but
we do get something of an answer late in the judgment. In paragraph 10.13, Malhotra J. observes:
“Judicial review of religious practises ought not to be undertaken, as the Court cannot impose its
morality or rationality with respect to the form of worship of a deity. Doing so would negate the
freedom to practise one’s religion according to one’s faith and beliefs. It would amount to
rationalising religion, faith and beliefs, which is outside the ken of Courts. (paragraph 10.13)”
The argument, therefore, appears to be this: a practice like Sati is not simply “religious”. In actually
killing women, its impacts go far beyond, and into the “real world.” The question of the right to worship
at Sabarimala, however, remains a question internal to the religion: its a moral issue, a question of
whether within the community of Sabarimala devotees, men and women are treated equally. For Justice
Malhotra, that is not something that Courts can go into. As she observes towards the end of the
judgment:
“Worship has two elements – the worshipper, and the worshipped. The right to worship under
Article 25 cannot be claimed in the absence of the deity in the particular form in which he has
manifested himself. (paragraph 13.9)”
For Malhotra J., therefore, unlike Sati, Sabarimala is a pure question of faith, and therefore immune from
judicial review and the application of constitutional norms of equality and non-discrimination.
Why is this so? Malhotra J. bu resses this point by two further arguments, both of which are grounded
in principles of group autonomy. The first is that of “essential religious practices” [ERPs]. Malhotra J.
takes strong issue with the Majority for holding that the exclusion of women is not an essential religious
practice (and therefore not protected by Article 25(1)), and argues, instead, that this determination
should be left solely to the religious community itself (paragraph 10.10). In the present case, Malhotra J.
relies upon the statements of the Sabarimala Thanthri and the Travancore Devaswom Board to the effect
that “the limited restriction on access of women during the notified age of 10 to 50 years, is a religious practise
which is central and integral to the tenets of this shrine, since the deity has manifested himself in the form of a
‘Naishtik Brahmachari’.” (paragraph 13.7)
This is an important point, because it goes entirely against the grain of six decades of ERP jurisprudence,
where the Court – relying upon textual and scriptural materials – makes this determination. It is also, in
my opinion, correct (as I have pointed out on this blog before): the Courts – as a number of scholars have
argued for a while now – is entirely unequipped to make determinations about what practice is or is not
“essential” to religion: it lacks both the competence and the legitimacy to do so.
There is, of course, a latent peril in advocating this view: and that is that in any community (religious or
otherwise) norms and practices are inevitably imposed top-down by dominant groups, who are
invariably male. But this is exactly where Malhotra J.’s initial point about maintainability comes in: it is
one thing when within a group, norms and practices are challenged, and the marginalised sub-groups
invoke the Court’s aid. But it is another thing when an external party comes to Court, and is opposed by
the religious community’s gatekeepers: in that situation, Malhotra J.’s views about the nature and scope
of the ERP test make eminent sense.
The second argument advanced by Malhotra J. pertains to constitutional pluralism. It was argued by the
Petitioners that discrimination against women runs counter to constitutional morality. Malhotra J. turns
this argument on its head, noting that constitutional morality in India’s plural society requires respect
and tolerance for different faiths and beliefs, which have their own sets of practices that might
nevertheless appear immoral or irrational to outsiders (paragraphs 11.2, 11.4, 11.6 & 11.8).
The full argument, therefore, is this: our Constitution respects religious pluralism. Pluralism entails
granting to the diverse religious groups and communities within our nation, the freedom of internal self-
government, and the freedom to decide what norms and practices are integral to their existence and
functioning. Where these norms or practices result in actual social harm, the Court can step in; however,
the Court cannot intervene when the grounds of challenge are limited to bare immorality, irrationality,
or unequal treatment. And the Court can especially not do so when the challenge is brought by external
parties.
Religious Denomination
Malhotra J. then addresses the statutory point: that is, the question of whether, in view of Section 3 of the
1965 Act (guaranteeing non-discriminatory access to “all” classes), whether Rule 3(b) (that allows for
excluding women if custom demands it) is ultra vires. Malhotra J. holds that it is not, on the ground that
the worshippers of Lord Ayappa at Sabarimala constitute a separate “religious denomination”, and is
therefore exempted from the operation of Section 3 as per the Act itself (through a specific proviso).
Unfortunately – and in stark contrast with the rest of Malhotra J.’s judgment – this part is
disappointingly sketchy. On the basis of a Government notification, Malhotra J. asserts that the
worshippers of Lord Ayappa at Sabarimala “follow a common faith, and have common beliefs and
practises.” (paragraph 12.3) She then goes on to note, on the basis of precedent, that:
“If there are clear a ributes 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’. (paragraph 12.8)”
Malhotra J. recognises, however, that this is a considerably more relaxed threshold than that articulated
by previous judgments, and followed by the Majority. She tries to get around this by once again
implicitly invoking the group autonomy principle, and arguing that a “liberal” interpretation should be
accorded to the question of what constitutes a “religious denomination.” But this will not do: unlike the
question of essential religious practices, which are required for threshold protection under the
Constitution’s religious freedom clause, religious denominations are entitled to special and
differentiated rights under Article 26: maintenance of institutions, acquisition and administration of
property, and (textually) a greater autonomy in determining internal religious ma ers. For this reason,
the critique of the essential religious practices standards cannot be uncritically applies to the definition
of religious denominations: there are good reasons for a higher threshold, adjudicated by Courts. To
depart from that principle would require a detailed and persuasive argument, which Malhotra J. does
not offer. And indeed, she appears to recognise this herself, when she notes at paragraph 12.10:
“The proper forum to ascertain whether a certain sect constitutes a religious denomination or not,
would be more appropriately determined by a civil court, where both parties are given the
opportunity of leading evidence to establish their case.”
Miscellaneous
Malhotra J. makes two further findings. She rejects the argument – advanced by Amicus Curae – that
Article 15(2) includes temples under the definition of “places of public resort.” And she also rejects the
argument – advanced by the Interveners – that exclusion of women on grounds of menstruation
amounts to “untouchability” under Article 17 of the Constitution. Both these arguments are based on the
structure and the drafting history of the Constitution. With respect to Article 15(2), I believe the
Malhotra J. is unarguably correct. Article 17 will be addressed in the next post.
Conclusion
Justice Malhotra’s dissent is powerful and persuasive on many counts. On maintainability, on essential
religious practices, and on constitutional pluralism, I believe that her arguments are correct, and truer to
the constitutional text and history than prevailing Indian religious freedom jurisprudence, which the
opinions of CJI Misra and Nariman J. closely hew to.
Where then lies the disagreement? At one level, it is statutory: if Malhotra J.’s religious denomination
argument is incorrect, then her case falls purely on statutory grounds, and the Majority is vindicated. I
have a deeper disagreement, however, with the foundational assumption of Malhotra J.’s dissent, which
comes through in her paragraph differentiating Sabarimala and Sati: the assumption is that in India, you
can cleanly separate the religious and the social. This is a reality that has been recognised throughout
history: in the Drafting Commi ee, Alladi Krishnawamy Iyer wryly remarked that “there is no religious
ma er that is not also a social ma er.” In the Constituent Assembly, Ambedkar memorably spoke about
how vast religious conceptions are in India, covering everything from birth to death. In his dissenting
opinion in Saifuddin, Chief Justice Sinha discussed how religious excommunication had a debilitating
impact upon civil rights. And so on. The point is this: it is a mistake to uncritically assume
that Sabarimala is simply a right-to-worship case, a straightforward internal dispute within a religious
community. It is a mistake, because it ignores how deeply intertwined religious, social, and public life is
in India, and how discrimination within one sphere inevitably spills over into other spheres. Therefore,
Malhotra J. is entirely correct when she says that practices that are “pernicious, oppressive, or a social
evil” can be subjected to judicial review. But the question of what constitutes “oppressiveness” is more
nuanced and complex than she allows.
It is that nuance which forms the heart of Chandrachud J.’s concurrence, which is what we shall turn to
in then ext post.
The Sabarimala Judgment – I: An Overview
28 Friday Sep 2018
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Earlier today, a Constitution Bench of the Supreme Court held, by a 4 – 1 Majority, that the Sabarimala
Temple’s practice of barring entry to women between the ages of ten and fifty was unconstitutional.
While the case raised a host of complex issues, involving the interaction of primary legislation (statute),
subordinate legislation (rules), and the Constitution, the core reasoning of the Majority was
straightforward enough. On this blog, we will examine the Sabarimala Judgment in three parts. Part One
will provide a brief overview of the judgment(s). Part II will examine some of the issues raised in the
concurring judgment of Chandrachud J. And Part III will analyse the dissenting opinion of Indu
Malhotra J.
Let us briefly recapitulate the core issue. The exclusion of (a class of) women from the Sabarimala
Temple was justified on the basis of ancient custom, which was sanctioned by Rule 3(b), framed by the
Government under the authority of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry
Act). Section 3 of the Act required that places of public worship be open to all sections and classes of
Hindus, subject to special rules for religious denominations. Rule 3(b), however, provided for the
exclusion of “women at such time during which they are not by custom and usage allowed to enter a place of
public worship.” These pieces of legislation, in turn, were juxtaposed against constitutional provisions
such as Article 25(1) (freedom of worship), Article 26 (freedom of religious denominations to regulate
their own practices), and Articles 14 and 15(1) (equality and non-discrimination).
In an earlier post, I set out the following map as an aid to understanding the issues:
“(1) Is Rule 3(b) of the 1965 Rules ultra vires the 1965 Act?
(2) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women
from temples – constitutionally valid?
(3) If the answer to (2) is “no”, and the Act is invalid, can a right to exclude be claimed under Article
25(1) of the Constitution?
(4) If the answer to (3) is “yes”, then is the exclusion of menstruating women from Sabarimala an
“essential religious practice” protected by Article 25(1)?
(5) If the answer to (4) is “yes”, then is the exclusion of women nonetheless barred by reasons of
“public order”, “health”, “morality”, or because of “other clauses of Part III”, which take precedence
over Article 25(1)?
(6) Do Sabarimala worshippers constitute a separate religious denomination under Article 26?
(7) If the answer to (6) is yes, then is temple entry a pure question of religion?”
While the judgments are structured slightly differently, this remains a useful guide. Here is a modified
map, with the answers:
“(1) Does the phrase “all classes” under the Act include “gender”? By Majority: Yes.
(2) Do Sabarimala worshippers constitute a separate religious denomination under Article 26, and
are therefore exempted under the Act from the operation of Section 3? By Majority: No. Malhotra J.
dissents.
2(a) Is Rule 3(b) of the 1965 Rules therefore ultra vires the 1965 Act? By Majority, logically following
from (1) and (2): Yes. However, Nariman J., instead of holding it ultra vires, straightaway holds it
unconstitutional under Articles 14 and 15(1). Malhotra J. – also logically following from 2 –
dissents.
(2b) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of
women from temples – constitutionally valid? Does not arise.
25(1) of the Constitution? Per Misra CJI and Khanwilkar J.: Yes, in theory. Per Chandrachud J.: No,
because it violates constitutional morality. Per Nariman J.: No, because it violates Article 25(1),
which stipulates that all persons are “equally entitled to practice religion.” Malhotra J.: Yes.
“essential religious practice” protected by Article 25(1)? Per Misra CJI and Khanwilkar J.: No, on
facts. Per Nariman J.: Assuming the answer is yes, (3) answers the point. Per Chandrachud J.: No,
on facts. Per Malhotra J.: Yes, on facts. ”
An overview of the judgments handed down by the CJI and Khanwilkar J., and Nariman J., is provided
below:
Misra CJI and Khanwilkar J.
Misra CJI and Khanwilkar J. hold that the devotees of Lord Ayappa at Sabarimala have failed to
establish that they constitute a “separate religious denomination” (paragraph 88 onwards). This is
because the test for “separate denomination” is a stringent one, and 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).
Consequently, women have an enforceable Article 25(1) right to entry. This right is not undermined by a
contrary right of exclusion because, on facts, excluding women does not constitute an “essential
religious practice” that is protected by Article 25(1). This is because no scriptural or textual evidence has
been shown to back up this practice (paragraph 122), 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).
Moreover, on facts, this practice appears to have commenced only in 1950, and therefore lacks the
ageless and consistent character that is required of an “essential religious practice” (para 125). Therefore
– Misra CJI and Khanwilkar J. hold – since Section 3 of the 1965 Act prohibits discrimination against
“any class” of Hindus, and the Temple is not a denominational temple, Rule 3(b) is ultra vires the parent
Act, and therefore must fall (paras 132 and 141 – 142).
Nariman J.
Nariman J. accepts, for the purposes of argument, that barring women of a certain age from accessing
Sabarimala is an essential religious practice, and therefore protected by Article 25(1) (paragraph 25).
However, he agrees with Misra CJI and Khanwilkar J that Sabarimala fails the rigorous test for a
“separate denomination.” Article 26, therefore, is not a racted, and the proviso to S. 3 of the Act is not
a racted (paragraphs 26 – 27). Therefore, even if there is an essential religious practice excluding
women, this practice is hit by Section 3 of the Act, which provides for non-discriminatory access to all
“classes” of Hindus (paragraph 28). This is further bu ressed by the fact that the 1965 Act is a social
reform legislation, and therefore, under Article 25(2)(b) of the Constitution, can override the right to
religious freedom (paragraph 28).
However, Nariman J. adds that even otherwise, this case involves a clash of rights under Article 25(1): the
right of women to worship, and the right of the priests to exclude them. The text of Article 25(1) – which
uses the phrase all persons are “equally entitled” to practice religion, decides the clash in favour of the
women. (paragraph 29).
“Even otherwise, the fundamental right of women between the ages of 10 and 50 to enter the
Sabarimala temple is undoubtedly recognized by Article 25(1). The fundamental right claimed by the
Thanthris and worshippers of the institution, based on custom and usage under the selfsame Article
25(1), must necessarily yield to the fundamental right of such women, as they are equally entitled to
the right to practice religion, which would be meaningless unless they were allowed to enter the
temple at Sabarimala to worship the idol of Lord Ayyappa. The argument that all women are not
prohibited from entering the temple can be of no avail, as women between the age group of 10 to 50
are excluded completely. Also, the argument that such women can worship at the other Ayyappa
temples is no answer to the denial of their fundamental right to practice religion as they see it, which
includes their right to worship at any temple of their choice. On this ground also, the right to practice
religion, as claimed by the Thanthris and worshippers, must be balanced with and must yield to the
fundamental right of women between the ages of 10 and 50, who are completely barred from
entering the temple at Sabarimala, based on the biological ground of menstruation.”
And insofar as Rule 3(b) is concerned, Nariman J. holds it directly contrary to Article 15(1), and strikes it
down.
Consequently, like the Majority – but using a different approach – Nariman J. holds in favour of the right
of women to enter Sabarimala.
Asking the Right Questions: The Supreme Court’s

Referral Order in the Sabarimala Case
13 Friday Oct 2017
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discrimination, freedom of religion, gender equality, sabarimala, sex discrimination, untouchability
In April 2016, a three-judge bench of the Supreme Court had heard arguments in a PIL challenging the
Sabarimala Temple’s practice of barring menstruating-age women (between the ages of 10 and 50) from
entering the precincts of the temple. In a brief order delivered today, the case has been referred to a five-
judge bench for adjudication.
As we have discussed previously on this blog, the Sabarimala Case is a particularly complex one,
involving the interaction of statutes, government rules, custom, religious practice, and the Constitution.
For a satisfactory adjudication of the case, therefore, it is important that the Court ask the right
questions. As we shall see below, today’s referral order succeeds in that enterprise, and lays the
foundation for a clear verdict on the constitutional issues involved.
Recall that the justification for excluding menstruating-age women from entry into the Sabarimala is
grounded in religious custom and usage. What complicates the issue is that there is also an existing
legislation: the Kerala Hindu Places of Worship (Authorisation of Entry Act) of 1965. Section 3 of that Act
stipulates that places of public worship must be open to all sections and classes of
Hindus, notwithstanding any custom or usage to the contrary. Section 4 of the Act authorises persons in
charge of places of public worship to make regulations for the “due performance of rites and ceremonies“,
with the proviso that the Regulations cannot discriminate against Hindus of “any class.” Acting under
Section 4, in 1965, the Kerala Government framed certain rules. Rule 3 of these Rules deprived certain
classes of people from offering worship, and Rule 3(b) included within this class “women at such time
during which they are not by custom and usage allowed to enter a place of public worship.”
Keeping in mind this statutory framework, we are now in a position to understand the issues involved
in the Sabarimala Case. The first – and simplest – issue is whether Rule 3(b) is legally valid, given that
Section 3 of the Parent Act – i.e. – the primary legislation – mandates that places of public worship must
be open to all “sections and classes”. If women constitute a “section” or a “class” of Hindus, then clearly
Rule 3(b), being subordinate legislation, is ultra vires the parent statute, and must fall. Consequently, the
first question that the Court must answer is whether, for the purpose of temple entry, women constitute
a “section” or a “class” of Hindus. To answer this question, the Court must undertake a historical
examination of temple entry legislations, the kinds of exclusion that they were trying to combat, and the
social movements that necessitated their enactment. While at the core of the temple entry movements
was the exclusion of Dalits and other castes, it is also important to note that the root of such exclusion
was ideas of ritual pollution and purity; notably, that is exactly the justification being offered for the
exclusion of menstruating age women from Sabarimala. Consequently, if temple entry laws were framed
for the purpose of making ideas of pollution and purity irrelevant to temple entry, then there is a strong
case for including women – as a class – within their protective ambit.
Now, in the event that Section 3(b) is consistent with the parent Act, the larger question of
constitutionality arises. The 1965 Act – and the Rules – are pieces of primary and subordinate legislation
respectively, and are therefore subject to the provisions of the Constitution. Insofar as the Act and the
Rules are invoked to justify the exclusion of women from the Sabarimala Temple, therefore, there is a
clear violation of Articles 14 and 15(1) of the Constitution.
That, however, does not se le the issue, because the further argument is that the Act and the Rules
merely codify the practice of existing religious mandates. These religious mandates, however, are
grounded in something beyond merely the 1965 law: they are protected by Article 25(1) of the
Constitution, which protects the freedom of religion. Or, in brief: the exclusion of menstruating age
women is a religious mandate protected by Article 25(1) of the Constitution.
This raises a few difficult issues. The first issue is this: once the Kerala legislature passed the 1965 Temple
Entry Act, then does there remain any independent right of places of public worship to regulate entry? Or,
in other words, is the 1965 Act a “complete code” on the issue of temple entry? Readers will recall that a
somewhat similar issue was at stake in the recent Triple Talaq judgment. The question there was
whether the 1937 Shariat Act codified Muslim personal law, or whether it only recognised it. If it was the
former, then if the 1937 Act was struck down as unconstitutional, the practice of triple talaq would go
along with it; if the la er, however, then triple talaq was grounded not in a statute (which could be
challenged and struck down for being unconstitutional), but was a part of “uncodified personal law”.
Consequently, the Court will have to decide whether, after the 1965 Act, it can be claimed that there
exists an independent right under Article 25(1) to prohibit menstruating women from entering Sabarimala.
If the Court decides that it cannot, then there is no further issue: insofar as the 1965 Act bans
menstruating women from entering Sabarimala, it clearly violates Articles 14 and 15(1) (it may be
argued that banning only menstruating women, and not all women, does not constitute sex
discrimination; however, on this blog, it has repeatedly been pointed out how such arguments are
flawed, and I will not rehearse them here).
However, if the Court holds that the claim can be made, then under existing Indian jurisprudence, it
must ask a further question: is the banning of menstruating women an “essential religious practice”
under Article 25(1), and is it consonant with the requirements of “public order, morality, and health”, to
which Article 25(1) is subject. This will require the Court to go into the doctrines of the religion, and
adjudicate whether the practice in question is essential, or merely peripheral.
Lastly, Article 26(b) of the Constitution guarantees to “religious denominations” the right to manage
their own affairs in ma ers of religion. Two questions arise, therefore: do the worshippers at Sabarimala
constitute a “religious denomination”? And is the question of temple access a question of “religion”? On
the first issue, there exists substantial jurisprudence. My own suspicion is that in view of the fact that
Sabarimala is governed by the Travnacore Devaswom Board (a State institution), and a State legislation,
the religious denomination argument will not succeed. There is also a clear public element involved here
(to an even greater extent than in the Bombay High Court’s Haji Ali Dargah decision).
The last sub-issue – whether temple access is a pure question of “religion” or not – appears
straightforward, but is actually rather complex. This is because, historically – right from Ambedkar’s
temple entry movements of the 1920s – issues of temple entry have always been framed as issues of civil
rights, involving access to public spaces (for an account, see Anupama Rao’s book, Caste Question).
Exclusion from temples has been understood to be an embodiment of social hierarchies and deeper
social exclusions, and has been opposed in these terms. In fact, temple entry movements were so
politically successful, that the Constitution contains a specific exception to the freedom of religion clause
(Article 25(2)(b)) that categorically authorises the State to throw open religious institutions to all classes
of Hindus. Consequently, a nuanced analysis might have to acknowledge that for historical, political and
social reasons, the issue of temple access is no longer restricted to the purely religious domain, but is
inextricably linked with civil status and civil rights.
In my view, therefore, the Court would have to answer the following questions in the Sabarimala Case:
(1) Is Rule 3(b) of the 1965 Rules ultra vires the 1965 Act?
(2) If the answer to (1) is “no”, then is the Act – to the extent that it authorises the exclusion of women
from temples – constitutionally valid?
25(1) of the Constitution?
“essential religious practice” protected by Article 25(1)?
(5) If the answer to (4) is “yes”, then is the exclusion of women nonetheless barred by reasons of “public
order”, “health”, “morality”, or because of “other clauses of Part III”, which take precedence over Article
25(1)?
(6) Do Sabarimala worshippers constitute a separate religious denomination under Article 26?
(7) If the answer to (6) is yes, then is temple entry a pure question of religion?
In its referral order, the questions that the Court has framed are as follows:
“1. Whether the exclusionary practice which is based upon a biological factor exclusive to the female gender
amounts to “discrimination” and thereby violates the very core of Articles 14, 15 and 17 and not protected by
‘morality’ as used in Articles 25 and 26 of the Constitution?
2. Whether the practice of excluding such women constitutes an “essential religious practice” under Article 25 and
whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own
affairs in the ma ers of religion?
3. Whether Ayyappa Temple has a denominational character and, if so, is it permissible on the part of a ‘religious
denomination’ managed by a statutory board and financed under Article 290-A of the Constitution of India out of
Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices violating constitutional principles/
morality embedded in Articles 14, 15(3), 39(a) and 51-A(e)?
4. Whether Rule 3 of 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? And if so, would it not play foul of
Articles 14 and 15(3) of the Constitution by restricting entry of women on the ground of sex?
5. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires
the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 and , if treated to be intra vires,
whether it will be violative of the provisions of Part III of the Constitution?”
While my own framing is almost exactly the reverse of how the Court has chosen to go about it, readers
will note that the ground covered is virtually identical. One thing that is particularly interesting to note
is that in Question 1, the Court refers not only to Articles 14 and 15, but to Article 17 as well. Article 17
bans the practice of “untouchability”. In framing the question, therefore, the Court has at least
acknowledged the possibility that banning women on grounds of menstruation creates and perpetuates
a stigma that is similar in character to the stigma faced by caste-untouchability (during the hearings last
year, this argument was advanced by Ms Indira Jaising).
The invocation of Article 17 is crucial for another reason. In the recent Triple Talaq judgment, the
dissenting opinion by Justices Khehar and Nazeer, after holding that triple talaq was an “essential
practice” under Islam and therefore protected by Article 25(1), went on to hold that the phrase “subject to
public order, morality and health and to the other provisions of this Part“, which prefaced the Article 25(1)
right, could not make triple talaq subject to Articles 14 and 15(1). This was because these Articles only
protected the individual against the State, while Triple Talaq was an issue between two private
individuals. Note, however, that Article 17 is horizontally applicable – that is, it prohibits untouchability
between private parties. If, therefore, the Court is to find that excluding menstruating women from temple
access amounts to “untouchability” within the meaning of Article 17, then even if that exclusion is an
“essential religious practice” under Article 25(1), it will fall. This, of course, is assuming that Khehar and
Nazeer JJ’s views in Triple Talaq, on this point, were correct; my own view is that they were not.
Consequently, the Court’s framing of the referral questions has set up a host of fascinating constitutional
questions. And at its heart, the issue is this: should the question of temple access be left purely to the
discretion of religious heads, or is it something that should be governed by constitutional norms of
equality and non-discrimination? In my view, given the role played by religion in private and public life
in India, given how religious status is often inextricably linked with civil and social status, and given the
unique history of temple entry movements in India, constitutional norms should apply, and the exclusion
of menstruating women from Sabarimala should be stuck down.
In view of the importance of the issues involved, however, it is to be hoped that the Constitution Bench
is set up swiftly, and the case heard and decided finally.
Haji Ali Dargah: Bombay High Court Upholds

Women’s Right to Access the Inner Sanctum
26 Friday Aug 2016
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article 14, article 15, article 25, article 26, haji ali, non-discrimination, secularism
In an important judgment delivered today, the Bombay High Court upheld the right of women to access
the inner sanctum of the Haji Ali Dargah, and also held that, consequently, the Haji Ali Dargah Trust’s
decision to exclude them was illegal and unconstitutional. Previously, on this blog, we discussed some
of the legal and constitutional issues arising out of this case, concluding that there were good
constitutional arguments in favour of the right of access.
Coming in at 56 pages, the Bombay High Court’s judgment is a crisp and lucid elucidation of the
existing state of religious freedom jurisprudence under the Constitution, as well as application of that
jurisprudence to the facts of this case. The Court began by recounting the three reasons provided by the
Trust for barring women’s entry; first, that “women wearing blouses with wide necks bend on the Mazaar, thus
showing their breasts… [secondly] for the safety and security of women; and [thirdly] that earlier they [i.e., the
Trust] were not aware of the provisions of Shariat and had made a mistake and therefore had taken steps to rectify
the same.” (paragraph 5) It is this last reason that needed to be considered in the greatest detail, since it
went directly to the heart of the Constitution’s religious freedom guarantees, granted to both individuals
and to religious denominations.
In dealing with this submission, the Court considered the minutes of the meeting which had led to the
Dargah Trust passing the Resolution to exclude women. Four reasons emerged out of the minutes,
which overlapped with (but were not identical to) the three submissions made in Court; first, that the
women being in close proximity to the grave of a saint was a “sin” in Islam; secondly, that the Trust had
the fundamental right to manage its own affairs in the ma ers of religion under Article 26 of the
Constitution; thirdly, that it was in the interests of the safety and security of women; and fourthly, at no
point were women allowed to come within the proximity of the dargah (paragraph 22) This last issue
was quickly disposed off by the Court, since the record made it clear that until 2011 -12, women were, as
a ma er of fact, allowed into the inner sanctum (paragraph 23).
This brought the Court to the core argument, which was based upon the Trust’s interpretation of Islam.
The Trust argued that the Quran and the Hadith prohibited proximity of women to the tomb of a male
saint, that menstruating women were ‘unclean’, and that men and women had to be separated at holy
places. To substantiate this argument, it placed verses from the Quran as well as the Hadith before the
Court. The Court found, however, that none of these texts stated that the presence of women in
proximity to the tomb of a saint was a “sin”, and nor did they support “the absolute proposition” for
banning the entry of women into the inner sanctum because of the need for “segregation”. While the
Petitioners had also produced verses from the Quran in support of gender equality, the Court held that
there was no need to go into these, since the Trust, on its own terms, had failed to show that the entry of
women into the inner sanctum was a sin under Islam (paragraph 26).
The Court then turned to the arguments under Article 25 (freedom of religion), and Article 26(b) of the
Constitution – namely, that every religious denomination, or section, had the right to mange its own
affairs in ma ers of religion. On Article 25, relying upon the long-standing religious freedom
jurisprudence of the Supreme Court, the Court first invoked the “essential religious practices test” – i.e.,
was the exclusion of women from the inner sanctum of a shrine an “essential” or “integral” part of
Islam? According to the Court, the test for an “essential practice” was that it must “constitute the very
essence of that religion, and should be such, that if permi ed, it will change its fundamental
character” (paragraph 29). This being the case, the Court found that the Trust had failed to demonstrate
that Islam did not permit the entry of women into Dargahs/Mosques, a claim that was further weakened,
given that women had been allowed entry up until 2011 – 2012 (paragraph 31). Of course, the Trust
argued that it was only after 2011 that its a ention had been drawn to what the Sharia actually required;
to this, the Court’s swift response was that the Trust had placed nothing on record to show what specific
aspects of the Sharia had been drawn to the Trust’s a ention that changed the position so drastically
(paragraph 31).
The Court then turned to Article 26(b), which guaranteed to religious denominations the right to
manage their own affairs in ma ers of religion. The Court first went into the history of the Trust itself,
and its operations. It noted that the Haji Ali Dargah stood on public land, leased to the Trust by the
Government; a scheme for managing the Trust was drawn up by a government-appointed commissioner
in 1936; the role of the Trustees was to prepare books of account, conduct business, maintain the
properties, and so on (paragraph 33). This enquiry was important, because under the Supreme Court’s
Article 26(b) jurisprudence, especially insofar as it concerns the rights of trusts or maths, a distinction
must be drawn between religious activities on the one hand, and secular activities bearing the trappings
of religion on the other (unlike the essential practices test, this distinction is actually grounded in the
Constitutional text – for instance, Article 25(2)(a), which permits State intervention into secular aspects
of religious practice – as well as the Constituent Assembly Debates). Consequently, the Court found that:
“The aims, objects and activities of the Haji Ali Dargah Trust as set out in the Scheme are not governed by any
custom, tradition/usage. The objects of the Haji Ali Dargah Trust are in respect of purely secular activities of a
non-religious nature, such as giving loans, education, medical facilities, etc. Neither the objects nor the Scheme
vest any power in the trustees to determine ma ers of religion, on the basis of which entry of woman is being
restricted.”
It’s important to note here that unlike many other cases before it, the Court did not here get into the
question of whether the exclusion of women from the dargah was a “religious” question or not. It simply
held that the Trust was never authorised to deal with ma ers of religion, and that therefore, Article 26(b)
was not even a racted in the first place. And there was a further reason why Article 26(b) could not
apply:
“Admi edly, the Haji Ali Dargah Trust is a public charitable trust. It is open to people all over the world,
irrespective of their caste, creed or sex, etc. Once a public character is a ached to a place of worship, all the rigors of
Articles 14, 15 and 25 would come into play and the respondent No. 2 Trust cannot justify its decision solely based
on a misreading of Article 26. The respondent No. 2 Trust has no right to discriminate entry of women into a
public place of worship under the guise of `managing the affairs of religion’ under Article 26 and as such, the
State will have to ensure protection of rights of all its citizens guaranteed under Part III of the Constitution,
including Articles 14 and 15, to protect against discrimination based on gender.” (paragraph 36)
In other words, the Dargah’s public character took it out of the protective scope of Article 26(b), and
made it subject to Articles 14, 15 and 25 of the Constitution. This is a fascinating point, especially given
the long history of temple-entry movements in India. Ever since the time of Ambedkar, temple-entry
movements have framed the basic question as being about access to public spaces, a right that could not be
curtailed on grounds of caste etc. In this case, the form of the Trust – as well as the fact that the Dargah
was “open” to all – allowed the Court to hold that the question of access was of a “public” character, and
therefore, impliedly, outside Article 26(b).
The Court then went on to hold, however, that even if it was a racted, Article 26(b) could not override
other constitutional provisions:
“Infact, the right to manage the Trust cannot override the right to practice religion itself, as Article 26 cannot be
seen to abridge or abrogate the right guaranteed under Article 25 of the Constitution.” (paragraph 36)
With respect, this might not be correct. It is, in fact, Article 25 of the Constitution that contains the
prefatory term “Subject to other provisions of this Part…” This suggests that when the framers wanted to
subordinate one provision of Part III to the others, they did so expressly. The omission of this phrase in
Article 26 would suggest, therefore, that it is 25(1) that is subject to 26 (in case of a clash), and that, at the
very least, more work must be done before holding that Article 26(b) is subject to Articles 14 and 15.
Lastly, the Court swiftly disposed off the ‘women’s security’ argument, holding that it was for the
Dargah (as well as the State) to take effective steps to guarantee the security of women, instead of
banning them outright (paragraph 37). It ordered, therefore, that status quo be restored, i.e. “women be
permi ed to enter the sanctum sanctorum at par with men.”
The reader will note, at this point, that a final step in the argument appears to be missing. Even after
holding that the arguments of the Dargah, based on Articles 25 and 26 failed, on what legal or
constitutional basis were the women enforcing their right of access against the Dargah? The Dargah was
not, after all, a State body, and consequently, there could be no direct relief against it under Articles 14,
15, or 25. The Court didn’t address this question separately, but the answer is found back in paragraph
18:
“… the State cannot deprive its citizens of the constitutional rights guaranteed under Articles 14 and 15. It would
then be the Constitutional responsibility of the State to ensure that the principles enshrined in the Articles 14 and
15 of the Constitution are upheld. Article 14 of the Constitution guarantees that `the State shall not deny any
person equality before the law or the equal protection of the law within the territory of India’ and Article 15
guarantees `the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place
of birth or any of them. The State would then be under a constitutional obligation to extent equal protection of law
to the petitioners to the extent, that it will have to ensure that there is no gender discrimination.”
In other words, what the Court held was that under Part III, the State did not merely have a negative
obligation not to infringe fundamental rights. Rather, it had a positive obligation to prevent a private party
from infringing upon another private party’s fundamental rights (this, I argued before, was a move open
to the Court in light of the Supreme Court judgments in Vishaka and Medha Kotwal Lele). In technical
terms, this is called “indirect horizontality” (discussed previously here). If a private party is infringing
my fundamental rights, I cannot move the Court directly against that private party, and ask the Court for
relief against it; I must make the State a Respondent, and ask the Court to direct the State to take
necessary action in order that I may vindicate my fundamental rights (by deploying police, security, or
whatever else). And interestingly the petitioners in this case did make the State a party – in fact, the State
was the First Respondent.
Let us now summarise the structure of the judgment:
1. The Haji Ali Dargah Trust justified the exclusion of women from the inner sanctum on the basis of
the freedom of religion (Article 25(1)), and the right of religious denominations to manage their own
affairs in the ma ers of religion (Article 26(b).
2. The Court rejected the Article 25(1) argument on the basis that the Trust had failed to place any
material on record to demonstrate that the exclusion of women from dargahs was an “essential
feature” of Islam. The Dargah’s claims were thrown further into doubt by the fact that women had
been accessing the sanctum up until 2011 – 12.
3. The Court rejected the Article 26(b) argument on the basis that:
1. The Scheme of the Dargah Trust did not allow it to adjudicate upon religious ma ers. Hence,
Article 26(b) was not a racted.
2. The Dargah Trust was a public charitable trust, and the Dargah was a public space open to all.
Hence, Article 26(b) was not a racted.
3. Even if Article 26(b) was a racted, it was overriden by Articles 14, 15 and 25(1)
4. The exclusion of women from the inner sanctum of the Dargah violated their rights under Articles 14
(equality), 15(1) (non-discrimination) and 25(1) (freedom of religion).
5. Consequently, insofar as the Dargah Trust was impeding the women’s enjoyment of their
fundamental rights, they were entitled to call upon the State to perform its positive obligations under
Part III of the Constitution, and vindicate their rights by taking appropriate enforcement-oriented
action.
By way of conclusion, let me make two points. On this blog, I have strongly opposed the “essential
features” test as being a doctrinal, historical and philosophical mistake (see here), and proposed an
alternative interpretation of Articles 25 and 26 (see here). If, however, there is to be a change, that change
must be initiated by the Supreme Court, si ing in a bench of appropriate strength (at least seven judges).
Whatever the Bench’s personal views on the essential religious practices test, si ing as the Bombay High
Court, they had no choice but to follow and apply it. This they did. What is important to note, however,
is that they applied it in a narrow, circumspect, and sensitive manner, and to the extent that they
necessarily had to. They limited themselves to examining only the material placed on record by the
Trust. Even though the Petitioners had placed on record material arguing that Islam mandated gender
equality, the bench refused to make observations on that point, one way or another. Unlike far too many
previous cases, they refrained from making grand, overarching claims about the religion before them.
Given that the whole problem with the essential practices doctrine is that it allows judges to impose an
external view upon the lived practices and traditions of the community, the Bombay High Court’s
reticence in doing that must be applauded.
This brings me to the second, related point. Over the past few years, cases of this sort – which involve
issues of fundamental rights, religion, and gender equality, among others, have seen much judicial
grandstanding. There have been broad and sweeping statements, which do not stand up to rigorous
scrutiny, very li le a ention to the Constitution and to legal doctrine, and the privileging of rhetoric
over reason. The Bombay High Court’s judgment is the exact opposite of all this. The bench decided the
case on closely-reasoned legal grounds (as any court must) refused the obvious temptation of
buccaneering into the political and religious thicket, and avoided doing anything more than was
absolutely necessary for deciding the case. If we criticise the judiciary when it plays to the galleries, we
must also praise it when it abstains from doing so. For that reason, apart from everything else, today’s
judgment deserves much praise.
Sabrimala: Key Constitutional Issues
13 Wednesday Apr 2016
P G B A R S ,A ₁₄, E ,F R
≈₆C
Tags
article 25, religious freedom, sabarimala
(The following post is based on my understanding of how oral arguments progressed in Court, since I
do not have access to the pleadings. Pointing out of errors would be very welcome)
Arguments in the Sabarimala Temple Entry case are underway before a three-judge bench of the
Supreme Court. Based upon the proceedings so far, it is important to consider the following important
constitutional questions, which the Court must address in order to arrive at a satisfactory decision.
3Recall that the key issue in the Sabarimala Case is the denial of entry to women between the ages of 10
and 50, into the Sabarimala temple. This denial is justified by Rule 4 of the Kerala Hindu Places of Public
Worship Rules, framed under Section 4 of the identically-named Act. Rule 3 prohibits women from
entering a place of public worship “at such time during which they are not by custom and usage allowed to
enter.” The first issue, therefore, pertains to the vires of the Rule itself.
A. Vires of Rule 3
As I understand it, the Intervenors (Happy to Bleed) have argued that Rule 3 is ultra vires the parent Act,
since Section 3 of the Kerala Hindu Places of Public Worship Act specifies that “notwithstanding anything
to the contrary contained in any other law for the time being in force or any custom or usage or any instrument
having effect by virtue of any such law or any decree or order of court, every place of public worship which is open
to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no
Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering
such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service
therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may so enter,
worship, pray or perform.” When this argument was raised before the Kerala High Court twenty-five years
ago, it was rejected on the ground that women between the ages of 10 and 50 did not constitute a “class”
or a “section” of Hindus. This seems to me to be completely fallacious. Read plainly, a “class” or a
“section” is constituted by persons sharing certain common characteristics. Women between the ages of
10 and 50 have been grouped together by the temple authorities themselves, on the stated ground that
they are likely to disturb the “celibacy” of the deity. It is difficult to see how, in such circumstances, they
do not constitute a “class”. Even though the historical context of the legislation was to ensure the
removal of caste-based disabilities, it is crucial to note that the legislature chose not to use the word
“caste”, but used the much broader “class” and “section”. To read these words narrowly, then, does not
appear to me to be justifiable.
Section 3, however, also goes on to state that “Provided that in the case of a place of public worship which is a
temple founded for the benefit of any religious denomination or section thereof, the provisions of this section shall
be subject to the right of that religious denomination or section, as the case may be, to manage its own affairs in
ma ers of religion.” The proviso, therefore, overrides the right under Section 3 in cases of denominational
institutions. In fact, the proviso echoes the language of Article 26(b) of the Constitution, insofar as
according religious denominations autonomy in determining questions pertaining to religion. If,
therefore, the conditions of the Proviso are satisfied, then there might be a problem: the Court could read
down the Rule to be limited to situations where the proviso is satisfied. In other words, not every “custom
or usage” is protected by the Rule, but only such customs are usages that fall within Article 26(b). It is
doubtful whether the Court can read down Rule 3 to this extent (I doubt that it can), but it is certainly an
option open to it. Consequently, let us consider other arguments.
Assuming, therefore, that the Rule has been read down to accord with Section 3, the second leg of the argument,
then, would challenge the exclusion of women under the said rule as being unconstitutional. Let us
therefore consider the constitutional arguments:
B. Constitutionality of Rule 3
The arguments on the constitutionality of Rule 3 would proceed along the same direction. It is well-
established, in Madhu Kishwar vs State of Bihar, that custom or usage is subject to Part III of the
Constitution. Therefore, the exclusion of women, insofar as it is justified purely by reference to custom, is
unconstitutional (it violates Articles 14, 15 and 25(1)). And insofar as Rule 3 permits such exclusion, it is
unconstitutional (I am assuming here that, as secondary legislation, the Rule is subject to Part III).
However, once again, the core question remains must be addressed separately: what happens if the Rule
– and the exclusion that it permits – is justified by recourse to the Constitution itself? Let us therefore
move to the constitutional arguments.
C. Article 25(1) as the Foundation of the Petitioners’ Case
The Intervenors have argued that they have an Article 25(1) right to enter the Sabarimala Temple for the
purposes of worship, since it is part of their constitutionally protected “practice” of religion. While in
most cases, a Court would not contradict this claim, as long as it is genuinely and sincerely held, the
Indian position – as we have seen earlier – is rather different when it comes to judicial intervention into
questions of faith. The position is somewhat complicated by precedent: in Ismail Faruqui, the Supreme
Court held that “the right to worship is not at any and every place, so long as it can be practised effectively.”
However, the Court followed this up by noting “…unless the right to worship at a particular place is itself an
integral part of that right.” The distinction between mosques and temples is relevant here: in monotheistic
Islam, an individual mosque may not have specific religious significance – while in Hinduism,
individual temples dedicated to specific deities are not substitutable in the same sense. For this reason,
despite Ismail Faruqui, the right to worship at a “particular place” could well be “an integral part
of… [the] right [to worship]” simpliciter in the present circumstances, especially since the Sabarimala
Temple is dedicated to a specific deity.
Notable, unlike other provisions of Part III, Article 25(1) is not, in its terms, only enforceable against the
State. It stipulates that “all persons are equally entitled to freedom of conscience and the right freely to profess,
practice and propagate religion.” Consequently, individual interference with this right (through the temple
authorities), or interference by the Davaswom Board, would appear to be actionable under Article 25(1),
without ge ing into kno y questions of maintainability under Article 12. At any rate, it is now well-
established that the State’s obligations under Part III are not merely negative obligations of non-
interference, but extend to guaranteeing effective exercise of fundamental rights. Consequently, at the
very least, if the Petitioners’ claims under Article 25(1) stand, they can call upon State aid to enforce their
right of access.
D. Article 26(b) as the Counterpoint to Article 25(1)
Article 26(b) guarantees the right of every religious denomination “to manage its own affairs in ma ers of
religion.” This appears to be the foundation of the Respondents’ case. It is therefore worthwhile to focus
upon it a li le closely. To fall within Article 26(b), three conditions must be satisfied: (i) since Article
26(b) is subject to “public order, morality, or health“, that preambular clause must not be a racted; (ii) the
claimant must be a “denomination”; (iii) the claim must pertain to “ma ers of religion“. With respect to
(iii), Petitioners are not disputing that the issue of temple entry is a ma er of religion (indeed, having
themselves claimed a right to entry under Article 25(1), it is difficult to see how they could get out of
that). To the best of my understanding, they are also not claiming that the Temple is a denominational
temple – although the Supreme Court has, in the past, laid down fairly rigorous tests in determining
what constitutes a “religious denomination” for the purposes of Article 26(b). Perhaps this is a question
that will be raised by the amici, or one that the Court will examine independently.
Intervenors are arguing, however, that the operation of Article 26(b) is barred by the “morality” clause.
In particular, they are arguing that the word “morality” is to be taken to mean “constitutional morality”
– and since “gender justice” is an integral part of constitutional morality, denominational practices that
go against gender justice are not protected by Article 26(b). The bar on menstruating-age women,
whether one spins it as being based on the perceived uncleanliness of menstruation, or on the “celibacy”
of the deity, amounts to gross gender stereotyping, and therefore violates constitutional morality.
I am sympathetic to the idea of constitutional morality, and have tried to fashion arguments based on
constitutional morality myself, in the past. However, I see at least two problems with this argument, as it
stands. The first is that insofar as Intervenors are relying upon Articles 14 and 15(1) to establish gender
justice as being part of constitutional morality, both these Articles are expressly directed against the State.
Therefore, even if one was to accept that “morality” refers to “constitutional morality”, the most that the
Constitutional text seems to indicate is constitutional morality requires the State not to discriminate on
the basis of gender. In fact, a closer reading of the constitutional text seems to militate against the
Intervenors’ argument. Article 15(2), which is horizontally applicable, is limited to securing non-
discriminatory access to “shops, public restaurants, hotels, and places of public entertainment.”
Conspicuously, religious institutions are excluded. In fact, Article 25(2)(b), which deals with the
throwing open of Hindu religious institutions to all sections of Hindus, is framed as permi ing – but
not obligating – the State to make laws for temple entry. This would seem to indicate that constitutional
morality does not mandate gender equality in with respect to access to religious institutions.
Secondly, the scheme of Articles 25 to 30 suggests that the Constitutional vision strongly supports the
rights of groups to cultural autonomy. Apart from Article 26(b), Article 29 guarantees the rights of
minorities to preserving their language, script and culture. Now, on what basis does one argue – purely
from the constitutional text – that the right to equality or gender justice necessarily overrides the principle
of cultural autonomy? On which side does constitutional morality weigh heavier? I am not arguing that
the Petitioners are incorrect – only that the constitutional text underdetermines the question as far as
constitutional morality is concerned.
My own argument – which I’ve recently made in an article – is slightly different. The Constitution, I’ve
tried to argue, is commi ed to an “anti-exclusion principle”: it prohibits both the State and communities
from treating individuals in discriminatory ways, insofar as that discrimination blocks their access to
crucial public goods, whether material or symbolic. It seems to me that access to a temple is central to
equal moral membership in the cultural community, especially in a country like ours, where private and
public life is suffused with religion to such an extent. The denial of entry to women on grounds such as
menstruation, or breaking the deity’s celibacy, is a classic example of gender-stereotyping, which would
be uncontroversially unconstitutional if done by the State. Given the place of the temple at the heart of
community life, I would submit that it is similarly unconstitutional in the present situation.
E. The Temple as “Public Space”
The Bench appears to have framed the issue as a question of whether religious custom can override the
right to gender equality in the context of a public temple. With respect, I do not think this is entirely
correct. As argued above, the right to equality is not directly relevant in the present case, since Articles
14 and 15(1) make it clear that it is only enforceable against the State. The “publicness” of the temple is
another ma er altogether: I would argue that if the Court is to hold that the Sabarimala Temple is a
“public temple”, then it no longer remains a “denominational” religious institution, and loses the
protection of Article 26(b) without the necessity of going into the morality clause. In such a situation, the
question becomes straightforward: the petitioners have a right to enter the temple under Article 25(1),
and the Devaswom Board has no corresponding right to deny them entry under Article 26(b). Without
the umbrella protection of 26(b), for the reasons adduced at the beginning of this post, Rule 4 is
either ultra vires, or unconstitutional.
(Interestingly, during the first temple entry satyagraha in 1927, Ambedkar framed the issue as precisely
being one of a right to access public spaces on an equal basis. “The issue is not entry, but equality“, he
famously said).
(For another take on the issue, see Alok Prasanna’s article on FirstPost)

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8/16/2019 Access to Religious Spaces | Indian Constitutional Law and Philosophy

Indian Constitutional Law and Philosophy

Category Archives: Access to Religious Spaces

The Sabarimala Judgment – III: Justice

29 Saturday Sep 2018

It is within this framework that Chandrachud J. begins his substantive analysis.

Essential Religious Practices

“Article 17 is a powerful guarantee against exclusion. As an expression of the anti-exclusion

Exist, Pursued by a Bear: Narasu Appa Mali

It is that which makes it a transformative judgment.

The Sabarimala Judgment – II: Justice Malhotra,

29 Saturday Sep 2018

The Sabarimala Judgment – I: An Overview

28 Friday Sep 2018

Misra CJI and Khanwilkar J.

Asking the Right Questions: The Supreme Court’s

13 Friday Oct 2017

Haji Ali Dargah: Bombay High Court Upholds

26 Friday Aug 2016

Let us now summarise the structure of the judgment:

Sabrimala: Key Constitutional Issues

13 Wednesday Apr 2016

C. Article 25(1) as the Foundation of the Petitioners’ Case

D. Article 26(b) as the Counterpoint to Article 25(1)

E. The Temple as “Public Space”

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