Main points in Sabarimala SC Verdict

• The instant writ petition preferred under Article 32 of the Constitution seeks issuance of directions against the Government of Kerala, Devaswom Board of Travancore, Chief Thanthri of Sabarimala Temple and the District Magistrate of Pathanamthitta to ensure entry of female devotees between the age group of 10 to 50 years to the Lord Ayyappa Temple at Sabarimala (Kerala) which has been denied to them on the basis of certain custom and usage; to declare Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules framed in exercise of the powers conferred by Section 4 of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 (for brevity, “the 1965 Act”) as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the Constitution of India and further to pass directions for the safety of women pilgrims.
• “Rule 3. The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bath in or use of water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situate within or outside 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 place of public worship…. (a)Persons who are not Hindus. (b)Women at such time during which they are not by custom and usage allowed to enter a place of public worship. (c) Persons under pollution arising out of birth or death in their families. (d)Drunken or disorderly persons. (e) Persons suffering from any loathsome or contagious disease. (f) Persons of unsound mind except when taken for worship under proper control and with the permission of the executive authority of the place of public worship concerned. (g) Professional beggars when their entry is solely for the purpose of begging.”
• The following questions for the purpose of reference to the Constitution Bench: 
• 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 matters 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 the Consolidated Fund of Kerala and Tamil Nadu to 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 the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules permits 'religious denomination' to ban entry of women between the age of 10 to 50 years? 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 the 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?”
• The State of Kerala, the first respondent herein, as indicated earlier, had taken contrary stands at different times. An affidavit was filed on 13.11.2007 which indicated that the Government was not in favour of discrimination towards any woman or any section of the society. The said stand was changed in the affidavit dated 5.2.2016 taking the stand that the earlier affidavit was contrary to the judgment of the Kerala High Court. On 7.11.2016 on a query being made by the Court, the learned counsel for the State submitted that it wanted to place reliance on the original affidavit dated 13.11.2007. It is contended by Mr. Jaideep Gupta, learned senior counsel appearing for the State of Kerala, that the 1965 Act and the Rules framed thereunder are in consonance with Article 25(2)(b) of the Constitution. Reference has been made to Section 3 of the Act, for the said provision deals with places of public worship to be open to Hindus generally or any section or class thereof. The concept of prohibition is not conceived of. It is urged by Mr. Gupta that there is no restriction in view of the legislation in the field. In essence, the stand of the State is that it does not conceive of any discrimination as regards the entry of women into the temple where male devotees can enter
• The respondent no. 4 (the Thanthri of the Temple) has averred that the custom and usage of young women (aged between 10 to 50 years) not being allowed to enter the Sabarimala temple has its traces in the basic tenets of the establishment of the temple, the deification of Lord Ayyappa and His worship. As per the respondent no. 4, Ayyappa had explained the manner in which the Sabarimala pilgrimage was to be undertaken emphasizing the importance of „Vrutham‟ which are special observances that need to be followed in order to achieve spiritual refinement, and that as a part of the "Vruthum", the person going on pilgrimage separates himself from all family ties for 41 days and during the said period either the woman leaves the house or the man resides elsewhere in order to separate himself from all family ties. Thereafter, the respondent no. 4 has pointed out that the problem with women is that they cannot complete the 41 days Vruthum as their periods would eventually fall within the said period and it is a custom among all Hindus that women do not go to temples or participate in religious activities during periods and the same is substantiated by the statement of the basic Thantric text of temple worshipping in Kerala Thantra Samuchayam, Chapter 10, Verse II.The respondent no. 4 has emphasized that the observance of 41 days Vruthum is a condition precedent for the pilgrimage which has been an age old custom and anyone who cannot fulfill the said Vruthum cannot enter the temple and, hence, women who have not attained puberty and those who are in menopause alone can undertake the pilgrimage at Sabarimala. The respondent no. 4 has also averred that the said condition of observance of 41days Vruthum is not applicable to women alone and even men who cannot observe the 41 days Vruthum due to births and deaths in the family, which results in breaking of Vruthum, are also not allowed to take the pilgrimage that year.The respondent no. 4 has also drawn the attention of the Court to the fact that religious customs as well as the traditional science of Ayurveda consider menstrual period as an occasion for rest for women and a period of uncleanliness of the body and during this period, women are affected by several discomforts and, hence, observance of intense spiritual discipline for 41 days is not possible. The respondent no. 4 has also contented that it is for the sake of pilgrims who practise celibacy that young women are not allowed in the Sabarimala pilgrimage.The respondent no. 4 has also averred that for climbing the 18 holy steps, one has to carry the irumudikettu (the sacred package of offerings) and for making the pilgrimage really meaningful, austerities for a period of 41 days have to be observed and, hence, for a meaningful pilgrimage, it is always prudent if women of the forbidden age group hold themselves back.the respondent no. 4 has also placed reliance upon the decision of the Kerala High Court in S. Mahendran (supra) wherein the then Thantri Shri Neelakandaru had deposed as C.W 6 and he stated that the present idol was installed by his paternal uncle Kantaru Shankaru and he confirmed that women of age group 10 to 50 years were not allowed to enter the temple even before 1950s. The respondent no. 4 has also submitted that the deity at Sabarimala in the form of „Naishtik Brahmachari‟ and that is also a reason why young women are not allowed inside the temple so as to prevent even the slightest deviation from celibacy and austerity observed by the deity
• The applicant/intervenor has also submitted that the respondents, by referring to the practice as a custom with aberrations, have themselves suggested that there has been no continuity in the applicability of the said custom and that it has also been established in the evidence before the High Court that women irrespective of their age were permitted to enter the Sabarimala for the first rice feeding ceremony of their children and it is only since the last 60 years after the passing of the Notification in 1955 that women between the age of 10 to 50 years were prohibited from entering the temple. 
• Learned Senior Advocate Mr. Raju Ramchandran, the learned Amicus, submits that the right of a woman to visit and enter a temple as a devotee of the deity and as a believer in Hindu faith is an essential aspect of her right to worship without which her right to worship is significantly denuded. It is also submitted by the learned Amicus that Devaswom Board in its counter affidavit before the Kerala High Court in S. Mahendran (supra), had asserted, as is reflected vide para 7 of the judgment, that there was no such prohibition against women entering the temple and that there was no evidence to suggest any binding religious practice and, likewise, the High Court, in its judgment vide para 34, found the exclusionary practice as just a usage and not a religious custom or essential religious practice.
• Whether followers of Lord Ayyappa constitute a religious denomination? 
• Article 26 of the Constitution of India guarantees to every religious denomination the right (a) to establish and maintain institutions for religious and charitable purposes; (b) to manage its own affairs in matters of religion; (c) to own and acquire movable and immovable property; and (d) to administer such property in accordance with law. However, these rights are subject to public order, morality and health
• "The words 'religious denomination' in Article 26 of the Constitution must take their colour from the word 'religion' and if this be so, the expression 'religious denomination' must also satisfy three conditions: (1) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith; (2) common organisation, and (3) designation by a distinctive name."
• As is decipherable form the above decisions of this Court, for any religious mutt, sect, body, sub-sect or any section thereof to be designated as a religious denomination, it must be a collection of individuals having a collective common faith, a common organization which adheres to the said common faith, and last but not the least, the said collection of individuals must be labeled, branded and identified by a distinct name.
• Though, the respondents have urged that the pilgrims coming to visit the Sabarimala temple being devotees of Lord Ayyappa are addressed as Ayyappans and, therefore, the third condition for a religious denomination stands satisfied, is unacceptable. There is no identified group called Ayyappans. Every Hindu devotee can go to the temple. We have also been apprised that there are other temples for Lord Ayyappa and there is no such prohibition
• Coming to the first and the most important condition for a religious denomination, i.e., the collection of individuals ought to have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, there is nothing on record to show that the devotees of Lord Ayyappa have any common religious tenets peculiar to themselves, which they regard as conducive to their spiritual well-being, other than those which are common to the Hindu religion. Therefore, the devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination
• Having stated that the devotees of Lord Ayyappa do not constitute a religious denomination within the meaning of Article 26 and that Sabarimala Temple is a public temple by virtue of the fact that Section 15 of the 1950 Act vests all powers of direction, control and supervision over it in the Travancore Devaswom Board which, in our foregoing analysis, has been unveiled as „other authority‟ within the meaning of Article 12, resultantly fundamental rights including those guaranteed under Article 25(1) are enforceable against the Travancore Devaswom Board and other incorporated Devaswoms including the Sabarimala Temple.
• Whether exclusionary practice is an essential practice as per Hindu religion?
• it has to be determined whether the practice of exclusion of women of the age group of 10 to 50 years is equivalent to a doctrine of Hindu religion or a practice that could be regarded as an essential part of the Hindu religion and whether the nature of Hindu religion would be altered without the said exclusionary practice. The answer to these questions, in our considered opinion, is in the firm negative. In the absence of any scriptural or textual evidence, we cannot accord to the exclusionary practice followed at the Sabarimala temple the status of an essential practice of Hindu religion.
• Nobody can say that essential part or practice of one's religion has changed from a particular date or by an event. Such alterable parts or practices are definitely not the 'core' of religion where the belief is based and religion is founded upon. It could only be treated as mere embellishments to the non-essential part or practices.There has to be unhindered continuity in a practice for it to attain the status of essential practice. It is further discernible from the judgment of the High Court in S. Mahendran (supra) that 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, Makaeavilakku and Vishnu days. Prior to the passing of the Notification in 1950, women of all age groups used to visit the Sabarimala temple for the first rice feeding ceremony of their children.Therefore, there seems to be no continuity in the exclusionary practice followed at the Sabarimala temple and in view of this, it cannot be treated as an essential practice.
• Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 is ultra vires Sections 3 and 4 of the 1965 Act, for the reason that it protects „custom and usage‟ which may prohibit entry when Section 3 expressly overrides custom and usage.The language of both the provisions, that is, Section 3 and the proviso to Section 4(1) of the 1965 Act, clearly indicates 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 the fundamental right to practise religion guaranteed under Article 25(1). It is clear as crystal that the provisions of the 1965 Act are liberal in nature so as to allow entry to all sections and classes of Hindus including Scheduled Castes and Scheduled Tribes. But framing of Rule 3(b) of the 1965 Rules under the garb of Section 4(1) would violate the very purpose of the 1965 Act. 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

The Vratham or penance entails: (i) Abstaining from physical relations with a spouse; (ii) Abstention from intoxicating drinks, smoking and tamasic food; (iii) Living in isolation from the rest of the family; (iv) Refraining from interacting with women in daily life including those in the family; (v) Cooking one’s own food; (vi) Maintaining hygiene including bathing twice a day before prayers; (vii) Wearing a black mundu and upper garments; (viii) Partaking of one meal a day; and (ix) Walking barefoot. 

I also want to give a few points from the 1991 Judgement S. Mahendran vs The Secretary, Travancore ... on 5 April, 1991

• A petition was sent by one S. Mahan-daran, K. P. S. Bhavan, Perunnai, Changana-cherry, to one of us (Paripoornan, J.) which was converted into an original petition and treated as public interest litigation. He complained of young woman trekking Sabari hills (Sabarimala) and offering prayers at the Sabarimala Shrina. That is contrary to the customs and usages followed in the temple, according to him. Special treatment is alleged to have been given to wives of V.I.Ps. He pointed out a specific instance of the first rice-feeding ceremony of the grand-daughter of the former Devaswom Commissioner Smt. Chandrika conducted at Sabarimala temple in the presence of her daughter, the mother of the child, and other relatives including women a photograph which appeared in the Janmaboomi daily of 19-8-1990 was also enclosed along with the complaint petition. He sought suitable action to be taken against the persons concerned

• Trvancore Devasom Board said - In olden days worshippers visit the temple only after observing penance for 41 days. Since pilgrims to Sabarimala temple ought to undergo 'Vrathams' or penance for 41 days, usually ladies between the age of 10 and 50 will not be physically capable of observing vratham for 41 days on physiological grounds. The religious practices and customs followed earlier had changed during the last 40 years particularly from 1950, the year in which the renovation of the temple took place after the "fire disaster". Even while the old customs prevailed, women used to visit the temple though very rarely. The Maharaja of Travancore accompanied by the Maharani and the Divan had visited the lemple in 1115 M.E. There was thus no prohibition for women to enter the Sabarimala temple in olden days, but women in large number were not visiting the temple. That was not because of any prohibition imposed by Hindu religion but because of other non-religious factors. In recent years, many worshippers had gone to the temple with lady worshippers within the age group 10 to 50 for the first rice-feeding ceremony of their children (Chottoonu). The Board used to issue receipts on such occasions on payment of the prescribed charges.For the last 20 years woman irrespective of their age were allowed to visit the lemple when it opens for monthly poojas. They were not permitted to enter the temple during Mandalam, Makaravilakku. and Vishu seasons. The rule that during these seasons no woman who is aged more than 10 and less than 50 shall enter the temple is scrupulously followed. 
• The second respondent, former Deva-swom Commissioner Smt. S. Chandrika in her counter-affidavit said that the restriction regarding the entry of women in the age group 10 to 50 is there only during Mandalam, Makaravilakku and Vishu. As per the stipulations made by the Devaswom Board there is no restriction during the remaining period. When monthly poojas are conducted, women of all age groups used to visit Sabarimala. On the 1st of Chingam 1166 the first rice-feeding ceremony of other children were also conducted at the temple. No V.I.P. treatment was given to her grandchild on that day. The same facility was afforded to others also. Her daughter got married on 13-7-1984 and was not begetting a child for a considerably long time. She took a vow that the first rice-feeding ceremony would be performed at Sabarimala in case she begets a child. Hence the reason why the first rice-feeding ceremony of the child delivered by her was performed at that temple. The entry of young ladies in the temple during monthly poojas is not against the customs and practices followed in the temple.

• The present Thanthri Sri Neelakandaru is doing thanthram in Sabarimala temple for the past 50 years. As C.W. 6 he stated that he was intimately connected with that temple even before the reinstallation of the deity in 1950. According to him, woman belonging to the age group of 10 to 50 were prohibited from entering the temple even before 1950.
• The Secretary of the Ayyappa Seva Sangham Sri K.P.S. Nair deposed that he had conducted pilgrimage to Sabarimala every year for the past 60 years. The Sangham has passed a resolution that women above 10 and below 50 years of age should not enter the Sabarimala temple. He stated that he had , been young women in Sabarimala only during the past 10 to 15 years. The Sangham had orally complained to the authorities about this but to no avail. He has spoken about an instance which he had witnessed about five years back when a young woman was seen attempting to ascend the sacred steps. One of the volunteers of the Sangham brought to the notice of the Circle Inspector on duty. The witness stated that the Circle Inspector restrained the volunteer and the woman ascended the steps and entered the temple. He further stated that tourists from other States go to Sabarimala in large numbers, of whom there were young women also. Even newly married couple were seen among those tourists. The witness stated that the sanctity and purity of the surroundings are evaded on account of this.
• A copy of the reply sent by Sri Maheshvararu, Thanthri of the temple, to Sri Kummanam Rajasekharan, State Secretary of Hindu Munnani, was produced by C. W. 5. This letter (Ext. C2) was sent in reply to a letter sent by Sri Rajasekharan informing Sri Maheswararu about dance performance by young woman and marriage ceremonies conducted at the temple and shooting of films there. Sri Maheswararu was the Thanthri of the temple at the time of devaprasnam in 1985. He had expressed his opinion in the reply. He informed Sri Rajasekharan that permitting women between the age group 12 to 50 will be contrary to the customs of the temple. It is also mentioned that it was revealed so in all the Devaprasnama conducted at Sabarimala by well known astrologers. There cannot thus be two opinion about the practice and usage followed in not permitting women aged more than 10 and below 50 worship at Sabarimala temple.
• Is there any basis for this restriction? Is it only a blind belief handed down from generation to generation without any rationale behind that restriction? Pilgrims are expected to observe penance. Purity in thought, word and deed is insisted during the period of penance (Vratham). A pilgrim starts trekking the Sabarimala only after completing the penance for a period of 41 days. Women of the age group 10 to 50 will not be in a position to observe Vratham continuously for a period of 41 days due to physiological reasons. These appear to be the main reasons why females of a particular age group were not permitted to go on a pilgrimage to Sabarimala.
• There is a vital reason for imposing this restriction on young women. It appears to be more fundamental. The Thanthri of the temple as well as some other witnesses have stated that the deity at Sabarimala is in the form of a Naisthik Brahmachari. Since the deity is in the form of a Naisthik Brahmachari, it is therefore believed that young women should not offer worship in the temple so that even the slightest deviation from celibacy and austerity observed by the deity is not caused by the presence of such women.
• The Devaswom Board and the 2nd respondent Smt. Chandrika, former Devaswom Board Commissioner, have a contention that the restriction of entry is only during the Mandalam, Maharavilakku and Vishu days. The temple will be opened in every month for five days and poojas are conducted on those days. According to the Board persons who go to the temple during these days are not expected to observe the penance for any particular period. Ayyappa devotees used to visit the temple on these days irrespective of their age, according to the Board, and this practice has been in vogue for the past 40 years. No serious complaint was received by the Board from men of religion against permitting women during these days. The Thanthri also has not objected to this practice, according to the Board. Many female worshippers of the age group of 10 to 50 used to go to the temple during these days for the first rice-feeding ceremony of their children. Receipts are issued by the Board on payment of the prescribed charges and the rice-feeding ceremony is being conducted at the temple. The Board has therefore taken a stand that the restriction is prevalent only during Mandalam, Makaravilakku and Vishu days, when there will be rush of pilgrims. Neither the Thanthri nor any of the other witnesses have spoken about the practice of permitting women during other days either for conducting the first rice-feeding ceremony of their children or to offer worship at the temple. The restriction imposed has been in vogue for a continuously long period for proper reasons.