Indian Young Lawyers Association v. State of Kerala

The case was heard by a bench of five judges: the Chief Justice, Nariman, Khanwilkar, Chandrachud and Indu Malhotra JJ.

The questions

Five, and setting them out separately is what allows the majority and the minority to be compared point by point.

Whether the exclusion violates articles 14, 15 and 17.

Whether the devotees of Lord Ayyappa are a religious denomination, or a section of one, so as to attract article 26, which gives every religious denomination the right to manage its own affairs in matters of religion.

Whether the exclusion is an essential religious practice, protected by article 25.

Whether rule 3(b) is ultra vires the 1965 Act.

Whether a writ petition under article 32 lies at the instance of persons who are not themselves devotees.

The majority

Held. By four to one the petition was allowed.

On article 15(1). The customary practice violates article 15(1) because it is based on sex alone. The exclusion also engages article 15(2)(b), the temple being a public place of worship, open and dedicated to the public and partly funded by the State under article 290A.

On article 25. Article 25 guarantees the fundamental right of an individual to worship or follow any religion, and the 1965 Act was passed in furtherance of the goals in article 25(2)(b) as a measure of social reform. The Act contains no prohibition against women entering any public temple.

On article 26 and denomination. The devotees of Lord Ayyappa were held not to constitute a separate religious denomination. The petitioners' contentions on what a denomination requires, including a distinct identity, a common faith and organisation, and property capable of succession by its followers, were accepted as the test, and the worshippers of the deity, who are Hindus, did not satisfy it.

On essential religious practice. The exclusion was held not to be an essential religious practice of a religion, so it did not attract the protection of article 25.

On rule 3(b). Rule 3(b) of the 1965 Rules is ultra vires the Act insofar as it prohibits the entry of women, since the Act itself opens places of public worship to all classes and sections of Hindus.

On constitutional morality. The majority reasoned that the Constitution does not permit a practice which excludes a class of citizens from a public place of worship on the ground of a physiological feature, and that constitutional morality requires the individual right to worship to prevail over a custom of exclusion.

The minority: Indu Malhotra J.

She dissented and would have dismissed the writ petition. Her reasoning is set out here at length because MU's topic asks for the minority judgment and because a summary of it in one line is not an answer.

On the scope of judicial review of religious practice. Article 25 guarantees to every individual the right freely to profess, practise and propagate their faith in accordance with the tenets of their religion. A court should not undertake to decide which practices of a faith are essential to it by testing them against notions of rationality or logic. What is essential is to be determined by reference to the tenets of the religion and to the practice of its adherents.

On constitutional morality. Constitutional morality in a secular polity implies the harmonisation of the fundamental rights, which include the right of every individual, religious denomination or sect to practise their faith and belief in accordance with the tenets of their religion, irrespective of whether the practice is rational or logical. On her view the majority used constitutional morality as a solvent for a religious practice; on hers it is a principle of accommodation between competing rights.

On denomination. The respondents and the intervenors had made out a plausible case that the worshippers of the Sabarimala temple satisfy the requirements of being a religious denomination, or a sect of one, entitled to the protection of article 26. She held that this is a mixed question of fact and law which ought to be decided before a competent court of civil jurisdiction, and not on affidavits in a writ petition.

On article 17. The limited restriction on the entry of women during the notified age group does not fall within the purview of article 17, which abolishes untouchability. Article 17 was directed at the social evil of untouchability practised against a class of persons on the ground of caste, and it does not reach a restriction founded on the character of the deity.

On rule 3(b). Rule 3(b) is not ultra vires section 3 of the 1965 Act, because the proviso to section 3 carves out an exception in the case of public worship in a temple for the benefit of a religious denomination or a section of it, to manage their own affairs in matters of religion. The rule gives effect to that proviso.

On the maintainability of the petition. She was troubled by a writ petition under article 32 brought by persons who were not devotees of the temple, taking the view that the permissible extent of a person's right to move the Court in matters of religious practice needs consideration.

Her conclusion. In light of her analysis, the writ petition could not be entertained on the grounds enumerated, and it was ordered accordingly.

Why this case is the one for topic 3.2

MU's topic asks for "ratio and guidelines of courts in the following cases, minority, and majority judgements". Of the six cases named, four carry no dissent at all, and [Joseph Shine v. Union of India] carries four concurring opinions and no dissent. This is the only one with a genuine minority judgment, and it is therefore the case in which the distinction can actually be taught.

Three propositions follow, and they are the examinable content.

The majority states the law. Four judges agreed on the result, and their common reasoning is the ratio.

The minority binds nobody. Indu Malhotra J's opinion is not law. It is fully reasoned, it is cited, and it is persuasive only.

A minority judgment is not a wasted judgment. It preserves an argument for later consideration, and in this very matter the questions she raised about the scope of article 26 and about who may move the Court were among those referred to a larger bench a year later.

What happened afterwards

A chapter that stops on 28 September 2018 gives a student a wrong answer to the question "is this the law?".

Review petitions and fresh writ petitions were filed. In Kantaru Rajeevaru v. Indian Young Lawyers Association, decided on 14 November 2019, the Court, by three to two, kept the review petitions pending and referred a set of larger questions to a bench of at least seven judges. Facts. Review petitions and fresh petitions were filed against the judgment of 28 September 2018. Held. The questions referred include the interplay between the freedom of religion under articles 25 and 26 and the other provisions of Part III, the sweep of the expression "morality" in those articles, whether the essential religious practices of a denomination are protected from judicial review, and the permissible extent of judicial recognition of a person's right to move the Court under article 32 in matters of religious practice. Nariman and Chandrachud JJ. dissented, taking the view that the review petitions should be dismissed. Why it matters. It is the reason a student must not say either that the 2018 decision has been overruled, which it has not, or that the matter is closed, which it is not.

So the honest statement is: the judgment of 28 September 2018 has not been overruled; review petitions remain pending; and larger questions raised by it stand referred to a bench of at least seven judges.

A worked example

A trust manages a temple in Maharashtra and, by a custom it says is two centuries old, admits only men to the inner sanctum on one day of the year. A group of women petition the High Court under article 226.

Which questions arise, and in which order? Take them as the Sabarimala bench did.

Is the trust a denomination under article 26? If the worshippers have a distinct identity, a common faith and organisation and property capable of succession, they may be. On the majority's approach the Court decides that in the petition; on Indu Malhotra J's approach it is a mixed question of fact and law for a civil court.

Is the practice an essential religious practice? On the majority's approach the Court examines the tenets and decides. On the minority's approach the Court should be very slow to test the practice against rationality, and should ask what the adherents believe.

Does article 15(1) apply? If the exclusion is on the ground of sex alone, on the majority's reasoning it does, and the temple being a public place of worship engages article 15(2)(b).

Does article 17 apply? On Indu Malhotra J's reasoning it does not, because untouchability under article 17 was directed at exclusion on the ground of caste.

Is the rule or bye-law within the parent Act? This is often the shortest route to a decision, and in Sabarimala it produced opposite answers on the same words: the majority held rule 3(b) ultra vires the Act, and the minority held that the proviso to section 3 saved it.

And the honest conclusion. Because the larger questions stand referred, a High Court today would be applying a decision that binds it while the reference is pending.

Distinctions table

What this case does NOT decide

It does not hold that every religious practice is subject to judicial review of its rationality. The majority held this practice not to be essential; it did not lay down that a court may examine the wisdom of any belief.

It does not decide that the Ayyappans can never be a denomination. The minority thought a plausible case had been made and that the question belonged to a civil court, and the point is among those referred to a larger bench.

It has not been overruled. The reference in 2019 kept the review petitions pending and referred questions; it did not set the judgment aside.

It does not settle the meaning of "morality" in articles 25 and 26. That is one of the questions referred.

Limits and criticism

The essential religious practices doctrine puts a court in the position of a theologian, and that is the burden of Indu Malhotra J's dissent. The answer of the majority is that a practice claiming constitutional protection must be shown to be essential, or the protection has no boundary.

Deciding a denomination question on affidavits is unsatisfactory, whichever way it goes, and the dissent's proposal that it be tried in a civil court is a serious answer to a real difficulty.

A decision that is binding while larger questions about it stand referred is an uncomfortable state of affairs, and it is the present state of affairs here.

Quick revision

Facts: writ petition under article 32 by an association of lawyers challenging the exclusion of women aged ten to fifty from the Sabarimala temple and rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965; bench of five; an amicus curiae appeared; judgment of 28 September 2018.

Majority, four judges: exclusion based on sex alone violates article 15(1); article 15(2)(b) engaged, the temple being a public place of worship partly funded under article 290A; article 25 protects the individual worshipper and the 1965 Act is a measure of social reform under article 25(2)(b); the Ayyappans are not a separate religious denomination under article 26; the exclusion is not an essential religious practice; rule 3(b) is ultra vires the Act insofar as it prohibits the entry of women.

Minority, Indu Malhotra J.: a court should not test religious practices against rationality; constitutional morality in a secular polity means harmonising rights, including the right to practise a belief whether or not it is rational; a plausible case was made that the Ayyappans are a denomination, which is a mixed question of fact and law for a civil court; article 17 is not attracted; rule 3(b) is not ultra vires because the proviso to section 3 saves it; the petition should be dismissed.

Afterwards: Kantaru Rajeevaru, 14 November 2019, three to two: review petitions kept pending and larger questions referred to a bench of at least seven judges, on the interplay of articles 25 and 26 with the rest of Part III, the sweep of "morality", whether essential religious practices are immune from judicial review, and who may move the Court under article 32 in such matters. Nariman and Chandrachud JJ. dissented.

Test yourself

1. What was challenged, and by whom?

The practice at the Sabarimala temple in Kerala of excluding women between the ages of ten and fifty, and rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules 1965, which permitted the exclusion of women at such time as they were not by custom and usage allowed to enter a place of public worship. The challenge was brought by the Indian Young Lawyers Association by writ petition under article 32, and it was heard by a bench of five judges, with an amicus curiae appointed to assist.

2. Set out the majority's holdings.

That the customary practice violates article 15(1) because it is based on sex alone, and that article 15(2)(b) is engaged because the temple is a public place of worship open and dedicated to the public and partly funded by the State under article 290A; that article 25 guarantees the individual's right to worship and the 1965 Act was passed as a measure of social reform in furtherance of article 25(2)(b), containing no prohibition against women entering a public temple; that the devotees of Lord Ayyappa do not constitute a separate religious denomination under article 26; that the exclusion is not an essential religious practice; and that rule 3(b) is ultra vires the Act insofar as it prohibits the entry of women.

3. Set out the dissent.

Indu Malhotra J. held that a court should not decide which practices of a faith are essential by testing them against rationality or logic, since article 25 protects the practice of faith in accordance with the tenets of the religion; that constitutional morality in a secular polity means harmonising the fundamental rights, including the right of an individual, denomination or sect to practise their faith irrespective of whether the practice is rational; that a plausible case had been made that the Ayyappans are a religious denomination or a sect, which is a mixed question of fact and law for a civil court; that the age-limited restriction is not within article 17; and that rule 3(b) is not ultra vires section 3, because the proviso to that section carves out an exception for a denomination. She would have dismissed the petition.

4. Why is this case the one to use when a question asks about majority and minority judgments?

Because it is the only case on MU's list of six with a full dissent. D.K. Basu, M.C. Mehta, Vishaka and Aruna Shanbaug carry no dissent, and Joseph Shine carries four concurring opinions and no dissent at all, so in those cases the distinction can only be described. Here it can be demonstrated point by point: the majority and the minority reached opposite conclusions on the denomination question, on essential religious practice, on article 17 and on the vires of rule 3(b), and a candidate can set the two side by side.

5. What is the effect of a dissenting judgment?

It binds nobody. Only the opinion of the majority states the law, and a dissent is persuasive at most. Its value is that it preserves an argument in an authoritative form for later consideration, and dissents have on occasion become the law when a larger bench has revisited the question. In this very matter, some of the questions Indu Malhotra J. raised, on the reach of article 26 and on who may move the Court under article 32 in matters of religious practice, were among those referred to a larger bench in 2019.

6. Is the judgment of 28 September 2018 still good law?

It has not been overruled, and it is not the last word. In Kantaru Rajeevaru v. Indian Young Lawyers Association, decided on 14 November 2019, the Court by three to two kept the review petitions pending and referred larger questions to a bench of at least seven judges, including the interplay between articles 25 and 26 and the other provisions of Part III, the sweep of "morality" in those articles, whether the essential religious practices of a denomination are protected from judicial review, and the permissible extent of a person's right to move the Court under article 32 in such matters. Nariman and Chandrachud JJ. dissented, holding that the reviews should be dismissed. The correct statement is therefore that the decision stands, with review pending and larger questions referred.