Case BriefsHigh Courts

Kerala High Court: A Division Bench comprising of Hrishikesh Roy and A.K. Jayasankaran Nambiar, JJ. was seized of a petition structured as a Public Interest Litigation praying for the following declarations:

  • that the Royal Family of Pandalam does not have any right over the Sabarimala temple;
  • that the Thazhaman Family does not have any Thantric rights over Sabarimala;
  • that the post of Chief Priest in Sabarimala, as well as Malikappuram temples, are open to all qualified persons belonging to Hindu religion; and
  • to issue a writ of mandamus directing the Travancore Devaswom Board (TDB) to take over ornaments of Lord Ayyappa from the Royal Family of Pandalam.

The Court opined that consideration of the above prayers, as made in the petition, would require determination of many factual aspects which would not be feasible while exercising jurisdiction under Article 226 of the Constitution.

It was further observed that the challenge herein related to religious belief and practice and the petitioner had failed to show, even on a prima facie basis, as to how such religious belief and practice should be a matter of court intervention.

In view of the above, the petition was dismissed but the petitioner was granted liberty to establish a factual foundation for his claim before proper forum. [Dr S. Ganapathy v. State of Kerala, 2018 SCC OnLine Ker 5802, decided on 21-12-2018]

Case BriefsHigh Courts

“Peaceful darsan is of paramount importance”

Kerala High Court: A Division Bench comprising of P.R. Ramachandra Menon and N. Anil Kumar, JJ. took up a suo motu matter pertaining to police excess in Sabarimala which was causing hardship to the pilgrims.

The present Sabarimala Special Commissioner Report was taken up along with a batch of other writ petitions wherein allegations of atrocities by police in Sabarimala were alleged. It was noted that police was stopping and interrogating pilgrims as if they were criminals; time to complete the trekking and darshan had been reduced; chanting of prayers was restricted; entire area at Sannidhanam was cordoned off by the police thereby restricting free movement of pilgrims; movement of KSRTC buses had been restricted; a circular had been issued by the police to get a pass for vehicles used for reaching the holy shrine. The grievance of the petitioners was that all these actions were forcefully prohibiting their right to worship. On the other hand, the authorities submitted that tight security was required to deal with threat from fundamentalist elements, terrorists and anti-socialists.

In view of the above, the Court gave the following detailed directions in respect of Sabarimala pilgrimage:

  • All unilateral restrictions imposed by the police except to the minimum required extent to meet the law and order situation shall stand deleted, particularly with regard to the right of the pilgrims to chant mantras.
  • The identified/filtered pilgrims shall be permitted to take rest, place ‘viri’ and to have a night halt to the said extent, in the Nadapanthal.
  • The Annadanam at Sannidhanam, Pampa and Nilakkal shall continue round the clock, catering to the needs of the pilgrims.
  • Supply of food, drinking water, and toilet facility be monitored by Devaswom Board, Food Safety Department and the Kerala Water Authority.
  • There shall not be any interruption in the KSRTC bus service during day or night, except for reasonable regulation to be imposed by the police as part of proper crowd management.
  • Lastly, the Court appointed a three-member ‘team of observers’ till the conclusion of the present season of Sabarimala worship, to ensure that there is no unlawful activity from persons disguised as pilgrims. The said team would be empowered to take on the spot decisions to ensure that smooth pilgrimage is facilitated and there occurs no excess from any corner.

[Travancore Devaswom Board SM Report 36 of 2018, In Re,2018 SCC OnLine Ker 4951, decided on 27-11-2018]

Case BriefsHigh Courts

Kerala High Court: A Division bench comprising of P.R. Ramachandra Menon and Devan Ramachandran, JJ. dismissed a civil writ petition challenging a notification issued by the Travancore Devaswom Board (TDB) in relation to appointment of the head priest of  Sabarimala temple.

Petitioner, one of the applicants for the post of ‘Melshanthi’ (head-priest) of the Sabarimala temple, filed the instant petition challenging a notification issued by TDB whereby only a ‘Santhi’ (priest) having twelve years experience, out of which ten years being spent continuously serving as a Melsanthi of a temple, would alone be eligible for being selected as the Melsanthi of the Sabarimala temple.

The petitioner contended that the stipulation mandating continuous ten years service as Melshanthi amounts to an illegal classification among the Santhis since it has no rationale nexus to the objective sought to be achieved by such classification.

The court held that the impugned notification was not a classification but it prescribed a specific qualification to identify the best and most suitable candidate. All the Melsanthis were Santhis and therefore, what the notification sought to do was not to classify them into two categories, but to prescribe an additional qualification for the aspiring Santhis, so that TDB could select the best candidate.

Relying on the principles relating to fixing and stipulation of the qualifications of employees enumerated by the Supreme Court in J. Rangaswamy v. Government of A.P., (1990) 1 SCC 288, the High Court held that it was completely proscribed from entering into the said area unless the petitioner showed that TDB’s prescriptions were illegal and void ab initio. Thus, the petition was dismissed for being without merits and holding that the issue in question fell within the realm of policy-creation by the appointing authority – TDB.[Rajesh J. Potty v. Travancore Devaswom Board,2018 SCC OnLine Ker 4115, decided on 12-10-2018]

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Supreme Court: The Bench comprising of CJ Ranjan Gogoi and R.F Nariman, A.M. Khanwilkar, Dr D.Y. Chandrachud and Indu Malhotra, JJ. will hear the review petitions in the Sabarimala Temple case against the decision allowing women’s entry in Sabarimala Temple tomorrow i.e. 13-11-2018 in chambers.

Background:

A 5-Judge Constitution Bench, by a majority of 4:1 in  Indian Young Lawyers Assn. v. State of Kerala ,2018 SCC OnLine SC 1690, held not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The judgment of the Court was delivered by CJ Dipak Misra for himself and A.M. Khanwilkar, J. While, R.F. Nariman, and Dr D.Y. Chandrachud each gave separate concurring opinions. The only lady Judge on the Bench, Indu Malhotra, J. rendered a dissenting opinion.

Update: All the review petitions will be heard on 22-01-2018 in open court and the bench also stated that there is no stay on the judgment.

Case BriefsSupreme Court

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 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.

-CJI Dipak Misra and A.M. Khanwilkar, J.

Notions of “purity and pollution”, which stigmatize individuals, have no place in a constitutional order.

-Dr D.Y. Chandrachud, J.

Hindu deities have both physical/temporal and philosophical form. The same deity is capable of having different physical and spiritual forms or manifestations. Worship of each of these forms is unique, and not all forms are worshipped by all persons.

-Indu Malhotra, J.

Supreme Court: A 5-Judge Constitution Bench, by a majority of 4:1, held not allowing entry to women of the age group of 10 to 50 years in the Sabarimala Temple is unconstitutional. The judgment of the Court was delivered by CJ Dipak Misra for himself and A.M. Khanwilkar, J. While, R.F. Nariman and Dr D.Y. Chandrachud each gave separate concurring opinions. the only lady Judge on the Bench, Indu Malhotra, J. rendered a dissenting opinion.

Background: The instant proceedings arose after a 3-Judge Bench in India Young Lawyers Assn. v. State of Kerala, (2017) 10 SCC 689, keeping in view the gravity of issues involved, referred the matter for consideration by a Constitution bench. The writ petition preferred under article 32 of the Constitution sought issuance of directions against the Government of Kerala and other respondents 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, 1965 as unconstitutional being violative of Articles 14, 15, 25 and 51 A(e) of the Constitution and further to pass directions for the safety of women pilgrims. On the other hand, according to the respondents, the said temple, though open to all members of the public regardless of caste, creed, or religion, is a denominational temple which claims the fundamental right to manage its own affairs in matters relating to religion.

Issue: Whether the complete exclusion of women between the ages 10 and 50 from entry, and consequently, of worship in the Sabarimala temple, based upon a biological factor which is exclusive to women only, and which is based upon custom allegedly constituting an essential part of religion, can be said to be violative of their rights under Article 25?

Discussion in relation to right under Article 25(1)

The right to practise religion under article 25(1), in its broad contour, encompasses a non-discriminatory right which is equally available to both men and women of all age groups professing the same religion. Article 25(1), by employing the expression “all persons”, demonstrates that the freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. Women of any age group have as much a right as men to visit and enter a temple in order to freely practise Hindu religion and to exhibit her devotion towards Lord Ayyappa. The term “morality” occurring in Article 25(1) of the Constitution 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. The notions of public order, morality and health cannot be used as colourable device to restrict the freedom to freely practise religion and discriminate against women of the age group of 10 to 50 years by denying them their legal right to enter and offer their prayers at the Sabarimala temple for the simple reason that public morality must yield to constitutional morality.

Followers of Lord Ayyappa do not constitute a religious denomination

though, the respondents urged that the pilgrims coming to visit the Sabarimala temple being devotees of Lord Ayyappa are addressed as Ayyappans and that they are a religious denomination, was unacceptable. There is no identified group called Ayyappans. Every Hindu devotee can go to the temple. There is no identified sect, Sabarimala temple is a public religious endowment and there are no exclusive identified followers of the cult. Devotees of Lord Ayyappa are just Hindus and do not constitute a separate religious denomination. 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.

Exclusionary Practice- Whether essential practice as per Hindu religion?

What constitutes an essential part of a religion is ascertained with reference to the tenets and doctrines of that religion itself. It had 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, was in the firm negative. 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, it cannot be accord to the exclusionary practice followed at the Sabarimala temple the status of an essential practice of Hindu religion. By allowing women to enter into the Sabarimala temple for offering prayers, it cannot be imagined that the nature of Hindu religion would be fundamentally altered or changed in any manner.

Conclusions of the matter by the majority is delineated hereinafter:

  1. Custom or usage of prohibiting women between the ages of 10 to 50 years from entering the Sabarimala temple is violative of Article 25(1) and violative of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 made under Article 25(2)(b) of the Constitution. Further, it is also declared that Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 is unconstitutional being violative of Article 25(1) and Article 15(1) of the Constitution of India. (per R.F. Nariman, J.)
  2. Rule 3(b) of the 1965 Rules is ultra vires the 1965 Act. The language of both the provisions, i.e., Section 3 and the proviso to Section 4(1) of the 1965 Act clearly indicate that custom and usage must take space to the rights of all sections and classes of Hindus to offer prayers at places of public worship, (per CJ Dipak Misra and A.M. Khanwilkar,J.)
  3. Devotees of Lord Ayyappa are exclusively Hindus and do not constitute a separate religious denomination. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  4. Freedom of conscience and the right to freely profess, practise and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  5. The exclusionary practise being followed at the Sabarimala temple by virtue of Rule 3(b) of the 1965 Rules violates the right of Hindu women to freely practise their religion and exhibit their devotion towards Lord Ayyappa. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  6. The practice of exclusion of women of the age group of 10 to 50 years being followed at the Sabarimala temple cannot be regarded as an essential part as claimed by the respondent Board. (per CJ Dipak Misra and A.M. Khanwilkar, J.)
  7. Hindu women constitute a ‘section or class’ of Hindus under clauses (b) and (c) of Section 2 of the 1965 Act. Rule 3(b) of the 1965 Rules enforces a custom contrary to Section 3. This directly offends the right of temple entry established by Section 3. Rules 3(b) is ultra vires the 1965 Act. (per Dr D.Y. Chandrachud, J.)

Indu Malhotra, J., at as many as 10 places in her dissenting opinion, referred to the deity in Sabarimala temple as Naishtik Brahmachari. She expressly mentioned that “Sabarimala temple where Lord Ayyappa is believed to have manifested himself as a Naishtik Brahmachari“. She held that ‘In the case of the Sabarimala Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’. The belief in a deity, and the form in which he has manifested himself is a fundamental right protected by Article 25(1) of the Constitution.

Justice Malhotra was of the view that the right to move the Supreme Court under Article 32 for violation of Fundamental Rights, must be based on a pleading that the petitioner’s personal rights to worship in the Temple have been violated. the petitioners herein did not claim to be devotees of the Sabarimala temple. The absence of this bare minimum requirement must not be viewed as a mere technicality, but an essential requirement to maintain a challenge for impugning practices of any religious sect, or denomination. In the present case, the worshippers of this Temple believe in the manifestation of the deity as a ‘Naishtik Brahmachari’. The devotees of this Temple have not challenged the practises followed by this temple, based on the essential characteristics of the deity.

Therefore, the Writ Petition does not deserve to be entertained for want of standing. The grievances raised are non-justiciable at the behest of the Petitioners and Intervenors involved herein.

The equality doctrine enshrined under article 14 does not override the Fundamental Right guaranteed by Article 25 to every individual to freely profess, practise and propagate their faith, in accordance with the tenets of their religion. The prayers of the Petitioners if acceded to, in its true effect, amounts to exercising powers of judicial review in determining the validity of religious beliefs and practises, which would be outside the ken of the courts. the issue of what constitutes an essential religious practise is for the religious community to decide.

The contention of the learned Amicus Curiae that the Sabarimala Temple would be included within the ambit of ‘places of public resort’ under Article 15(2) cannot be accepted.

The proviso to Section 3 of the 1965 Act carves out an exception to the applicability of the general rule contained in Section 3, with respect to religious denominations, or sect(s) thereof, so as to protect their right to manage their religious affairs without outside interference. Rule 3(b) gives effect to the proviso of Section 3 insofar as it makes a provision for restricting the entry of women at such times when they are not by custom or usage allowed to enter of the place of public worship. The Respondents claim the right to worship in the Sabarimala Temple under Article 25(1) in accordance with their beliefs and practises as per the tenets of their religion. These practises are considered to be essential or integral to that temple. Any interference with the same would conflict with their right guaranteed by Article 25(1) to worship Lord Ayyappa in the form of a ‘Naishtik Brahmachari’.

The worshippers of Lord Ayyappa at Sabarimala Temple constitute a religious denomination, or sect thereof, as the case may be, following the ‘Ayyappa Dharma’. The devotees follow an identifiable set of beliefs, customs and usages, and code of conduct which are being practised since time immemorial, and are founded in a common faith, in any event, Article 290 A does not in any manner take away the denominational character of the Sabarimala Temple, or the Fundamental Rights under Article 26.

The religious practise of restricting the entry of women between the ages of 10 to 50 years, is in pursuance of an ‘essential religious practise’ followed by the respondents. The said restriction has been consistently followed at the Sabarimala Temple, as is borne out from the Memoir of the Survey of the Travancore and Cochin States published in two parts in 1893 and 1901. Any interference with the mode and manner of worship of in present case would impact the character of the Temple. The limited restriction on the entry of women during the notified age group does not fall within the purview of Article 17 of the Constitution.

In the light of all that has been discussed as mentioned hereinabove, as per the majority judgment, the practise of not allowing the entry of women of the age group of 10 to 50 years was held to be unconstitutional being violative of fundamental rights. [Indian Young Lawyers Assn. v. State of Kerala,2018 SCC OnLine SC 1690, decided on 28-09-2018]

Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra and Rohinton Nariman, AM Khanwilkar, Dr DY Chandrachud and Indu Malhotra JJ., resumed with the fourth day of the proceedings on the ‘Sabarimala Temple’ hearing.

AM Singhvi resumed with his arguments for the day in support of Travancore Devaswom Board.

Rohinton Nariman, J., referred to Devaswom Board’s stand on allowing women for a period of 5 days in a month and stated that “The deity cannot suddenly disappear for five days only to reappear later”.

Singhvi: Do not search for logic here. Truth is people hold a bonafide belief. Women do not enter mosques – forget menstruation, forget age.

He also stated that Can SC decide what is essential? Can you unsettle a core part of a Hindu religious sect? Then a six-month trial is required.

Dr Singhvi: If a person has a belief, it is not for a secular judge to sit in judgment of that belief.

Further, Dr Singhvi argued that “Prohibition is not because of male chauvinism, women accept the ban”.

Chandrachud J., “In a patriarchal society, women are made to go through a certain social conditioning from birth, on how to behave, what to say, what to do, etc.”

CJI Dipak Misra: The question is can a public temple enter into the concept of banning.

Nariman J., The only reason is the paternalistic notion that during 41 days women cannot keep the Vratam, no other temple prohibits women”

AM Singhvi concluding today’s arguments stated that “Such male chauvinism is prevalent in societies and religions all over the world”.

DY Chandrachud J., stated that “We will obliterate them whenever we can”.

Constitution Bench will resume with the hearing tomorrow. [Indian Young Lawyers Association v. State of Kerala, WP (C) No. 373 of 2006, order dated 24-07-2018]

[Source: https://twitter.com/kdrajagopal]

Case BriefsSupreme Court

Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra JJ., resumed with the third day of the proceedings on the ‘Sabarimala Temple’ hearing.

Amicus Curiae Raju Ramachandran resumed with his arguments by referring to Constitutional assembly debates on ‘Untouchability’.

CJI Dipak Misra: Untouchability has its own connotation.

Further, the Bench did not seem to be inclined to go into the argument of untouchability.

Raju Ramachandran also submitted that the exclusion of women is based on ‘purity’.

Raju Ramachandran: Men who visit the temple have to perform a 41-day penance. As per the judgment, women cannot perform the same due to certain reasons. That reason is impurity arising out of menstrual period.

CJI stated that whatever Jaideep Gupta (appearing for the State of Kerala) submits would be treated as the final stand of Kerala Government.

Jaideep Gupta in support of State of Kerala stated that ‘restriction on women’s entry is a lifetime bar’. He also continued with his argument by stating that ‘Untouchability was practice based on caste. The further creativity of untouchability may give rise to many consequences.

Abhishek Manu Singhvi commenced his argument for Devaswom Board.

He argued that ‘There is no gender discrimination; Sabarimala Temple is a peculiar one’.

Nariman J.: A women can also stop menstruation at 45 years of age then why should she be excluded from visiting the temple? There is no rationale at all.

Abhishek Manu Singhvi: It is physiologically impossible for women to satisfy 41 days of penance. Women can visit so many other temples of Lord Ayyapa. Why do they want to visit the Sabarimala temple?

CJI Dipak Misra answering Singhvi’s argument stated that ‘Women believe in Sabarimala Temple. It is a devotion that makes a devotee visit a temple’.

The Constitution Bench concluded today’s hearings. Put up for further hearing on 24-07-2018. [Indian Young Lawyers Association v. State of Kerala, WP (C) No. 373 of 2006, order dated 19-07-2018]

[Source: https://twitter.com/TheLeaflet_in]

Case BriefsSupreme Court

Supreme Court: The 5-judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, AM Khanwilkar, DY Chandrachud and Indu Malhotra JJ., commenced the hearing on the well-known ‘Sabarimala Temple case‘ yesterday right after reserving the judgment in the case dealing with the constitutionality of Section 377 IPC.

The issue in this matter revolves around the customary religious practice of prohibition on the entry of women of a certain age (10-50) into the Sabarimala temple in Kerala.

In today’s proceedings the arguments were as follows:

Senior Advocate Indira Jaising: Can you obstruct women from praying in a public place of worship: What is good law for Harijans is good for women.

Chandrachud, J.: Problem of entry in Sabarimala may not be under Article 17 (untouchability) but can be resolved by expanding “all classes and sections” in Article 25(2)(b) to women

Jaising: Menstruating women are not allowed to intermingle within their own family. It is untouchability. Menstruating women are viewed as polluted. The prohibition, they say, is not based on religion but custom.

Indira Jaising cited Shayara Bano v. Union of India, (2017) 9 SCC 1 to argue that Rule 3(b) of Kerala Hindu Places of Public Worship Act, which validates customary practice of prohibiting women entry inside Sabarimala is manifestly arbitrary.

CJI Dipak Misra: Where a man can enter, even a woman can go. What applies to a man, applies to a woman.

Chandrachud J. quoted Article 25 (1) of the Constitution of India: “All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.” This means your right as a woman to pray is not dependent on a legislation. It is your constitutional right.

RP Gupta contended that Sabarimala Temple is not a distinct religious denomination and is part of Hindu religion. Cites Hindu Commissioner v. Shirur Matt case, 1954 SCR 1005  and SP Mittal v. Union of India, (1983) 1 SCC 51  to determine religious denomination test.

Chandrachud J.: Tagging religious belief with menarche is absurd. Exclusion on the basis of age of a woman is irrelevant, tagging age with menarche is even more so.

CJI Dipak Misra: “How can restriction on women of certain age group be covered by the ground of untouchability”.

State of Kerala changed its stance for the same issue 4th time in a row, this time supporting women entry in the temple.

The Bench concluded the hearing for today and would resume with the same from tomorrow, i.e. 19-07-2018. [Indian Young Lawyers Association v. State of Kerala, WP (C) No. 373 of 2006, order dated 18-7-2018]

More updates to follow.

[Source: The Hindu]