In the public interest litigation, Indian Young Lawyers Association & Ors. Vs. State of Kerala & Ors., [Writ Petition (Civil) No. 373 of 2006], preferred under Article 32 of the Constitution of India the petitioners have prayed for issue of appropriate writ or direction commanding the Government of Kerala, Dewaswom Board of Travancore, Chief Thanthri of Sabarimala Temple and the District Magistrate of Pathanamthitta and their officers to ensure entry of female devotees between the age group of 10 to 50 at the Lord Ayappa 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, 1965 (for short, “the 1965 Rules”) framed in exercise of powers conferred by Section 4 of the Kerala Hindu Places of Public Worship 2 (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 safety of women pilgrims. That apart, a prayer has also been made for laying guidelines in matters of general inequality related to religious practices in places of worship.

The preamble to 1965 Act lays down that the Act has been enacted to make better provisions for entry of all classes and sections of Hindu into places of public worship. Section 2 is the dictionary clause. It reads as follows:-

“Section 2. Definitions:- In this Act, unless the context otherwise requires, –

(a) “Hindu” includes a person professing the Buddhist, Sikh or Jaina religion;

(b) “place of public worship” means a place, by whatever name known or to whomsoever belonging, which is dedicated to, or for the benefit of, or is used generally by, Hindus or any section or class thereof, for the performance of any religious service or for offering prayers therein, and includes all ands and subsidiary shrines, mutts, devasthanams, namaskara mandapams and nalambalams appurtenant or attached to any such place, and also any sacred tanks, wells, springs and water courses the waters of which are worshipped, or are used for bathing or for worship, but does not include a “sreekoil”;

(c) “section or class” includes any division, sub-division, caste, sub-caste, sect or denomination whatsoever.”

3. Section 3 that provides for places of public worship to be open to all sections and classes of Hindus reads thus:-

“Section 3. Places of public worship to be open to all section and classes of Hindus:- 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 enter, worship, pray or perform:

Provided that in the case of a public 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 matters of religion.”

It is contended in the Writ Petition that the Division Bench of the High Court of Kerala in S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthpuram and Ors1 has upheld the practice of banning the entry of 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.

Every Hindu shall be entitled to enter a temple and offer worship there by virtus of Section 3 of that Act. The Travancore Devaswom Board had framed rules before the enactment of Act 7/1965 under Section 9 of the Temple Entry Act. Rule 6(c) framed thereunder relates to entry of women. The restriction is for entry of women at such times during which they are not by custom and usage allowed to enter temples. The Board issues notifications every year informing the public about the prohibition regarding entry of women of the age group of 10 to 50 in the Sabarimala temple and Pathinattampadi during Mandalam, Makaravilakku festival and Vishu. Third respondent further contends that the complaint voiced by the petitioner is not one maintainable under Article 226 of the Constitution of India and seeks dismissal of the petition.”

We need not refer to the reasoning and the analysis made by the High Court, for what we are going to say at a later stage. After devoting some space, the High Court held thus:-

“40. The deity in Sabarimala temple is in the form of a Yogi or a Bramchari according to the Thanthri of the temple. He stated that there are Sasta temples at Achankovil, Aryankavu and 8 Kulathupuzha, but the deities there are in different forms. Puthumana Narayanan Namboodiri, a Thanthrimukhya recognised by the Travancore Devaswom Board, while examined as C.W. 1 stated that God in Sabarimala is in the form of a Naisthik Bramchari. That, according to him, is the reason why young women are not permitted to offer prayers in the temple.

41. 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.” And again:-

“43. … We are therefore of the opinion that the usage of woman of the age group 10 to 50 not being permitted to enter the temple and its precincts had been made applicable throughout the year and there is no reason why they should be permitted to offer worship during specified days when they are not in a position to observe penance for 41 days due to physiological reasons. In short, woman after menarche up to menopause are not entitled to enter the temple and offer prayers there at any time of the year.”

The conclusions summed up by the High Court read as follows:-

“44. Our conclusions are as follows :

(1) The restriction imposed on women aged above 10 and below 50 from trekking the holy hills of Sabarimala and offering worship at Sabarimala 9 Shrine is in accordance with the usage prevalent from time immemorial.

(2) Such restriction imposed by the Devaswom Board is not violative of Articles 15, 25 and 26 of the Constitution of India.

(3) 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.”

It issued the following directions:-

“45. In the light of the aforesaid conclusions we direct the first respondent, 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. We also direct the 3rd respondent, Government of Kerala, to render all necessary assistance inclusive of police and to see that the direction which we have issued to the Devaswom Board is implemented and complied with.”

Various paragraphs from the judgment of the Kerala High Court have been referred to bolster the stand that such restriction imposed by the Davaswom Board is not violative of Articles 15, 25 and 26 of the Constitution. Such restriction is also not violative of the provisions of the 1965 Act since there is no restriction between one section and another section or between one class among the Hindus in the matter of entry to the temple whereas the prohibition is only in respect of women of a particular age group and not women as a class. They have referred to the additional affidavit filed by the Devaswom Board that Ayyappans belong to a different denomination and it is elaborately set forth how the temple has come into existence. That apart, it is seriously canvassed that once a decision has been rendered by the High Court, it would operate as res judicata and that will bind all persons including the petitioners herein.

The question as to whether a set of persons constitute a religious denomination is a mixed question of fact and law and should be decided by a competent civil court after examination of documentary and other evidence. In this regard, reliance has been placed on the authority in Dr. Subramanian Swamy v. State of Tamil Nadu and others27. Various other aspects have also been highlighted but it is not necessary to note the same at present.

Having noted the submissions of the learned counsel for the parties and that of the State, we feel certain significant issues arise for consideration. Be it noted, learned counsel for the parties have formulated certain issues as we had reserved the order on a singular aspect, that is, whether the matter should be referred to the Constitution Bench or not. We need not reproduce the questions framed by them.

According to us, the following questions arise for consideration:-

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 30 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 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?

The bench referred the papers to be placed before the learned Chief Justice for constitution of the appropriate larger Bench.