The Supreme Court had ruled that the practice which is being used by the
sabrimala temple is in violation of the rights of the women and the Supreme
Court allowed women to enter the temple
The main contention was that whether supreme court has a right to involve in the
matter of the religious matter different views were held by the judges who
passed the verdict the issue of constitutional morality was being discussed in
the particular case the term itself has not been defined by the makers of the
constitution but the said term had been used by the apex court in its earlier
judgements The respondents had said that the allowing women would affect the
celibacy of the lord ayyappa as he being an naishtika brahmachari.
This is the
case of women rights uprising where the age old customs were not allowing the
women of particular age that is 10-50 as called menstruating in the temple.
Though living in the 21st century and boasting about the gender equality it
seems like it is still a dream the problem is with the mind-set of the people
the separation lies within the society because on one side it is promoting the
idea of gender equality and upliftment of women’s rights but on the other hand
it has been suppressing it.
The main issue was that the said religious customs
though being violative of the rights of the individual should be allowed or not
the court in this stance was very clear that the customs which violates the
basic rights of the individual should not be allowed further the judgment was
not an unanimous one with Justice Indu Malhora being the sole dissent. According
to her Supreme Court should not interfere in the religious matter and it is upon
the particular religion to decide what constitutes an essential practice or not.
Secularism is the basic idea of the Indian constitution apart from equality thus
treating every communities as same can be considered as following the principle
of equality and secularism The judge’s point of view that the particular
religious practice is essential or not should be decided by the religious
community is maintainable as India being an secular democratic state religious
orthodoxy should be protected just like the other freedom.
comprises of the four principles justice, equality, liberty and fraternity the
principle liberty includes the freedom of faith and expression however there are
restrictions to it. Prohibiting someone just because of the biological feature
is an ancient and static or an orthodox practice which the courts should get rid
of it by applying the constant and rational thinking according to the
Followers of ayyappa does not constitute a separate religious
denomination as they did not hold any common faith or a distinct name, ayyappan
are part of Hinduism as lord ayyappa is the son of the Hindu god Shiva & Vishnu.
Interpretation of morality should be according to the lines of constitution and
it should be objective the interpretation allows the main branch that is
judiciary to hear the problems which legislature and executive had failed to
Decoding The Judgment Given By The Apex Court
The supreme court in its judgment dated on 28th September allowed the women to
enter into the sabrimala temple and struck down the arguments raised by the
respondents the supreme court by 4:1 of the majority said that not allowing a
women to enter into a temple violates right to freedom of religion which is
given under the article 25 of the Indian constitution of female worshippers.
court also stuck down the rule 3(b) of the Kerala Hindu Places of Public Worship
Act as unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude
women from public places of worship if the exclusion was based on custom there
were various opinions given by the bench speaking for justice rohinton nariman
he said that ‘they do not constitute a separate religious denomination, he said
that the sabrimala temple’s denominational freedom under article 26 is subject
to state’s social reform which is given under article 25(2)(b)’.Article 25(1)
protects the fundamental right of women between the age group of 10-50 justice
nariman also stuck down the Kerala Hindu places of public worship rules of 1965
Justice Chandrachud was of the opinion that ‘the exclusion
of certain age group of women was against the constitutional morality and he
said that the article 25 and 26 cannot act as in which violates the fundamental
rights’ he agreed with the opinions which were given by the CJI dipak mishra
that the lord ayyappa does not enunciate a separate religious denomination.
further said that the biological factors does not have to do anything with the
guarantees under the constitution further menstrual status of women is not a
valid ground of to deny her right to worship. He also dealt with the article 17
that is untouchability this practice itself amounts to untouchability because
the exclusion of the women of the age group of 10-50 are not allowed to enter
into the temple.
The dissenting opinion of Justice Indu Malhotra is based on the different
meaning of constitutional morality. Justice DY Chandrachud’s basis of
interpreting morality was different as compared to the one used by justice Indu
Malhotra she argued that constitutional morality in a secular polity, such as
India, requires 'harmonisation' of various competing claims to fundamental
She was of the view that the court should respect the religious
denominational right to manage its own internal affair irrespective of whether
the practice is logical or not she also held that the sabrimala temple satisfies
the test of separate religious denomination and it is protected under article
26(b).Article 26 denominational freedom is subject to public order, morality and
health herein morality referred as the constitutional morality she was of the
opinion that the India is a pluralistic society and the society must respect the
individual right to profess, practice and propagate their faith. She rejected
the arguments made by the petitioner that rule 3(b) of the Kerala Hindu places
of public worship act.
It is not in conflict, the rule is well within the
article 26(b) of the constitution of India. She dismissed the argument about the
article 17 that the exclusion of women who are menstruating amounts to untouchability, the term untouchability is only restricted on the terms of caste
not on the basis of gender the rational and the equality placed in the article
14 cannot be applied in the religious customs and ceremonies because of article
Whether The Supreme Court Uphold Constitutional Morality Over Customs
The term constitutional morality has not been defined by the makers of the
constitution neither, it was given that the morality has been enriched by the
sole prerogative that constitution should prevail over the customs and age old
practices in the judgment given by the apex court Justice DY Chandrachud said
the morality refereed in the article 25 and 26 is constitutional morality and it
should pass the four test that is justice, liberty, equality, justice and
excluding the women of the age group of 10-50 does not enshrined that the
practice does not comes under the legal scrutiny. Constitutional morality was
used by Dr.Br Ambedkar in his speech the term morality is used in article 19,
25, 26 of the Indian constitution.
Interpretation of morality differs from
judges to judges and this has been used by many of them to oppose this who are
solely dependent on the literal interpretation of the constitution. The priests
of the sabrimala temple claims that the practice is being adopted since ancient
time and it has been a religious custom that the practice of exclusion of women
between 10-50 is established and justified so the question may arise that the,
courts can they in the name of constitutional morality can set aside a custom or
The arguments which were used by the respondent were that allowing women
of the age between 10-50 would affect the celibacy and austerity which is unique
for lord ayyappa the Guwahati high court in Riju Prasad Sarma v. State of
Held that the religious customs which are protected under the article
25 and 26 of the constitution are resistant from dispute from other provision of
part 3 of constitution of India.
It was claimed by the respondent that this was a custom which is being put into
practice around 14th century but court rejected the argument as there were not
any documentary evidence or proof to prove that the this is a custom the
question of supremacy of constitutional morality over the religion came before
supreme court in the year 1954.Commissioner, Hindu
Religious Endowments v. Sri Lakshmindra Thirtha Swaminiar of Sri Shirur
 which is popularly known as shirur mutt case.
This case laid down the foundation for the test of essential religious
practice it was held that the term religion
will cover all rituals and
to religion while
the judgment given in the sabrimala was based on the shirur mutt case that
exclusion of the women does not comes under the integral practice of the
religion the supreme court in the case of Commissioner of Police vs. Acharya
Jagdishwarananda Avadhuta and Another
It was held that the essential part of
religion means the core belief on which the religion is founded the test to
determine whether the particular practice is essential part of religion is based
on that, the nature of religion will be changed without that part or practice
however in this case the dissent by justice lakshman, he said that only religious
denominations have the right to determine what practice are essentials to their
religion and no outside authority can decide that the it is based on the view
that people who are practising the religion are knowing that the particular
practice is essential or not question of constitutional morality was also in the
case of shayara bano
where court held the practice of triple talaq
unconstitutional as the said practice violated the article 14 and 21 of the
constitution of India and court here upheld the constitutional morality and the
decision was against the religious belief of the Muslims.
Constitutional morality is based on how the judges interpret the term morality
as it has different interpretation this cannot be the based by sticking on the
bookish interpretation of the law though wide interpretation of the term can be
difficult for the courts in the future decision by applying the concept of
constitutional doctrine the judges are not only hindering the rights of the said
but also leading that the decision given by the apex court will need to be
reviewed thus the concept of this term constitutional morality should be limited
as there is ambiguity in the term and it is subjective by laying down the
principles judges should be guided to follow the principles as laid down the Manoj narul
judgment given by the apex court gives a contour definition to
the term constitutional morality it means:
The principle of constitutional
morality basically means to bow down to the norms of the constitution and not to
act in a manner which would become violative of the rule of law or reflectible
of action in an arbitrary manner.
In the popular case of Naz
and Shreya singhal
case the word morality has been interpreted
as constitutional morality and not an individual morality, it must be a matter
of fact that respect for religious denomination and their views to form the part
of the constitutional morality and efforts should be made to settle them and if
the judges do come at a conclusion that the right to religious denomination is
not in line with the constitutional morality than it needs to be based on the
constitution’s own based rights.
The claims of the religious customs were intervened by the legislation like the
sati and child marriage. Whenever the
courts have tried to interfere with old customs and have nullified them, there
has always been hue and cry it is a universal truth that faith and religion do
not countenance discrimination.
The apex court while setting aside the impugned judgement of the Kerala high
court upheld that women should be allowed to worship the sabrimala shrine. The
court though was acting as according to the moral values that is equality, it
went on to describe that whether the particular practice is of the essential
religious practice or not.
There are not enough documentary evidence that the
particular practice is a custom but courts should not interfere with the
practice which according to the particular class of people is an essential
religious practice the judgment was a test of constitutional morality wherein it
was given that the faith and customs be according to the diktats of Modernity.
The judgement established the predominance of constitutional morality over the
customs the verdict can act as a precedent for the practices and beliefs and
traditions of different religions/faith which are antithetical to it.
The Supreme Court has manifested women’s right are equal with the men the
menstrual position of women is her privacy and their biological progress must be
free from the social and religious practice which are discriminatory in Nature.
In the conflict of secularism and the equality court should uphold Equality, a
democratic state shall put equality first and when there is a case when the
fundamental rights of the citizen come into the conflict of the religious rights
of the communities the former should be given importance however while doing
this it clearly encompasses that the intervention by the state in the
If the Hindu religion is to be their religion, then
it must become a religion of Social Equality.So while the ‘non-entry’ of
women can be a religious tenet, in this case, it cannot be readily presumed that
its regulation will fundamentally and irreversibly challenge the existence of
the sect and its core belief system. Courts have played an essential role
in determining that the particular practice is essential or not and what
practices are myth.
The supreme court also noted from the S Mahendran’s
 observation made by the Kerala high court that even when there were old
customs women were allowed to visit the temple In the conundrum of the verdict
there lies an ambiguity of the word constitutional morality
according to the judges it has been used in a distinctive way it should be used
accordingly which satisfies the will and the principles of the constitution.
people should support that the entry of women should be allowed who belong to
the all age group and it is given in the article 51A (E) of the Indian
constitution that it is a duty of citizen to oppose such tradition which affect
the dignity of the women.
- The Wire, https://thewire.in/law/sabrimala-women-temple-entry-supreme-court-verdict
(last visited Jan.3, 2021
- Aakarsh Singh, A year of constitutional morality, LEGAL SERVICE INDIA
- RK Dewan & Co, Unravelling the concept of Constitutional morality in
our Constitutional Jurisprudence, LEXOLOG, (Jan.3, 2021,9:28), https://www.lexology.com/library/detail.aspx?g=f09de5c2-7ecc-48eb-b95d-0df871d938ee.
- Rajesh Yadav, Violation of Woman right in Sabrimala Temple, LEGAL
SERVICE INDIA (Jan.4 2021,11:54),http://www.legalserviceindia.com/legal/article-228-violation-of-woman-right-in-sabrimala-temple.html.
List Of Cases:
(last visited Jan.3,2021
- Riju Prasad Sarma v.State of Assam,(2015) 9 SCC 461.
- Commissioner Hindu Religious Endowments v.Sri Lakshmindra Thirtha Swaminiar
of Sri Shirur Mutt,AIR 1954 SC 282.
- Commissioner of Police vs. Acharya Jagdishwarananda Avadhuta and
Another,(2004) 12 SCC 770
- Shayara Bano v.Union of India,(2017) 9 SCC 1
- Manoj Narula v.Union of India,(2014) 9 SCC 1
- Naz Foundation v.State(NCT of Delhi),(2016) 15 SCC 619.
- Shreya Singhal v.Union of India,(2015) 5 SCC 1.
- Ankitesh Ojha,Sabrimala dissent from the dissent of Justice Indu
Malhotra:New Boundaries for Article 14?
- Sowmya Sivakumar, Sabrimala:‘Diety’s Will’Cannot Trump the Constitution on
Right to Equality,The Wire (Jan.02, 2021, 7:30 AM), https://thewire.in/law/sabrimala-is-temple-entry-a-destination.
- Satya Prasoon,The Sabrimala Case has the Potential to be a constitutional
watershed,The Wire (Jan.02, 2021,3:38 PM),https://thewire.in/law/sabrimala-temple-case-constitutional-watershed.
- S.Mahendran v.The Secretary,Travancore Devaswom Board,Thiruvananthpuram&Ors,
AIR 1993 Kerala 42.
- Riju Prasad Sarma v.State of Assam, (2015) 9 SCC 461
- Commissioner Hindu Religious Endowments v.Sri Lakshmindra Thirtha
Swaminiar of Sri Shirur Mutt,AIR 1954 SC 282.
- Commissioner of Police vs. Acharya Jagdishwaranand Avadhuta and
Another,(2004) 12 SCC 770.
- Shayara Bano v.Union of India,(2017) 9 SCC 1.
- Manoj Narula v.Union of India,(2014) 9 SCC 1
- Naz Foundation v.State(NCT of Delhi),(2016) 15 SCC 619.
- Shreya Singhal v.Union of India,(2015) 5 SCC 1.
- S.Mahendran v.The Secretary,TravancoreDevaswom Board,Thiruvananthpuram&Ors, AIR
1993 Kerala 42.
- & -
- Ors -
- CJI -
Chief Justice of India