Case Analysis: Women entry on Sabarimala Temple by Akanksha Anand



The Sabarimala Temple, considered the abode of Lord Ayyappa, is located in the Periyar Tiger Reserve in the Western Ghat mountain ranges of Pathanamthitta District, Kerala. It prohibits the entry of women in their ‘menstruating years’ (between the ages of 10 to 50), on the grounds that it is a place of worship as Lord Ayyappa is worshipped in celibate form.

In 2006, Indian Young Lawyers Association filed a public interest litigation petition before the Supreme Court challenging the Sabrimala Temple’s custom of excluding women. The Association argued that the custom violates the rights to equality under Article 14 and freedom of religion under Article 25 of female worshippers.

The Sabarimala custom was protected by Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (“Public Worship Rules”). The rule allowed the exclusion of women from public places of worship, if the exclusion was based on ‘custom’.

 In 1991, the exclusion had been challenged before the Kerala High Court in S. Mahendran v. The Secretary, Travancore[1]. The Court ruled that the exclusion was constitutional and justified, as it was a long-standing custom prevailing since time immemorial.

 On 18th August 2006, the Supreme Court issued notices to the parties. On 7th March 2008, the matter was referred to a three-judge Bench. It came up for hearing seven years later, on 11th January 2016. On 20th February 2017, the Court expressed its inclination to refer the case to a Constitution Bench. Finally on 13th October 2017, a Bench comprising of Chief Justice Dipak Misra, Justice R. Banumathi, and Justice Ashok Bhushan ordered a Constitution Bench to pass judgement on the case. On 28th September 2018, the Constitution Bench delivered its judgment.

 In a 4:1 majority, the court ruled that Sabarimala’s exclusion of women violated the fundamental rights of women between the ages of 10-50 years and Rule 3(b) of the Public Worship Rules was unconstitutional. Justice Indu Malhotra delivering a dissenting opinion observed that in a secular polity, it was not for the Courts to interfere in matters of religion and the same must be left to those practicing the religion.

 More than 50 review petitions have subsequently been filed by various organisations including the National Ayyappa Devotees (Women’s) Association, the Nair Service Society, & the All Kerala Brahmin’s Association.

  • ISSUES :
  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 bench, led by Chief Justice of India Dipak Misra and comprising Justices R F Nariman, A M Khanwilkar, D Y Chandrachud and Indu Malhotra delivered the beautiful judgment which was very vocal about what is erroneous with our society and the patriarchal mindset that is ingrained in our very existence.

Men, their rights, and nothing more; women, their rights, and nothing less.” As put in by Susan B. Anthony in a nutshell is a theme which is flowing throughout the judgment.

Chief Justice of India Dipak Misra, writing for himself and Justice A.M. Khanwilkar, opens the judgment with a grounded reality of how the society is lacking in the present scenario with the dualistic approach of treating women as goddesses on one hand and imposing sanctions on their spirituality on the other. The relationship with the Creator and expression of devotion cannot be circumscribed by dogmatic notions of biological or physiological factors arising out of rigid socio-cultural attitudes which do not meet the constitutionally prescribed tests.

In depth, there was a discussion on whether the followers of Lord Ayyappa constitute a religious denomination and the important question that emerged was as to what constitutes a religious denomination.

The Court in relied on the decisions given in The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur Mutt[2], S.P. Mittal v. Union of India[3], Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors.[4], among others to answer the question. As was 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.

It was held that 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. Therefore, there is no identified sect. The requirement that 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. Accordingly, it was held that Sabarimala temple is a public religious endowment and there are no exclusive identified followers of the cult. . For a religious denomination, there must be new methodology provided for a religion. Mere observance of certain practices, even though from a long time, does not make it a distinct religion on that account. This interpretation is in conformity with the previous decisions of the Apex Court dealing with the same matter.

Regarding the Article 25 of the Constitution, it was made evident by the judgment that as long as the devotees, irrespective of their gender and/or age group, seeking entry to a temple of any caste are Hindus, it is their legal right to enter into a temple and offer prayers with reference to Nar Hari Shastri and others v. Shri Badrinath Temple Committee[5], Acharya Jagdishwaranand Avadhuta vs Commissioner Of Police, Calcutta[6] among others. The women, in the case at hand, are also Hindus and so, there is neither any viable nor any legal limitation on their right to enter into the Sabarimala Temple as devotees of Lord Ayyappa and offer their prayers to the deity of exclusion cannot be justified on the ground that allowing entry to women of the said age group would, in any way, be harmful or would play a jeopardizing role to public order, morality, health or, for that matter, any other provision/s of Part III of the Constitution.

The discussion on the term “morality” occurring in Article 25(1) of the Constitution was put under judicial scrutiny and it was held that ‘morality’ cannot be viewed with a narrow lens so as to confine the sphere of definition of morality to what an individual, a section or religious sect may perceive the term to mean. We must remember that when there is a violation of the fundamental rights, the term ‘morality’ naturally implies constitutional morality and any view that is ultimately taken by the Constitutional Courts must be in conformity with the principles and basic tenets of the concept of this constitutional morality that gets support from the Constitution. The present interpretation was required so as to free the society from the very shambles that restricts people from equal and dignified rights in the name of morality. Legally, the interpretation is well founded and reasoned.

The essential practices doctrine was delved into by the Bench. The Apex Court, in Shirur Mutt (supra), for the first time, had held that what constitutes an essential part of a religion will be ascertained with reference to the tenets and doctrines of that religion itself. The Court had opined thus:

“In the first place, what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself.”

With citing of relevant portions from the previous judgments of Government of NCT of Delhi v. Union of India, Navtej Singh Johar and others v. Union of India[7] along with others, the answer to these questions, in considered opinion, was in the firm negative. In no scenario, it can be said that exclusion of women of any age group could be regarded as an essential practice of Hindu religion and on the contrary, it is an essential part of the Hindu religion to allow Hindu women to enter into a temple as devotees and followers of Hindu religion and offer their prayers to the deity. In the absence of any scriptural or textual evidence, the exclusionary practice followed at the Sabarimala temple was denied the status of an essential practice of Hindu religion. This view was further substantiated by the fact that where a practice changes with the efflux of time, such a practice cannot, in view of the law laid down in Commissioner of Police and others (supra), be regarded as a core upon which a religion is formed.

The reasoning provided regarding the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 was simple and conclusive. The proviso to Section 3 stipulates that in case the place of public worship is a temple founded for the benefit of any religious denomination or section thereof, then the rights warranted under Section 3 becomes subject to the right of that religious denomination or section to manage its own affairs in matters of religion. In the judgment it was categorically stated that devotees and followers of Lord Ayyappa do not constitute a religious denomination and, therefore, the proviso to Section 3 cannot be resorted to in the case at hand.

Justice Nariman raised a moot point and then interpreted through various judgments, the definition of the word ‘religion’. He held that our Constitution-makers have made no attempt to define what ’religion’ is and it is certainly not possible to frame an exhaustive definition of the word ’religion which would be applicable to all classes of persons.

Then he went on to interpret the nexus between Article 25 and Article and how they conform with respect to each other. He after referring to an array of landmark judgments of the Apex Court expressed that the fundamental right granted under Article 26 is subject to the exception of public order, morality, and health. However, since the right granted under Article 26 is to be harmoniously construed with Article 25(2)(b), the right to manage its own affairs in matters of religion granted by Article 26(b), in particular, will be subject to laws made under Article 25(2)(b) which throw open religious institutions of a public character to all classes and sections of Hindus. Only religious practices by the religious denomination or section thereof, which do not have the effect of either a complete ban on temple entry of certain persons, or are otherwise not discriminatory, may pass muster under Article 26(b). It provided a clear status regarding the interpretation of both the articles and how not every religious practice can seek protection under Article 25.

Justice DY Chandrachud probed into the historical aspect of the Sabrimala Temble which traces the rich Indian heritage as well as helps to understand the customary point of view. The discussion went on from the birth of Lord Ayyappa to the reasoning behind the ‘Naishtik Brahmachari’. The aspects of the 21 day ‘Vratham’ were then probed into. It was contended that the penance is to be carried out in the manner prescribed. Maintaining one as ‘pure and unpolluted’, it is believed, would lead to the path towards attaining Godhead or to be one with Lord Ayyappa.

The most recent example of the Triple Talaq case was cited and parallel was drawn on how to interpret what constitutes the essential practice of any religion. Justice Kurian Joseph opined in the Triple Talaq judgment that “merely because a practice has continued for long, that by itself cannot make it valid if it has been expressly declared to be impermissible.”

Regarding the matter of Article 17, Justice Chandrachud referred to the immemorial work and beliefs of Dr. Ambedkar and how 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. It contains a vision of social justice and lays down a roadmap for successive governments to achieve that vision. The document sets out a moral trajectory, which citizens must pursue for the realization of the values of liberty, equality, fraternity and justice. It is an assurance to the marginalized to be able to rise to the challenges of human existence.

It was saidArticle 17 is a social revolutionary provision.” This statement in itself strengthens the very purpose of this section and provides strength to the people who have been discriminated against. The issue for entry in a temple is not so much about the right of menstruating women to practice their right to freedom of religion, as about freedom from societal oppression, which comes from a stigmatized understanding of menstruation, resulting in “untouchability”. Article 25, which is subject to Part III provisions, is necessarily therefore subject to Article 17. To use the ideology of “purity and pollution” is a violation of the constitutional right against “untouchability”.

Justice Indu Malhotra, despite being the only female on the Bench, was the one to deliver the dissenting opinion and reasoned the dissent with a well formed judgment.

The judgment was opened by the noteworthy question of whether in a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to entertain PILs challenging religious practices followed by any group, sect or denomination, could cause serious damage to the Constitutional and secular fabric of this country. This raises a legitimate doubt with the Courts flooded these days with the issues of interpretation of constitution in religious matters.

The definition of ‘religion’ as provided in Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar Thirtha Swamiar of Shirur Mutt[8]  was interpreted in a different manner by Justice Malhotra as “the term ‘religion’ has reference to one’s views of his relation to his Creator and to the obligations they impose of reverence for His Being and character and of obedience to His Will” and held that the rich history of the country is protected by the Constitution and that the prohibition of entry of women of menstruating age is an essential part of the religion. Despite the dissent of 4: 1, the judgment of Justice Malhotra has substance and the determination for protection of the customs that have been prevalent in the society.


As the jurisprudence of the court evolved, two separate issues came to the fore. The first was the divide between what is religious and secular. This divide is reflected in Article 25(2)(a) which allows the state to enact legislation which would regulate or restrict economic, financial, political or “other secular activities” which may be associated with religious practice. A second distinct issue, however, was addressed by this Court. That was whether a practice is essential to religion. While the religious versus secular divide finds support in constitutional text, neither Article 25 nor Article 26 speaks about practices which are essential to religion. As the jurisprudence of the Court unfolded, the court assumed the function of determining whether or not a practice constitutes an essential and integral part of religion. This set the determination up at the threshold.  Something which the court holds not to be essential to religion would not be protected by Article 25, or as the case may be, Article 26. Matters of religion under Article 26(b) came to be conflated with what is an essential part of religion.

The Court would determine as to whether a practice is or is not an essential part of religion.  This has enabled the Court to adopt a reformist vision of religion even though it may conflict with the views held by the religion and by those who practice and profess the faith.  The competence of the Court to do so and the legitimacy of the assumption of that role may be questionable. The Court discharges a constitutional (as distinct from an ecclesiastical) role in adjudication.  Adjudicating on what does or does not form an essential part of religion blurs the distinction between the religious-secular divide and the essential/inessential approach. The former has a textual origin in Article 25(2)(a). The latter is a judicial creation.

In the theatre of life, it seems, man has put the autograph and there is no space for a woman even to put her signature.  There is inequality on the path of approach to understand the divinity.  The attribute of devotion to divinity cannot be subjected to the rigidity and stereotypes of gender. The dualism that persists in religion by glorifying and venerating  women as goddesses on one hand and by imposing rigorous sanctions on the other hand in matters of devotion has to be abandoned. Such a dualistic approach and an entrenched mindset results in indignity to women and degradation of their status. The society has to undergo a perceptual shift from being the propagator of hegemonic patriarchal notions of demanding more exacting standards of purity and chastity solely from women to be the cultivator of equality where the woman is in no way considered frailer, lesser or inferior to man.  The law and the society are bestowed with the Herculean task to act as levelers in this regard.

The Judiciary has set an exemplary precedent and tried to bridge the gap widened by such patriarchal practices in name of religion. Thereby, such practices were condemned by judges on the touch stone of the constitution. The Indian Constitution has basic feature of liberty, equality and dignity. Prohibiting women on their biological characteristics from entering the religious places can never be a valid practice as it stands against all the fundamental rights of the women. No law can possibly abridge the basic fundamental rights of any citizens whatsoever. Thus, we welcome such applaudable judgement of the Supreme Court.

But there are still some lacunas to be pointed out in the implementation of the decision of Supreme Court and the first one remains the implementation of the lifting of the ban. There were lots of protest from the people who didn’t wanted the ban on women to be lifted . Thus, though the battle in court was won still the ground reality remains there’s a huge battle to be fought and won against the patriarchal societies and rudimentary mindset.

In a deeply divided society marked by intermixing identities such as religion, race, caste, sex and personal characteristics as the sites of discrimination and oppression, the Constitution marks a perception of a new social order. This social order places the dignity of every individual at the heart of its endeavors. As the basic unit of the Constitution, the individual is the focal point through which the ideals of the Constitution are realized.

[1] AIR 1993 Ker 42

[2] 1954 AIR 282, 1954 SCR 1005

[3] 1983 AIR, 1 1983 SCR (1) 729

[4] (1962) 1 SCR 383

[5] 1952 AIR 245, 1952 SCR 849

[6] 1984 AIR 512, 1984 SCR (1) 447

[7] Writ Petition (Criminal) No. 76 Of 2016

[8] 1954 AIR 282, 1954 SCR 1005

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