READING SECULARISM IN COURT

JUDGEMENTS: A COMPARATIVE CASE STUDY

OF SABARIMALA AND SHAYARA BANO

JUDGEMENTS

Dissertation submitted in part fulfilment for the requirement of the

Degree of

LL.M.

Submitted by: Supervised by:

DIKSHA MENDIRATTA Dr. MAHESHWAR SINGH

NATIONAL LAW UNIVERSITY

DELHI (India)

2019

i

DECLARATION BY THE CANDIDATE

I hereby declare that the dissertation entitled “ Reading Secularism in Court

Judgements : A Comparative Case Study of Sabarimala and Shayara Bano

Judgements submitted at is the outcome of my own work carried out under the

supervision of Dr. Maheshwar Singh, Professor of Political Science, National

Law University, Delhi.

I further declare that to best of my knowledge the dissertation does not contain any

part of work, which has not been submitted for the award of any degree either in the

University or any other institutions without proper citations.

Diksha Mendiratta

Roll no. 39

National Law University, Delhi

Place: Delhi

Date: 22 May, 2019

ii

CERTIFICATE OF SUPERVISOR

This is to certify that the work reported in LL.M. dissertation entitled “ Reading

Secularism in Court Judgements : A Comparative Case Study of Sabarimala

and Shayara Bano Judgements Submitted by Diksha Mendiratta at National Law

University, Delhi is a bona fide record of her original work carried out under my

supervision. To the best of my knowledge and belief, the dissertation: (i) embodied

the work of candidate herself; (ii) has been duly completed, and (iii) is up to standard,

both in respect of content and language, for being referred to the examiner.

Dr. Maheshwar Singh

Professor of Political Science

National Law University, Delhi

Place: New Delhi

Date: 22 May, 2019

iii

ACKNOWLEDGMENTS

Firstly, I would like to express my sincere gratitude to my supervisor Prof.

Maheshwar Singh for the continuous support of my study and related research, for his

patience, motivation, and immense knowledge. His guidance helped me in all the time

of research and writing of this dissertation. I could not have imagined having a better

advisor and mentor for my dissertation.

Besides my advisor, I would like to thank Dr. Aparna Chandra for her insightful

comments and encouragement, but also for what she taught us in the class of

Advanced Constitutional law, which was very thought provoking.

Last but not the least, I would like to thank my family: my parents, my brother and to

my husband who encouraged me, motivated me and guided me in this dissertation.

iv

LIST OF STATUTES

1. Constitution of India, 1950.

2. Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965

3. Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965

4. Bombay Prohibition of Bigamous Marriages Act, 1946

5. Hindu Succession Act, 1956,

6. Criminal Procedure Code, 1973

7. Muslim Women (Protection of Rights on Divorce) Act, 1986

8. Muslim Personal Law (Shariat) Application Act, 1937

v

LIST OF ACRONYMS AND ABBREVIATIONS

AIR : All India Reporter

Hon„ble : Honourable

Pg. : Page

r/w : Read With

SCC : Supreme Court Cases

S.C. : Supreme Court

Sec. : Section

UCC : Uniform Civil Code

v. : Versus

& : And

vi

LIST OF CASES

1. Acharya Jagadishwaranand v. Commissioner of Police, (1983) 4 SCC

522

2. Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj &

Ors. v. The State of Gujarat & Ors, (1975) 1 SCC 11

3. Ahmadabad Women Action Group v. Union of India, (1997) 3 SCC 573

4. Aruna Roy v. Union of India (2002) 7 SCC, 368

5. C. Masilamani Mudaliar v. Idol of Sri Swaminnathanswami Thirukoil,

6. Commissioner, Hindu Religious Endowments, Madras v. Sri

Lakshmimandira Thirtha Swamiar of Sri Shirur Muth, AIR 1994 SC

282

7. Commr., HRE Madras v. Sri Lakshmindra, AIR 1954 SC 282, 290: 1954

SCR 1002

8. Court on its Own Motion v. Govt. of NCT of Delhi 2012 (192) DLT

209: 2012 (7) AD (Del) 377

9. Danial Latifi v. Union of India, (2001) 7 SCC 518

10. Durgah Committee v. Syed Hussain Ali, AIR 1961 SC 1402

11. Fertilizer Corporation Kangar v. Union of India, (1981) 1 SCC 568

12. Govindlalji v. State of Rajasthan,AIR 1963 SC 1638: (1964) 1 SCR 561

13. H.H. Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami v. State of

Tamil Nadu, AIR 1972 SC 1586

14. Hussainara Khatoon v. Home Secretary, (1980) 1 SCC 93

15. Indian Young Lawyers Association v. State of Kerala, 2018 SCC

OnLine SC 1690

16. Kesavananda v. State of Kerala, AIR 1973 SC 1461

17. M. Ismail. Faruqui v. Union of India, AIR 1995 SC 604, (1994) 6 SCC

360

18. M.P. Gopalakrishnan Nair v. State of Kerala, (2005) 11 SCC 45, AIR

2005 CS 3053

19. Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942

20. Mohd. Ahmed Khan v. Shah Bano Begum,(1985) 2 SCC 556

vii

21. Nallor Mathadanam Vellalar v. Comm., Hindu Religious Charitable

Endowment, (2003) 10 SCC 71

22. Orissa Mining Corporation ltd. v. Ministry of Environment and Forests,(

2013) 6 SCC 513

23. People’s Union for Democratic Right v. Union of India,(1982) 3 SCC

235 (

24. Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388: 1954

SCR 1055

25. S Mahendran v. The Secretrary, Trvancore Devaswom Board,

Thriruvananthpuram, AIR 1993 KER 42

26. S.P. Mittal v. Union of India, (1983) 1 SCC 51

27. S.R. Bommai v. Union of India AIR1994 SC 1918: (1994) 3 SCC 1

28. Sabha v. Commr., H.R.E, AIR 1976 SC 475

29. Shamim Ara v. State of Uttar Pradesh, (2002) 7 SCC 518

30. Shayara Bano v. Union of India , (2017) 9 SCC 1

31. Shri Govindlalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638

32. Shri Jaganath Temple Puri Mnagement v. Chintamani, AIR 1997 SC

3839, 3853 : (1997) 8 SCC 422

33. Shri Krishna Singh v. Mathura Ahir, (1981) 3 SCC 689

34. State of Bombay v. Narasu Appa Mali, AIR 1952 Bom. 84

35. State of Karnataka v. Praveen Bhai Thogadia (2004) 4 SCC 684, AIR

2004 SC 2081

36. Subramaniam Swamy v. Union of India, Ministry of Law & Ors, (2016)

7 SCC 221

37. Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors,

(1964) 1 SCR 561

38. Venkataramana Devaru & Ors. v. State of Mysore & Ors, 1958 SCR

895 : AIR 1958 SC 255

viii

TABLE OF CONTENTS

TITLE PAGE NUMBER

DECLERATION BY THE CANDIDATE i

SUPERVISOR‟S CERTIFICATE ii

ACKNOWLEDGEMETS iii

LIST OF STATUTES iv

LIST OF ACRONYMS AND

ABBREVIATIONS

iv

LIST OF CASES vi-vii

CHAPTER 1:

INTRODUCTION

1-4

1.1 LITERATURE REVIEW 5-10

1.1.1 RELIGION 5

1.1.2 ARTICLE 25(2)(a) 7

1.1.3 ARTICLE 25(2)(b) 8

1.2 STATEMENT OF RESEARCH

PROBLEM

10

1.3 OBJECTIVES 10-11

1.4 RESEARCH QUESTIONS 11

1.5 HYPOTHESIS 11

1.6 RESEARCH DESIGN 12

1.7 TOOLS FOR DATA 12

ix

COLLECTION

1.8 DATA ANALYSIS 12

CHAPTER 2:

ANALYSING THE ROLE OF

COURTS

13-19

2.1 INTRODUCTION 13

2.2 SECULARISM IN

CONTEMPORARY INDIA

16-19

CHAPTER 3

CASE STUDY OF SABRIMALA

JUDGEMENT ON SECULAR

ASPECT

20-38

3.1 HISTORY OF SABRIMALA

TEMPLE

20-21

3.2 IMPORTANCE OF PILGRIMAGE 21-22

3.3 EXCULSION OF ENTERY OF

WOMEN INTO THE TEMPLE

22-23

3.4 ISSUES BEFORE THE COURT 24-25

3.5 JUDGEMENT 25

3.6 WHO CAN FILE PUBLIC

INTEREST LITIGATION

25-28

3.6.1 REPRESENTATIVE STANDING 26

3.6.2 CITIZEN STANDING 26-28

x

3.7 ROLE OF COURTS UNDER

ARTICLE 25 AND 26

28-32

3.8 RELIGIOUS DENOMINATION 32-33

3.9 ARTICLES 14, 15 AND 17 OF THE

INDIAN CONSTITUTION READ

WITH ARTICLE 26 OF THE

CONSTITUTION

33

3.9.1 Article 14 33

3.9.2 Article 15 34

3.9.3 Article 17 35

3.10: RULE 3(B) of the 1965 RULES IS

NOT ULTRA VIRUS OF KERALA

HINDU PLACES OF PUBLIC

WORSHIP (AUTOARISATION OF

ENTRY) ACT

37

3.11 CONCLUSION 37-38

CHPATER 4

ANALYSING TRIPLE TALAQ

JUDGEMENT

39-

4.1 IMPORTANCE OF PERSONAL

LAW

39

4.2 FACTS OF THE CASE 39-40

4.3 JUDGEMENT OF THE CASE 40

4.4 The CONSTITUTIONALITY OF

PERSONAL LAWS , ARTICLE 25 OF

THE INDIAN CONSTITUTION AND

40-44

xi

ROLE OF SUPREME COURT

4.5 TRIPLE TALAQ AND SHARIAT

ACT.

44-46

4.6 INTERFERENCE BY SUPRME

COURT IN PERSONAL LAW VALID?

46-47

4.7 UNIFORM CIVIL CODE: A WAY

FORWARD

48

CHAPTER 5:

CONCLUSION

49-50

BIBLIOGRAPHY xii-xv

ARTICLES xii-xiii

BOOKS xiii-xiv

STATUTES XIV

WEBSITES XIV-XV

NEWSPAPERS XV

1

CHAPTER 1

INTRODUCTION

Bharat; a country of many religions and beliefs, a country in which religion is

fundamental aspect of most of the individuals, if not all. The existence of numerous

multifarious groups in this country makes it impossible to bind basic feature of the

constitution or rather limit the constitution in the name of God, Allah, Bhagwan,

Jesus, Gobind or any other particular religious group but to compulsorily be ‗secular‘

in order to be fair, just and equal for all.

Even though, the Indian constitution always believed in secularism as a

concept, the word ―secular‖ was not originally a part of the Preamble of Indian

Constitution. It was added by 42nd

Amendment in the year 1976.

The Concept or the term secularism is very difficult to define and one cannot

find its apt definition anywhere in the Indian Constitution, as it is not about the term,

it is about the faith and the ideals which a person follows. The word was inserted in

the Indian Constitution to maintain the integrity of nation which were subjected to

considerable stresses and strains, and vested interests which were trying to promote

their selfish needs to the great determent of public good.1

‗The state‘ does not recognize any official religion and as opposed to many

western countries, there is no concept of state recognised church or religion. The

Fundamental Rights in the Indian Constitution guarantee freedom of worship and

religion and at the same time outlaws any discrimination on the basis of religion and

thus by connotation forbid the establishment of theocratic state. The state of India has

to treat all religions equally and keep them at same pedestal without interfering or

favouring any religion.

The Indian Constitution makes sure that there is equal freedom of religion and

religion stands in a different aspect with that of other matters of public employment

and socio- economic matters i.e. religion of a person cannot effect any of the things

which a person is entitled to under the Indian Constitution, religion of a person cannot

1 M.P. Gopalakrishnan Nair v. State of Kerala, (2005) 11 SCC 45, AIR 2005 CS 3053

2

adversely effects any of his fundamental rights or Directive Principle of the State

Policy.2

The Supreme Court in various cases has also declared that secularism is the

basic feature of the Indian Constitution3 and the court has also held that secularism is

part of fundamental law and is unalienable sector of country‘s basic structure.4

In my considered opinion it shall not be incorrect to say that in India, the state

has no religion of its own nor the state can impose any religion on any person, group

or community, every person is at liberty to choose the religion he or she wants to

follow. The state must also assure the person that whatever his religion is, he has the

protection of law to freely profess, practise, propagate, his religion and freedom of

conscience.

Secularism is an ideology5 that cannot be defined in terms; it is a feeling that

is eternal to life and conduct of any human being. P.B Gajendragadkar J said that

Indian Religions serve a very important purpose in Human life; hence spirit of

tolerance is foundational theory of secularism in India which, therefore, treats every

religion alike and does not expect the citizens as well as to state to favour any religion

or to believe that one religion is better than another.6

In the case of S.R. Bommai v. Union of India7, a 9 Judge bench of the

Supreme Court opined on the concept of secularism and the role of governments in

India. According to B.P. Jeevan Reddy, J.,

―..While the citizens of this country are free to profess,

practice and propagate such religion, faith or belief as they

choose, so far as the State is concerned, i.e., from the point of

view of the State, the religion, faith or belief of a person is

immaterial. To it, all are equal and all are entitled to be

2 ―Though the Indian Constitution is secular and does not interfere with religious freedom , it does not

allow religion to impinge adversely on the secular rights of citizens or the power of the state to regulate

socio-economic relations.‖

G.S Sharma, Secularism; Its Implications for Law and Life in India,4-5 (1966) 3 Kesavananda v. State of Kerala, AIR 1973 SC 1461; S.R. Bommai v. Union of India, AIR1994 SC

1918: (1994) 3 SCC 1 4 State of Karnataka v. Praveen Bhai Thogadia (2004) 4 SCC 684, AIR 2004 SC 2081

5 Mamta Rao, Constitutional Law, Eastern Book Company, first Edition, pp 273( 2013)

6 P.B. Gajendragadkar, Secularism and Constitution of India (Bombay 1971).

7 AIR 1994 SC 1918 : (1994) 3 SCC 1

3

treated equally. How is this equal treatment possible, if the

State were to prefer or promote a particular religion, race or

caste, which necessarily means a less favourable treatment of

all other religions, races and castes. How are the

constitutional promises of social justice, liberty of belief, faith

or worship and equality of status and of opportunity to be

attained unless the State eschews the religion, faith or belief of

a person from its consideration altogether while dealing with

him, his rights, his duties and his entitlements? Secularism is

thus more than a passive attitude of religious tolerance. It is a

positive concept of equal treatment of all religions.‖

At the same time in the same judgement Sawant, J. observed:

―..equal treatment of all religious groups and protection of

their life and property and of the places of their worship are

an essential part of secularism enshrined in our Constitution.‖

A plane reading of the aforementioned observations made by the hon‘ble

Justices, in the judgement afore titled, highlights the essence of the understanding of

the idea of secularism that there shall be minimum or no interference of the state in

religious practices and religious tolerance of one group of religion towards another.

A secular state, like India, does not extend support to any particular religion.

The state has to maintain neutrality in the matters of religion and provides equal

treatment to all the members of every religion and equal protection to every religion,

if required.8

The state, through the constitution, guarantees a religious freedom to all the

individuals. For the proper functioning of ‗rule of law‘ in a democracy the concept of

Secular State is very essential. Therefore according to the intention of the framers of

the constitution, as are apparent from the drafting committee debates, and also the

ideas embedded in the constitution itself, it will be apt to say that constitution leaves

the matters of religion and the religious choices to the individuals, while still retaining

a grip over public heath, morality and public order.

8 Court on its Own Motion v. Govt. of NCT of Delhi 2012 (192) DLT 209: 2012 (7) AD (Del) 377.

4

In M. Ismail. Faruqui v. Union of India9, Verma, J. observed in relation to

the idea of secularism:

―It is clear from the constitutional scheme that it guarantees

equality in the matter of religion to all individuals and groups

irrespective of their faith emphasising that there is no religion

of the State itself. The Preamble of the Constitution read in

particular with Articles 25 to 28 emphasises this aspect and

indicates that it is in this manner the concept of secularism

embodied in the constitutional scheme as a creed adopted by

the Indian people has to be understood while examining the

constitutional validity of any legislation on the touchstone of

the Constitution. The concept of secularism is one facet of the

right to equality woven as the central golden thread in the

fabric depicting the pattern of the scheme in our

Constitution.‖

From this judgement it can be inferred that Articles 25-28, 29-30 to Articles

14, 15 are the facets of secularism in India. These provisions promote the idea of

secularism in India and prohibit the establishment of theocratic state.

In this dissertation I shall be dealing with Article 25 and 26 in detail, their

basic features in this chapter and as I will proceed I shall demonstrate as to how

Article 14 and Article 15 has to be interpreted in the terms of religion, I shall be

supporting my theory and observations by means of study of the two landmark cases,

popularly known as The Sabrimala Judgement And The Triple Talaq Case, the same

are discussed in utmost detail, while confining myself to the word limit, under

Chapter 3 and Chapter 4.

What is the scope of this dissertation will be covered in chapter 2, but first let us

examine same basic facets provided in Indian Constitution with reference to religion.

This is necessary to frame the arguments in later part of our study

9 AIR 1995 SC 604, (1994) 6 SCC 360

5

1.1 LITERATURE REVIEW

Freedom to Profess or Practice Religion: Article 25

Article 25(1) of the Indian Constitution guarantees every individual and not

only the ‗citizens‘ of India, the ―freedom to conscience‖ and ―the right freely to

profess, practice and propagate religion‖. This right is however subject to public

order, health, morality and other provisions as contained in part III of the constitution.

The state, under Article 25(2)(a), however is not prevented from making any

law regulating or restricting any economic, financial, political or other secular activity

which may be associated with religious practice; or any law providing for social

welfare and reform, or for throwing open of Hindu religious institutions of a public

character to all classes and sections of the Hindus.10

Before dealing with these articles let‘s understand the concept of Religion qua the

Indian society and the diversity prevalent herein.

1.1.1 Religion

The term religion is not defined under the Indian Constitution, and rightly so, as

‗Religion‘ is a matter of personal faith and belief that a person regards who profess

that religion to be conductive of his spiritual well being. The term religion is much

more what we can feel and define in words, it is essential to a human being from the

time of its birth to the time he dies, especially in Indian context since a person‘s

identity is defined by the case/religion/varna that he is born in.The Supreme Court

however in the case of Lakshmindra11

observed that:

―Religion is certainly a matter of faith with individuals or

communities and it is not necessarily theistic. There are well

known religions in India like Buddhism and Jainism which do

not believe in God or in any Intelligent First Cause. A religion

undoubtedly has its basis in a system of beliefs or doctrines

which are regarded by those who profess that religion as

conducive to their spiritual well being, but it would not be

10

Article 25(2)(b) of Constitution of India, 1950. 11

Commr., HRE Madras v. Sri Lakshmindra, AIR 1954 SC 282, 290: 1954 SCR 1002

6

correct to say that religion is nothing else, doctrine or belief.

A religion may not only lay down a code of ethical rules for its

followers to accept, it might prescribe rituals and

observances, ceremonies and modes of worship which are

regarded as integral parts of religion, and these forms and

observances might extend even to matters of food and dress.‖

The Supreme Court in this case observed that religion is just not about the god

or doctrines it is much more than that, religion is about everything from rituals to

observances and the ceremonies which are necessary to follow religion. The Court

further held that guarantee of religion provided under the constitution of India, not

only protects the freedom of religion but also the acts done in pursuance of the

religion. As religious practices are essence of any religion and if a religion is to be

honoured the entire practices, essential to that religion, must also be respected.12

As Supreme Court has established that essential practices also forms the part

of religion, it has also held that the norms to decide if the practice is essential or not

also lies with the Supreme Court. The court, on the evidence adduced before it,

concerning the conscience of the community and the tenets of the religion concerned

will decide, whether practice which a community or religious group or an individual

follows is ―religious‖ in its character and if it is whether it is essential and integral

part of that religion.13

Also in the case of Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan14

the

court held :

―In deciding the question as to whether a given religious

practice is an integral part of the religion or not, the test

12

―Article 25 which, as its language indicates, secures to every person, subject to public order, health

and morality, a freedom not only to entertain such religious belief, as may be approved of by his

judgment and conscience, but also to exhibit his belief in such outward acts as he thinks proper and to

propagate or disseminate his ideas for the edification of others.‖

In the case of Commr., HRE Madras v. Sri Lakshmindra, AIR 1954 SC 282, 290: 1954 SCR 1002.

Also in the case of N. Adithyan v. Travancore Devaswom Board, (2002) 8 SCC 106

― the protection under Articles 25 and 26 extend a guarantee for rituals and observances, ceremonies

and modes of worship which are integral parts of religion and as to what really constitutes an essential

part of religion or religious practice has to be decided by the Courts with reference to the doctrine of a

particular religion or practices regarded as parts of religion, came to be equally firmly laid down.‖ 13

H.H. Srimad Perarulala Ethiraja Ramanuja Jeeyar Swami v. State of Tamil Nadu, AIR 1972 SC 1586 14

AIR 1963 SC 1638

7

always would be whether it is regarded as such by the

community following the religion or not.

This question will always have to be decided by the Court and

in doing so, the Court may have to enquire whether the

practice in question is religious in character and if it is,

whether it can be regarded as an integral or essential part of

the religion, and the finding of the Court on such an issue will

always depend upon the evidence adduced before it as to the

conscience of the community and the tenets of its religion.‖

It is very interesting to note that a court knows all about a religion and whether the

practices followed by a religion are essential or not. We will later criticise it but first

let us examine the provisions under Indian Constitution.

1.1.2 Article 25(2)(a)

The state under this article has been empowered to regulate secular activities

associated with religious practices. The state under this article is only entitled to

regulate activities which are of economic, commercial or political character though

these activities may be associated with religious character.15

This article contemplates state regulations not of religious practices but

activities which are secular in nature. In the case of Shri Jaganath Temple Puri

Mnagement v. Chintamani16

it was held that the state cannot interfere with religious

right of person provided under article 25(1) but the state can control secular

activities.17

In the present case the court held that management of temple is a secular

activity and can be controlled by state. Whereas in the case of Ratilal Gandhi18

the

15

Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388: 1954 SCR 1055 16

AIR 1997 SC 3839, 3853 : (1997) 8 SCC 422 17

―.. that although the State cannot interfere with freedom of a person to profess, practise and

propagate his religion, the ―State, however, can control the secular matters connected with religion. All

the activities in or connected with a temple are not religious activities. The management of a temple or

maintenance of discipline and order inside the temple can be controlled by the State. If any law is

passed for taking over the management of a temple it cannot be struck down as violative of Article

25 or Article 26 of the Constitution.‖ 18

Supra, footnote 15

8

court took the view that mere fact that activities involve expenditure or employment

of priests and servants and also use of marketable commodities, would not make them

secular activities.

So, the discretion is with the court to decide if the practice is a religious

practice or a secular practice and the community or the religious group has to abide by

the decisions of the court, this to my understanding shows a dichotomous approach,

whereas time and again it has been stressed in various judgements that the religion

and matters of faith and belief are matters of personal choice and must ideally be left

to the individual alone, on the other hand the hon‘ble courts in India have never shied

away in deciding for its audience what practise is good and what is not, what is

essential and what is not.

1.1.3 Article 25(2)(b)

Article 25(2)(b)19

consists of two principles:

1. Measures of social reforms are permissible and would not be void on the

ground of interfering with the religion.

2. The state can throw open Hindu Religious institutions of a Public character to

all section of Hindus. Though, this clause protects the right to enter into the

temple for worship purposes, but it is not a limited right. Hence, this right has

to be harmonized with the right given under Article 26(b).

Freedom to Manage Religious Affairs: Article 26

Article 2620

of the Indian Constitution gives special protection to manage

religious affairs to religious denominations.

19

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from

making any law:

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. 20

Article 26. Freedom to manage religious affairs 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

9

What are these Religious Denominations?

This term means a religious sect having a common faith and

organization and recognised by a distinctive name.

In Nallor Mathadanam Vellalar v. Comm., Hindu Religious Charitable

Endowment21

s, Supreme Court came up with three conditions which needs to be

fulfilled to be a religious denomination.

1. It should be collection of individuals who have same system of belief

which they consider necessary to their spiritual well being.

2. They should have a common organisation;

3. Collection of these individuals should have a distinctive name.22

The Supreme Court again has made itself the sole arbitrator to decide on the

question if a particular sect or a group can be called a religious denomination or not,

on the basis of evidence adduced before it. The court in the case of Arya Vyasa Sabha

v. Commr., H.R.E.,23

held that whether a particular community forms a ―religious

denomination‖ or not is a mixed question of fact and law, which will be decided by

the courts.

Also, in the case of Govindlalji v. State of Rajasthan24

, the court held that the

term ―Matters of Religion‖ used under Article 26(b) is tantamount with the term

religion under Article 25(1).Hence, it includes within its ambit not only religious

practicrs as given in Article 25(1), but such religious practices and rites which are

considered to be essential for a religion to follow.

21

(2003) 10 SCC 712, AT PAGE 716 22

The expression "religious denomination" must satisfy three requirements – (1) it must be collection

of individuals who have a system of belief or doctrine which they regard as conducive to their spiritual

well-being, i.e., a common faith; (2) a common organisation; and (3) designation of a distinctive name.

It necessarily follows that the common faith of the community should be based on religion and in that

they should have common religious tenets and the basic cord which connects them, should be religion

and not merely considerations of caste or community or societal status. 23

AIR 1976 SC 475 24

AIR 1963 SC 1638: (1964) 1 SCR 561

10

Suppose a religion says that food should be served at particular hour that practice will

be considered as ―Matter of Religion‖ under article 26(b) which a religious

denomination can manage.

1.2 STATEMENT OF RESEARCH PROBLEM

India being a pluralistic society and country of mixed and many religion the

aspect of secularism is utmost important. I, through this dissertation, shall

demonstrate how the Constitution has dealt with the features of religion and its

secular approach and how it has been interpreted by the Supreme Court. As, the

interpretations given by Supreme Court to various constitutional provisions with

regard to Religion have raised certain problems and public concerns and in need to

gain legitimacy25

over its decision the Supreme Court is now exercising the power it

never had.

Through this dissertation, I want to analyse the Role of Supreme Court in

matters related to religion and Personal laws and how the scope of Supreme Court in

recent years have gone way beyond visions of the constitution framers. To do the

same I will be analysing two recent judgements of Supreme Court i.e. Sabrimala and

Triple Talaq, these judgements will work as an example to demonstrate that the

Supreme Court has been exercising the powers it never had.

1.3 OBJECTIVES

The objectives of this dissertation are as follows:

To study the intention of the drafters/framers of the Constitution, while

framing the provisions related to ‗Religion‘ in the Constitution.

To critically review and analyse the Role of Supreme Court in matters related

to religion and to highlight how it has completely ignored the vision of

drafters of the constitution, while interpreting the case laws related to religion

and its practises.

25

S.P. Sathe, ―Judicial Activism; The Indian Experience‖, 2001(6), Washington University Journal and

Policy, pp 43.

11

To examine the approach taken by Supreme Court in analysing personal laws

in today‘s era.

To outline the need of Uniform Civil Codes in matters related to personal laws

in India.

1.4 RESEARCH QUESTIONS

1. Whether the Supreme Court of India, is justified in deciding the

essential practices for a particular religious group?

2. Whether the practices followed by Supreme Court in deciding that

particular group form religious denomination or not, is justified? If yes,

can court also instruct the religious denomination to not to follow

certain practices as they go against the provisions of Part III of the

constitution.

3. Whether Supreme Court in matters related to religion can entertain the

Public Interest Litigation, filed by a group that does not belong to that

religion?

4. Whether the Supreme Court can decide the validity of any personal

law? If yes, if the Court find such law against the provisions of Part III

can the court strike it down?

1.5 HYPOTHESIS

The following are the hypothesis of the dissertation:

Indian Judiciary has interpreted the cases related to religion according to the

―Essential Practice Doctrine‖ which seems arbitrary and neglects various

principles of equity, justice and good conscience.

The Supreme Court‘s interference in religious matters of a community, sect or

even an individual, has been far too extensive.

The Supreme Court of India has interpreted the matters related to Personal

Laws by Virtue of Article 13(1), which goes against the basic nature of the

constitution.

12

1.6 RESERAH DESIGN

In accordance with the objectives of present study, only doctrinal design has

been adopted. The doctrinal design has been used to study the jurisprudential aspect

of secularism and personal laws in India and then how it has evolved and interpreted

by the Supreme Court of India. This has been done primarily with the case laws and

leading judgements of various courts.

1.7 TOOLS FOR DATA COLLECTION

The method for collection of data involves:

1. The Judgments given by the hon‘ble Supreme Court of India in the

case of Sabrimala and Triple Talaq, which forms the case study for

particular dissertation.

2. The judgements given by Supreme Courts in matters related to

religion and personal laws.

3. Various articles and writings of eminent research scholars.

4. Research Papers ( National and International)

1.8 DATA ANALYSIS

The data has been analyzed qua a critical analysis of the Sabrimala Judgement

and the Triple Talaq judgement, as given by the Supreme Court recently, hence

framing a case study for this dissertation. Analysis of various other documents, case

laws shall also be taken into consideration to establish that secularism in India has

been interpreted through the will of judiciary.

13

CHAPTER 2

ANALYSING THE ROLE OF SUPREME COURT

2.1 INTRODUCTION

―Indians are sometimes scolded for

misunderstanding secularism. They are

reminded that secularism in its original,

western sense means a commitment to a

public life fenced off religion – not an equal

pandering to all religion.

This is unreasonable.‖ -

MUKUL KESAVAN 26

In an endeavour to put the idea of secularism in the peripheral definition, it is

often realised that it will not be incorrect to say that Indians version of secularism is

different from the western concept of secularism27

, western concept of secularism

means that the state shall not interfere in matters related to religion, whereas Indian

Concept believes in equal respect to all religions.28

As is commonly believed and more often than not acknowledged, that there is

no single idea or meaning or even definition of secularism as such, as each country,

society and times have its unique solution to treat religion in context of state,

however, upon the scrutiny of the modern discourse on secularism, that is the post

Westphalia model treaty, it can be seen that there is a separation of religion from state

and it is this idea of divorcing the religion and state which is branded as secularism.

Zeroing in on the Indian prospective, the members of Constituent Assembly

such as HV Kamnath, Govind Malivya and SL Saxena29

were of the view that the

26

Mukul -Kesavan, Secular Common Sense, pg 1, Penguin Books India (2001). 27

Donald E Smith, India as a Secular State, (Princeton University, 1963.) 28

Shefali Jha, ―Secularism in Constituent Assembly Debate; 1946 – 1950‖, (2002)37(30), Economic

and Political weekly 3175. 29

Ronojoy Sen, Secularism and Religious Freedom, Ch 49, The Oxford Book Of Indian Constitution,

Oxford University Press, 3rd

Edition( 2016).

14

Preamble in Indian Constitution should begin with the phrase ―IN THE NAME OF

THE GOD‖.30

Luckily, for the benefit of all; this does not turn out to happen and it

was only in 1976, that the word ―Secular‖ was inserted into the Preamble of the

Indian Constitution by forty-second Amendment.

Based on the constitutional history of about seventy years, two things can

broadly be said, firstly, the Indian contextual secularism does not cause the separation

of the state and the religion, subsidies given on Haj and the management of the

Devesthans, through the state boards, can be potent examples; Secondly, it can be said

that Indian Secularism is not about any fixed definition/Principle/ Context or

doctrine31

. Secularism is about different interpretations, which are still evolving and

cannot take a proper structure or be given a true meaning.

Through this chapter, I want to examine the concept of secularism in India or

the ‗evolution‘ of secularism in India, as it is interpreted by the hon‘ble Supreme

Court of India, I nowhere intend to bind it in the shackles of definitions nor do I

intend to give it a meaning, any different than what has been interpreted at different

times by the judicial pronouncements. I want to examine Indian Secularism through

the lens of judiciary and the connection of secularism through an individual

perspective not to a society as a whole.

Religious v. Secularism; The Judicial Interpretation.

As John S. Mill opined, the religion should not interfere in the state as they

will corrupt each other. But the question then arises in India where religion is an

integral part of every individual what should be the determining factor, whether the

state should leave people on their own or the state, in Indian Context also the

judiciary, should determine these religious practices. The courts in India are

frequently asked to determine the questions related to religion, thereby putting no

limits to their jurisdictions and making their decision final. 32

30

Constituent Assembly Debates, vol10, (Lok Sabha Secretariat 1986) 439, 17 October, 1949. 31

Rajeev Bhargava, The Distictiveness of Indian Secularism , The Future of Secularism, Oxford

University Press, Delhi, 2006. 32

Ronojoy Sen, Secularism and Religious Freedom, Ch 49, The Oxford Book Of Indian Constitution,

Oxford University Press, 3rd

Edition( 2016).

15

The Final authority to determine whether an idea/law/practice is secular or not

rests with the hon‘ble Supreme Court of India, the Guardian of the Constitutional

republic,33

and obviously the final court of appeal in India. Supreme Court to interpret

these cases and to establish the difference between religious and secular have mostly

used the ―Essential Practice Doctrine.‖34

This was firstly seen in the case of

Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmimandira

Thirtha Swamiar of Sri Shirur Muth,35

Popularly known as Shirur Mutt Case where

the hon‘ble Supreme Court of India not only interpreted the meaning of the term

religion but also laid down the guidelines as to what qualifies for religious

denomination. The court in this case held that religion includes rituals, practices and

ceremonies as an integral part.36

But failed to identify that what will be the essential

practices or the non essential practices.

Also, in Durgah Committee v. Syed Hussain Ali37

the court while deciding

what is or what not is essential part of the religion went down to make a distinction

between the ‗superstitious beliefs‘ and the‖ religious practices‖38

.

33

Mukul Kesavan, Secular Common Sense, pg 1, Penguin Books India (2001).

34

Rajeev Dhawan and Fali Nariman, ―The Supreme Court and Group Life: Religious Freedom and

Minority Groups and Disadvantaged Communities, in BN Kripal and others (eds) Supreme but not

infallible: Essays in Honour of Supreme Court of India (Oxford University Press 2000.) 35

AIR 1994 SC 282

36 A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those

who profess that religion as conducive to their spiritual well being, but it would not be correct to say

that religion is nothing else, but a .doctrine or belief. A religion may not only lay down a code of

ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and

modes of worship which are regarded as integral parts of religion, and these forms and observances

might extend even to matters of food and dress

37 AIR 1961 SC 1402

38 Whilst we are dealing with this point it may not be out of place incidentally to strike a note of

caution and Observe that in order that the practices in question should be treated as a part of religion

they must be regarded by the said religion as its essential and integral part; 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 themeaning of Art.

26. 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. Unless such practices are

found to constitute an essential and integral part of a religion their claim for the protection under Art.

26 may have to be carefully scrutinised; in other words, the protection must be confined to such

religious practices as are an essential and an integral part of it and no other.

16

In, Acharya Jagadishwaranand v. Commissioner of Police39

the hon‘ble

Supreme Court of India went down to determine whether Tandav dance, is an

essential practice of a group named as ‗Ananda Marga‘ or it should fall under the

religious rites? In the case of Orissa Mining Corporation ltd. v. Ministry of

Environment and Forests40

decided on the question whether the particular local

group named as ―Dongaria Kondh‖, have a right to worship the Niyamgiri hills?

These series of judgement show that in India it is the court‘s task to ascertain

whether any practice, ritual, prayers and anything vivid falls under the domain of

religion/religious practice or not. This practice or the system of interpretation is

further gestating into new forms, with new problems, like whether women can enter

into a temple or Dargah41

or they don‘t have the benefit of praying because they

belong to a certain age group. The role of judiciary is pre dominant when it comes to

unwrap the different aspect of religion, so is it fair that in this context where

everything is decided by the courts from where we should pray to whom should we

pray or we should pray at all or not, is being Secular?

2.2 SECULARISM IN CONTEMPORARY INDIA

Secularism is a deeply problematic issue in contemporary Indian Political

Discourse42

. The Indian Constitution uses the ―Freedom of Religion‖ which embodies

the ideal concept of making India a secular state. Article 25 to 28 lay down the

principle of neutrality and impartiality, but are these ideals applicable in practicality?

The concept of secularism in India is terribly flawed as it suffers from internal

threats43

, because Indian version of secularism is based on the concept of pluralism

and many religions and many sub religions.

39

(1983) 4 SCC 522 40

(2013) 6 SCC 513. 41

Sabrimala and Haji Ali 42

Upendra Baxi, "The 'Struggle' for the Redefinition of Secularism in India," Social Action 44

(January-March 1994); Amartya Sen, "The Threats to Secular India," Social Scientist 21 (March-April

1993); and Rajni Kothari, "Pluralism and Secularism: Lessons of Ayodhya," Economic and Political

Weekly, 19-26 December 1992. 43

Rajeev Bhargava, The Distictiveness of Indian Secularism , The Future of Secularism, Oxford

University Press, Delhi, 2006.

17

Indian society is based on many values, morals, ethics and custom; amidst of

all these, making someone believe that they have a right to follow their religion but

they also at the same time have to grant respect to other religion seems a little

unachievable. As,from the instance when a child is born in India to the time he dies,

he is tangled by the threads of religion to which he unquestionably adheres to.

Religious liberty is a very important aspect of secular state and for a citizen it

is very important to have two dimensions of citizenship; the active and the passive.

Under passive citizenship comes his liberty, his freedom, his security, in which no one

should interfere, but under active citizenship comes his recognition in public domain.

Hence, both of them are necessary for a democratic government.44

Religious liberty

coming under the criteria of passive citizenship it will be very unfair of the state to

either discriminate on this basis or to interfere arbitrary in these cases. In a multi-

religious society like India if value is given to both of these aspects, secularism in its

true sense could only be achieved.

Secularism in India can only be achieved, in its desired form and not what has

been imposed theoretically, if people themselves believe in the importance of all other

religions, without someone imposing upon them to respect other religions or dictating

them to follow their religion according to anyone else‘s wishes, for imposition is a

very short term solution but for a long term benefit it is important to imbibe such

feeling. The idea of majority demands prevailing over the minority,45

i.e. meeting the

demands of Hindu chivalry is very shallow. Ideally speaking, the onus is on the

citizens themselves that how they want to interpret the term secularism, independent

of the political influences and the forced melodrama of societal dogmas, as the

political evils will always remain in society for their own benefits and vote banks.

At the time of independence, the inception of the idea of the modern Indian

State, there was a demand of separate electorates for Muslims, which, arguably, for

the benefit of all, never happened, however post independence, treating religion as a

verdict of majority is what has been happening in India, an illustration of this is the

idea of Uniform Civil Code. Suggestively, Secularism in contemporary India should

also be about the protection of religious beliefs of minorities along with the respect of

44

Beitz, Political Equality, Princeton University Press, 1989, Ch.5 45

Mukul Kesavan, Secular Common Sense, pg 1, Penguin Books India (2001).

18

all religions.46

To have a society of secularism is not to suppress the demands of

minority but to have an open political and democratic view and more to have

tolerance towards anti- secular practices. So, it will not be incorrect to say that

secularism in contemporary India can only be achieved if people along with the

government cooperate with the ideas and demands of the minorities qua their beliefs

and not qua the definition of their religion.

The provisions in Constitution of India related to religion are very open

ended,47

this can be attributed to the extreme and complicated and often mingled

religious diversity, not only influenced and determined by western ideas but also

shaped by internal tensions and political turmoil48

,hence, the task of courts to interpret

the provisions related to religions seems a very fatigue and tough task but putting all

hopes and aspirations in interpretation of religion, along with all its nuances, upon

Judiciary is a very vulnerable approach, which ultimately will harm either the

religious sentiments of a community or will interfere with the religious faith of some

community, hence, essentially going against the idea of secularism. One may say that

the career of secularism in India is at a rise as well at decline49

, so, this depends on the

nation that how we want to take it forward. Managing the multi-religion system in

India is a very difficult task and undoubtedly not easily possible to achieve, but

respecting the needs and desires of minority is one way forward in this direction. To

wrap up, I am reminded of the words of Dr. Radhakrishnan:

―When India is said to be a secular state, it does

not mean that we reject the reality of an unseen

spirit or the relevance of religion to life or we

exalt irreligion. We should hold that no one

religion should be given a preferential status.‖50

As the real meaning of the term secularism is ―sarva dharma sambhava‖

which means equal treatment and respect for all religions,51

following this type of

46

Ashis Nandy, An anti-secular Manifesto, India International Centre Quarterly, Volume 22, No.1,

Secularism in Crisis,(Spring 1995), pp. 35-64. 47

Ronojoy Sen, Secularism and Religious Freedom, Ch 49, The Oxford Book Of Indian Constitution,

Oxford University Press, 3rd

Edition( 2016). 48

ibid 49

Mukul Kesavan, Secular Common Sense, pg 1, Penguin Books India (2001). 50

Dr. Radhakrishnan, Recovery of Faith, pg.184 51

Aruna Roy v. Union of India (2002) 7 SCC, 368

19

ideology and believing that in every person‘s life religion holds an equal value will

make India a valuable secular state, which is long lost somewhere.

Indian secularism, as interpreted by Supreme Court, in its current form and

nuances, is not what the makers of the constitution had in mind while drafting the

constitution52

. It has gone far beyond the historical or textual approach of

interpretation to ―Panchayati eclecticism‖53

.

Ergo, to uncover the idea of secularism and how it has been long lost by the

judicial pronouncements of the higher courts, I will be using two recent judgements of

Supreme Court which created havoc in the Indian Society one is the famous and much

controversial judgement popularlu known as The Sabrimala Temple Judgement 54

and

the other, arguably equally controversial is Triple Talaq55

judgement. I will be

comparing these two judgements on the touch stone of secularism and shall work

upon to highlight how the Indian judiciary has gone too far in its role and has by and

large changed the meaning, nuances and the consequences of secularism, in theory

and in practice both.

52

Subrata Mitra, ―Religion, Region and Identity: Sacred Beliefs and Secular Power in Regional

Tradition of India‖ in Noel O‘ Sullivan (ed) Aspects of India: Essays on Indian Politics and Culture

(Ajanta Publications 1997) 91 53

Chintan Chandrachud, ―Constitutional Interpretation‖ in Oxford Handbook of the Indian

Constitution (South Asia Ed.), Chapter 5, pp74

―This Chapter argues that the interpretive approaches of the Supreme Court can be expounded through

three historical phases. In the first phase, the court relied heavily on textualism, reading the constitution

word by word, without reflecting the overall structure and coherence. In the second phase, the court‘s

approach were more eclectic, focusing not only of specific constitutional provisions, but also on the

structure and themes embodied with in the constitution more broadly. During both of these stages, most

significant decisions were entrusted to the constitutional benches and were the product of careful

reasoning. The third phase, however, the court moved to an approach of Panchayati eclecticism, to

some extent, it relinquished the responsibility to give reasons. Sitting in the benches of two or three

judges, the court started deciding cases on self conceptipns of its own role, resulting in the adoption of

a variety on iternally inconsistent interpretive approaches, and often producing incoherent

constitutional jurisprudence.‖ 54

2018 SCC OnLine SC 1690 55

(2017) 9 SCC 1

20

CHAPTER 3

CASE STUDY OF SABRIMALA JUDGEMENT ON

SECULAR ASPECT

3.1 HISTORY OF SABRIMALA TEMPLE

The Ancient temple of Sabrimala is devoted to Lord Ayappa and is believed to

be a temple of great distant past. The temple is situated over one of the eighteen

mountains spread over the Western Ghats Known as Sannidhanam. Situated in the

district of Pathananthitta in Kerala, the temple holds great religious faith for the

devotees of Lord Ayappa. The Faithful believe that Lord Ayaapa‘s power derive from

his ascetism, in particular from his being celibate. Those who believe in Lord Ayappa

are expected to follow ―Vartham‖ or vow over a period of 41 days which consist of

certain practices and rituals to be followed during that period56

.

The Sabrimala Temple has an ancient history attached to it57

. The birth of

Lord Ayyappa is described from a union of Lord Shiva and Lord Vishnu. The divine

being left the boy in forest near River Pampa and was rescued by the Pandalam King.

The king took the child to his palace and raised him as one of his own and named him

Manikanta.

Later on when king discovered about the divine being and decided to build a

temple for him.58

The Lord gave his assent to king‘s demand and shot an arrow that

56

Dr. Dhananjaya Y Chandrachud, J., Part B, Writ Petition (Civil) No. 373 of 2006, pp 24. 57

Written Submission by Learned Senior Counsel Shri K.Parasaran, Learned Senior Counsel Dr.

Abhishek Manu Singhvi for the respondents; Non – Case Law Convenience Compilation filed by

Advocate for Respondent No. 2; Learned Senior Counsel Indra Jaisingh and Learned Senior Counsel

R.P. Gupta for the petitioners. 58

The birth of Lord Ayyappa is described as arising from the union of Lord Shiva and Lord Vishnu

(the form of Mohini). The divine beings left the boy in a forest near River Pampa. The Pandalam King,

Rajasekara, while on a hunting trip in the forest along the banks of the River Pampa, heard the cries of

a child. The King reached the banks of the river and found the child Ayyappa. The King took the child

in and took him to the Palace, where the King briefed the Queen about the incident. The couple as well

as the people of the Kingdom were happy by the arrival of the new child. Ayyappa, also called

‗Manikanta‘ grew up in the palace and was trained in the martial arts and Vedas. The Guru responsible

for Manikanta‘s education concluded that the this was not an ordinary child, but a divine power.

Meanwhile, the Queen gave birth to a male child named Raja Rajan. Impressed with the talents of

Manikanta, King Rajasekara decided to crown him, treating him as the elder child. He ordered the

Minister to make arrangements for the coronation. However, the Minister, desiring the throne for

himself, attempted to execute plans to prevent the coronation, all of which failed. Having failed, the

21

fell at the Pinnacle of Sabarimala and told the king he can construct a temple at

Sabriamala. Lord Ayappa also explained how the pilgimirage has to be taken,

emphasizing on the importance of ―Vartham‖.

Although, there are many temples of Lord Ayappa in India, the Sabrimala

Temple depicts Lord Ayappa as a ―Naishtika Brahamcharaya‖: his powers derive

specifically from abstention of sexual activities.

3.2 IMPORTANCE OF PILGRIMAGE

The followers of Lord Ayyappa undertake a holy pilgrimage divided into four

stages.59

The pilgrimage has three distinctive features:

Minister approached the Queen to persuade her to ensure that her own biological child was crowned

King. The Minister suggested that the Queen pretend that she was suffering from a severe headache,

whereupon he would make the physician prescribe that the milk of a tigress be brought to cure her. To

achieve this, he suggested that Manikanta should be sent to the forest. 21 Manikanta soon left for the

forest after promising the King that he would return with the milk of a tigress. Manikanta set out on his

journey after having refused an escort of men that the King had desired to accompanying him. 26 King

had sent with Manikanta food and coconuts with three eyes, in the remembrance of Lord Shiva. In the

forest, Lord Shiva appeared before Manikanta and told him that though he had done his duty towards

the devas, he was left with the task to ensure the King‘s comfort. Lord Shiva told Manikanta that he

could go back to the Palace with Lord Indra in the form of a tiger. When Manikanta was seated on the

tiger, and all the female devatas in the disguise of tigresses started their journey to the palace, the

schemers were frightened into confessing their plot. They were convinced of his divine origins and

prayed for their own salvation and for the safety of the Kingdom. Manikanta disappeared. The King

refused to eat anything till his return. Manikanta appeared in the form of a vision before the King.

Filled with emotions of happiness, grief, fear, wonder and ‗Bhakti, the King stood praying for mercy

and the blessings of Manikanta. He repented in front of Manikanta for not having realized his divine

power and for treating him merely as his child. The Lord lovingly embraced the King who prayed to

bless him by freeing him from ego and the worldy cycle of rebirth. Manikanta granted him Moksha

(salvation). He told the King that he was destined to return. The King implored Manikanta to allow him

to build a temple and dedicate it to him. The Lord assented. Manikanta then enlightened the King on

the path of Moksha. 22 The Lord shot an arrow that fell at the pinnacle of Sabarimala and told the King

that he could construct a temple at Sabarimala, north of the Holy river Pampa and install his deity

there. Lord Ayyappa also explained how the PART B 27 Sabarimala pilgrimage shall be undertaken,

emphasizing the importance of the penance or ‗Vratham‘ and what the devotees can attain by his

‗darshan‘. But before the departure of the Lord, the King secured a promise from the Lord that on thai

pongal on January 14, every year, his personal jewelry will be adorned on his deity at Sabarimala. 59

First, there is a formal initiation ceremony that begins a forty-one day Vratham. This is followed by

another formal ceremony at the end of the Vratham period, called the Irumuti Kattal (tying of bundle),

after which the pilgrims set off for their yatra to the Ayyappa Temple at Sabarimala. This stage

includes the physical travel to the pilgrimage site, bathing in the holy river Pampa at the foot of Mount

Sabari PART B 28 and the climb up Mount Sabari. This involves a trek from the Pampa river, climbing

3000 feet to the Sannidhanam, which is a trek of around 13 Kms, or through forests which is a trek of

41 Kms. It ends with the pilgrim‘s ascending the sacred‖ eighteen steps to the shrine for the first

darshan or glimpse of the deity. The fourth stage is the return journey and the final incorporation back

into life.

22

1. This pilgrimage due to the ―Naishtika Brahamcharya‖ of Lord Ayyappa is a

male centric pilgrimage, which bars the women above the age of ten and

below the age of fifty, from taking part in the rituals or the ceremonies.

2. There is no restriction of caste, creed or religion on men who can take part in

this pilgrimage.

3. The actual journey of the pilgrimage site is preceded by a preparatory period

of forty- one days. During this period men are supposed to wear black clothes

and have to observe abstinence from meat and intoxicants. This also includes

many other abstinence60

during ―vartham‖ period and one of it is abstaining

physical relations with a spouse.

3.3 EXCULSION OF WOMEN INTO THE TEMPLE

Two notifications were issued by Tavancore Devasworm Board on

October 21, 195561

and on 27 November, 195662

, to prohibit the entry of

women, between the age group of ten to fifty years into the temple.

The High Court of Kerala in S Mahendran v. The Secretrary, Trvancore

Devaswom Board, Thriruvananthpuram63

, upholded the exclusion of women

from ceremonies and prayers of the shrine on the ground that this practice has

been followed from the time immemorial and there is no restriction between

60

The Vratham or penance entails: (i) Abstaining from physical relations with a spouse; (ii) Abstention

from intoxicating drinks, smoking and tamasic food; (iii) Living in isolation from the rest of the family;

(iv) Refraining from interacting with women in daily life including those in the family; (v) Cooking

one‘s own food; (vi) Maintaining hygiene including bathing twice a day before prayers; (vii) Wearing a

black mundu and upper garments; (viii) Partaking of one meal a day; and (ix) Walking barefoot. The

penance is to be carried out in the manner prescribed. Maintaining oneself as ‗pure and unpolluted‘, it

is believed, would lead to the path towards attaining Godhead or to be one with Lord Ayyappa. 61

1955 “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 Vrithams are prohibited from entering the temple by stepping the Pathinettampadi

and women between the ages of ten and fiftyfive are forbidden from entering the temple. 62

―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.” 63

AIR 1993 KER 42

23

one section of society and another section of society or between one class or

the another, it is just a custom that prohibits entry on women into Sabrimala

i.e. just one particular temple because of divine ―Naishtika Brahamcharya‖

virtue and not in other temple over the world. The court also held that as it is a

religious practice, hence, it does not violate Articles 14, 15, 25 and 26 of the

Indian Constitution.64

As, we have examined the history and ceremonies of the temple. Now,

let us examine the facts of the case.

Facts of the case:

The present writ petition has been filed in Public Interest by a

registered association of Young Lawyers. The petitioners in the application for

intervention have affirmed that they are gender rights activists working in and

outside the area of Punjab.

The Petitioners have inter alia stated that they learnt of the practise of

restricting the entry of women in the age group of 10 to 50 years in the

Sabarimala Temple in Kerala from three newspaper articles written by Barkha

Dutt (Scent of a Woman, Hindustan Times; July 1, 2006), Sharvani Pandit

(Touching Faith, Times of India; July 1, 2006), and Vir Sanghvi (Keeping the

Faith, Losing our Religion, Sunday Hindustan Times; July 2, 2006).65

The Petitioners have challenged the Constitutional validity of Rule

3(b)66

of the Kerala Hindu Places of Public Worship (Authorisation of Entry)

Rules, 1965 which restricts the entry of women into the Sabarimala Temple as

64

Our conclusions are as follows: (1) The restriction imposed on women aged above 10 and below 50

from trekking the holy hills of Sabarimala and offering worship at Sabarimala Shrine is in accordance

with the usage prevalent from time immemorial. (2) Such restriction imposed by the Devaswom

Board is not violative of Articles 15, 25 and 26 of the Constitution of India. (3) Such restriction is

also not violative of the provisions of Hindu Place of Public Worship (Authorisation of Entry) Act,

1965 since there is no restriction between one section and another section or between one class

and another class among the Hindus in the matter of entry to a temple whereas the prohibition is

only in respect of women of a particular age group and not women as a class.‖ 65

Indu Malhotra, J., , Writ Petition (Civil) No. 373 of 2006, pp 1 66

―Rule 3. The classes of persons mentioned here under shall not be entitled to offer worship in any

place of public worship or bath in or use the water of any sacred tank, well, spring or water course

appurtenant to a place of public worship whether situate within or outside precincts thereof, or any

sacred place including a hill or hill lock, or a road, street or pathways which is requisite for obtaining

access to the place of public worship: (b) Women at such time during which they are not by custom

and usage allowed to enter a place of public worship.

24

being ultra vires to Section 367

of the Kerala Hindu Places of Public Worship

(Authorisation of Entry) Act, 1965 (hereinafter referred to as ―the 1965 Act‖)

They have also prayed for the issuance of the writ of Mandamus to the state of

Kerala, the Travancore Devaswom Board, the Chief Thanthri of Sabarimala

Temple and the District Magistrate of Pathanamthitta to ensure that female

devotees of all ages are permitted to enter the Sabarimala Temple without any

restriction.

3.4 ISSUES BEFORE THE COURT

When the present case came up before a five judge Bench of this

Court, by an order dated 13 October 2017, the following questions were

referred to a larger bench:

―1 Whether the exclusionary practice which is based upon a biological factor

exclusive to the female gender amounts to "discrimination" and thereby

violates the very core of Articles 14, 15 and 17 and not protected by ‗morality‘

as used in Articles 25 and 26 of the Constitution?

2. Whether the practice of excluding such women constitutes an "essential

religious practice" under Article 25 and whether a religious institution can

assert a claim in that regard under the umbrella of right to manage its own

affairs in the matters of religion?

3. 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

Consolidated Fund of Kerala and Tamil Nadu can indulge in such practices

violating constitutional principles/ morality embedded in Articles 14, 15(3),

39(a) and 51-A(e)?

67

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 82 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 matters of

religion. ‖

25

4. Whether Rule 3 of Kerala Hindu Places of Public Worship (Authorisation

of Entry) Rules permits 'religious denomination' to ban entry of women

between the age of 10 to 50 years? And if so, would it not play foul of Articles

14 and 15(3) of the Constitution by restricting entry of women on the ground

of sex?

5. Whether Rule 3(b) of 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?‖

3.5 JUDGEMENT

Five judge bench of the court, in the ration of 4:1 held that the practice

to be a non – essential practice and is violative of Article 14, 15, 25 and 26.

The court also held that the followers of Lord Ayyappa do not fall into the

group of religious denominations and hence they are not entitled to manage

their religious affairs.

Well, this almost 400 page judgement was very shocking as how to a

court sitting thousand miles away from Sabarimala decide the virtue of the

customary practices followed by a religious group for thousands of years, in

the garb of equality and protecting the right of the women, whereas the only

woman justice, Hon‘ble Justice Indu Malhotra, decided othwerwise. How the

judges who themselves do not follow Lord Ayyappa, can tell followers of

divine being that there practices are not essential for their religion and it has to

be discontinued.

Taking the above arguments, I want to discuss the validity of

judgement given by Supreme Court.

3.6 WHO CAN FILE PUBLIC INTEREST LITIGATION?

In the present case Public Interest Litigation (Hereinafter referred as

PIL) has been filed by NGO of Punjab, that works in and around the

area of Punjab.

26

Well, the question arises in what standing68

have the petitioner filed the

present PIL.

If the issue is of religion and religious practices, Article 14 can only be said to

be invoked when a PIL is filed by the members of the same faith, group or sect. In this

case it should be the devotes of Lord Ayyappa, basically the women between the age

group of the year 10 to 50, who are aggrieved by the practices or rituals followed in

the Sabrimala Temple.

3.6.1 Representative Standing

In case of Hussainara Khatoon v. Home Secretary69

, a PIL has been filed by

a lawyer under the representative standing to move a petition on behalf of the under

trial prisoners. The lawyer here belongs to educated class aware about the condition of

prisoners in the present case, the activists are not the devotees of Lord Ayyappa, and

they are individuals who have neither the belief nor faith in customary practices.

The Apex Court in the case of People’s Union for Democratic Right v. Union

of India70

, allowed a group of social activist to file a PIL on behalf of the workers,

who were illiterate and did not have sufficient financial means to stand for

themselves.71

Going by the analogy and the precedents set by the Hon‘ble Supreme Court, in

the aforementioned cases, in my humble opinion, the NGO of Punjab does not have a

representative standing, as the matter is not of public importance to anyone else apart

from the one who calls himself or herself a devote of the Lord Ayyaappa, nor does the

subject of the litigation i.e. the devotees as aforementioned can be called a

‗marginalised sect‘ which needs to be aided for them to invoke the processes of law.

3.6.2 Citizen Standing

68

Representative standing or Citizen Standing or Litigational Competence 69

(1980) 1 SCC 93 and 98 70

(1982) 3 SCC 235 (2). 71

Here the workmen whose rights are said to have been violated and to whom a life of basic human

dignity has been denied are poor, ignorant, illiterate humans who, by reason of their poverty and social

and economic disability, are unable to approach the courts for judicial redress and hence the petitioners,

have under the liberalised rule of standing, locus standi to maintain the present writ petition espousing

the cause of the workmen.

27

Under this modification a concerned or voluntary citizen may file a writ as a

member of citizenry as a member of society saying that along with other‘s his right

has also been violated.

In the case of Fertilizer Corporation Kangar v. Union of India72

, the court

held that‖ if a question is regarding public property, it would require a strong

argument to convince the court that representative segments of the public or at least

any segment of public which is directly interested is affected.‖

The right conferred under Article 25(1) of the Indian Constitution is a

Fundamental Right and every individual under this article has a right to freely profess,

practice or propagate religion.73

Any third person who is not associated with the

religion cannot file a PIL in the Court, saying that according to him the particular

practices are discriminatory and needs to be changed.

Courts in these cases should not interfere in the matters of religion and

religious beliefs, especially in the absence of aggrieved person from that particular

religious faith, or sect. Illustratively, in all the cases cited above the petitioners are

somehow related to that religion or the religious practice.

In Commissioner, Hindu Religious Endowments, Madras v. Shri

Lakshimdra Thirtha74

, the court interpreted Article 25 and 26 at the instance of

superior of Shirur Mutt, and in the case Mahant Moti Das v. S.P. Sahi75

, the courts

considered the constitutional validity of Bihar State Board of Religious Trusts Act,

1950 on the petitions by Mahants, also, in Durgah Committee76

case the court

decided the constitutional Validity of Durgah Khwaja Saheb Act, 1955 on the

instance of Khadims of Tomb of Khawaja Moin-ud-din Chishti of Ajmer.

The list is endless, were if any religious question is raised in regard to Article

25 and 26, it is always the aggrieved whose considerations are taken into account. In a

pluralistic society like India with diverse religion if the benefit is given to every

member of society to file a PIL for other religion according to the practice they

72

(1981) 1 SCC 568 73

H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4th Ed., Reprint 1999),

at pp 1274, para 12.35 74

[1954]1SCR1005 75

AIR 1959 SC 942 76

AIR 1961 SC 1402

28

consider to be discriminatory or derogatory,it can cause serious damage to the secular

character of the nation, for what is good to one may not be acceptable to other, for

what is pious to one is a sin to other.

3.7 ROLE OF COURT UNDER ARTICLES 25 AND 26

In Chapter II we have already discussed that how courts have come up with

practices and doctrines to make them the final arbitrator in matters of religion.

Instead of providing protection to the ―essential‖ and ―integral‖ practices, the

Supreme Court is now deciding for the religious, sect, community i.e. what are their

religious practices is providing protection only if the court feels that they are

―essential‖ enough.

Celebrated author on the constitution, H.M. Seervai77

remarked that religion is

a person‘s own business and when the court decide if a practice is ―essential‖ or

―superstition‖, it only takes into account his own belief or rationales, as the practice

that appears ―superstition‖ to judges may be fundamental to the people of that

religion78

.

Seervai79

was also against the observation made by the court in the case of

Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors.80

and opined

that if a religious denomination consider certain practice to be essential part of their

religion and necessary for their faith, however irrational that practice might appear to

the person who do not belong to that religion, that practice should prevail and it is not

open for the court to decide whether the practice is essential or not for particular

religious denomination.81

77

Constitutional Law of India : A Critical Commentary (1991) 78

The reference to superstitious practises is singularly unfortunate, for what is ‗superstition‘ to one

section of the public may be a matter of fundamental religious belief to another 79

H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4th Ed., Reprint 1999),

paragraph 12.18 at pp. 1267-1268 80

(1964) 1 SCR 561 81

the real question is whether the religious denomination looks upon it as an essential part of its

religion, and however irrational it may appear to persons who do not share that religious belief, the

view of the denomination must prevail, for, it is not open to a court to describe as irrational that which

is a part of a denomination‘s religion

29

Also, J.Duncan M. Derrett in his book82

remarked that judges are not religious

leaders and can disregard any practice as non – essential, but if looked deep into the

meaning given to secular practices in constitution the judges should not impose what

they believe on religion communities.

―As we shall there is a context in which the religious

community is allowed freedom to determine what is ‗essential‘

to its belief and practise, but the individual has no freedom to

determine what is essential to his religion, for if it were

otherwise and if the law gave any protection to religion as

determined on this basis the State‘s power to protect and

direct would be at an end. Therefore, the courts can discard

as non-essentials anything which is not proved to their

satisfaction – and they are not religious leaders or in any

relevant fashion qualified in such matters—to be essential,

with the result that it would have no Constitutional

protection.‖

As religious belief is a very personal concept and can easily vary from one

person to another. Each person or community should be at liberty to hold his or her

religious belief, however irrational or inconsistent it seems to be.83

As Article 25 of the Indian Constitution is the article of faith and belief it is

the real virtue of democratic nation to give liberty to an individual that he can have

religion of his choice and follow it in the way he wants84

, it is necessary that even the

needs of insignificant minority is protected and they should have the liberty to follow

their religion in their own way.

Also, in the case of Shayara Bano v. Union of India and others, Khehar J., gave an

enlightening message with respect to role of courts, saying that the matters concerning

religion faiths and beliefs are integral to a persona and a community and the courts

should not interfere in such matters as the role of court is not to determine the nature

82

Religion, Law and State in Modern India, Oxford University Press, 1999, pp 486 83

Metropolitan Church of Bessarabia v Moldova (2002) 35 EHRR 306, 335, para 117 84

Bijoe Emmanuel and others v. State of Kerala, (1986) 3 SCC 615

30

of practice85

. While dealing with matters of religion the courts should stay away, as

much as is possible and should only interfere if it is utmost necessary.

In the case of S.P. Mittal v. Union of India86

, Supreme Court gave a very

ideal approach that a religion cannot be defined and cannot mean the same to

everyone. Hence, the role of courts is very limited and they cannot decide what should

be the practices followed by one religion. The court held that person‘s view about any

other religion is particularly irrelevant and if the question of religion arises widest

possible interpretation has to be given.

―…What is religion to some is pure dogma to others and what

is religion to others is pure superstition to some others…But

my views about religion, my prejudices and my predilections,

if they be such, are entirely irrelevant. So are the views of the

credulous, the fanatic, the bigot and the zealot. So also the

views of the faithful, the devout, the acharya, the moulvi, the

padre and the bhikhshu each of whom may claim his as the

only true or revealed religion. For our purpose, we are

concerned with what the people of the Socialist, Secular,

Democratic Republic of India, who have given each of its

citizens freedom of conscience and the right to freely profess,

practise and propagate religion and who have given every

religious denomination the right to freely manage its religious

affairs, mean by the expressions religion and religious

denomination. We are concerned with what these expressions

are designed to mean in Articles 25 and 26 of the

Constitution. Any freedom or right involving the conscience

must naturally receive a wide interpretation and the

expression religion and religious denomination must

85

Can a court, based on a righteous endeavour, declare that a matter of faith be replaced, or be

completely done away with?...This wisdom emerging from judgments rendered by this Court is

unambiguous namely, that while examining the issues falling in the realm of religious practises or

Personal Law, it is not for a court to make a choice of something which it considers as forward-looking

or non-fundamentalist. It is not for a court to determine whether religious practises were prudent or

progressive or regressive. Religion and Personal Law, must be perceived, as it is accepted by the

followers of the faith…‖ 86

(1983) 1 SCC 51

31

therefore, be interpreted in no narrow, stifling sense but in a

liberal, expansive way.‖

In my humble and ignorant view, Muharram87

observed by Muslims in

remembrance of Moharram, is a set of practices or rituals followed especially by the

Shia Muslim community. In observance of this dreadful day, Muslims mourn, by

practicing activities like chest beating, Flagellation, Rawda and many other acts

which are, on the face of it, harmful to human body. Supposing, if a person who is not

a Muslim and does not observe any such practice or ritual files a PIL saying that the

practice is morally wrong and should be declared as unconstitutional. Will this be

justified?

Similarly, the Right to Worship in the Sabrimala Temple is according to the

followers of that religion and is considered essential and integral part of their religion.

Hence, it should not be curtailed.

The petitioners in this case have also contended that the practice of restricting

women in temple is against the constitutional Morality and hence Rule 3(b) of 1965

rules should be stuck down.

The framers of Indian Constitution while framing the constitution were aware

about the diversity in India and also the religions so prevailing. The preamble of the

Indian Constitution secures to all its citizens liberty of thought, expression, belief,

faith and worship. It is worth highlighting that the right guaranteed to religious

denominations under Article 26 are not subject to Part III of the constitution.

Though, equality and non discrimination are an important aspect of

constitutional morality but when it comes to religion in a pluralistic society like India,

these facets cannot be viewed in isolation. There has to be a balance between morality

on one hand and protection of liberty and faith on another. The followers of Lord

Ayyappa belong to a particular denomination, and they can practice their religion in

whatsoever manner they want.

87

The event marks the anniversary of the Battle of Karbala, when Imam Hussein ibn Ali, a grandson

of Muhammad, was killed by the forces of the second Umayyad caliph

32

In the case of, Acharya Maharajshri Narendra Prasadji Anandprasadji

Maharaj & Ors. v. The State of Gujarat & Ors88

, a constitution bench observed that

it is the duty of the court to strike balance between fundamental Rights of one person

in harmony with fundamental rights of others. This was also observed by the court in

the case of Subramaniam Swamy v. Union of India, Ministry of Law & Ors89

.

The court instead of telling the communities or the denomination about their

religious practices and how they should be followed, should focus on harmonising the

rights of all persons or sects or religious denomination according to their practice and

belief.

3.8 RELIGIOUS DENOMINATION

Under Chapter I, I have already discussed the scope of Article 26. According

to textual context of Article 26, every religious denomination or sect or organizations

have complete autonomy in matters of deciding and following their rites and rituals

the only restriction is in form of public order, morality and health.

As, in the above section I have already discussed the constitutional concept of

morality and how in religious matters it should be constructed.

Now, the question arises weather the followers of Lord Ayyappa forms

religious denominations or not?

The followers of Lord Ayyappa have a distinct faith, well identified practices

and these practices are followed from time immemorial. The worshippers of Lord

Ayyappa are called as ―Ayyappans‖, this fulfils all the essential characteristics of

religious denomination and hence fall under Article 26.

The court in the case of Commissioner, Hindu Religious Endowments,

Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt90

interpreted the

term ―Religious Denomination‖ (Discussed in Chapter 1)91

. The worshipers of Lord

Ayyappa, are known as Ayyappans, have a common faith and worship Lord Ayyappa

88

(1975) 1 SCC 11 89

(2016) 7 SCC 221 90

1954 SCR 1005 91

―a collection of individuals classed together under the same name : a religious sect or body having a

common faith and organisation and designated by a distinctive name

33

and also have set of rituals and practices. Hence, they are qualified to be religious

denomination.

Also, in the case of S.P Mittal v. Union of India and others92

,Chinnappa

Reddy, J., observed that the definition for religious denomination given by court looks

more like an explanation and expressions related to religion and religious

denomination must be interpreted in a liberal and expansive way.93

Taking this judgement into consideration, it will be correct to say that though

―Ayyappans‖ are Hindus, yet they have different set of practices and follow different

rituals, ergo they squarely fall within the definition of the ‗Religious Denomination‘.

The said worshipers have an identifiable set of practices, rituals, customs and tenants

and they have been following it since the time immemorial that too in common faith.

The women between the age group from ten to fifty94

are not allowed to enter the

temple because ―Naishtika Brahamchari‖ of Lord Ayyappa, that too for just one

temple of Sabrimala and this practice forms the essential practice for the community.

Hence, they are entitled for the right given to all other religious denomination by

virtue of Article 26.

3.9 ARTICLES 14, 15 AND 17 OF THE INDIAN CONSTITUTION

READ WITH ARTICLE 26 OF THE CONSTITUTION

3.9.1 Article 14

92

supra 93

the expression religious denomination may be defined with less difficulty. As we mentioned earlier

Mukherjea, J., borrowed the meaning of the word denomination from the Oxford Dictionary and

adopted it to define religious denomination as a collection of individuals classed together under the

same name, a religious sect or body having a common faith and organisation and designated by a

distinctive name. The followers of Ramanuja, the followers of Madhwacharya, the followers of

Vallabha, the Chistia Soofies have been found or assumed by the Court to be religious denominations.

It will be noticed that these sects possess no distinctive names except that of their founder-teacher and

had no special organisation except a vague, loose – un-knit one. The really distinctive feature about

each one of these sects was a shared belief in the tenets taught by the teacher-founder. We take care to

mention here that whatever the ordinary features of a religious denomination may be considered to be,

all are not of equal importance and surely the common faith of the religious body is more important

than the other features…Religious denomination has not to owe allegiance to any parent religion. The

entire following of a religion may be no more than the religious denomination. This may be particularly

be so in the case of small religious groups or developing religions, that is, religions in the formative

stage. 94

Reference to the custom and usage restricting the entry of women belonging to the age group of 10 to

50 years is 53 documented in the Memoir of the Survey of the Travancore and Cochin States46

published in two parts in 1893 and 1901 written by Lieutenants Ward and Conner.

34

To my understanding of the constitutional theory and the practices set and

adopted by the hon‘ble higher courts,Article 14 cannot be used to determine religious

practices and belief of a particular community. As equal treatment under Article 25 is

based on essential beliefs and practices of any religion, this right has to be constructed

with equality only with respect to people of same religion and not in comparison for

general rights of the people.

For eg: If in Mosques only men are allowed to offer Namaz, one cannot file a

PIL saying that this is discriminatory and against Article 14 as there is certain belief

which is attached to that practice. Similarly, in this case also the discrimination is

based on sound reasoning that Sabrimala is considered to be the temple of Lord

Ayyappa, who was ―Naistik Brahamchariya‖ and hence this practice is not against

Article 14.

The discrimination would have been a valid discrimination if the women were

not allowed in all the temples of Lord Ayyappa all over the state of Kerala , but here

the Sabrimala temple has a sanctity attached to it and due to that sanctity, women

between age group from 10 to 50 are not allowed in that temple.

3.9.2 Article 15

This article prohibits the differentiation on the ground of sex along with other

grounds95

.A question that arises here is that whether every differentiation or

difference on the grounds of ‗SEX‘, is violative of the constitutional theory, to my

understanding the answer is a resounding ‗NO‘.

To understand this argument we first have to look at the debates of Constituent

Assembly.

Draft Article 9 which corresponds to Article 15 of the Present Constitution, is

laid down here for ready reference:

―9. Prohibition of discrimination on grounds of religion, race,

caste or sex – The State shall not discriminate against any

citizen on grounds only of religion, race, caste, sex or any of

them

(1) In particular, no citizen shall, on grounds only of religion,

race, caste, sex or any of them, be subject to 31 any disability,

95

The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex,

place of birth or any of them.

35

liability, restriction or condition with regard to— a. access to

shops, public restaurants, hotels and places of public

entertainments, or b. the use of wells, tanks, roads and places

of public resort maintained wholly or partly out of the

revenues of the State or dedicated to the use of the general

public.

(2) Nothing in this article shall prevent the State from making

any special provision for women and children.96

Professor K.T. Shah proposed Amendment No. 293 for substitution of

sub-clauses (a) & (b) as follows

―any place of public use or resort, maintained wholly or

partly out of the revenues of the State, or in any way aided,

recognised, encouraged or protected by the State, or place

dedicated to the use of general public like schools, colleges,

libraries, temples, hospitals, hotels and restaurants, places of

public entertainment, recreation or amusement, like theatres

and cinema-houses or concert-halls; public parks, gardens or

museums; roads, wells, tanks or canals; bridges, posts and

telegraphs, railways, tramways and bus services; and the

like.‖97

This proposal was rejected by the members of the Constituent Assembly. The

deletion of the words ―place of worship‖ and temples‖ shows the clear intention of the

drafters, while drafting Article 15 in the Present Constitution. Hence, taking the

historical Context it can be said that the framers were aware about the practices

prevalent in India and did not want to interfere in religion matters. Similarly, the

courts from the non-interventionist approach have shifted to Scrutinising approach98

,

which is out of context and improper and thus, needs to be changed.

3.9.3 Article 17

96

Draft Constitution of India, Drafting Committee of the Constituent Assembly of India (Manager

Government of India Press, New Delhi, 1948) available at

http://14.139.60.114:8080/jspui/bitstream/123456789/966/7/Fundamental%20Rights% 20%285-

12%29.pdf. Last visited on April 23, 2019. 97

Statement of Professor K.T. Shah, Constituent Assembly Debates (November 29, 1948) 98

Chapter 4 deals with these approaches.

36

The petitioners in the present petition argue that non entry of women in

Sabrimala temple violates Article 17. Well, this argument forms no justification as

Article 17 bans untouchability on the basis of caste99

. Article 17 of the present

constitution corresponds to Article 11 of the draft Constitution100

. Study of

Constitutional debates would show that the untouchability refereed under the

Constitution is caste based and not gender based.

―During the debates, Mr. V.I. Muniswamy Pillai had stated: ―…Sir,

under the device of caste distinction, a certain section of people have

been brought under the rope of untouchability, who have been

suffering for ages under tyranny of so-called caste Hindus, and all

those people who style themselves as landlords and zamindars, and

were thus not allowed the ordinary rudimentary facilities required for

a human being… I am sure, Sir, by adoption of this clause, many a

Hindu who is a Harijan, who is a scheduled class man will feel that he

has been elevated in society and has now got a place in society…‖101

Also, the Hon‘ble Supreme Court in the case of Venkataramana Devaru & Ors. v.

State of Mysore & Ors102

, observed that untouchability in India caused to Harijans is

abolished forever103

.

99

Article 17 of the constitution abolishes the practice of untouchability. Practice of untouchability is an

offence and anyone doing so is punishable by law. The Untouchability Offences Act of 1955 (renamed

to Protection of Civil Rights Act in 1976) provided penalties for preventing a person from entering a

place of worship or from taking water from a tank or well. This act lays down that whatever is open to

general public (or Hindus) should be open to the members of the scheduled castes. No shopkeeper can

refuse to sell them, no person may refuse to render any service to any person on the ground of

untouchability. The act made provision for imprisonment and fine. 100

―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.‖ Draft

Constitution of India, Drafting Committee of the Constituent Assembly of India (Manager Government

of India Press, New Delhi, 1948) available at

http://14.139.60.114:8080/jspui/bitstream/123456789/966/7/Fundamental%20Rights% 20%285-

12%29.pdf, Last Visited on 23 April, 2019 101

Statement of Shri V.I. Muniswamy Pillai, Constituent Assembly Debates (November 29, 1948) 102

1958 SCR 895 : AIR 1958 SC 255 103

―…one of the problems which had been exercising the minds of the Hindu social reformers during

the period preceding the Constitution was the existence in their midst of communities which were

classed as untouchables. A custom which denied to large sections of Hindus the right to use public

roads and institutions to which all the other Hindus had a right of access, purely on grounds of birth

could not be considered reasonable and defended on any sound democratic principle, and efforts were

being made to secure its abolition by legislation. This culminated in the enactment of Article 17, which

is as follows: ―Untouchability‖ is abolished and its practise in any form is forbidden. The enforcement

of any disability arising out of ‗Untouchability‘ shall be an offence punishable in accordance with

law.‖

37

Not a single precedent in history of the Indian Case laws can be found

related to Article 17 as contended by the petitioners in the case at hand, hence, in my

opinion, Article 17 does not stand violated in any form whatsoever.

3.10: RULE 3(B) of the 1965 RULES IS NOT ULTRA VIRUS OF

KERALA HINDU PLACES OF PUBLIC WORSHIP

(AUTOARISATION OF ENTRY) ACT, 1965:

As, we have discussed above that every religious denomination is

allowed to practice and manage their own affairs by virtue of Article 26, it will be

incorrect to say that Rule 3(B) of the 1965 Rules, which prohibits the entry of women

into Sabrimala Temple is invalid as according to Section 3 (proviso) of 1965 Act,

gives the authority to people of religious denomination to manage its own affairs104

.

The courts in no way can tell any religious group what practices they

should follow and what are their essential practices. Taking all the arguments cited

here I believe the approach taken by court though might look progressive but a true

democracy is one where people are at liberty to follow whatever religion in they want,

in whatever manner. The court instead of playing the role of guardian should only

play the role of protector. This is what true secularism is.

CONCLSUION

The idea of Secularism in India appears to be in crisis, the Supreme Court as

guardian of Indian Constitution has failed to uphold the secular spirit of the

Constitution. The Judgements of hon‘ble Supreme Court in matters related to religion,

portrays that only essential practices can have absolute protection, and what are those

essential practices shall also be determined by the court. By the authority of courts to

decide what is religious and what is not, has resulted into lack of religious autonomy

104

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 71 the case may be, to manage its own affair in matters of

religion‖

38

with the religious, group or community and thereby resulting into extensive control of

religion by state and its authorities105

.

While, it has been argued considerably by many scholars that religion should

be kept outside the virtue of secular state and the maximum interference that can be

allowed is only supervision106

, the Supreme Court of India, has continuously

undermined this principle by interpreting and interfering in religious matters or

secular matters of religious groups.

The issue of Sabarimala cannot be seen as violation of Fundamental Rights of

the women as ban on temple entry is not on women per se but only on specific class

of women that too due to some specific reason. The issue in sabrimala is not about the

gender justice107

but about religious rituals which a particular religious group prefers

to follow, in observance of their religion.

Hence, in absence of any rigid principles or positive demarcation in the sphere

of powers of court in matters related to religion, the court is practicing full autonomy

in matters of religion.

105

Sanghamitra Padhy, Secularism and Justice: A Review of Indian Supreme Court Judgments,

Economic and Political Weekly, Vol. 39 (46) (Nov. 20-26, 2004), pp. 5030 106

V Francis, 'Concept of Secular State and Adminstartion of Religious Institutions', The Academy

Law Review, Centre for Advanced Legal Studies, June-December 19

107 Meenakshi Lekhi , Triple talaq and Sabarimala different, The Week January 5, 2019,

https://www.theweek.in/columns/Meenakshi-Lekhi/2019/01/04/triple-talaq-and-sabarimala-

different.html, last visited on May 8, 2019.

39

CHPATER 4

ANALYSING THE TRIPLE TALAQ JUDGEMENT

4.1 IMPORTANCE OF PERSONAL LAW

Personal laws play a pivotal role in life of a human being, a person can be a

Hindu, Muslim, Jew, Parsi or Sikh, he or she is often shaped and identified by the

personal law he follows. From the time when a child is born in a family, to the time

when he gets married, or when he achieves something, or when he becomes a

father/mother, or when he or she dies, there is continuance observance of practices

derived from personal laws, without which certain ceremonies cannot be concluded.

Also, certain religious communities while adopting a child follows different religious

practices to make that adoption effective. This is matter of faith, for those people who

profess that religion.

Divorce is other facet of that personal law, just like marriage, divorce also is like any

other stage in individual‘s life and if a married couple decides to get a divorce they

have to observe all the essential practices required for the same.

The analysis of this case in relation to personal laws is very important, it is important

to determine, whether a Court of Law can declare a practice that has been followed

for last 1400 years to be unconstitutional, no matters how discriminatory it appears?

To analyse the judgement let us first understand:

4.2 FACTS OF THE CASE

In the Present case108

, a husband pronounced ―Talaq‖ thrice i.e. Talaq-e-biddat

at a time to the petitioner, Shayara Bano, in the presence of two eye witnesses, and

conveyed a ―Talaqnama‖ for the same. Hence, the petitioner challenged the validity of

this form of Talaq/divorce before the Supreme Court, urging the same to be violating

the fundamental rights guaranteed to citizens in India, under Articles 14, 15 and 21 of

the Constitution.The petitioner further claimed that such form of Talaq i.e. ‗talaq-e-

108

Shayra Bano v. Union of India (AIR 2017 SC 4609)

40

biddat‘ cannot be protected by the virtue of Articles 25(1), 26(b) and 29 of the

Constitution.

The statutory validity of this form of Talaq, was taken before Constitutional

Bench of Supreme Court, consisting of 5 judges109

.

4.3 JUDGEMENT OF THE CASE

The court in the view of different opinions recorded, in the majority 3:2,to set

aside the practice of triple talaq i.e. ‗talaq-e-biddat‘.

4.4 The CONSTITUTIONALITY OF PERSONAL LAWS ,

ARTICLE 25 OF THE INDIAN CONSTITUTION AND ROLE OF

SUPREME COURT

India, known for its rich and cultural heritage, have different religious beliefs

and a pluralistic society. ‗Personal Laws‘ are a unique and special feature of the

Indian Legal System. Since, the time immemorial, there are certain practices followed

by different religions in India, and with the passage of time some of them got codified

like Hindu Marriage Act; and some are still fluid customs, within the framework of

constitutionalism and legal pluralism110

.

The validity of laws in India is conditional upon criteria prescribed under

Article 13(1) of the Constitution, which stipulates that all laws in force in the territory

of India as they are inconsistent with the provisions of Part III, shall, to the extent of

such inconsistency, be void111

. As per Article 13(3)(a), ‗law‘ includes custom and

usage having the force of law. This article is not to be read in isolation but has to read

along the lines of Article 372(1), which declares that all laws in force, immediately

before the commencement of the Indian Constitution shall continue to be in force

until they are altered, repealed or amended by a competent legislature or authority.

The explanation 1 to Article 372 clarifies the phrase, ‗laws in force‖, which means a

109

The Constitutional bench comprises of Chief Justice JS Khehar, a Sikh, Justices Kurian Joseph a

Christian, RF Nariman a Parsi, UU Lalit a Hindu and Abdul Nazeer a Muslim. 110

Flavia Agnes, ― Personal Laws‖, The Oxford Handbook of The Indian Constitution, Oxford

University Press, pp 903. 111

Article 13. Laws inconsistent with or in derogation of the fundamental rights :(1) All laws in force

in the territory of India immediately before the commencement of this Constitution, in so far as they

are inconsistent with the provisions of this Part, shall, to the extent of such inconsistency, be void.

41

law made by competent authority and practically has the same meaning as the

expression ‗existing law‘, as defined under article 366(10)112

of the Indian

Constitution. As per this discussion, any law that is in conflict with fundamental

rights as provided under the Indian Constitution is void. Hence, if any legal provision

or any law violates the mandate of equality i.e. Article 14, or Untouchabilty i.e.

Article 17 or Article 21, courts will have the power to strike them down by declaring

them to be unconstitutional.

However, this principle though appears idealistic but in reality it does not take

personal laws in its ambit. Part III of the constitution validates the pluralistic

traditions, safeguards the rights of minorities and protects the minority culture113

, As,

the task of interpreting the legitimacy of these principles is very hard-hitting, the

Supreme Court of India have come up with various approaches to balance these laws

on the line of Fundamental Rights. The initial practice of Supreme Court114

, to not to

interfere, by saying that personal laws are not amendable to the test of Part III and

hence cannot be said to be against Fundamental Rights is now has changed. In recent

years the court has shifted to the practice of ‗Panchayati electicism‘115

, court has tried

to reconcile , by following approaches like Non- Interventionist approach or the

scrutinising approach116

.

The Bombay High Court in case of, State of Bombay v. Narasu Appa Mali117

,

is very important in this matter, the petitioner in this case challenged the norm of

monogamy which was brought into the force by Bombay Prohibition of Bigamous

Marriages Act, 1946 that prohibits bigamy only in Hindus but not among Muslims.

The argument made by the petitioner was that it violates the Fundamental Right by

violating equality and non-discrimination. Answering the question in negative, the

court held that personal laws are not ―laws in force‖, given under article 13 of the

112

Article 366 (10) of the Indian Constitution: existing law means any law, Ordinance, order, bye law,

rule or regulation passed or made before the commencement of this Constitution by any Legislature,

authority or person having power to make such a law, Ordinance, order, bye law, rule or regulation. 113

Articles 25 to 30 of the Indian Constitution as discussed in Chapter I. 114

Which was also the intention of the drafters of the constitution, to not to interfere in personals laws.

Based on the Constituent Assembly debates to draft article 25, which is presently Article 44 in the

Constitution of India, it can argued that people of the Constituent Assembly, wanted to protect

personal laws. 115

Chintan Chandrachud, ―Constitutional Interpretation‖ in Oxford Handbook of the Indian

Constitution (South Asia Ed.), Chapter 5, pp74 116

116

Flavia Agnes, ― Personal Laws‖, The Oxford Handbook of The Indian Constitution, Oxford

University Press, pp 909. 117

AIR 1952 Bom. 84

42

constitution as they have a religious perspective within their ambit and thus protected

by virtues of Articles 25 and 26, hence, the principles are not subject to Part III of the

constitution.

Also, in the case of Shri Krishna Singh v. Mathura Ahir118

, which relates to

the question of Social Justice the court held that Part III of the constitution cannot

touch upon the personal laws of the parties.

―In our opinion, the learned Judge failed to

appreciate that Part III of the Constitution does not touch

upon the personal laws of the parties. In applying the personal

laws of the parties, he could not introduce his own concepts of

modern times but should have enforced the law as derived

from recognised and authoritative sources of Hindu law, … in

the judgments of various High Courts, except where such law

is altered by any usage or custom or is modified or abrogated

by statute.‖

The question of Triple Talaq arose before Supreme Court even

earlier also in the case of, Ahmadabad Women Action Group v. Union of India119

,

the petitioners in this case challenged the various discriminatory practices which are

prevalent in Muslim Personal laws like polygamy and Triple Talaq. The Supreme

Court then refused to hear the case on its merits and held that these are all questions

of personal laws and are thus outside the scope of judicial review, the court also held

that, it is not within the jurisdiction of court to make laws for social change as it is the

function of legislature. Justice Gajendragadkar, expressed in his opinion that it was

not the true intention of the drafters to include personal laws under Part III of the

Constitution and as the matter related to marriage, divorce, family, adoption falls

under List 3 Entry 5, it is the duty of state to make laws regarding it120

.

118

(1981) 3 SCC 689 119

(1997) 3 SCC 573 120

"The Constitution of India itself recognises the existence of these personal laws in terms when it

deals with the topic falling under personal law in item 5 in the Concurrent List-List III. This item deals

with the topics of marriage and divorce; infants and minors; adoption; wills, intestacy and succession;

joint family and partition; all matters in respect of which parties in judicial proceedings were

immediately before the commencement of this Constitution subject to their personal law. Thus it is

competent either to the State or the Union Legislature to legislate on topics falling within the purview

of the personal law is not used in Art. 13, because, in my opinion, the framers of the Constitution

43

As, from the above practice followed by Supreme Court, it can be

inferred that the Court very well knows; what is it jurisdiction and what is there in the

Constitution. Still, after 2 decades of this judgement the Supreme Court went on to

decide the validity of Triple Talaq. This can be seen as a move to abolish

discriminatory practice present in India, but as we all know means are as important as

the end121

, how the highest court of land can perform functions which it is not entitled

to.

The Approach followed by Supreme Court in Narasu Appa Mali

is long lost, now the courts test the validity of principles on the touchstone of

Fundamental Rights. The approach is either to ‗read down‘ the provision in the

harmony of Part III of the Constitution or to strike the personal law section down.

In the case of C. Masilamani Mudaliar v. Idol of Sri Swaminnathanswami

Thirukoil122

, the court while interpreting the right of Hindu women to execute a will

in respect of property acquired by her under section 14 of Hindu Succession Act,

1956, adopted a liberal rights based approach, and held that it is the right of women to

eliminate all kinds of gender discrimination, especially, in property rights123

.

The major issues in any personal laws are rights of Muslim

Women, the earlier judgements of Supreme Court like Shah Bano Case124

, which led

to a backlash within the Muslim community, as there were some adverse comments

made by courts against the Prophpet and Islam125

and the step of making section 125

wanted to leave the personal laws outside the ambit of Part III of the Constitution. They must have

been aware that these personal laws needed to be reformed in many material particulars and in fact they

wanted to abolish these different personal laws and to evolve one common code. Yet they did not wish

that the provisions of the personal laws should be challenged by reason of the fundamental rights

guaranteed in Part III of the constitution and so they did not intend to include these personal laws

within the definition of the expression laws in force. Therefore, I agree with the learned Chief Justice in

holding that the personal laws do not fail within Article 13(i) at all." 121

Steven Mintz,‖ Do the Ends Justify the Means, (March 4, 2018),

https://www.ethicssage.com/2018/04/do-the-ends-justify-the-means.html, (Last Visited on May 7,

2019) 122

(1996) 8 SCC 525 123

―The personal laws conferring inferior status on women is anathema to equality. Personal laws are

derived not from the Constitution but from the religious scriptures. The laws thus derived must be

consistent with the Constitution lest they became void under Article 13 if they violated fundamental

rights.‖ 124

Mohd. Ahmed Khan v. Shah Bano Begum,(1985) 2 SCC 556 125

The woman does not deserve independence. And, it is alleged that the 'fatal point in Islam is the

'degradation of woman'(l). To the Prophet is ascribed the statement, hopefully wrongly, that 'Woman

was made from a crooked rib, and if you try to bend it straight, it will break; therefore treat your wives

kindly.

44

of Cr.P.C applicable also to Muslim women was seen by Muslim Cultural

Community as an attack on their cultural beliefs and values and means to impose

hegemonic idea of uniformity. Therefore a statute based on Islamic jurisprudence was

demanded126

. As a result Muslim Women (Protection of Rights on Divorce) Act, 1986

was passed and it was challenged in Danial Latifi v. Union of India127

, the Supreme

Court upheld the validity of this act to recognise the rights of Divorced women.

Though, the approach followed by Supreme Court in the above

judgement can be said to be progressive and much needed, but it goes against the

ideals of constitution. As, the approach applicable to Hindu Maintainace principles

cannot be made applicable to Muslim Women, in the absence of Uniform Civil Code.

Also, in the case of Shamim Ara v. State of Uttar Pradesh128

, the court came up with

certain guidelines as per Quranic injunctions for the pronouncement of Talaq among

Muslims. The court in this case invalidated various legal texts of Muslim laws in the

defence of gender justice.

The question here is not about the removal of inequality prevailing in Indian Society,

but about the validity of such judgements, judgements which are beyond the scope of

constitution. Are such judgements, constitutionally valid merely because they are

pronounced by the highest court of the land?

4.5 TRIPLE TALAQ AND SHARIAT ACT

Talaq-e- Biddat is being practiced among Muslims for more than

1400 years, at the instance of Umayyad monarchs. It is an accepted method of divorce

among the Muslims, and thus the Court should not interfere with this practice as it a

matter or religion and faith and should be protected by Article 25 of the Indian

Constitution.

The contentions raised by Petitioners, in the matter under

discussion, that ‗Muslim Personal Law (Shariat) Application Act, 1937‘ as enacted

by the legislature gave statutory status to Muslim ‗personal law‘ – ‗Shariat‘, and

hence it has to satisfy the requirements of Part III of the Constitution is flawed. It is

126

Avantika Tiwari, ―TRIPLE TALAQ- COUNTER PERSPECTIVE WITH SPECIFIC REFERANCE

TO SHAYARA BANO ―, 1, ILI Law Review, 85, 87-90, Summer Issue 2017. 127

(2001) 7 SCC 518 128

(2002) 7 SCC 518

45

necessary to understand that the above enactment was made merely to do away with

the customs and assuages which were in conflict with Muslim personal law-

Shariat129

. Therefore, the Shariat Act, cannot be given the status of a Statutatory law.

The above enactment does not decide what is and what is not Muslim Law, but just

gives clear meaning to Shariat.

Section 2130

of the Shariat Act, is a non obstante clause131

and is

merely relatable to customs and usages. Hence, it can be said that the customs and

usages referred to in this section, were only customs and usages as were in conflict

with Muslim Personal Law. Section 2 of the act, is used to declare the Muslim

‗personal law‘ – ‗Shariat‘, as the ―rule of decision‖, in situations where customs and

usages were to the contrary. Hence, it can be said that Shariat Act has been enacted to

preserve Muslim Personal Law, as it exercised from time immemorial and cannot be

considered as a State Enactment.

As far as challenge of talaq-e-biddat to Article 25 is considered, it

can be said that, constitutional protection to the tenets of ―personal law‖ cannot be

infringed; as long as they do not violate ―public order, morality and health‖, and/or

―the provisions of Part III of the Constitution‖. From the above discussion it is

129

The debate that took place in Legislative Assembly before the bill was passed .

Reference is only necessary to the statements made by H.M. Abdullah and Abdul Qaiyum on the floor

of the House. The same are extracted hereunder: ―Mr H. M. Abdullah (West Central Punjab:

Muhammadan): Sir, I beg to move: "That the Bill to make provision for the application of the Moslem

Personal Law (Shariat) to Moslems in British India, as reported by the Select Committee, be taken into

consideration." The object of the Bill, as the House is already aware, is to replace the customary law by

the Shari at law in certain matters where the parties to a dispute are Muslims. By doing so, it also helps

the weaker sex as it enables women to succeed to the ancestral property and to claim dissolution of

marriage on certain grounds 130

Section 2 in The Muslim Personal Law (Shariat) Application Act, 1937 Application of Personal

law to Muslims.—Notwithstanding any custom or usage to the contrary, in all questions (save

questions relating to agricultural land) regarding intestate succession, special property of females,

including personal property inherited or obtained under contract or gift or any other provision of

Personal Law, marriage, dissolution of marriage, including talaq, ila, zihar, lian, khula and mubaraat,

maintenance, dower, guardianship, gifts, trusts and trust properties, and wakfs (other than charities and

charitable institutions and charitable and religious endowments) the rule of decision in cases where the

parties are Muslims shall be the Muslim Personal Law (Shariat).

131

When the non-obstante clause refers to the provision of a statute, the intention of the legislature

must be determined and the clause has to be construed accordingly. It is often used by way of abundant

caution, but mainly used as a legislative device, in case of conflict, to give the provision containing

non-obstante clause an overriding effect over any other provision. (Dr. Malik Mehdi Kabir and others

Vs. Rabit-Al-Alam-Al-Islami and others, 2010, 39 CLC (AD) [5505])

46

impossible to conclude that this form of divorce violates any of such conditions as

laid down under Article 25.

As far as violation of Articles 14, 15 and 21 are considered;

Shariat Act is not a State Legislation and is a matter of personal law, thus, cannot be

limited to Article 13 of the Constitution.

4.6 INTERFERENCE BY SUPRME COURT IN PERSONAL LAW

VALID?

As we have seen the Role of Court, in recent years, in interpretation of

Personal Laws in India it will not be wrong to say that Supreme Court has lost it way.

It has clearly departed from the original understanding of constituent Assembly.132

It

has gone too far and gave itself the powers which the court really never had. It has

ignored the work of legislature or the executive and just had made its own way to

decide the constitutionality of things laid before it.

When the legislature drafts a law, it goes through various procedures and it is

not put to force overnight. Drafting of any statute, shaped up as law, is a very

complex process and it happens in various steps; first an idea is initiated on which a

law has to be made after that it goes to the proper ministry for its in depth analysis in

which all its research is done and then it goes for consultation to the experts in that

field. The cycle does not stop here the experts prepare a draft and post it on the

ministry website to which it belongs, to invite the comments and to bring it in notice

of the people, concerned and interested. After, getting the comments and analysing

them it is again sent to the expert body for its consultation that again repeats the

process and consults it again among the various experts and then post another drafts

on the website of the ministry. After, following all this process it is sent to the

parliament for consideration where again a committee is formed which studs the draft

in great detail and provides its proper recommendations. After that a report is made

and the law is debated in parliament, over and over again and finally when majority

votes for it, it is passed as the law of the land. As against this the Supreme Court

132

S.P. Sathe, ―Judicial Activism; The Indian Experience‖, 2001(6), Washington University Journal

and Policy, pp 59

47

under its own power decide the validity of personal laws on its own, without giving an

opportunity to legislature to frame a law for the same or to know the reason that why

a law has not been framed yet. Personal law matters like family, marriage divorce,

adoption comes within List 3 and it is imperative duty of legislature to be answerable

for the same and not the Courts who is never assigned the task to interpret the

personal laws. Isn‘t this practice anti-democratic? Court while redressing the needs of

one single group sometimes cause disadvantage to other groups this can be seen in

cases like Sabrimala where the court, though protected the interest of a particular

class, have caused harm to the religious sentiments of the other class or group.

In a county like India where an opportunity should be given to everyone to be

heard, the court completely ignores this aspect, not intentionally but practically, as it

is not possible for everyone to reach the doorsteps of the court and make their

grievances heard.133

So, also in this case134

while just hearing the grievances of

divorced woman ignored to hear any maulwi or reliable source on Muslim law, they

interpret the Quran themselves on some verses laid before them. The question here

arises, are the judges in the court so well versed that they not only know what the is

there in Holy Quran but also can decide the validity of personal law, which a

community has been following for last 1400 years.

The other question which I want to raise is that why the court should consider

one view over the other?135

Why should always one side be winning and other is

losing if it effects the rights of both?

The court is performing its functions which are under no limitations and are

not restrained. The power under Article 32 for the enforcement of Fundamental Right

has been treated as power to issue guidelines to both other organs of the government

and to any state functionary, to check other organs of the government, to pass

judgements against the notification issued by Central Government136

and what not.

The court themselves have acquired arbitrary power by deciding anything and

everything, not seeing their jurisdiction or restricting to it.

133

Also, not forgetting the Supreme Court in India is just located at New Delhi. 134

Triple Talaq Judgement 135

Jeremy Waldron, The Core of the case against the Judicial Review, 115 Yale Law General (2006)

pp.1387 136

2014 Notification issued by Central Government under Section 2 of NDPS Act, 1973

48

4.7 CONCLUSION: A WAY FORWARD

The practice of Triple Talaq can be said to be discriminatory in nature, but it is

outside the virtue of the court to correct it. The only step which can be taken for the

protection of Muslim Women in Indian society is formation of Uniform Civil Codes.

These were also the arguments made by the Respondent Counsel in Triple Talaq

Case137

.

If Uniform Civil code is achieved the destitution and humiliation faced by

Muslim women will be greatly reduced. The application of UCC is not a simplistic

approach and is not limited to practices like Triple Talaq or polygamy but the issue is

far more complicated and require a detailed analysis of gaps within existing laws of

all communities, from the women empowerment perspective.

The Muslim women are not the only sufferers but Hindu women suffer the

same plight. Official reports reveal that despite statutory restrainments in Hindu Law,

cases of bigamy are more common in Hindu then in Muslims138

. The difficulty does

not end here just like Muslim Women; Second wife of a Hindu Man suffers from

serious threat of not being entitled to maintenance by her husband139

.

The discrimination here is not specific to any particular community, as every

personal law has some practice, which is discriminatory and goes against the

principles of Fundamental Right, but the Court does not have power to interfere in the

practices of Personal law, the only solution for same is Uniform Civil Code.

137

Mr. Kapil Sibal, Sr. Adv. representing the All India Muslim Personal Law Board began his

arguments towards the end of Day 3. He began with the proposition that until the mandate for a

uniform civil code under Article 44 of the Constitution was realized both custom, as well as personal

laws of all communities, would be protected under the Constitution. He suggested that despite codified

laws, particular customs within religious communities continue to be protected. Matriarchal societies in

Kerala and particular customs in Himachal Pradesh continue to be protected despite the enactment of

the Hindu Marriage Act, 1956. As Parliament has not passed laws against such customs they continue

to have legal effect. He emphasized that the core underlying issue before the court is that of patriarchy

which pervades every religion and not the issue of triple talaq. May 16. 2017

https://scobserver.clpr.org.in/court-case/triple-talaq-case/day-3-of-arguments-respondents-mukul-

rohatgi-union-of-india-kapil-sibal-aimplb, Last Visited on May 8,2019.

138 Government of India, Towards Equality-The report of the Committee on Status of Women(1974).

139 Flavia Agnes,‖The Concubine and Notions of Constitutional Justice‖ 46(24) Economic and Political

Weekly, 31.

49

CHAPTER 5

CONCLUSION

―…What is religion to some is pure dogma to others and what

is religion to others is pure superstition to some others…But

my views about religion, my prejudices and my predilections,

if they be such, are entirely irrelevant. So are the views of the

credulous, the fanatic, the bigot and the zealot. So also the

views of the faithful, the devout, the acharya, the moulvi, the

padre and the bhikhshu each of whom may claim his as the

only true or revealed religion. For our purpose, we are

concerned with what the people of the Socialist, Secular,

Democratic Republic of India, who have given each of its

citizens freedom of conscience and the right to freely profess,

practise and propagate religion and who have given every

religious denomination the right to freely manage its religious

affairs, mean by the expressions religion and religious

denomination. We are concerned with what these expressions

are designed to mean in Articles 25 and 26 of the

Constitution. Any freedom or right involving the conscience

must naturally receive a wide interpretation and the

expression religion and religious denomination must

therefore, be interpreted in no narrow, stifling sense but in a

liberal, expansive way.

At the fag end of my writing, revisiting the aforementioned quote from the

hon‘ble Apex Court makes me wonder in awe and in surprise as to how we reached

from SP Mittal140

to Sabrimala, whereas in the case of S.P. Mittal v. Union of

India141

, Supreme Court gave a very ideal approach that a religion cannot be defined

and cannot mean the same to everyone. Hence, the role of courts is very limited and

they cannot decide what should be the practices followed by one religion. The court

140

ibid 141

(1983) 1 SCC 51

50

held that person‘s view about any other religion is particularly irrelevant and if the

question of religion arises widest possible interpretation has to be given, on the

otherhand in judgements like Sabrimala, the Apex court has taken a regressive

approach and has gone to the extent of ‗guiding‘ and ‗Choosing‘ in the matters of

religion.

Ideally speaking, law making in a multicultural society like India, ought to

take into consideration factors that are intrinsic to that particular religious sect or

community and the identity of the people constituting it. The court in its approach has

not displayed coherence, consistency and impartiality142

in its decisions. The Indian

Supreme Court‘s interpretations on religious laws are not clear as the constitution

mandates.

It seems that the religious harmony and independence, as envisioned by the

makers of the Constitution, in the Constituent Assembly, has been hurt by politics and

rise of religious fundamentalists143

and hunted by the decisions of the hon‘ble Higher

Courts. From the period just after the independence, the Indian Courts had a secular

consciousness, in sense it ought to be, as opposed to what it is today, the idea of

secularism, which could be seen in the judgements of the Supreme Court today lacks

tolerance and religious principles. With the nation moving towards modernization,

that secular consciousness is lost, not only the decisions of the courts lacks from this

approach, but also the citizens. This can be seen in cases like Sabarimala where the

petition is filed by a group, which is no way related to that religious group, this shows

the attitude of intolerance wearing the veil of demands for fundamental rights.

Indian secularism appears to be in crisis. The development of the idea of

secularism has been stunted because both the opponents and the proponents of

secularism define it as inherently and exclusively Western, Christian and foreign to

India144

. The Supreme Court of India has failed to uphold the secular nature of the

constitution.

142

Decisions like cow slaughter case. 143

Seval Yildirim, Expanding Secularism's Scope: An Indian Case Study, The American Journal of

Comparative Law, 52 (4) (Autumn, 2004), pp. 916 144

For opponents of secularism in India see, T. N. Madan, Secularism in Its Place in SECULARISM

AND ITS CRITICS 297-320 (Rajeev Bhargava ed., 1998). Ashis Nandy, The Politics of Secularism

and the Recovery of Religious Tolerance, id at 321-344. For the argument that Indian secularism must

regain focus on religious toleration, see, Partha Chatterjee, Secularism and Tolerance, id. at 345-379.

51

While on one hand there is a demand of Uniform Civil Code on the other there

is lack of tolerance, social justice and national integration145

.

Being a pluralistic society, India presents a very challenging case of

Secularism. India needs to redefine the basic feature of Secularism, though case of SR

Bommai declared secularism to be basic part of Indian Polity, in reality that tolerance

and that idea cannot be found in today‘s judgements. Religion in India is just not

about what happens in four walls, but it is way beyond that, a person shall be allowed

to follow his or her religion in any manner and in any space he or she wants146

, this

was the idea of drafters, this is what is embodied in constitution.

Secularism is pertinent for a country like India, though it might be not be

working in proper manner in recent times, but it still has not yet failed. The preamble

of the Indian Constitution needs to be justified, secularism needs to stand, the

practices derogatory to this concept should be checked and the tolerance should be

encouraged. Courts, while interpreting the matters related to religion and personal

laws, should give the widest possible interpretation and shall uphold religious

autonomy and freedom, they should not curb it until they are fully satisfied by the

compelling reasons to the otherwise , this does not mean the majority decision shall

always prevail, but the considerations of dissenting judges147

, shall always be looked

into with careful scrutiny, is religion is not only about majority but equally about

minority. If such practices are followed this will not only protect the minorities in

India but will also keep a check on tyranny of majority. Thus, protecting and

establishing a true democratic society.

Secularism, therefore, must be defended and cemented with the glue of

tolerance.

For proponents of secu- larism in India, see, Amartya Sen, Secularism and Its Discontents, id. at 454-

485; Rajeev Dhavan, The Road Xanadu: India's Quest for Secularism, in RELIGION AND

PERSONAL LAW IN SECULAR INDIA: A CALL TO JUDGMENT 301-329 (Gerald James Lar- son

ed., 2001) 145

. The case of the NCERT textbooks, the Hindutva judgments and the Sarla Mudgal and John

Vallamattom cases reflect the court's intolerance towards differences. 146

Not to ignore the limitations imposed by the Constitution. 147

In Sabrimala (Justice Indu Malhotra) and in Triple Talaq ( Justice Khehar and Justice Abdul Nazeer)

xii

BIBLIOGRAPHY

ARTICLES

1. Jeremy Waldron, The Core of the case against the Judicial Review, 115 Yale

Law General (2006) .

2. Amartya Sen, "The Threats to Secular India," Social Scientist 21 (March-

April 1993);

3. Ashis Nandy, An anti-secular Manifesto, India International Centre Quarterly,

Volume 22, No.1, Secularism in Crisis,(Spring 1995)

4. Avantika Tiwari, “TRIPLE TALAQ- COUNTER PERSPECTIVE WITH

SPECIFIC REFERANCE TO SHAYARA BANO “, 1, ILI Law Review

5. Chintan Chandrachud, “Constitutional Interpretation” in Oxford Handbook of

the Indian Constitution (South Asia Ed.).

6. Flavia Agnes, “Personal Laws”, The Oxford Handbook of The Indian

Constitution, Oxford University Press.

7. Flavia Agnes,”The Concubine and Notions of Constitutional Justice” 46(24)

Economic and Political Weekly.

8. Rajeev Bhargava, The Distictiveness of Indian Secularism , The Future of

Secularism, Oxford University Press, Delhi, 2006

9. Rajeev Dhawan and Fali Nariman, “The Supreme Court and Group Life:

Religious Freedom and Minority Groups and Disadvantaged Communities, in

BN Kripal and others (eds) Supreme but not infallible: Essays in Honour of

Supreme Court of India (Oxford University Press 2000.)

10. Rajni Kothari, "Pluralism and Secularism: Lessons of Ayodhya," Economic

and Political Weekly, 19-26 December 1992

11. Ronojoy Sen, Secularism and Religious Freedom, Ch 49, The Oxford Book

Of Indian Constitution, Oxford University Press, 3rd

Edition( 2016).

12. S.P. Sathe, “Judicial Activism; The Indian Experience”, 2001(6), Washington

University Journal and Policy.

xiii

13. Sanghamitra Padhy, Secularism and Justice: A Review of Indian Supreme

Court Judgments, Economic and Political Weekly, Vol. 39, No. 46/47 (Nov.

20-26, 2004), pp. 5027-5032

14. Seval Yildirim, Expanding Secularism's Scope: An Indian Case Study, The

American Journal of Comparative Law, Vol. 52, No. 4 (Autumn, 2004), pp.

901- 918

15. Shefali Jha, “Secularism in Constituent Assembly Debate; 1946 – 1950”,

Economic and Political weekly 3175.

16. Subrata Mitra, “Religion, Region and Identity: Sacred Beliefs and Secular

Power in Regional Tradition of India” in Noel O‟ Sullivan (ed) Aspects of

India: Essays on Indian Politics and Culture (Ajanta Publications 1997).

17. Upendra Baxi, "The 'Struggle' for the Redefinition of Secularism in India,"

Social Action 44 (January-March 1994)

18. V Francis, 'Concept of Secular State and Adminstartion of Religious

Institutions', The Academy Law Review, Centre for Advanced Legal Studies,

June-December 19.

BOOKS

1. Beitz, Political Equality, Princeton University Press, 1989

2. Donald E Smith, India as a Secular State, (Princeton University, 1963.)

3. Dr. Radhakrishnan, Recovery of Faith (1956)

4. G.S Sharma, Secularism; Its Implications for Law and Life in India (1966)

5. M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4th

Ed., Reprint 1999)

6. Mamta Rao, Constitutional Law, Eastern Book Company, first Edition,( 2013)

xiv

7. Mukul -Kesavan, Secular Common Sense, Penguin Books India (2001).

8. Religion, Law and State in Modern India, Oxford University Press, 1999

9. The Oxford Handbook on Indian Constitution, Oxford University Press, 2016

LIST OF STATUTES

1. Bombay Prohibition of Bigamous Marriages Act, 1946

2. Constitution of India, 1950.

3. Criminal Procedure Code, 1973

4. Hindu Marriage Act, 1955

5. Hindu Succession Act, 1956,

6. Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965

7. Kerala Hindu Places of Public Worship (Authorization of Entry) Rules, 1965

8. Muslim Personal Law (Shariat) Application Act, 1937

9. Muslim Women (Protection of Rights on Divorce) Act, 1986

10. Special Marriage Act, 1954

WEBSITES

1. Draft Constitution of India, Drafting Committee of the Constituent Assembly

of India (Manager Government of India Press, New Delhi, 1948) available at

http://14.139.60.114:8080/jspui/bitstream/123456789/966/7/Fundamental%20

Rights% 20%285-12%29.pdf.

2. Draft Constitution of India, Drafting Committee of the Constituent Assembly

of India (Manager Government of India Press, New Delhi, 1948) available at

xv

http://14.139.60.114:8080/jspui/bitstream/123456789/966/7/Fundamental%20

Rights% 20%285-12%29.pdf.

3. Steven Mintz,” Do the Ends Justify the Means, (March 4, 2018),

https://www.ethicssage.com/2018/04/do-the-ends-justify-the-means.html,

NEWSPAPERS

1. Rasheeda Bhagat, The Political Circus Over Sabrimala, January 7, 2019,

https://www.thehindubusinessline.com/opinion/columns/rasheeda-bhagat/the-

political-circus-over-sabarimala/article25933856.ece

2. Baijayant „Jay‟ Panda, Sabarimala And Triple Talaq, October 24, 2018,

https://www.speakingtree.in/article/sabarimala-and-triple-talaq

3. Faizan Mustafa, Faith and gender justice, February 8, 2019,

https://indianexpress.com/article/opinion/columns/faith-and-gender-justice/

4. Indulekha Aravind, Why Sabarimala is becoming a big issue for all political

parties in Kerala, The Indian Times, 18 November,

2018,https://economictimes.indiatimes.com/news/politics-and-nation/why-

sabarimala-is-becoming-a-big-issue-for-all-political-parties-in-

kerala/articleshow/66672118.cms

5. KALEESWARAM RAJ, Do all women have a right to enter Sabarimala?, The

Hindu, 20 October, 2018, https://www.thehindu.com/opinion/op-ed/do-all-

women-have-a-right-to-enter-sabarimala/article19883956.ece

6. Meenakshi Lekhi , Triple talaq and Sabarimala different, The Week January 5,

2019, https://www.theweek.in/columns/Meenakshi-Lekhi/2019/01/04/triple-

talaq-and-sabarimala-different.html