https://www.thehindubusinessline.

com/opinion/columns/rasheeda-bhagat/the-political-circus-over-

sabarimala/article25933856.ece#

Sabarimala Judgement THE HINDU NOVEMBER 16, 2019 00:13 IST

The decision by the Supreme Court to keep the final decision on review
petition on the Sabarimala issue in abeyance is indeed strange and
unprecedented. Judgments have rarely undergone changes under review
petitions in the past (Front page, “Sabarimala case: larger Bench to decide
role of courts in religion,” Nov. 15). Fresh issues and arguments are generally
not allowed and only manifest errors are taken into account. By referring the
issue to a larger bench, the apex court has allowed the petition to serve the
purpose of an appeal. Of late, the court has appeared to be flinching from its
prime duty of examining issues purely through the prism of constitutional
principles. A reluctance to ruffle the feathers of the ruling dispensation too is
discernible. The judgment is bound to place the Kerala government in a
quandary. A stay could have been the better option.

Manohar Alembath,

Kannur, Kerala

It would have been meaningful if the Constitution Bench had fixed an

immediate date for a larger Bench to hear the review pleas considering that
the mandala puja is to commence shortly. Now that two of the judges have
expressed their disapproval to hear the matter afresh, there is a strong
possibility that the review petition may fail. If the Constitution is sacred,
religious faith is also sacred. Judicial interference in certain long-held
religious practices is neither apt nor viable. There are media reports that there
is a drop in Sabarimala bookings. However, the real cause for concern here is
the possibility of women devotees getting exposed to physical attack and
abuse. Maintaining law and order will be a tough task when there is a sudden
surge of male devotees who may outnumber women devotees.
V. Lakshmanan,

Tirupur, Tamil Nadu

The Supreme court’s decision to refer to a larger bench the issues of entry of
Muslim women into a dargah and Parsi women married to non-Parsi into
an agyari along with the issue of entry of women of ovulating age into
Sabarimala temple cannot be faulted as all these issues are related to the
fundamental right to equality (Editorial, “Review and reference,” Nov. 15).
However, it astonishing that the court has included the issue of the primitive
and barbaric practice of khatna (female genital mutilation) among Dawoodi
Bohra community, a sect of Shia Muslims, as this is more of an issue of right
to life, personal liberty and privacy of women. Further, given the fact that the
right to equality and right to religious freedom are both fundamental rights
given to an individual by the Constitution of India, these rights cannot be
curtailed by another individual or a group, whether it is a religious head or
someone else. And the freedom to manage religious affairs has to be
exercised in a manner that is in conformity with public order, morality and
health and cannot override the right to equality and right to religious freedom.
In the name of protection of religious practices, the freedom to manage
religious affairs cannot be exercised in such a manner that restricts the
fundamental rights of the citizens, as the restrictions, if any, on the
fundamental rights can be placed only by a constitutional authority such as
Supreme Court or Parliament.

Kosaraju Chandramouli,

Hyderabad

The Supreme Court’s decision to refer the review pleas made in the
Sabarimala case to a larger seven-judge Bench elicited a mixed reaction. One
is inevitably led to ask if the apex court lost its earlier conviction to look
kindly on the review petitions and not dismiss them even in the face of no
‘apparent error’ in its original historic judgment. Nevertheless, it was some
solace that it did not reverse or stay its judgment allowing the entry of women
of all ages into the Sabarimala temple.
Even though women in the 10-50 age groups can still legally enter the temple,
the prospect of them being allowed to have Ayyappa darshan looks bleak.
Belligerent opponents of women’s entry seem to be determined to put up
blockades to prevent women of menstruating age from entering the temple
and ‘to preserve the sanctity’ of the temple. Last time, there were frenzied
attacks and ‘purification rituals’ made headlines. It is not clear when the
original ruling stands why the State government now deems it right to ask
women to get Supreme Court’s order for ‘protection’. The Left government
seems to have developed cold feet for fear that it will have to face a political
backlash from the ‘true Ayyappa devotees’.

Traditionalists oppose women’s presence in the temple because the deity is

‘in celibate state’. But liberals opine that the doors of the abodes of all deities
should be thrown open to all, irrespective of gender and age. As for regarding
women as ‘impure and unclean’, it must be made clear that the flow of blood
from a woman’s womb presages procreation. It is a sign of life; perpetuation
of life.

The top court’s decision to bracket women’s entry into with other issues of
gender inequality and refer it to a larger Bench ‘to consider all issues’
pertaining to faith vis-a-vis women’s rights and gender equality is certainly
amenable to be interpreted as a dilution from its earlier position. Parsi and
Muslim women too should be able to enter their places of worship; it is not
clear why the present case should be mixed up wit with the denial of rights to
those women.

Gender discrimination or exclusion of women from a place or worship cannot

be justified by agama or attribution of any anthropomorphic condition to a
deity.. The ‘remaking of India’ needs the emancipation and empowerment of
women.

G. David Milton,

Maruthancode, Tamil Nadu

 The opposition parties in Kerala, the Congress and the Bharatiya Janata Party,
have welcomed the Supreme Court ruling on the Sabarimala review petitions.
The Congress drew huge political dividend in the form of a sweep in Lok
Sabha elections by propagating that the Kerala government, which stood by
the verdict of the constitutional bench, was against religious faith. Now that
the earlier verdict remain as such without stay, though the petitions are kept
pending, these parties find in it another golden opportunity to derive electoral
gains in the ensuing elections to local bodies and Assembly. But this time
they are unlikely to succeed in their game plan as the Kerala government,
having become wiser, may not be as enthusiastic to implement the verdict as
it was last year.

S. Rajasekharan Nair,

Thiruvananthapuram

Had the court specifically ordered a ‘stay’on the 2018 order, it would have
been more welcome to the petitioners. Those who have seen how the Kerala
government dealt with the ‘women’s entry’conundrum last year are not
surprised by Chief Minister Pinarayi Vijayan’s repetition that government
will obey the judicial orders. He also said he would wait for more legal
clarifications. The government should instead use its authority to postpone
implementation of the earlier order until the court takes a final decision. The
order has left devotees in a state of uncertainty.

P.R.V. Raja,

Pandalam, Kerala

Sabarimala verdict: 5 key reasons why Justice Indu Malhotra

Read more at:

http://timesofindia.indiatimes.com/articleshow/65997997.cms?
utm_source=contentofinterest&utm_medium=text&utm_campaign=cppst
Much is legally incorrect about the
Sabarimala judgment
The Supreme Court has given credence to the dangerous narrative that judgments of the court are
never quite final
By Arghya Sengupta
https://www.telegraphindia.com/opinion/much-is-legally-incorrect-about-the-sabarimala-temple-
judgment/cid/1720713

It is often said that the Supreme Court is final but not infallible. But increasingly, both litigants
and judges themselves appear to be veering around to the view that the Supreme Court is neither
final nor infallible. It is one thing for a dis-satisfied litigant who feels hard done by to ask for a
review of a judgment. It is, however, an entirely different matter when the court itself appears to
encourage such a practice. By neither accepting nor dismissing the review petition filed in the
Sabarimala dispute, the Supreme Court seems to have done just that.

Recall the original Sabarimala judgment of the Supreme Court in 2018. The court held that the
worshippers of Ayyappa were not a distinct religious denomination. As a consequence, their
belief that menstruating women should not be allowed to enter the temple could not claim
constitutional protection as an essential religious practice. At the same time, the court held that
all women had the fundamental right to freely practice and profess their religion including by
visiting the Sabarimala temple. Therefore barring the entry of women between the ages of 10 and
50 (proxy for menstruating) into the Sabarimala temple was unconstitutional.

There is much that is legally incorrect about this judgment. The court has used a formulaic
understanding of what is a religious denomination to exclude the worshippers of Ayyappa. This
has the effect of denuding several religious groups, particularly the astoundingly diverse faiths
within the larger umbrella of Hinduism, of their identity as a denomination in law. Further, it has
simplistically assumed that every person has a right to pray at a temple of their choice. While this
may seem intuitive, it is overbroad. What the Constitution gives every person is the freedom to
pray as one chooses. The moment the expression of such prayer is at a temple or any particular
site of public worship, such expression is subject to the rules of that site. So, a Hindu man cannot
simply claim that he has a right to enter a Parsi fire temple. Likewise, a Christian man cannot
have a right to pray at a mosque. No such freedom exists in the Constitution.

But these alleged errors that the judgment falls into are not questions of fact — they are
questions of interpretation. Contrary to popular perception, law, particularly constitutional law,
does not work in absolute binaries of black and white, right and wrong. The use of language in
the Constitution, as in life, is always open to interpretation. Judges dealing with legal text are
like ordinary persons dealing with a work of fiction. Two readers can understand the same
sentence differently, ascribe meanings that may not occur to another, imagine possibilities that
may not exist. While judges are duty-bound to accord the text an interpretation that is both
logically sound and capable of resolving the dispute before them, any expectation that they have
reached the right answer is misplaced. There is always a possibility in law that a different answer
may be reached on equally sound reasoning.

This is precisely why no review of a judgment of the Supreme Court is possible on the ground
that a different view could have been taken. The conceptual question here is this — how does the
court balance the interests of justice in reaching a fair resolution and finality in putting an end to
a dispute expeditiously? On the one hand, it is the raison d’être of the judicial system to do
justice. On the other, such quest for justice cannot be pursued endlessly. The pragmatic closure
rule that is applied is that the chance to do justice extends from the lower courts through appeals
and writ petitions up to the Supreme Court. Three chances, at the lower courts, the High Court
and the Supreme Court are deemed sufficient to give justice full sway while accounting for the
need for closure.

The review jurisdiction of the Supreme Court, and the curative jurisdiction that can be exercised
to review a judgment in review, are narrow exceptions favoring justice over finality. They are
not invitations to re-litigate the dispute. It is inherent in their nature for their exercise to be
severely circumscribed. Key grounds for review include an error apparent on the face of the
record and the availability of new material subsequent to the judgment.

This is why, in spite of the judgment in the Sabarimala case being arguably wrong, the court
ought not to have given litigants another day in court. Legally, neither is the wrongness of the
judgment an apparent error, nor are the subsequent law and order transgressions in Kerala new
material that the court should consider in its judgment. The cost of such a review, while not
apparent are tremendous — creating a culture of litigation where parties are incentivized to keep
litigating rather than accepting their lot, building up judicial backlog that makes justice for the
deserving litigant slow and expensive and ultimately reducing the sanctity of a judgment of the
Supreme Court. It is hugely detrimental for the majesty of the Supreme Court if its judgments,
right or wrong, are never considered fully final.

The court, in fairness to it, has not accepted the review. It has kept it pending, to be heard
alongside three similar questions of women’s entry into the dargah (prohibited by Islam), a Parsi
woman praying at a fire temple after marrying a non-Parsi (prohibited by Zoroastrianism) and
female genital mutilation of girl children (sanctioned by the Dawoodi Bohra community). Each
of these cases raises complex questions of law and faith.

The court is right that the decision in the Sabarimala dispute will have a bearing on these cases.
This is precisely how the judicial system of precedents is meant to function. The court, in a
future case, has to independently come to an assessment that the Sabarimala judgment is wrong
and should not function as a precedent. Without doing so, to club these cases to evolve a ‘judicial
policy’ in this regard turns the system of precedent on its head. Laying down judicial policy in
one case is alien to judicial decision-making — policy, if it means anything in the legal system,
is the product of judges over decades applying the law dispassionately to the facts before them. It
might be a bit presumptuous for any one bench to see their task as laying down policy for all
times to come.

By neither accepting nor dismissing the review and clubbing it with other questions before it, the
court has given credence to the dangerous narrative that judgments of the court are never quite
final, that one can always take a chance with the court. This might have been a practical response
to the criticism that the Sabarimala judgment originally received. But it risks opening the court
up in ways that it cannot imagine today. The decision by some of the Muslim parties in the
Ayodhya title dispute to ask for a review of the judgment of the court is a warning sign of things
to come.

The author is Research Director, Vidhi Centre for Legal Policy. Views are personal

2 judges record Sabarimala dissent

No reason to review earlier judgment: Rohinton & Chandrachud
By R. Balaji in New Delhi
https://www.telegraphindia.com/india/2-judges-record-sabarimala-dissent/cid/1719345?ref=also-
read_story-page

The two dissenting judges in the Sabarimala case on Thursday questioned the majority decision,
saying the petitioners had not shown that the curbs on women’s entry were an essential part of
the Hindu religion.

Justices R.F. Nariman and D.Y. Chandrachud also argued that the five-judge constitution bench
had no business clubbing the Sabarimala case with what the majority view considered
“overlapping” matters relating to Muslims and Parsis.

The bench has by a 3:2 majority referred to a seven-judge bench the question whether women of
childbearing age can enter the Sabarimala temple.

It has recommended that along with this, the larger bench also deal with the curbs on women’s
entry into dargahs and mosques, the ban at fire temples on Parsi women who marry non-Parsis,
and the practice of female genital mutilation among Dawoodi Bohras.

Justice Nariman, writing the dissenting judgment on behalf of himself and Justice Chandrachud,
questioned the need for clubbing all these issues together.

He said that instead of taking any decision on these other matters; the five-judge bench should
have left them to the other apex court benches before which they were pending.

“What a future constitution bench or larger bench, if constituted by the learned Chief Justice of
India, may or may not do when considering the other issues pending before this court is, strictly
speaking, not before this court at all,” Justice Nariman wrote.

“The only thing that is before this court is the review petitions and the writ petitions that have
now been filed in relation to the judgment… (of) 28 September, 2018. As and when the other
matters are heard, the bench hearing those matters may well refer” them, if necessary, to a larger
bench.

As for the September 2018 judgment, Justice Nariman wrote that it had rightly held that the
devotees of Lord Ayyappa (the Sabarimala deity) do not constitute a separate religious
denomination and cannot, therefore, claim their own separate rights.

So, “what has to be seen in the judgments of this court is whether such practice is an essential
practice relatable to the Hindu religion and not the practice of one particular temple”.
“Nothing has been shown to us, as was correctly pointed out by the learned Chief Justice, from
any textual or other authorities, to show that exclusion of women from ages 10 to 50 from Hindu
temples is an essential part of the Hindu religion.”

The judge noted that the earlier constitution bench had interpreted Article 25(1) to mean that all
persons are equally entitled to practice the Hindu religion, which would include women between
the ages of 10 and 50 years.

So, the review petitions should have been rejected, “both because there is no error apparent (in
the original judgment) and because the same ground that was argued in extensor (extensively)
before the original judgment was delivered is being reargued in (the) review”.

http://thelawbrigade.com/wp-
content/uploads/2019/05/Anusha-
Astha.pdf
Authors strongly believe that the decision of Supreme Court to allow women to enter Sabarimala was in
favor of constitution and beneficial for public at large. But, one major problem which still remains
unsolved is that SC although allowed the women but there are no guidelines or rules to ensure that they
can enter the temple premise safely. Women’s entry in Sabarimala still remains dream for them, till now
they have been allowed to enter the temple on a paper only which defeats the very purpose of the
verdict. The verdict hereby reveals the most intrinsic fact. Thrust of opinions

https://www.thehinducentre.com/the-arena/current-issues/article25120778.ece

The Sabarimala Judgment: Reformative and

Disruptive
https://www.thehinducentre.com/the-arena/current-issues/article25120778.ece
The recent Supreme Court judgment allowing women access to the Sabarimala temple has held
that the constitutional guarantees of dignity and equality scores over old customs and practices
cutting across religions. In this article, Elizabeth Seshadri, Advocate, Madras High Court,
analyses the various aspects of the judgment and India’s evolving jurisprudence on religious
rights.

When Arunachalam Muruganantham, on whom the Bollywood movie ‘Pad Man’ is

based, was asked what the most difficult part of his job was, he said it was the
superstitions surrounding menstruation in India. “Women in rural India have the
strangest beliefs surrounding the monthly period.” He recalls a story of how the girls
in the Nilgiris worried about using sanitary towels, as they believed their eyes would
be pulled out by the deity.1

It is in this backdrop that the judgement of the Supreme Court in Indian Young
Lawyers Association v. State of Kerala, also called the ‘Sabarimala judgement’, is a
reformative one.

Background of the Case

The Sabarimala case arose out of a petition filed in public interest by a registered
association of young lawyers, challenging the Constitutional validity of Rule 3(b) of
the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965,
which restricts the entry of women into the Sabarimala temple. These Rules were
framed under the Kerala Hindu Places of Public Worship (Authorisation of Entry)
Act, 1965. This Act was enacted to make provisions for entry of all classes and
sections of Hindus into places of public worship. Section 3 of the Act read as follows:

“Section 3: Places of public worship to open to all sections 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 so enter, worship, pray or perform:

Provided that in the case of a place 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 the matter of religion.”

The State of Kerala framed Rules under this Act. Rule 3 read as follows:

“Rule 3: The classes of persons mentioned here under shall not be entitled to offer worship in
any place of public worship or bathe in or use the water of any sacred tank, well, spring or water
course appurtenant to a place of public worship whether situated within or outside precincts
thereof, or any sacred place including a hill or hillock, or a road, street or pathways which is
requisite for obtaining access to the place of public worship-

(a) Persons who are not Hindus.

(b) Women at such time during which they are not by custom and usage allowed to enter a place
of public worship.

(c) Persons under pollution arising out of birth or death in their families.

(d) Drunken or disorderly persons.

(e) Persons suffering from any loathsome or contagious disease.

(f) Persons of unsound mind except when taken for worship under proper control and with the
permission of the executive authority of the place of public worship concerned.

(g) Professional beggars when their entry is solely for the purpose of begging.”

The Travancore Devaswom Board issued two notifications in 1955 which read as
follows:
“In accordance with the fundamental principle underlying the prathishta (installation) of the
venerable, holy and ancient temple of Sabarimala, Ayyappans who had not observed the usual
vows as well as women who had attained maturity were not in the habit of entering the above-
mentioned temple for Darshan (worship) by stepping the Pathinettampadi. But of late, there
seems to have been a deviation from this custom and practice. In order to maintain the sanctity
and dignity of this great temple and keep up the past traditions, it is hereby notified that
Ayyappans who do not observe the usual Vritham (vows) are prohibited from entering the temple
by stepping the pathinettampadi and women between the ages of ten and fifty five are forbidden
from entering the temple.”

Though the notification stated that the ages between 10 and 55 were to be excluded, it
was recorded by the Kerala High Court that in practice the ages between the age of 10
and 50 were being excluded. The case before the Supreme Court of India was that
Rule 3(b) was ultra vires of Section 3 of the Act and that women of any age could not
be excluded from the temple.

This same issue had been considered by a Division bench of the Kerala High Court in
1992 in a public interest litigation filed by one S.Mahendran 2. The Kerala High Court
had found that the exclusion of women between the ages of 10 and 50 from
Sabarimala was in accordance with the usage prevalent from time immemorial and
was, therefore, upheld. Fourteen years later, this issue was raised again; this time in
the Supreme Court, leading to the judgment under discussion, wherein by a 4:1
majority the Supreme Court struck down the exclusion of women of any age group
from entry to Sabarimala as unconstitutional.

India’s Evolving Jurisprudence on Religious Rights

Much of Indian jurisprudence on religion has evolved around what constitutes an

essential religious practice. The two relevant Constitutional provisions under the head
Right to Freedom of Religion are:

Article 25: (1) - Subject to public order, morality and health and to the other provisions of this
Part, all persons are equally entitled to freedom of conscience and the right freely to profess,
practice and propagate religion.
(2) Nothing in this Article shall affect the operation of any existing law or prevent the State from
making any law –

a) Regulating or restricting any economic, financial, political or other secular activity which may
be associated with religious practice;

b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of
a public character to all classes and sections of Hindus;

Article 26: Subject to public order, morality and health, every religious denomination or any
section thereof shall have the right -

a) To establish and maintain institutions for religious and charitable purposes;

b) to manage its own affairs in matters of religion;

c) to own and acquire movable and immovable property; and

d) to administer such property in accordance with law.

Indian jurisprudence has arisen over the years in cases where governments have
passed laws to regulate what they see as secular activity, though it is associated with
religious practice. The religious bodies have objected to government action on the
ground that the activity is religious and not secular. In order to get the special rights
under Article 26, most cases involved an attempt by groups to show themselves as a
distinct religious denomination. The same was attempted in the Sabarimala case too.
Though the dissenting judgement of Justice Malhotra gave the Ayyappans
denominational status, the majority judgement held that the Ayyappans were not a
separate religious denomination, but were Hindus. Thereafter, it was for the Court to
find out if the practice of excluding women of a certain age from Sabarimala was an
essential feature of Hinduism or not.

Indian jurisprudence has arisen over the years in cases where governments have passed laws to
regulate what they see as secular activity, though it is associated with religious practice.
It is interesting to see the evolution of Indian jurisprudence through attempts by
Indian Courts to distinguish between what is a “matter of religion” and what is not, in
several cases over the decades.  This exercise is also desirable so that readers
understand that the jurisprudence applied by the Supreme Court in the Sabarimala
case is consistent with the principles that have evolved over decades and in relation to
all religions uniformly.

One of the earliest cases arose when the Madras Hindu Religious and Charitable
Endowments Act, 1951 was enacted to empower a statutory commissioner to
intervene if they had ‘reason to believe’ that a religious institution was mismanaging
funds. This Act was challenged by the Mathadhipathi of the Shirur Mutt who claimed
that the law interfered with his right to manage the religious affairs of the Mutt. 3 The
Supreme Court examined the question, “Where the line to be drawn between what is
are matters of religion and what are not?” The Court held:

“What constitutes the essential part of a religion is primarily to be ascertained with reference to
the doctrines of that religion itself.”

This meant that the views of the followers of the religion were crucial to determine
what constituted the essential aspects of a religion.

There were two other cases of the late 1950’s that contributed to the evolution of this
essential practices doctrine. In one, the trustees of the temple of Sri Venkataramana of
Moolky, who were managing the temple on behalf of the Gowda Saraswat Brahmins,
challenged the Madras Temple Entry Authorisation Act, 1947 which threw open the
doors of the temple to the Harijans.4 The Gowda Saraswat Brahmins claimed a right to
exclude other communities from entering their temple as a matter of religion. Justice
Venkatarama Iyer J did not give the religious denomination complete autonomy in the
matter of deciding what rights and ceremonies are essential to its religion. Instead, the
Court examined scripture, ancient literature, the practice of Hindus and the role of
temples and recognised that the exclusion was under the ceremonial law of the Hindus
and was, therefore, an essential practice. This methodology had the inherent disability
of attempting to make the Supreme Court a theological expert!

In the other case, the Qureshi Muslims of Bihar petitioned the Supreme Court
challenging the ban on cow slaughter on the ground that it infringed on their
fundamental right to religion as they were compelled by their religion to sacrifice
cows on Bakrid.5  The Court, looking into the Islamic religious texts, found that there
was no evidence to show that sacrifice of cows on Bakrid was an essential practice for
the Qureshi Muslims. Again the “time immemorial” argument was put forth. (It is,
after all, the easiest argument in a country built on an ancient civilization!) The court
looked at the texts and scriptures of that community to conclude that the practice
claimed to be essential was not supported by religious tenets.

After the Gowda Saraswat and the Qureshi Muslims cases, Indian Courts found that
they were doing the job of trying to be experts in theology and determine what is
essentially religious. This was not an easy job to do as “scriptures and customs merge
with bewildering complexity into superstition and dogma. Separating the grain from
the chaff involves a complex adjudicatory function.” 6

Soon thereafter, a claim by the Chadims of the tomb of Hazrat Khwaja Moin–Ud-Din
Chisthi of Ajmer over the offerings from pilgrims to the Dargah reached the Supreme
Court through a challenge to a Rajasthan Government legislation which constituted a
committee to manage the Dargah7. P.B. Gajendragadkar J, while dismissing the case
of the Chadims, warned that claims for protection under Article 26 may have to be
carefully scrutinized. Otherwise “… even purely secular practices which are not an
essential or an integral part of religion are apt to be clothed with a religious form
and may make a claim for being treated as religious practices within the meaning of
Article 26.”

Very relevant to the present discussion are Gajendragadkar J’s warnings: “similarly,

even practices, though religious, may have sprung from merely superstitious beliefs
and may in that sense be extraneous and unessential accretions to religion itself… In
other words, the protection under Article 26 must be confined to such religious
practices as are an essential and an integral part of it and no other.”

Thus, we find the Court making the distinction between religious practices and superstitious
beliefs. Mere superstitious beliefs should not be given constitutional protection in the garb of
religious belief or practice. Thus, the essential practices test got one more element of “careful
scrutiny” to keep imposter beliefs out.

Thus, we find the Court making the distinction between religious practices and
superstitious beliefs. Mere superstitious beliefs should not be given constitutional
protection in the garb of religious belief or practice. Thus, the essential practices test
got one more element of “careful scrutiny” to keep imposter beliefs out.

In another case, the religious head of the Dawoodi Bohra community challenged the
constitutional validity of the Bombay Prevention of Excommunication Act,
19498 which provided that “Notwithstanding anything contained in any law, custom or
usage … no excommunication of a member of any community shall be valid”. The
majority of the Judges struck down the Excommunication Act as violating Article 25
and 26. However, the Bohra case is relevant for the lone dissent beautifully articulated
by Chief Justice Sinha.

“… It is noteworthy that the right guaranteed by Art. 25 is an individual right as distinguished

from the right of an organized body like a religious denomination or any section thereof, dealt
with by Art. 26. Hence, every member of the community has the right, so long as he does not in
any way interfere with the corresponding rights of others, to profess, practice and propagate his
religion, and everyone is guaranteed his freedom of conscience. ………

The Constitution has left every person free in the matter of his relation to his Creator, if he
believes in one. It is, thus, clear that a person is left completely free to worship God according to
the dictates of his conscience, and that his right to worship as he pleased is unfettered so long as
it does not come into conflict with any restraints, as aforesaid, imposed by the State in the
interest of public order, etc. A person is not liable to answer for the verity of his religious views,
and he cannot be questioned as to his religious beliefs, by the State or by any other person. Thus,
though his religious beliefs are entirely his own and his freedom to hold those beliefs is absolute,
he has not the absolute right to act in any way he pleased in exercise of his religious beliefs. He
has been guaranteed the right to practice and propagate his religion, subject to the limitations
aforesaid. His right to practice his religion must also be subject to the criminal laws of the
country, validly passed with reference to actions which the legislature has declared to be of a
penal character. Laws made by a competent legislature in the interest of public order and the like,
restricting religious practices, would come within the regulating power of the State. For example,
there may be religious practices of sacrifice of human beings or sacrifice of animals in a way
deleterious to the wellbeing of the community at large. It is open to the State to intervene, by
legislation, to restrict or to regulate to the extent of completely stopping such deleterious
practices. It must, therefore, be held that though the freedom of conscience is guaranteed to every
individual so that he may hold any beliefs he likes, his actions in pursuance of those beliefs may
be liable to restrictions in the interest of the community at large, as may be determined by
common consent, that is to say, by a competent legislature. It was on such humanitarian grounds,
and for the purpose of social reform, that so called religious practices like immolating a widow at
the pyre of her deceased husband, or of dedicating a virgin girl of tender years to a God to
function as a devadasi, or of ostracizing a person from all social contacts and religious
communion on account of his having eaten forbidden food or taboo, were stopped by
legislation.”

Chief Justice Sinha’s dissent articulated a view in favor of individual liberty, in the
face of group religious claims. An appeal from the judgment in this case is pending
consideration before a larger Bench in the Supreme Court.

An important deviation from the Shirur Mutt formula came to be articulated by Justice
Gajendragadkar in 1964 in Tilkayat’s case, 9 where he recognised that it is not possible
to find solutions from within the community tenets, when conflicting evidence is
produced in respect of rival contentions. The principle of letting the community
decide its essential practices would break down when there was more than one voice
for the community.

Thus, from the mid-1960’s, it was clear that the Courts would have to decide what the
essential practices of a religion were.
Again in a case where a temple was thrown open to Dalits, the Swaminarayan sect
challenged the Bombay Hindu Places of Public Worship (Entry Authorisation) Act,
1956 and sought rights to be exclusionary as they were a different
denomination.10 Again Justice Gajendragadkar held:

“It may be conceded that the genesis of the suit is the genuine apprehension entertained by the
appellants, but as often happens in these matters the said apprehension is founded on
superstition, ignorance and complete misunderstanding of the true teachings of Hindu
religion and of the real significance of the tenets and philosophy taught by Swaminarayan
himself.”

Thus Courts began to look at practices from a pro-reform and anti-discrimination

manner perspective.

The Ananda Margis were a group who claimed that one of their religious rites was
the tandava dance which was to be performed with a skull, a small
knife, trishul (trident) and a damaroo (pellet drum) and at intervals processions were
intended to be taken out in public places accompanied by the dance. The police
rejected their application for permission to take out a procession in the public streets.
The Supreme Court held that the tandava dance was not an essential religious rite of
the Ananda Margis, was of recent origin and even conceding that the dance was
prescribed as a religious right for every Ananda Margi, it was not necessary to be
performed in public.11

In a challenge to the Uttar Pradesh Sri Kashi Vishwanatha Temple Act, 1983, which
entrusted the management of the temple with the State, the Supreme Court again
cautioned that “sometimes practices, religious or secular, are inextricably mixed up” 12.

A question arose before the Court whether the Travancore Devaswom Board could
appoint a non-Malayalee brahmin as priest of the Kongorpilli Neerikodu Shiva
temple.13 It was held:

“Any custom or usage irrespective of even any proof of their existence in pre-constitutional
days cannot be countenanced as a source of law to claim any rights when it is found to
violate human rights, dignity, social equality and the specific mandate of the Constitution
and law made by Parliament. No usage which is found to be pernicious and considered to
be in derogation of the law of the land or opposed to public policy or social decency can be
accepted or upheld by courts in the country.”

The Ananda Margis tandava dance again came into consideration before Court when
their religious book was revised to prescribe the tandava dance as an essential
religious practice.14

“Such alterable parts or practices are definitely not the 'core' of religion where the belief is
based and religion is founded upon. It could only be treated as mere embellishments to the
non-essential part or practices.”

Even when texts expressly stated a practice as an essential practice of the relatively
new religion, Courts looked into whether the absence of the practice would make a
fundamental change to the religion. Thus, a distinction was drawn between ‘the core
of a religion’ and ‘mere embellishments’.

Again, the Court applied the test of constitutional legitimacy in a case where a
Government Order which permitted “any qualified Hindu” to be an Archaka of a
temple was challenged as violative of the petitioners’ right to appoint Archakas from
their own denomination in accordance with the Agamas. The Court held that “the
constitutional legitimacy, naturally, must supersede all religious beliefs or practices.” 15

The courts were now emboldened to place constitutional values, dignity of individuals
and social equality on a higher pedestal than religious claims.

When the practice of Triple Talak was challenged, the Court examined whether it was
an essential practice to the Hanafi school of Muslims. 16 The Court looked into Islamic
jurisprudence and held that Triple Talak was not an essential practice. The Court
observed that a practice does not acquire the sanction of religion simply because it is
permitted and merely because a practice has continued for long; that by itself cannot
make it valid.
Thus, over the decades, Indian Courts have played an important role in deciding what
is or is not essential to a religion; and what practices are mere superstitions and beliefs
couched in a religious colour. In a colorful country like India, with its myriad
practices, beliefs and superstitions, the Courts have periodically been called upon to
decide whether a practice was to be protected or not under the Right to Religious
Freedom. The sieving process has been a difficult one often, but not one that the
courts have shied away from. The Sabarimala case is one such where the court has
boldly examined a deep-rooted belief that pervades Indian society at multiple levels
— from our homes to our places of worship. This judgement takes the bull by the
horns, refusing to find a way out from discussing the taboos of menstruation.

Exclusion of Women Was Not a Uniform Practice

Applying the essential practices test, the majority opinion of the Court finds that the
practice of excluding women between the ages of ten and fifty from undertaking the
pilgrimage and praying at the Sabarimala temple is not an essential part of the
religion. The religious texts and tenets relied on by the Respondents did not indicate
such an essential practice. At best, these documents indicate the celibate nature of
Lord Ayyappa at the Sabarimala temple but do not establish a connection between the
Lord’s celibate nature and exclusion of women. The Supreme Court noted the
observations of the Kerala High Court in Mahendran’s case 17 that even when old
customs prevailed; women were allowed to visit the temple.

Applying the essential practices test, the majority opinion of the Court finds that the practice of
excluding women between the ages of ten and fifty from undertaking the pilgrimage and praying
at the Sabarimala temple is not an essential part of the religion.

The Kerala High Court had noted an incident where the Maharaja of Travancore,
accompanied by the Maharani and the Divan, had visited the temple in 1115 ME. The
High Court, while examining evidence, had noted that the temple had seen the
presence of women worshippers of all ages for the first rice-feeding ceremony of their
children. The Secretary of the Ayyappa Seva Sangham had deposed that young
women were seen in Sabarimala during the previous ten to fifteen years. A former
Devaswom Commissioner admitted that the first rice-feeding ceremony of her
grandchild was conducted at the Sabarimala temple. The High Court found that during
the twenty years preceding the decision, women irrespective of age were allowed to
visit the temple when it opened for monthly poojas, but were prohibited from entering
the temple only during Mandalam, Makaravilakku and Vishu seasons. 18 The Supreme
Court takes note of these observations by the Kerala High Court collected by
evidence, to hold that the practice of excluding women from the temple was not a
uniform practice. This also shows that denial of constitutional protection to the
exclusionary practice will not result in a fundamental change in the character of the
religion.19

So how did the Kerala High Court and the Supreme Court arrive at opposite
conclusions on the same set of facts?

Thus the Supreme Court reiterated that it was not enough merely to go on the basis of the
knowledge base of those who claim to be the ‘keepers of the religion’. Courts must carefully
scrutinize so that practices that are not essential to the religion but simply don the colour of the
religion are not given Constitutional protection.

The Supreme Court finds that the Kerala HC was incorrect in its conclusions in
Mahendran’s case as it followed only the dictum in the Shirur Mutt case 20 and did not
take note of the jurisprudence that evolved thereafter. The Kerala HC relied
completely on the testimonies of the thanthris without an enquiry into its basis in
religious texts or its essentiality to religion. 21 Thus the Supreme Court reiterated that it
was not enough merely to go on the basis of the knowledge base of those who claim
to be the ‘keepers of the religion’. Courts must carefully scrutinize so that practices
that are not essential to the religion but simply don the colour of the religion are not
given Constitutional protection. The High Court had, in fact, given a direction to the
Kerala government to provide Police assistance to enforce the ban on women between
the ages of ten and fifty. The Supreme Court, through the Sabarimala judgement,
refused such constitutional protection to the ban.

The Real Reasons for the Exclusion

Another impressive feature of the Sabarimala judgement is the readiness shown by the
Supreme Court to dive deep into the reasons given for the exclusion of women of a
certain age. The Kerala High Court’s reason of the “arduous nature of the journey”
which could not be completed by women for physiological reasons is rejected by the
Supreme Court as it is not even a religious reason to claim constitutional protection.
This reason is also too paternalistic, and must be left to the individual choice of the
devotee to decide whether she can take the arduous nature of the journey or not. The
Court cannot promote such stereotypes and must lean in favor of interpretations of
equality.

Breaking Free of Stereotypes

The Supreme Court looks at one more argument given to explain the exclusionary
practice — the naisthika brahmacharya nature of Lord Ayyappa and that celibacy is
an important part of the 41-day vratham for the followers. It was stated that the
presence of women distracts the devotees. While dismissing this reason, the Court
frowns upon the attempt to impose the burden of a man’s celibacy on a woman and
construct her as a cause for deviation. This argument is then employed to deny her
access to spaces which she is entitled. Again the Court refuses to perpetrate
stereotypes of a woman being too weak to keep the vratham. “The equality of human
beings entails being free from the restrictive and dehumanizing effect of
stereotypes.”22

This reminds one of the inter-generational dialogues within our families. Concerned
about women’s safety, many a parent can be heard advising young girls to “dress
modestly lest the men are provoked”. The youngsters shoot back with “these fellows
rape babies and old women; women in sarees and burkhas too. It isn’t what we wear.
It is what is in their heads.”

It is quite interesting to note the manner in which the Court refuses to indulge these
fanciful ideas and cute little stories that surrounded the exclusion of women of
menstruating age. In everyday life, we are often faced with a score of such arguments
that appear charming and quaint in their interpretations to justify something which is
apparently unjust. The fanciful arguments narrated as stories capture our fancy, get
passed on, and lo and behold, new beliefs or superstitions are created. It is this process
that happens when we are told that isolated spaces in our houses are for the benefit of
menstruating women so that they can have rest from housework, or menstrual blood is
powerful enough to do black magic with and so menstrual cloth must not be dried in
the sun, or kumkum must not be offered to a widow, or women without husbands
should not attend weddings et cetera. All these arguments of fancy promote beliefs
which we may as a society gullibly accept or oppose at the risk of being labeled a
rebel or struggle to come to terms with. Either which way, they cannot be given
constitutional protection.

The Real Reason — the ‘Purity and Pollution’ Idea

Now, therefore, the other reason cited becomes significant. The fact that only women
aged between ten and fifty have been excluded shows that they have been chosen
based on a menstruating age. While asking the fundamental question “does the
Constitution permit menstruation as a basis for a group to exclude a woman from
worship”, all the judges writing the majority judgement held that the physiological
features of a woman have no significance to her equal entitlements under the
constitution. “The stigma around menstruation has been built up around traditional
beliefs in the impurity of menstruating women. They have no place in a constitutional
order. These beliefs have been used to shackle women, to deny them equal
entitlements and subject them to the dictates of a patriarchal order. The menstrual
status of a woman cannot be a valid constitutional basis to deny her the dignity of
being and the autonomy of personhood. The menstrual status of a woman is deeply
personal and an intrinsic part of her privacy. The Constitution must treat it as a feature
on the basis of which no exclusion can be practiced and no denial can be perpetrated.
Nobody or group can use it as a barrier in a woman’s quest for fulfillment, including
in her finding solace in the connect with the creator.” 23
 The menstrual status of a woman is deeply personal and an intrinsic part of her privacy. The
Constitution must treat it as a feature on the basis of which no exclusion can be practiced and no
denial can be perpetrated.

Thus, concrete individual rights got a higher status than vague group claims of a right.

With the above articulation, the Supreme Court entered our homes to be part of our
everyday conversations. It became the wise old relative who will advise us: “Don’t
keep your wives and sisters and daughters away from ceremonies and rituals and
auspicious moments during their menstruating days. There is nothing impure about
menstruation. Include her.” It also gives the basis on which we can stop giving our
girls chemical pills to postpone menstruation when an auspicious event or ceremony is
to happen in the family. It gives us the basis on which we can nudge our domestic
help to not borrow money to do a song and dance to celebrate the first period of her
daughter, and instead put the money into the girl’s college fund.

As we inch forward as a young nation built on ancient civilizational values, change is

a heavily-resisted and slow process. We inch forward slowly through legislations,
campaigns and court orders to uplift the status of our women. Every once in a while
comes along a judgement that gives a big thrust to this slow, inching movement.
Whether it was to make our work-spaces safer for our women or whether to recognise
her property rights or whether to remove shackles on her choice of life partner, the
Courts have accelerated the pace at which women’s lives stood to regain dignity in
India. The Sabarimala judgement is one such accelerator. It is about cleaning the
cobwebs in our head about menstruation and the ideas of impurity associated with it.
It is about letting our girls free on those 60 days in a year without having to think that
they are children of a lesser God during those days. It is about shifting the focus of our
conversations from menstruation taboos to important issues like menstrual hygiene,
better, more-affordable, more long-lasting sanitary protection, keeping access open to
education, sports, travel, social life and all regular activities. The Sabarimala
judgement is path-breaking to the effect that it becomes a powerful tool in our hands
to help us break free of the mental blocks we hold in the name of religion.
‘Purity and Pollution’ Exclusions: a Practice of Untouchability

Another reformative feature of the Sabarimala judgement is the way it interprets

‘Untouchability’ in Article 17 of the Constitution.

Article 17 - “Untouchability” is abolished and its practice in any form is forbidden.

The enforcement of any disability arising out of “Untouchability” shall be an offence
punishable in accordance with law.

The Supreme Court in the Sabarimala judgement recognised the practice of excluding women
based on ideas of ‘purity and pollution’ as a practice of Untouchability.

The term untouchability was left undefined by the framers of the Constitution.
Untouchability “in any form” is to cover all kinds. The Supreme Court in the
Sabarimala judgement recognised the practice of excluding women based on ideas of
‘purity and pollution’ as a practice of untouchability. The systemic humiliation,
exclusion and subjugation faced by women, the social exclusion of women, based on
menstrual status, is but a form of untouchability.

This view of untouchability awakens us to gross realities around us — of the ‘two

tumbler system’, the exclusion of followers of other religions from some kitchens, the
exclusion of widows and unmarried women from rituals, the struggle to get widows
remarried, the resistance to inter-caste and inter-religion relationships, and khap
panchayats and honour killings, to name just a few social diseases. The judgement
provokes us to think about our everyday realities of discrimination. It is left to us to
use the judgement as a tool to clean the underlying cobwebs of our minds that
promote these social diseases.

Constitutional Guarantee of Dignity

The Indian society is governed by the Constitution of India. Notions of purity and
pollution which stigmatize individuals can have no place in a constitutional regime.
Regarding menstruation as polluting or impure and, worse still, imposing exclusionary
disabilities on the basis of menstrual status is against the dignity of women guaranteed
by the Constitution. Dignity as a facet of Article 21 is firmly entrenched in the
Constitution after the decision of the Nine Judge Bench in Justice Puttaswamy’s
case.24  Practices which legitimize menstrual taboos due to notions of purity and
pollution, limit the ability of menstruating women to attain the freedom of movement,
the right to education, and the right of entry to places of worship and eventually their
access to the public sphere. Women have a right to control their own bodies. The
menstrual status of a woman is an attribute of her privacy and person. Women have a
constitutional entitlement that their biological processes must be free from social and
religious practices that enforce segregation and exclusion. These practices result in
humiliation and a violation of dignity.

Sabarimala: a Symbol for all Religions

The judgement also records that the notions of purity and pollution around
menstruation are common across all the older religions. The idea of menstruating
women polluting the surroundings has been used to exclude her from social activities
in the interpretations of texts in Christianity, Hinduism, Islam, Judaism and
Zoroastrianism. However, the more recent religions such as Sikhism and the Bahai
Faith encourage their followers to see menstruation as a natural process and do not
associate notions of ‘purity and pollution’ around it. 25

Lord Ayyappa is a beloved deity in Kerala and Tamil Nadu. It was stated in Court that
Sabarimala is visited by Ayyappa-believers from Muslim and Christian faiths too. It
isn’t difficult, therefore, to see this Sabarimala case as representative of a challenge to
the ‘purity and pollution’ idea promoted by all religions. This case is not about one
particular religion. It is about the ‘purity and pollution’ idea that affects one half of
India’s population.

To Develop the Spirit of Reform: a Fundamental Duty

Now read all this in the context of the Fundamental duties:

Article 51 A - It shall be the duty of every citizen of India…

(e) to promote harmony and the spirit of common brotherhood amongst all people of
India transcending religious, linguistic and regional or sectional diversities; to
renounce practices derogatory to the dignity of women;

(f) to value and preserve the rich heritage of our composite culture;…

(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;

This judgement is in the spirit of Article 51 A. It develops the spirit of inquiry and
reform. It denounces practices derogatory to the dignity of women.

Whatever our standards be, the Supreme Court in the Sabarimala judgement has brought in one
unifying moral standard that must be part of our conversations on morality cutting across
religious lines — that of Constitutional morality.

We all have notions of morality shaped by our conversations at home. There is no one
defining standard. Our religions play an important role in shaping our standards of
morality. Some of us believe our standard is “do unto others as you want done unto
you”; some believe that Karma dictates and we are but tools; and some believe the
prescriptions of the Holy book dictate. Whatever our standards be, the Supreme Court
in the Sabarimala judgement has brought in one unifying moral standard that must be
part of our conversations on morality cutting across religious lines — that of
Constitutional morality.

The Sabarimala judgement is bold — it does not shove difficult discussions under the
carpet. It is Empathetic — it looks at a sparsely-discussed subject from the perspective
of women who are victims of an entrenched social dictate. It is rooted in our
fundamental constitutional values. It is focused — it does not get distracted by the
beautiful interpretations and stories that accompany our practices. It is consistent with
the jurisprudence that evolved over the decades on how to balance religious group
rights and individual rights. It is comprehensive — it reflects in its four different
opinions the fears of a country so deeply rooted in religion and fearful of breaking
free from religious sanction; the fears of secular interference in our traditions in a
pluralistic society and it addresses these fears and gives responsible reasons to break
free. It is reformative and disruptive — it places the opportunity to reform in our
hands and in our homes. It is empowering — it gives us the strength to challenge
discrimination in the space of our personal laws, cutting across religions.

Justice Chandrachud articulates a doctrine that group rights have been recognised in the
Fundamental Rights section of the Constitution so that the individuals in the group realize
fulfillment and self-determination. Therefore, group rights must be subjected to individual rights.

It is in this backdrop that Justice Chandrachud’s listing of a Constitutional order of

priorities is interesting. “While the Constitution is solicitous in its protection of
religious freedom as well as denominational rights, it must be understood that dignity,
liberty and equality constitute the trinity which defines the faith of the Constitution.
Together these three values combine to define a constitutional order of priorities.
Practices or beliefs which detract from these foundational values cannot claim
legitimacy.”26 Thus, Justice Chandrachud articulates a doctrine that group rights have
been recognised in the Fundamental Rights section of the Constitution so that the
individuals in the group realize fulfillment and self-determination. Therefore, group
rights must be subjected to individual rights. If accepted, no practice will be afforded
constitutional protection if it violates constitutional values of individual liberty,
equality and dignity, even if it is shown to be an essential religious practice. We can
find support for this thought in some of the earlier judgement. However, the Learned
Judge leaves this doctrine to be tested and concretely articulated another day in a
future case but leaves the idea on the table so that our conversations evolve.

In the upcoming Navaratri season, the effect of the Sabarimala judgement will be seen
in  many houses, where all the girls will be told to attend every Puja and enjoy the
Navaratri dancing and festivities on every day, without a concern whether it is that
time of her month or not. It will be seen in homes where widows will be invited to
join in the festivities and the gift-bags will not have to be divided into groups of
‘with kumkum’ and ‘without kumkum’. This pre-festival cleaning of cobwebs is a
good way to launch the celebrations.

[Elizabeth Seshadri practices law in the Madras High Court].

Related Link: Sujatha, R and Gopinath, R. 2018. "Hype over Pad Man but India's
Menstrual Woes Continue", The Hindu Centre for Politics and Public Policy, March
12.

Resources: "The Supreme Court allows entry of women of all age groups into the
Ayyappa temple".

References:

[All URLs last accessed on October 4, 2018.]

1. Kannadasan, A. 2018. “Meet Muruganantham, The Real Pad Man”, The

Hindu, February 05.  [https://www.thehindu.com/society/the-real-pad-man-
muruganantham-before-the-release-of-pad-man/article22658314.ece].

2. S.Mahendran vs. The Secretary, Travancore Devaswom Board,

Thiruvananthapuram, AIR 1993 Ker 42.

3. Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra Thirtha

Swamiyar of Shirur Mutt, (1954) SCR 1005.

4.Sri Venkataramana Devaru vs State of Mysore, (1958) SCR 895.

5. Mohd. Hanif Quareshi vs State of Bihar, (1959) SCR 629.

6. At paragraph 16 of Justice Chandrachud’s judgement in the Sabarimala judgment.

7. Durgah Committee, Ajmer vs Syed Hussain Ali, (1962) 1 SCR 383.

8. Sardar Syedna Taher Saifudeen Sahib vs. State of Bombay, (1962) Supp (2) SCR
496.

9. Tilkayat Shri Govindlalji Maharaj vs. State of Rajasthan & ors, (1964) 1 SCR 561.

10. Sastri Yagnapurushadji & other vs. Muldas Brewdardas Vaishya & anr, AIR 1966
1119.

11. Acharya Jagdishwaranand Avadhuta vs Commissioner of Police, Calcutta, (1983)

4 SCC 522.
12. Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi vs. State of UP,
(1997) 4 SCC 606.

13. N.Adithayan vs. Travancore Devaswom Board, (2002) 8 SCC 106.

14. Commissioner of Police v. Acharya Jagdishwarananda Avadhuta, (2004) 12 SCC

770.

15. Adi Saiva Sivachariyargal Nala Sangam vs. Government of Tamil Nadu, (2016) 2
SCC 725.

16. Shayara Banu vs Union of India, (2017) 9 SCC 1.

17. S.Mahendran vs. The Secretary, Travancore Devaswom Board,

Thiruvananthapuram, AIR 1993 Ker 42.

18. At paragraph 51 of Justice Chandrachud’s judgement in the Sabarimala judgment.

19. Ibid.

20. Commissioner, Hindu Religious Endowments, Madras vs. Sri Lakshmindra

Thirtha Swamiyar of Shirur Mutt, (1954) SCR 1005.

21. At paragraph 52 of Justice Chandrachud’s judgement in the Sabarimala judgment.

22. At paragraph 56 of Justice Chandrachud’s judgement in the Sabarimala judgment.

23. At paragraph 57 of Justice Chandrachud’s judgement in the Sabarimala judgment.

24. Justice K.S.Puttaswamy & anr vs. Union of India & others, (2017) 10 SCC 1.

25. At paragraph 24 of Justice Nariman’s judgement in the Sabarimala case.

26. At paragraph 49 of Justice Chandrachud’s judgement in the Sabarimala judgment.