Editorials, GS-2, Indian Polity, Uncategorized

The case against customary exclusion

The article discusses the constitutional provisions of the Supreme Court’s quashing of Ban imposed by the sabarimala shrine on entry of women.

Justice Misra’s reference to the Constitution, and his suggestion that its non-discrimination clauses might be applicable to this dispute, raise some complex questions about the relationship between freedom of religion, equality, individual rights, and the extent to which the court can interfere in the management of religious institutions.

Provisions of the constitution:-

The Constitution’s fundamental rights chapter grants rights to individuals against the state, to individuals against other individuals, to groups and communities against the state, and, as a final layer, allows the state to restrict these rights for various reasons of social and public interest.

Tension between these various provisions is inevitable.

Article 25(1) guarantees to all persons the right to freely profess, practise, and propagate their religion.

Article 26(b) grants to religious denominations the right to manage their own affairs in the matter of religion.

Overriding both these provisions, Article 25(2) allows state intervention in religious practice, if it is for the purpose of “social welfare or reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus”.

State intervention Limits:-

The Supreme Court has itself restricted the scope of the religious protection clause to “essential practices of a religion”.

The state cannot use the reform clause to “reform a religion out of existence”, but it can reform everything other than the essential practices of the religion.

Based on this the board will have to establish the existence of a custom and also that the custom is “essential” to the practice of the religion.

If Banning women entry is not an essential practice:-

If it cannot show that prohibiting women from entry is an essential religious practice, then it can no longer claim absolute immunity under Article 26(b).

The women worshippers can then argue that prohibiting them from access violates their right to worship under Article 25(1).

If the women worshippers demonstrate that the Sabarimala shrine has special and unique religious significance, their Article 25(1) right to worship there stands established.

The board’s prohibition upon their entry, consequently, impermissibly violates their constitutional right to freedom of religion.

Definition of state:-

The right to freedom of religion under Article 25(1) is enforceable against the state, and not against other individuals, or corporate bodies.

The question that the court must answer therefore is whether the Travancore Devaswom Board, which controls access to the shrine, is a “state”.

The Supreme Court has held that corporate bodies that are “functionally, financially and administratively” under the control of the state can be equated to the state for the purposes of fundamental rights.

The Travancore Devaswom Board is an autonomous body. While its members are appointed by the State legislature, it derives its main income from the administration of the temple.

Therefore, it might be difficult to argue that the board is functionally or financially under the control of the state.

And if the board cannot be equated with the state, then the constitutional right under Article 25(1) is not enforceable against it.

The Duty of state:-

The Supreme Court has held that if one private party obstructs another private party from exercising her constitutional right, then it is the duty of the state to effectuate her right by restraining the former from continuing with its obstruction.

Therefore, the women worshippers may ask the court to direct the state to take all necessary steps to guarantee that they are allowed to access and worship at the Sabarimala shrine.

What the law says?

The Kerala Hindu Places of Worship Rules speak about “customs” and “usages”.

The Supreme Court has held that while personal law is exempt from the application of the Constitution, mere ‘custom’ is not.

It might therefore simply strike down the offending rule on the ground that it discriminates on grounds of gender, and therefore violates the Constitution.

Other cases:-

The Sabarimala case is not the only case of this sort that is before the judiciary. Last year, a group of women approached the Bombay High Court asking for the recognition of their right to enter and worship at the Haji Ali Dargah shrine. The matter is presently awaiting a decision.


We will be seeing the question of gender justice in religious institutions at the forefront of the judicial landscape.

It is now the task of the courts to craft a solution that advances the constitutional guarantee of equality, non-discrimination and freedom of religion, while remaining cognizant of the fact that the Constitution also guarantees the right of religious sects and denominations to self-governance.

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