Case BriefsHigh Courts

Manipur High Court: A Division Bench comprising of Ramalingam Sudhakar, CJ and Kh. Nobin Singh, J. dismissed an appeal filed by the State against the judgment of a Single Judge directing the State to give admission to the respondent.

In the impugned order, the Single Judge had directed the State to give admission to the respondent in terms of his merit position to undertake B.Sc. Nursing Course by staying in rental accommodation. Being aggrieved by the order, the State filed the present appeal.

The High Court noted that it was not in dispute that the respondent was an eligible candidate and he was selected. The only reason why he was not given admission appeared to be lack of hostel facilities and it was also pleaded by the State that all the available candidates in the hostel are women. The Court held that the apprehension that a single male should not be given a seat for the above reason appeared to be totally misplaced. In such view of the matter, the appeal was dismissed for being without merits.[State of Manipur v. Sanangamba Akham, 2018 SCC OnLine Mani 164, dated 06-12-2018]

Case BriefsSupreme Court

Supreme Court: The Bench comprising of R. Banumathi and Indira Banerjee, JJ. while setting aside the judgment of the Delhi High Court which had reversed the conviction under Section 376(2)(g) recorded by the trial court stated that, “Even assuming that the prosecutrix was of easy virtue, she has a right to refuse to submit herself to sexual intercourse to anyone.”

The factual matrix of the case draws a picture in which it is stated that the present appeals came up on account of the Delhi High Court’s judgment which had allowed the respondents/accused conviction under Section 376(2)(g) IPC to be set aside. The prosecutrix alleged that when the respondents had demanded bidi from the prosecutrix and on her refusal for the same, she was raped by them, in which Respondent 2 was responsible for holding her hands and the other three men had committed rape on her turn by turn. On raising alarm in this situation, PW-3, i.e. mother of the prosecutrix saw those men coming out of the jhuggi while prosecutrix was lying unconscious.

Further, the charges were framed against the respondents under Section 376(2)(g) IPC to which they pleaded guilty. Respondents had submitted that prosecutrix was of bad character and was indulging in prostitution and on complaining about the same, the respondents were falsely implicated for the rape charge. The trial court had convicted the respondents under Section 376(2)(g) IPC but, further, the High Court had allowed the appeal against the trial court judgment by acquitting the respondent and directing to initiate action against the police officers concerned.

The Supreme Court on noting the observations and submissions and also the materials on record stated that, the trial court had rightly stated that “even if the allegations of the accused that the prosecutrix is of immoral character are taken to be correct, same does not give any right to the accused persons to commit rape.”

“Even in cases where there is some material to show that the victim was habituated to sexual intercourse, no inference like the victim being a woman of ‘loose character’ is permissible to be drawn from that circumstance alone.”

Hence, High Court erred in placing reliance upon the complaints allegedly made against the prosecutrix to doubt her version and to hold that a false case has been foisted. Further, the High Court was also not right in issuing the direction to lodge a complaint against the police officials, which was hereby set aside and the appeal preferred was allowed. [State (NCT of Delhi) v. Pankaj Chaudhary,2018 SCC OnLine SC 2256, decided on 30-10-2018]

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]

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Supreme Court: The 5-Judge Constitution Bench comprising of CJ Dipak Misra, Rohinton Nariman, A.M. Khanwilkar, Dr D.Y Chandrachud and Indu Malhotra JJ., by a 4:1 majority, allowed the entry of women in Sabarimala Temple, Kerala.

CJ Dipak Misra: Women no way inferior to men. On one hand, women are worshipped as Goddesses, but there are restrictions on the other hand. Relationship with God can’t be defined by biological or physiological factors.

CJ and Khanwilkar, J: Rule 3(b) of Kerala Temple Entry Act which excludes women aged between 10 and 50 violates freedom of a Hindu religion to worship. Right to worship is equally available to men and women. There can be no discrimination on the basis of gender.

 Dr D.Y. Chandrachud J.: To treat women as the children of a lesser God is to blink at the Constitution.

“The ban says presence of women deviates from celibacy. This is placing the burden of a men’s celibacy on women. Stigmatises them, stereotypes them.”

R.F. Nariman J.: Rule 3(b) is unconstitutional for being violative of Articles 25(1) & 15(1) of the Constitution. Excluding women renders their right to practice faith.

 Indu Malhotra J. (dissents): What is essential practice in a religion is for the religion to decide, it is a matter of personal faith. India is a land of diverse faiths. Constitutional morality in a pluralistic society gives freedom to practice even irrational customs. Religious practices cannot be solely tested on the bedrock of equality.

“Religious practices can’t solely be tested on the basis of the right to equality. It’s up to the worshippers, not the Court to decide what’s religion’s essential practice.”

Indu Malhotra J. Judges cannot intervene and decide on whether a practice is violative of fundamental rights or not. Personal views of judges do not matter. A religious denomination has freedom to believe and practice even if their beliefs are illogical or irrational.

Hence, the Constitution Bench with 4:1 majority removed the ban on entry of women in the Sabarimala Temple stating “Women can’t be treated as lesser or weaker.”

Judgment awaited.

Case BriefsSupreme Court

Supreme Court: The 2-Judge Bench comprising of Madan B. Lokur and Deepak Gupta, JJ., passed an order by accepting certain exemptions in regard to the “odd-even scheme” that had been implemented in Delhi by the order of NGT.

ASG had placed upon a grievance stating that “there shall be no exemption to any persons, officer and individual and the two-wheelers from the scope of the odd-even scheme.” Further, he submitted that women and two-wheelers may be granted an exemption too.

Therefore, the Supreme Court accepting the submissions of the ASG in regard to the exemptions in certain cases stayed the operation of the direction mentioned in respect of women and two-wheelers. [Government (NCT of Delhi) v. Vardhman Kaushik, 2018 SCC OnLine SC 1543, Order dated 17-09-2018]

Case BriefsHigh Courts

Bombay High Court: While dealing with petition filed under Article 226 of the Constitution of India alleging gender discrimination and arbitrary denial of access to women in the sanctum sanctorum at the Haji Ali Dargah, the division bench comprising of V.M. Kanade and Revati Mohate Dere JJ., held the ban violative of Article 14, 15 and 25.

In the present petition, the petitioners stated that they are the office bearers of `Bharatiya Muslim Mahila Andolan’ – a national secular autonomous mass movement of Muslim Women with over 50,000 members in 15 States. According to the petitioners, in June, 2012 when the petitioner No. 1 revisited the Dargah to offer prayers, she discovered a steel barricade put up at the entry of the sanctum sanctorum, thus preventing the entry of women devotees in the sanctum sanctorum of the Haji Ali Dargah. Pursuant to the said restriction imposed on women devotees, the petitioners approached the authorities of the respondent No. 2 Trust and sought answers for imposing such a ban/rule. It is stated that the President of the Haji Ali Dargah Trust disclosed that the reasons for imposing such a ban/rule were – (i) women wearing blouses with wide necks bend on the Mazaar, thus showing their breasts; (ii) for the safety and security of women; and (iii) that earlier they were not aware of the provisions of Shariat and had made a mistake and therefore had taken steps to rectify the same.

After perusal of the arguments advanced, the Court said that the respondent No. 2, under the guise of providing security and ensuring safety of women from sexual harassment, cannot justify the ban and prevent women from entering the sanctum sanctorum of the Haji Ali Dargah. The respondent No. 2 Trust is always at liberty to take steps to prevent sexual harassment of women, not by banning their entry in the sanctum sanctorum, but by taking effective steps and making provisions for their safety and security e.g. by having separate queues for men and women, as was done earlier. The Court further stated that it is also the duty of the State to ensure the safety and security of the women at such places. The State is equally under an obligation to ensure that the fundamental rights guaranteed under Articles 14, 15 and 25 of the Constitution are protected and that the right of access into the sanctum sanctorum of the Haji Ali Dargah is not denied to women. The Court held the ban imposed by the respondent No. 2 Trust, prohibiting women from entering the sanctum sanctorum of the Haji Ali Dargah violative of Articles 14, 15 and 25 of the Constitution, and therefore restored status-quo ante i.e. women be permitted to enter the sanctum sanctorum at par with men. The State and the respondent No. 2 Trust directed to take effective steps to ensure the safety and security of women at the said place of worship. [Dr. Noorjehan Safia Niaz v. State of Maharashtra, 2016 SCC OnLine Bom 5394, decided on 26.08.2016]