DHARMASHASTRA NATIONAL LAW UNIVERSITY

PROJECT ON INDIAN YOUNG LAWYERS ASSOCIATION VS THE

STATE OF KERALA

(CONSTITUTIONAL LAW - II)

SEMESTER –IV

SUBMITTED TO: SUBMITTED BY:

ASHIT SRIVASTAVA ABHISHEK KUMAR SHAH

ASSISTANT PROFESSOR OF LAW BAL/086/19

DECLARATION 

I, Abhishek Kumar Shah, have undergone research of the project work titled “INDIAN
YOUNG LAWYERS ASSOCIATION VS THE STATE OF KERALA”, as a student of
Constitutional Law. I hereby declare that this Research Project  has been prepared by me for
academic purpose only, and is the outcome of the investigation  and preparation done by me
under the able guidance and supervision of Mr. Ashit Srivastava, Assistant Professor,
Faculty member of Constitutional Law, Dharmashastra National Law  University, Jabalpur.
I endorse certain views as my own and gives due credit to the jurists  wherever required. 

- Abhishek Kumar Shah

 ACKNOWLEDGEMENT

THE MAKING OF THIS PROJECT INVOLVES THE UNCONDITIONAL SUPPORT OF A

LOT OF PEOPLE. I WOULD LIKE TO EXPRESS MY SINCERE GRATITUDE TO
PROFESSOR ASHIT SRIVASTAVA FOR LEADING ME THROUGH THE PROCESS OF
TURNING THIS PROJECT INTO A COHESIVE WORK BY OFFERING VALUABLE
INSIGHTS INTO THE TOPICS AND SHARING HER BRILLIANT KNOWLEDGE ON THE
SUBJECT. I'D ALSO LIKE TO THANK THE STAFF AT THE DNLU LIBRARY FOR
THEIR ASSISTANCE IN LOCATING RELEVANT RESEARCH MATERIALS FOR THIS
INITIATIVE.I AM ETERNALLY GRATEFUL TO MY PARENTS, SENIORS, AND PEERS
FOR THEIR SPIRITUAL GUIDANCE AND MOTIVATION.
CHAPTER - I

INDIAN YOUNG LAWYERS ASSOCIATION VS THE STATE OF KERALA*

INTRODUCTION

Women in our society have always struggled for equal status and representation in public spaces.
But, the situation is changing now, and various reforms have come through the courts' judgments.
Like in the Shah Bano case, the Supreme Court has protected Muslim women's rights from the
practice of triple talaq. In Dr. Noorjehan Safia Niaz vs. State of Maharashtra & Ors., the Supreme
Court has allowed women's entry inside Haji Ali Dargah.

The case of 'Indian Young Lawyers Association vs. State of Kerala and Ors.' involved women's
struggle for getting entry in Sabarimala Shrine Temple located in the State of Kerala. Women have
done a lot of struggle for the protection of their rights. The Ayyappa temple in the Sabarimala
region in Kerala has been controversial for the provision of restricting women of menstruating age
(10-50 years of age) to enter into Sabarimala Temple Kerala. In this case, there were many issues
raised. Petitioners argued that provisions related to the restriction of women's entry into the temple
are unconstitutional as it violates Article 14, 15, 17, 25, 26 of the Indian Constitution.

Finally, the Supreme Court held that women of all age groups could enter the Sabarimala shrine
temple as everyone has a right to worship. It is the constitutional and fundamental right of everyone
given in Article 25 and 26 of the Indian Constitution.

There are differences in Constitutional ideals and social reality. There is a wide gap between
provisions given in the Indian Constitution and the fact of society. In this case, the Supreme Court
has tried to bridge the gap between both.

Sabarimala Sree Dharmasastha Temple is a temple complex located at Sabarimala inside Periyar
Tiger Reserve in Pathanamthitta District, Kerala, India. It is the largest annual pilgrimage globally,
estimated between 17 million and 50 million devotees visiting every year. The temple is dedicated
to the Hindu celibate deity Ayyappan also known as Dharma Sastha, who, according to belief, is the
son of Shiva and feminine incarnation of Vishnu.

The deity in the Sabarimala temple is in the form of a Yogi or a Bramchari, according to the
Thanthri of the temple. The God in Sabarimala is in the form of a Naisthik Bramchari, which is why
young women are not allowed to offer prayers in the temple. Since the deity is in the form of a
Naisthik Brahmachari, it is believed that young women should not offer worship in the temple to
even the slightest deviation from celibacy and austerity observed by the deity is not caused by the
presence of such women.

The temple is open for worship only during the days of Mandalapooja (approximately November 15
to December 26), Makara Sankranti (January 14), and Maha Vishuva Sankranti(April 14), and the
first five days of each Malayalam month.

The pilgrims have to observe celibacy for 41 days before going to Sabarimala. They must strictly
follow a Lacto-vegetarian diet, refrain from alcohol, not use any profanity and allow the hair and
nails to grow without cutting. They are expected to bath twice a day and visit the local temples
regularly. They wear black or blue clothes, do not shave until the pilgrimage's completion, and
smear vibhuti or sandal paste on their forehead. 
The exclusion of (a class of) women from the Sabarimala Temple was justified on the basis of
ancient custom, which was sanctioned by Rule 3(b), framed by the Government under the authority
of the 1965 Kerala Hindu Places of Worship (Authorisation of Entry Act). Section 3 of the Act
required that places of public worship be open to all sections and classes of Hindus, subject to
special rules for religious denominations. However, rule 3(b) provided for the exclusion of "women
at such time during which they are not by custom and usage allowed to enter a place of public
worship." These pieces of legislation, in turn, were juxtaposed against constitutional provisions
such as Article 25(1) (freedom of worship), Article 26 (freedom of religious denominations to
regulate their practices), and Articles 14 and 15(1) (equality and non-discrimination).
In response to a PIL filed in 1991, the Kerala High Court had judged that the restriction of entry of
women ages 10-50 to the temple was in accordance with the usage prevalent from time
immemorial. It directed the Devaswom Board to uphold the customary traditions of the temple.

However, on September 28 2018, the Supreme Court of India overturned the restriction on women's
entry, declaring it unconstitutional and discriminatory. The Supreme Court had ruled that women of
all age groups can enter the Sabarimala temple in Kerala. The apex court in a 4:1 majority said that
the temple practice violates Hindu women's rights and that banning entry of women to shrine is
gender discrimination.  

 On January 2 2019, two women under the age of 50 finally entered the shrine for the first time
since the Supreme Court verdict, after attempts by many others failed due to protests by devotees.

FACTS
The Sabarimala temple is one of Kerala's most famous temples, and it is dedicated to the worship of
Lord Ayyappa. He is also referred to as 'Dharmashastha' or Lord of Dharma and is worshipped as a
'Naishtika Bramhachari' or a celibate for life. Therefore, as per a notification by the Devaswom
Board that manages the temple, women belonging to the menstruating age cannot enter the temple.
The Travancore Devaswom Board manages the Sabarimala temple. The centuries-old restriction
that restricts women of menstruating age from temple entry had been challenged now and then.

1991: Kerala High Court upheld an age-old restriction on women of a specific age-group entering
Sabarimala temple. A two-judge bench decreed (on April 5) that the prohibition by the Travancore
Devaswom Board that administers the hill shrine does not violate either the Constitution or a
pertinent 1965 Kerala law.

2006: A famed astrologer conducted a temple-centric assignment called 'Devaprasnam' and

declared having found signs of a woman's entry into the temple some time ago. Soon, a well-known
Kannada actress-politician Jayamala claimed publicly that she had entered the precincts of
Sabarimala in 1987 as a 28-year-old. Even she claimed to have proudly touched the deity inside the
sanctum sanctorum as part of a film shoot, adding doing connivance with the priest.

2006:  The allegation led the Kerala government to probe the matter through its crime branch, but
the case was later dropped.
2008: Kerala's LDF government filed an affidavit supporting a PIL filed by women lawyers
questioning the ban on the entry of women in Sabarimala

2016: The India Young Lawyers Association filed a PIL with the Supreme Court, contending that
Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965 that
states, "Women who are not by custom and usage allowed to enter a place of public worship shall
not be entitled to enter or offer worship in any place of public worship" violates constitutional
guarantees of equality, non-discrimination, and religious freedom.
November 2016: Kerala's Left Front government favored the entry of women of all age groups
filing an affidavit to the effect.

September 28, 2018: The Hon'ble Supreme Court of India, by a 4:1verdict, granted women of all
age groups entry into Kerala's Sabarimala temple, breaking the temple's age-old tradition of
restricting menstruating women from entering its premises.

The five-judge bench, headed by then CJI Dipak Misra with Justices RF Nariman, AM Khanwilkar,
DY Chandrachud, and Indu Malhotra, pronounced the verdict, with Malhotra dissenting.

ISSUES RAISED

 The question of law involved in this case was

1. Whether the exclusionary practice against the female gender amounts to 'discrimination?
Whether the same leads to violation of Articles 14, 15, and 17?
2. Reinterpretation of 'essential religious practice' under Article 25. Whether a religious
institution asserts a claim on the right to manage its own affairs in religious matters?
3. Whether Ayyappa Temple has a denominational character? Whether it is hit by Article 290-
A of the Constitution of India or not?
4. Whether Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of Entry)
Rules permits' religious denomination' to ban women's entry between the age of 10 to 50
years?
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

JUDGMENT

Justice Dipak Misra (wrote for himself and Justice A.M. Khanwilkar)
Justice R.F. Nariman concurred with the judgment of the chief justice.

1. The devotees of Lord Ayyappa do not constitute a separate religious denomination. Therefore the
devotees of Lord Ayyappa are exclusively Hindus.
1. Article 25(1), by employing the expression 'all persons', demonstrates that the
freedom of conscience and the right to profess, practice, and propagate freely are
available, though subject to restrictions delineated in Article 25(1), to every person
including women. The rights under Article 25(1) have nothing to do with gender or,
for that matter, certain physiological factors specially attributed to women.
2. The exclusionary practice being followed at the Sabrimala temple by Rule 3(b) of
the 1965 rules violating Hindu women's rights to freely practice their religion and
exhibit their devotion towards Lord Ayyappa. The right to practice religion is
available to both men and women of all age groups.
3. The impugned rule 3(b) of 1965 rules framed under the 1965 Act, which stipulates
women's exclusion, is a clear violation of Hindu women's rights.
4. The term 'morality' occurring in Article 25(1) of the Constitution can be understood
as synonymous with constitutional morality.
 5. The notions of public order, morality, and health cannot be used to restrict the
freedom to freely practice religion and discriminate against women by denying them
their legal right to enter and offer prayers at Sabrimala temple.
6. The exclusion of women of age group 10-50 cannot be considered the essential
practice claimed by the respondent board.
7. The exclusionary practice is given in Rule 3(b) of 1965 rules is neither an essential
nor an integral part of the religion.
8. Rule 3(b) makes it ultra vires both Section 3 and 4 of the 1965 Act, the reason that
Section 3 stipulates that every place of public worship is available to all classes and
sections of Hindus, women being one of them.
9. Section 3 and 4(1) of the 1965 Act indicate that custom and usage must make space
for rights of all sections and classes of Hindus to offer prayers at all places of public
worship. Therefore we hold that Rule 3(b) is ultra vires the 1965 Act.

Justice Dhananjaya Y Chandrachud

1. The devotees of Lord Ayyappa do not satisfy the judicially enunciated requirements to
constitute a religious denomination under Article 26.
6. Even if based on a religious text, a claim of the exclusion of women is subordinate to the
constitutional values of liberty, equality, and dignity. Exclusionary practices are contrary to
constitutional morality.
7. The practice of excluding women from the temple of Sabarimala is not an essential religious
practice. The court must decline to grant constitutional legitimacy to practices that derogate
from women's dignity and to their entitlement of equal citizenship.
8. Social exclusion of women based on menstrual status is a form of untouchability that is
anathema to constitutional values. The notion of 'pollution and purity' which stigmatize
individual has no place in a constitutional order.
9. The notifications dated October 21, 1955, and November 27, 1956, issued by the
Dewaswomi board, prohibiting women between the ages 10-50, are ultra vires Section 3 of
the 1965 Act.
10. Rule 3(b) is ultra vires Section 3 of the 1965 Act.

Justice Indu Malhotra (Dissenting Opinion)

1. The writ petition doesn't deserve to be entertained for want of standing. The grievances
raised are non-justiciable at the behest of the petitioners and interveners involved herein.
11. The equality doctrine enshrined in Article 14 doesn't override the fundamental right
guaranteed by Article 25 to every individual to freely profess, practice, and propagate their
faith under the tenets of their religion.
12. Constitutional morality in a secular polity would imply the harmonization of fundamental
rights, including the right of every individual, religious denomination, or sect to practice
their belief and faith following the tenets of their religion, irrespective of whether the
practice is rational or logical.
13. The respondents and the interveners have satisfied the requirements of religious
denomination or sect thereof, which is entitled to protection under Article 26 of the
Constitution. This is a mixed question of fact and law, which must be decided before a
competent court of civil jurisdiction.
14. The limited restriction to the entry of women within the notified age group doesn't fall
within the purview of Article 17 of the Constitution. 
15. Rule 3(b) of 1965 rules is not ultra vires the Section 3 of the Act, since the proviso carves
out the exception in case of public worship in a temple for the benefit of any religious
denomination or sect thereof to manage their own religious affairs.
RATIO DECIDENDI

'Ratio decidendi' is the rule of law on which judicial decision is based. It is legally binding.
"On September 28, 2018, the court delivered its verdict in this case by 4:1 majority which held that
the restriction of women in Sabarimala Temple is unconstitutional. It held that the practice violated
the fundamental rights to equality, liberty, and freedom of religion, Articles 14, 15, 19(1), 21, and
25(1). It struck down Rule 3(b) of the Kerala Hindu Places of Public Worship Act as
unconstitutional. Rule 3(b) allowed Hindu denominations to exclude women from public places of
worship if the exclusion was based on ‘custom.'"

The Apex Court has allowed entry of women of all age groups to the Sabarimala Temple and held
that "Devotion can not be subjected to Gender Discrimination.”

OBITER DICTUM

'Obiter dictum' is a judge's expression of opinion uttered in court or a written judgment, but not
essential to the decision and therefore not legally binding as a precedent.
In this case, the court ruled thus: "We have no doubt in saying that such practice infringes the right
of women to enter a temple and freely practice Hindu religion.”

"Devotion can not be subjected to Gender Discrimination.” Hon'ble Chief Justice of India stated in
his judgment that religion is a way of life linked to the dignity of an individual, and patriarchal
practices based on the exclusion of one gender in favor of another could not be allowed to infringe
upon the fundamental freedom to practice and profess one's religion.

ANALYSIS

The Sabarimala judgment is a testament to the question of how far can customs override laws. The
Kerala HC gives the decision in 1991 in S. Mahendran v. The Secretary, Travancore Devaswom
Board, Thiruvananthpuram, and Ors, where similar contentions as this case were raised. In 2017 a
three-judge bench was appointed to look into the Sabarimala issue. This bench analyzed the reasons
put forth by the Kerela Government to justify their ban. They also studied why the Kerala HC in
1991 accepted the Government's contrary stand. The Kerala High Court justified their decision that
the court is simply respecting the religious and historical beliefs. The Kerala High Court explained
the following:
• It was believed that the deity in Sabarimala is different from other Gods and is in the form of
'Naisthik Bramchari.' Therefore, it is believed that a menstruating woman offering prayers to
such a deity would cause deviation from celibacy and austerity, which is observed by the
deity.
• It is a prevalent custom practiced since time immemorial and should be respected without
any judicial or statutory interference.
• The restriction imposed by the Devaswom Board is not violative of Articles 15, 25, and 26
of the Constitution of India.
• Such restriction is also not violative of Section 3(b) of the Hindu Place of Public Worship
(Authorisation of Entry) Act, 1965 since there is no restriction on either Section of people or
their class among the Hindus the matter of entry to a temple. The prohibition is only in
respect of women of a particular age group and not women as a class.

Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965 lays
down that 'Places of public worship to be open to all sections and classes of Hindus unless
otherwise, any religious denomination exercises their right to manage its own affairs in matters of
religion only separate religious denominations can have discretion as who can offer prayers based
on custom. Therefore it was due to this legal justification backed by impositions made by customs
women were not allowed to enter the Sabarimala shrine.

SIGNIFICANCE OF THE VERDICT

By the majority judgment, it is amply clear that the underlying basic principle that the Constitution
of India is supreme. The Hon'ble Chief Justice and his companion judges, in different words,
unequivocally upheld that even in matters of religious faith, Governments, religious and other
institutions and the people of India are bound by the Constitution of the country.
This historic verdict supersedes all other laws of the land and customary practices and beliefs and
traditions of different religions/faith contrary to it. Thus, on the one hand, it proclaims the triumph
of women's rights towards equality with men. On the other side, it establishes Constitutional
morality's supremacy over customary laws, rituals, and traditions. The far-reaching socio-economic
and political consequences of this historical verdict will unfold themselves as the country moves
forward.

CRITICAL ANALYSIS OF THE JUDGMENT

Religion has morphed into different configurations in modern societies, and hence we need more
holistic approaches to comprehend its complexities. The rationality of any religion or a particular
ritual is mostly determined and propagated by the male leaders and members in the group. In order
to perpetuate their domination, they tend to devise customs, often by the irresponsible interpretation
of traditional texts, which consequently results in the subordination of women. 
Justice Malhotra sets a dangerous precedent by stating that courts should not delve into religious
practices' rationality. One should not forget that if it were not for the Judiciary's activism, the rigid
societal structures would have still clawed on to the unbending orthodoxy. However, a prerequisite
of this judgment would have been to find ways to sensitize the community and garner support from
men and women equally.

FUTURE PROSPECT OF THE CASE

The five-judge Sabrimala Review bench referred the case to a larger bench on November 14, 2019,
comprising of the nine-judge bench including the CJI S A Bobde along with Justices R Banumathi,
Ashok Bhushan, L Nageswara Rao, M M Shantanagoudar, S Abdul Nazeer, R Subhash Reddy, B R
Gavai and Surya Kant. The crucial ground to be in the pursuit of this case was the discovery in the
Sabrimala 2018 judgment that Ayappa devotees did not form a separate religious denomination.
Henceforth, the further questions that were put forward before the Hon'ble Supreme Court were the
further analysis of the scope and extent of the word 'morality' under Art. 25 and Art. 26 and whether
it is meant to include 'constitutional morality. Also whether the rights of a religious denomination
under Art. 26 of the Constitution of India are subject to other provisions of part III of the
Constitution of India, apart from public order, morality and health; Also, about the scope and ambit
of right to freedom of religion under Article 25 of the Constitution of India ; and about the inter-
play between the rights of persons under Article 25 of the Constitution of India and rights of
religious denomination under Article 26 of the Constitution of India; Not only this the scope and
extent of judicial review with regard to a religious practice as referred to in Article 25 of the
Constitution of India is also on question; Further the other issue to be considered for determination
would be the meaning of expression "Sections of Hindus" occurring in Article 25 (2) (b) of the
Constitution of India most importantly, whether a person not belonging to a particular religious
denomination or a religious group can question a practice of that religious denomination or religious
group by filing a PIL? The apex court of the land has the power to exercise unlimited jurisdiction.
And the only fact that it is reviewing Sabrimala Judgement does not preclude it from referring
questions of law and other cases with similar issues to a larger bench.

CONCLUSION

Altogether the law interpreted under this case is a good law. After 12 years of the litigatory
struggle, women have found their rightful freedom, equality, and dignity under Article 14, 15, 21,
and 25 of the Indian Constitution. The Sabarimala judgment is testamentary of the Apex Court's
impeccable patience and clear judicial interpretation of laws in the interest of the general public
good. Vices and unreasonable stigma will always exist in society, but it is the law that can provide a
cure to such unreasonableness.Customs cannot override the law. The fabric of law cannot be
crumpled for the sake of obstructive social stigma.

Women have been discriminated not only based on biological factors but also due to orthodox ill
practices of the Hindu religion. The Constitution of India prescribes non-discriminatory rights to all
citizens regardless of status, age, sex, caste, creed, gender, etc. Only positive discrimination is
allowed based on the interpretation principle of reasonable classification. Judicial activism has
played an essential role in this case. The Indian Judiciary has again proved its open judicial mind
and that the blind and technical application of outdated laws leads to unjust actions and
prohibitions. The legislature now needs to ensure that there is no unreasonable controversy between
religious practices and fundamental rights. Any such Controversy needs to be abrogated through
religious reforms.
BIBLIOGRAPHY