PROJECT ON

Indian Young Lawyers Association & Ors.

V.
The State of Kerala & Ors.

SUBMITTED TO

Prof. Deepu Krishna

(Faculty- Law of Torts)

SUBMITTED BY

Devang Rao

SEMESTER-1
Section B
ROLL NO- 26
(B.BA., L.L.B. Hons.)

DATE OF SUBMISSION: 31-10

31 -2016

UnitedWorld School of Law, Karnavati University

University
Uvarsad

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 CERTIFICATE OF DECLARATION

I hereby declare that the project work entitled “Indian Young Lawyers Association & Ors .V
The State of Kerala & Ors.” submitted to UnitedWorld School Of Law, Uvarsad is record of
an original work done by me under the guidance of Prof. Deepu Krishna, Faculty,
UnitedWorld School of Law, Uvarsad.

Devang Rao
Roll-26
Batch-B
Year-1st

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 ACKNOWLEDGEMENTS

This is not just a customary acknowledgement of help that I received but a sincere expression
of gratitude to all those who have helped me to complete this project and made it seem
apparently more readable than otherwise it would have been.

I am in debt to my faculty advisor Prof. Deepu Krishna for giving such an interesting and
wonderful topic “Indian Young Lawyers Association & Ors .V The State of Kerala &
Ors.” and who has been extremely kind to make space for all my enthusiasm & endeavours
and making it seem easy by clearly explaining its various aspects.

I am also grateful to all my friends and seniors who have given their valuable suggestions
pertaining to the topic and have been a constant source of help and support.

Thanking everyone.

Devang Rao

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 Contents

DECLARATION----------------------------------------------------------------------------------------------------2

ACKNOWLEDGEMENTS----------------------------------------------------------------------------------------3

INTRODUCTION --------------------------------------------------------------------------------------------------5

RELIGIOUS FACTS OF THIS CASE---------------------------------------------------------------------------6

JUDGEMENT GIVEN BY VARIOUS JUDGES--------------------------------------------------------------6

ANALYSIS OF THE JUDGEMENT----------------------------------------------------------------------------6

CONCLUSION--------------------------------------------------------------------------------------------6

BIBLIOGRAPHY---------------------------------------------------------------------------------------15

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 INTRODUCTION

Sabrimala is a Hindu Temple dedicated to lord Ayyappa. The temple is considered one of the
highest visited temples in the world by over 40-50 million people every year. The Temple is
being managed by Travancore Devaswom Board (TDB).
In 1991 the High Court of Kerala gave verdict that women of age between 10 to 50 are not
allowed to enter the temple and further said that only the “Tantri” (Priest) was empower to
take decide the Traditions.
However the ban was challenged by group of women lawyers on the grounds that banning the
women going public place of workship is violating the basic structure of the Constitution. In
January 2016 the case reached Supreme Court of India after the Public interest Litigation
(PIL) was filed by the Young India Lawyers association.
Later the case was referred to Five Judge constitutional bench led by Chief Justice of India
Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and
Indu Malhotra. The bench, on September 28, 2018, lifted ban and ruled that women of all age
group can enter Sabrimala temple in kerala.
With 4:1majority the bench gave verdict saying that the temple practice violates the rights of
Hindu women and it is Gender discrimination.
So, the present paper will show anaylysis of the judement given by the various judges of
supreme court bench.

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 RELIGIOUS FACTS OF THIS CASE

1955-56: TDB Notifications:

Two notifications, similarly-worded, one dated 21 October 1955 and the other dated
27November 1956, were issued by the Travancore Devaswom Board (TDB). “In accordance
with the fundamental principle underlying the prathishta (installation)of the venerable, holy
and ancient temple of Sabarimala, Ayyappans who had notobserved the usual vows as well as
women who had attained maturity were not in thehabit of entering the above mentioned
temple for Darshan (worship) by stepping the Pathinettampadi. But of late, there seems to
have been a deviation from this custom and practice. In order to maintain the sanctity and
dignity of this great temple and keep up the past traditions, it is hereby notified that
Ayyappans who do not observe the usual Vrithams are prohibited from entering the temple by
stepping the Pathinettampadi and women between the ages of ten and fifty-five are
forbidden from entering the temple.”

1965: Kerala State Made Rules

Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules 1965
read: The classes of persons mentioned hereunder shall not be entitled to offer worship
in any place of public worship or bathe in or use the water of any sacred tank, well, spring
or watercourse appurtenant to a place of public worship whether situate within or outside
precincts thereof, or any sacred place including a hill or hill lock, or a road, street or
pathways which is requisite for obtaining access to the place of public worship-(b) Women
at such time during which they are not by custom and usage allowed to enter a place of
public worship.

1991: High Court Judgment

The Kerala High Court bench comprising Justice K Paripoornan and Justice KB Marar in S.
Mahendran vs. The Secretary, TDB, allowed a Letter turned PIL and made the following
observations:
The restriction imposed on women aged above 10 and below 50 from trekking the holy hills
of Sabarimala and offering worship at Sabarimala Shrine is in accordance with the usage
11/1/2018 Women Entry In Sabarimala: Past, prevalent from time immemorial. Such
restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the

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Constitution of India. Such restriction is also not violative of the provisions of Hindu Place of
Public Worship (Authorisation of Entry) Act, 1965 since there is no restriction between one
section and another section or between one class and another class among the Hindus in the
matter of entry to a temple whereas the prohibition is only in respect of women of a particular
age group and not women as a class. The high court did not stop at this. It went on to direct
the Travancore Devaswom Board, not to permit women above the age of 10 and below the
age of 50 to trek the holy hills of Sabarimala in connection with the pilgrimage to the
Sabarimala temple and from offering worship at Sabarimala Shrine during any period of the
year. It further directed the Government of Kerala to render all necessary assistance inclusive
of police and to see that the direction (not to permit 10-50 aged women) is implemented and
complied with.

The Present
2018: The Supreme Court Judgment

The majority judgment which allowed the PIL filed by Indian Young Lawyers Association
did the following to the above-mentioned notifications, state-made rules and the high court
judgment:Notifications issued by TDB is held unconstitutional (Justice DY Chandrachud
specifically holds so) State-made rule prohibiting women (Majority judgment holds so)Kerala
High Court judgment practically stands overruled/set aside, though none of the judgments
specifically say so (because it was not impugned).

Notifications Unconstitutional

Only Justice Chandrachud’s judgment seriously discusses the notification. He said: They
prevent any woman between the age of ten and fifty from entering the Sabarimala temple and
from offering prayers. Such a restriction would infringe the rights of all Hindu women which
are recognized by Section 3. The notifications issued by the Board prohibiting the entry of
women between age ten and fifty-five, are ultra vires Section 3. ((Page 123 of Justice
Chandrachud’s judgment) CJI Misra and Justice Chandrachud held the Rules unconstitutional

Following are some observations:

Rule 3(b) gives precedence to customs and usages which allow the exclusion of women “at
such time during which they are not… allowed to enter a place of public worship”. In laying
down such a prescription, Rule 3(b) directly offends the right of temple entry established by
Section 3. Section 3 overrides any custom or usage to the contrary. But Rule 3 acknowledges,

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recognises and enforces a custom or usage to exclude women. This is plainly ultra vires.
(Page 126 of Justice Chandrachud’s judgment) The exclusionary practice, which has been
given the backing of a subordinate legislation in the form of Rule 3(b) of the 1965 Rules,
framed by the virtue of the 1965Act,isneitheran essential nor an integral part of the religion.
(x) A careful reading of Rule 3(b) of the 1965 Rules makes it luculent that it is ultra vires
both Section 3 as well as Section 4 of the 1965 Act, for the simon pure reason that Section 3
being a non-obstante provision clearly stipulates that every place of public worship shall be
open to all classes and sections of Hindus, women being one of them, irrespective of any
custom or usage to the contrary. (xi) Rule 3(b)is also ultra vires Section 4 of the 1965 Act as
the proviso to Section 4(1) creates an exception to the effect that 95 the regulations/rules
made under Section 4(1) shall not discriminate, in any manner whatsoever, against any Hindu
on the ground that he/she belongs to a particular section or class. (xii) The language of both
the provisions, that is, Section 3 and the proviso to Section 4(1) of the 1965 Act clearly
indicate that custom and usage must make space to the rights of all sections and classes of
Hindus to offer prayers at places of public worship.

Any interpretation to the contrary would annihilate the purpose of the 1965 Act and
incrementally impair the fundamental right to practise religion guaranteed under Article
25(1). Therefore, we hold that Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act. (CJI
Misra’s judgment,page 94-95)Observations and Submissions made in Kerala HC
Judgment Taken Note of The majority of judgments have extensively referred to the Kerala
High court judgment and have made the following observations to hold that the custom does
not pass the test of ‘religious essentiality.

‘The Devaswom Board had accepted before the High Court that female worshippers of the
age group of 10 to 50 years used to visit the temple and conduced poojas in every month for
five days for the first rice feeding ceremony of their children. The Devaswom Board also
took a stand before the High Court that restriction of entry for women was only during
Mandalam, Makaravilakku and Vishu days. (page 79 of CJI Misra judgment)High Court
noted that even when old customs prevailed, women were allowed to visit the Temple. It
noted an incident where the Maharaja of Travancore, accompanied by the Maharani and the
Divan, had visited the Temple in 1115 M.E. The High Court noted that the Temple has seen
the presence of women worshippers between the ages of ten and fifty for the first rice-feeding
ceremony of their children. The Secretary of the Ayyappa Seva Sangham had deposed that
young women were seen in Sabarimala during the previous ten to fifteen years. A former

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Devaswom Commissioner admitted that the first rice-feeding ceremony of her grandchild
was conducted at the Sabarimala Temple. The High Court found that during the twenty years
preceding the decision, women irrespective of age were allowed to visit the
temple when it opened for monthly poojas, but were prohibited from entering the temple only
during Mandalam, Makaravilakku and Vishu seasons. (Pages 71-72 of Justice Chandrachud
judgment)

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 JUDGEMENT GIVEN BY VARIOUS JUDGES

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, werejuxtaposed 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).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” (paragraph88
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.”

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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 attracted,and
the proviso to S. 3 of the Act is not attracted (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 buttressed 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

11
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 canworship 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.

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 ANALYSIS OF JUDGEMENT GIVEN BY JUSTICE INDU MALHOTRA

The Supreme Court with 4:1 gave the judgment on the Sabrimala temple’s case and it is very
disturbing that the judge who dissented is a female judge. This shows that the judges are
never gender biased. On reading closer to the judgment given by Malhotra J. it strikes many
core issues and points which remain unanswered in the judgment of other judges. It is a
very uncommon phenomenon that any justice talks about the maintainability of PIL
seriously by the following observation:
“The Right to move the Supreme Court under Article 32 for violation of fundamental rights
must be based on pleading that the petitioner’s personal rights to workship in this temple
have been violated. The petitioners do not claim to be devotees of Sabrimala temple where
lord Ayyappa is believed to have manifested himself as a “Naishthik Brahmachari”. To
determine the validity of long-standing religious costumes and usages of a sect, at a instance
of an association/interveners 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 the persons who do
not subscribe to this faith. (Para 7.2)”.Malhotra J. Explains that maintainability is the
important thing which should be taken into consideration first before moving towards the
issue of the case because in future it may happen that based upon this case many PIL could be
filed questioning religious beliefs and practice which may become long run danger for
Religious minorities.
The right to equality under Article 14 in matters 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.
(Para 7.4). 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. (Para 8.2). If
PIL is considered than people will start questioning every religious belief and it will become
hard for other people to practice their religion 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. If there are clear attributes 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). 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.

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 CONCLUSION

I’m not against women’s entry of Sabarimala shrine as a matter of principle and social
inclusion. Why I’m not for it is because of the nature of the deity, due to metaphysical and
philosophical reasons of worship. Essentially this is something about religious practice,
theology, hindu philosophy, and things like occult, but somehow these things are primarily
being discussed in the public domain with the lens of social reform and oppression. It's made
into a single story of oppression based on Brahmanical supremacy, when there is so much
more to it than that.This is a matter of a religious practice rather than a socio-cultural
practice, custom or tradition that could have been argued from the perspective it primarily
deals with, which would be of Hindu philosophy and metaphysics, but no, it is only and only
viewed and discussed from social and political viewpoints in the large public discourse.
If you ask me, should we be focused on legislation that corrects these systematic
inequalities? My answer would be, yes again, but depends on how we go about
understanding these issues, working on multiple factors besides simply passing laws. This is
religious reform in the lazy way - to get a court order, employ the might of the State and
enforce the rule, ignoring all the negative consequences as collateral damage inevitable and
inherent in any reform. The ends being justified to the means, is another definition of moral
corruption.

The ideal question is, is this forcible entry into sabarimala worth fighting for the women?
Forcible because although SC with it’s verdict supports the women, clearly the devotees and
the people of Kerala don’t, other than people who identify themselves as communists. My
answer would be no, because it doesn’t change the reality for India women at large who are
anyway fighting with a multitude of issues. It doesn’t even touch the women in Kerala but
hurts the devotee women who exist in larger numbers than the women who are plain curious
to see the idol.

 The whole “right to pray” does not hold much water here because we don’t exactly
go to temples with the sole intention of offering prayer. It is like asking, can I enter
a mosque and still insist on doing idol worship and following my rituals? Can I
enter a church and touch the cross, do aarti to the cross, and put tika to the cross?
 There are rituals that we follow, besides simply praying because of which we enter
temples. If you wanted to pray to this form of Ayappa, you could keep an idol at
home and pray or think of the deity and pray from anywhere! So how is your right
to pray to Ayappa being violated here?
 All these things are being discussed by mostly social activists/reformers, journalists
alone with a skewed narrative rather than people with any knowledge on Hindu
philosophy, theology, priests or Godmen and in case they do talk, they are quickly
labelled as “saffronized men” or people with an agenda to preserve ‘parochial
customs’ to retain “Brahmanical supremacy”.
It is not discrimination, it is just exclusion. There are shrines dedicated exclusively to
transgender, shrines exclusively dedicated to men and shrines dedicated exclusively to
women. Everything does not have to be viewed from feminist point of view, there are things
that have nothing to do with any of things. Everyone has the right to question and protest, but
what you gain in that has to be bigger than the fight.

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 Bibliography

Websites:
• https://indconlawphil.wordpress.com/2018/09/28/the-sabarimala-judgment-i-an-
overview/
• https://www.livelaw.in/women-entry-in-sabarimala-past-present-and-future/
• https://indconlawphil.wordpress.com/2018/09/29/the-sabarimala-judgment-ii-justice-
malhotra-group-autonomy-and-cultural-dissent/

Cases:
 Indian Young Lawyers Association vs. The State Of Kerala
 S. Mahendran vs. The Secretary, Travancore AIR 1993 Ker 42

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