Clash between Fundamental Right and

Traditional Pratices

A Dissertation

Submitted
In partial fulfilled of the required for degree of
B.B.A.LL.B H

Name of the student Research Supervisor

Utkarsh Sinha Ms. Himani

CPJ CHS & SCHOOL OF LAW

UNDER
GGS IPU, DWARKA NEW DELHI
2016-2021
 INTRODUCTION

Law is a complicated subject it needed to be interpreted thoroughly and find out

the exact meaning which is a tough job. The work of judiciary to interpret law and
apply them accordingly. Constitution is the backbone of every law passed in
legislature. Constitutional morality is adherence to the basic principle of the
constitution on which the heart and soul of the constitution is based. It does not
only include the principles mentioned in the constitution but it also includes the
implicit ideas of Human Rights which are though not specifically mentioned but
forms the essence of morality. Thus it is necessary for a Fundamental Right to
work within the dimension of Constitutional Morality. The contents of morality are
founded in the four precepts justice, liberty, equality and fraternity. With the
combination of all these precepts there is a fundamental postulate appears it is
secularism which treats all religion on the same platform. These precepts are the
means to secure justice in all its dimensions to the individual citizens.

In modern days, various NGOs, organizations etc, fighting for the rights of women
demanding equality for women in every aspect of life. The Constitution of India
provide equality to the citizens though various provisions such as Article 14(Right
to equality), Article 15, (prohibition of discrimination), Article 17(untouchability)
and any such practice which is actually violative of other mentioned rights cannot
be protected by “morality” under Article 25 (freedom to practice and propagation
of religion).

This dissertation is majorly discuss about the judgment of The Indian Young
Lawyer vs. State of Kerala (The Sabrimala case) and the judgment passed by the
majority judges and the significance of the dissent judgment of Justice Indu
Malhotra and other cases filed after the judgment of The Sabrimala Case.

Sabarimala Temple, devoted to Lord Ayyappa, is a temple of great antiquity. The

faithful believe that Lord Ayyappa’s powers derive from his asceticism (severe
self-discipline and avoiding of all forms of indulgence, typically for religious
reasons) , in particular from his being celibate. Celibacy (Sexual abstinence or
Brahmacharya) is a practice adopted by pilgrims before and during the pilgrimage.
Those who believe in Lord Ayyappa and offer prayers are expected to follow a
strict ‘Vratham’ or a vow over a period of 41 days which lays down a set of
practices.

In 1990, S Mahendran filed a plea in Kerala High Court seeking a ban on women’s
exclusion of entry to the temple. But, Kerala High Court upheld the age-old
restriction on women of a certain age-group entering the temple. On August 4,
2006, the Indian Young Lawyers Association filed a plea in the Supreme Court
seeking to ensure entry of female devotees between the age group of 10 to 50 at the
Lord Ayyappa Temple at Sabarimala.
 RESEARCH OBJECTIVE
The major objectives of the dissertation to is tell the importance of social morality
and constitutional morality and significance of essential religious practice in the
various religious communities.

This dissertation is majorly discuss about the judgment of The Indian Young
Lawyer vs. State of Kerala (The Sabrimala case) and the judgment passed by the
majority judges and the significance of the dissent judgment of Justice Indu
Malhotra and other cases filed after the judgment of The Sabrimala Case.
 RESEARCH QUESTIONS
Prohibition on women in Sabrimala temple based on biological factors violates
Article 14(Right to equality), Article 15, (prohibition of discrimination), Article
17(untouchability) and any such practice which is actually violative of other
mentioned rights cannot be protected by “morality” under Article 25 (freedom to
practice and propagation of religion).

Does practice of not including women constitute an “essential religious practice”

under Article 25 and can a religious institution claim that it comes under the
umbrella of right to manage its own affairs in the matters of religion?

Whether Ayyappa Temple has a denominational character and, if so, is it

permissible on the part of a ‘religious denomination’ managed by a statutory board
and financed under Article 290-A of the Constitution of India out of the
Consolidated Fund of Kerala and Tamil Nadu to indulge in such practices violating
constitutional principles/ morality embedded in Articles 14, 15(3), 39(a) and 51-
A(e)?

Does Rule 3 of the Kerala Hindu Places of Public Worship (Authorisation of

Entry) Rules permits ‘religious denomination’ to ban entry of women between the
ages of 10 to 50 years? Or if it does then is it violation of Article 14 and 15(1) of
the constitution by prohibiting entry of women on the ground of sex?
 HYPOTHESIS
Sabarimala judgement is a bold and unabashed narrative. The Supreme Court has
adopted a reformist and interventionist approach by upholding human dignity and
equal entitlement to worship for all individuals. This disruptive and empowering
verdict has tightened the noose around what would earlier easily pass off as an
‘essential religious practice’ and has developed a test to establish the veracity of
such claims thereby minimising the scope for discrimination of any form practiced
under the wrongfully interpreted sanctions of religion.

Justice Indu Malhotra delivered a dissenting opinion. She argued that constitutional
morality in a secular polity, such as India, requires a 'harmonisation' of various
competing claims to fundamental rights. She said that the Court must respect a
religious denomination's right to manage their internal affairs, regardless of
whether their practices are rational or logical.

The Sabarimala Temple satisfies the requirements for being considered a separate
religious denomination. She therefore held that the Sabarimala Temple is protected
under Article 26(b) to manage its internal affairs and is not subject to the social
reform mandate under Article 25(2)(b), which applies only to Hindu
denominations. Note that Article 26, denominational freedom of religion, is subject
to 'public order, morality and health'. 'Morality' (constitutional morality) must be
understood in the context of India being a pluralistic society. The State must
respect the freedom of various individuals and sects to practice their faith.

The fundamental right to equality guaranteed to women under Article 14 cannot

override Article 25, which guarantees every individual the right to profess, practice
and propagate their faith.
Rule 3(b) does not stand in conflict with its parent Act, the Kerala Hindu Places of
Public Worship Act. The rule 'carves out an exception in the case of public
worship'. The rule was consistent with Article 26(b) of the Constitution.
The Sabarimala custom doesn’t violate Article 17 of the Constitution. Article 17
pertains to untouchability and prohibits discrimination on the basis of impurity. In
the context of the Article and the Constitution in general, untouchability refers to
caste and does not extend to discrimination on the basis of gender. Like Justice
Chandrachud, she referred to the Constituent Assembly Debates toestablish how
the founder intended to use the term untouchability. Unlike Justice Chandrachud,
she concluded that untouchability does not extend to gender.
 Research Methodology
The research used doctrinal methods of research method, including reading
judgements, interviews (Adv J. Sai Deepak) and group discussions, and some level
of participant observation. Structured but open ended questions were used to guide
the interviews.

Questions Prohibition on women in Sabrimala temple based on biological factors

violates Article 14(Right to equality), Article 15, (prohibition of discrimination),
Article 17(untouchability) and any such practice which is actually violative of
other mentioned rights cannot be protected by “morality” under Article 25
(freedom to practice and propagation of religion).

Reading interviews also explored awareness around legal rights and procedures for
accessing these.

Watching news discussions were partly aimed at getting information about the
views of expert on the topic that what was the reason behind banning of women
from entry into the temple and why the majority judgment was against the
Trancore Board.

Methodology is a systematic description and “logic in use” of the technique and

tools employed during the conduct of research of the collection of reliable
information about the phenomenon under study.

Methodology is a discipline, studying the behavior of human Beings in various

social settings.

According to Nachmias (1981) the scientific methodology is a system of explicit

rules and procedures upon which research is based and against which the claims
for knowledge are evaluated.
The interview and the focus group discussions focused on the perception of the
respondents around the true followers of Lord Ayyappa and where the hope of the
women lies who truly believe in Lord Ayyappa and practices of Sabrimala temple.

Due to the nature of news discussions with Adv. J Sai Deepak, especially the in-
depth, long conversations about the practices of Sabrimala Temple, it becomes
easy to describe the difference between Article 14(Right to equality), Article 15,
(prohibition of discrimination)and Article 25 (freedom to practice and propagation
of religion) and Article 26.
 TENTATIVE CHAPTERISATION
SERIAL NO. TITLE

CHAPTER NO,1 Introduction

1.1

1.2

1.3

1.4

1.5

CHAPTER NO.2

2.1

2.2

2.3

CHAPTER NO.3

CHAPTER NO.4
CHAPTER NO.5

CHAPTER NO.6 CONCLUSION AND SUGGESTION