KANTARU RAJEEVARU versus INDIAN YOUNG LAWYERS ASSOCIATION THR. ITS GENERAL SECRETARY AND ORS. on 14 November 2019

[2019] 17 S.C.R. 599

KANTARU RAJEEVARU

v.

INDIAN YOUNG LAWYERS ASSOCIATION THR. ITSGENERAL SECRETARY AND ORS.

(Review Petition (Civil) No. 3358/2018)

In

(Writ Petition (Civil) No. 373/2006)

NOVEMBER 14, 2019

[RANJAN GOGOI, CJI, A. M. KHANWILKAR,INDU MALHOTRA, R. F. NARIMAN ANDDR. DHANANJAYA Y. CHANDRACHUD, JJ.]

Constitution of India — Art. 137 and Arts. 12, 14, 15, 17,25(1), 25(2)(b), 26, 32, 51A, 73(2), 75(4), 99, 164(3) & 188 r/wThird Schedule, 129, 136, 140, 141, 142, 144, 145(3), 154(2)(a),162, 266, 258(2), 277, 301-304, 307, 329(b), 353(b), 356(1)(a),357(1)(b), 372(1) – Sabarimala temple case – Review Petitionsfiled u/Art.137 r/w Or. XLVII of 2013 Rules – Fresh writ petitionsalso filed u/Art.32– Held: Per Ranjan Gogoi, CJI (for himself andA.M. Khanwilkar, Indu Malhotra, JJ.) – Debate aboutconstitutional validity of practices entailing into restriction of entryof women generally in the place of worship is not limited to thiscase, but also arises in respect of entry of Muslim women inDurgah/Mosque; Parsi women married to a non-Parsi into the holyfire place of an Agyari – Another seminal issue pendingconsideration in Supreme Court relates to female genital mutilationin Dawoodi Bohra community – Issues arising in such pendingcases may be overlapping and covered by the judgment underreview – Prospect of the issues arising therein being referred tolarger bench cannot be ruled out – Further, conflict betweendecision of the Seven Judges bench in Commissioner, Hindu ReligiousEndowments, Madras v. Shri Lakshmindra Tirtha Swamiar of ShirurMutt (Shirur Mutt) reported as [1954] SCR 1005 and the subsequentview of Five Judges bench in Durgah Committee, Ajmer v. SyedHussain Ali & Ors. reported as [1962] 1 SCR 383 requiresconsideration by a larger bench – Larger bench may also considerit appropriate to decide all issues, including the question as towhether the 1965 Rules govern the temple in question at all –

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AReview petitions and the writ petitions may remain pending untildetermination of the questions, as indicated, by a Larger Benchas may be constituted by the Hon’ble the Chief Justice of India –Per R.F. Nariman, J. (for himself and Dr. D.Y. Chandrachud, J.)(Dissenting) Only thing that is before this Court is the narrowquestion as to whether grounds for review and for filing of theBwrit petitions have been made out qua the judgment under reviewin Indian Young Lawyers Association and Ors. v. State of Keralareported as [2018] 9 SCR 561 – What a future constitution bench/larger bench, if constituted by the Chief Justice of India, may ormay not do when considering the other issues pending before thisCCourt is not before this Court at all – In the five-Judge BenchIndian Young Lawyers Association’s case, four majority judgmentshad clear consensus on the issues- (i) that the devotees of LordAyyappado not constitute a separate religious denomination andthus, cannot claim the benefit of Art.26 or the proviso to s.3 ofthe 1965 Act; (ii) aforesaid four judgments specifically groundedDthe right of women between the ages of 10 to 50, excluded frompracticing their religion, u/Art.25(1) emphasizing the expression“all persons” and the expression “equally” occurring in thatArticle, so that this right is equally available to both men andwomen of all ages professing the same religion and; (iii) that s.3Eof the 1965 Act traces its origin to Art.25(2)(b) and would applynotwithstanding any custom to the contrary, to enable Hindu womenthe right of entry in all public temples open to Hindus, so that theymay exercise the right of worship therein and as a concomitant,r.3(b) of the 1965 Rules is violative of Art.25(1) and ultra viress.3 of the 1965 Act – Further, observations of Chandrachud, J.Fon Art.17 cannot be said to be a material error manifest on theface of the record undermining the soundness of the threeconclusions reached by all the majority judgments – On whetherthe exclusion of women from Hindu temples is an essential part ofthe Hindu religion, three Judges clearly held that it is not – Thereis no error apparent here again – Also, “constitutional morality”Ghas now reached the level of stare decisis, and has been explainedin several Constitution Bench judgments, reliance thereon cannotbe said to suffer from any error apparent– Extreme arguments thatbelief and faith are not judicially reviewable by courts, and thatthis Court cannot interfere by stating that a particular section ofHpersons shall not hold a particular belief and act in accordance thereto, not only do not constitute “errors apparent”, but arearguments that fly in the face of Art.25 – Given the consensus onthe three issues by the four majority judgments, no ground forreview of the majority judgments made out – Review petitionsdismissed – Writ petitions also dismissed as not being maintainable– State of Kerala to give wide publicity to this judgment throughthe medium of television, newspapers, etc. – Organised acts ofresistance to thwart the implementation of the judgment be putdown firmly – State government to ensure that the rule of law ispreserved – Supreme Court Rules, 2013 – Or.XLVII – Kerala HinduPlaces of Public Worship (Authorisation of Entry) Act, 1965 – s.3– Kerala Hindu Places of Public Worship (Authorisation of Entry)Rules,1965–r.3(b)–Doctrine of stare decisis – Public InterestLitigation – Principle of Res Judicata.

Directing that the subject Review Petitions as well as theWrit Petitions may remain pending until determination of thequestions, as indicated, by a Larger Bench as may be constitutedby the Hon’ble the Chief Justice of India, the Court HELD: Per Ranjan Gogoi, CJI (for himself andfor A. M. Khanwilkar and Indu Malhotra, JJ.)

Conclusion

1.1 Concededly, the debate about the constitutional validityof practices entailing into restriction of entry of women generallyin the place of worship is not limited to this case, but also arisesin respect of entry of Muslim women in a Durgah/Mosque asalso in relation to Parsi women married to a non-Parsi into theholy fire place of an Agyari. There is yet another seminal issuepending for consideration in this Court regarding the powers ofthe constitutional courts to tread on question as to whether aparticular practice is essential to religion or is an integral of thereligion, in respect of female genital mutilation in Dawoodi Bohracommunity. It is time that this Court should evolve a judicialpolicy befitting to its plenary powers to do substantial andcomplete justice and for an authoritative enunciation of theconstitutional principles by a larger bench of not less than sevenjudges. The decision of a larger bench would put at rest recurringissues touching upon the rights flowing from Articles 25 and 26of the Constitution of India. It is essential to adhere to judicialdiscipline and propriety when more than one petition is pendingon the same, similar or overlapping issues in the same court for AB

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Awhich all cases must proceed together. Indubitably, decision bya larger bench will also pave way to instil public confidence andeffectuate the principle underlying Article 145(3) of theConstitution- which predicates that cases involving a substantialquestion of law as to the interpretation of the Constitution shouldbe heard by a bench of minimum five judges of this Court. [ParasB3, 4] [617-E-H; 618-A-B]

1.2 The issues arising in the pending cases regarding entryof Muslim Women in Durgah/Mosque (being Writ Petition (Civil)No.472 of 2019); of Parsi Women married to a non-Parsi in theAgyari (being Special Leave Petition (Civil) No. 18889/2012);Cand including the practice of female genital mutilation in DawoodiBohra community (being Writ Petition (Civil) No.286 of 2017)may be overlapping and covered by the judgment under review.The prospect of the issues arising in those cases being referredto larger bench cannot be ruled out. The said issues could be:

D(i) Regarding the interplay between the freedom of religionunder Articles 25 and 26 of the Constitution and other provisionsin Part III, particularly Article 14; (ii) What is the sweep ofexpression ‘public order, morality and health’ occurring in Article25(1) of the Constitution; (iii) The expression ‘morality’ or‘constitutional morality’ has not been defined in the Constitution.EIs it over arching morality in reference to preamble or limitedto religious beliefs or faith. There is need to delineate thecontours of that expression, lest it becomes subjective; (iv) Theextent to which the court can enquire into the issue of aparticular practice is an integral part of the religion or religiouspractice of a particular religious denomination or should that beFleft exclusively to be determined by the head of the section ofthe religious group; (v) What is the meaning of the expression‘sections of Hindus’ appearing in Article 25(2)(b) of theConstitution; (vi) Whether the “essential religious practices” ofa religious denomination, or even a section thereof are affordedconstitutional protection under Article 26 and; (vii) What wouldGbe the permissible extent of judicial recognition to PILs inmatters calling into question religious practices of adenomination or a section thereof at the instance of persons whodo not belong to such religious denomination?

In a legal framework where the courts do not have anyHepistolary jurisdiction and issues pertaining to religion including

religious practices are decided in exercise of jurisdiction underSection 9 of the Civil Procedure Code or Article 226/32 of theConstitution the courts should tread cautiously. This is timehonoured principle and practice. In this context, the decision ofthe Seven Judges bench of this Court in Commissioner, HinduReligious Endowments, Madras vs. Shri Lakshmindra TirthaSwamiar of Shirur Mutt (Shirur Mutt) holding that what areessential religious practices of a particular religiousdenomination should be left to be determined by thedenomination itself and the subsequent view of a Five Judgesbench in Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors.carving out a role for the court in this regard to exclude whatthe courts determine to be secular practices or superstitiousbeliefs seem to be in apparent conflict requiring considerationby a larger Bench. While deciding the questions delineatedabove, the larger bench may also consider it appropriate todecide all issues, including the question as to whether the KeralaHindu Places of Public Worship (Authorisation of Entry) Rules,1965 govern the temple in question at all. Whether the aforesaidconsideration will require grant of a fresh opportunity to allinterested parties may also have to be considered. [Paras 5-8][618-D-H; 619-A-G]

Commissioner, Hindu Religious Endowments, Madrasv. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt(Shirur Mutt) [1954] SCR 1005 ; Durgah Committee,Ajmer v. Syed Hussain Ali & Ors. [1962] 1 SCR 383– referred to.

Per R. F. Nariman, J. (for himself and Dr. Dhananjaya Y.Chandrachud, J.) (Dissenting)

1.1 What this Court has before it is review petitions arisingout of this Court’s judgment in Indian Young Lawyers Associationand Ors. v. State of Kerala W.P. (C) No.373 of 2006, which wasdelivered on 28 September, 2018, with regard to the Sabarimalatemple dedicated to Lord Ayyappa. What a future constitutionbench or larger bench, if constituted by the learned Chief Justiceof India, may or may not do when considering the other issuespending before this Court is, strictly speaking, not before thisCourt at all. The only thing that is before this Court is the reviewpetitions and the writ petitions that have now been filed in

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Arelation to the judgment in Indian Young Lawyers Associationand Ors. v. State of Kerala, dated 28 September, 2018. As andwhen the other matters are heard, the bench hearing thosematters may well refer to the judgment in Indian Young LawyersAssociation and Ors. v. State of Kerala, dated 28 September,2018, and may either apply such judgment, distinguish suchBjudgment, or refer an issue/issues which arise from the saidjudgment for determination by a larger bench. All this is forfuture Constitution benches or larger benches to do.Consequently, if and when the issues that have been set out inthe learned Chief Justice’s judgment arise in future, they canCappropriately be dealt with by the bench/benches which hear thepetitions concerning Muslims, Parsis and Dawoodi Bohras. Whatis before this Court is only the narrow question as to whethergrounds for review and grounds for filing of the writ petitionshave been made out qua the judgment in Indian Young LawyersAssociation and Ors. v. State of Kerala. [Para 2] [620-E-H; 621-DA-B]

Indian Young Lawyers Association and Ors. v. State ofKerala [2018] 9 SCR 561 – referred to.

1.2 On a reading of the four majority judgments it emergesthat there is a clear consensus on the following issues:E

(i) The devotees of Lord Ayyappa do not constitute aseparate religious denomination and cannot, therefore, claim thebenefit of Article 26 or the proviso to Section 3 of the KeralaHindu Places of Public Worship (Authorisation of Entry) Act,1965 [“1965Act”].F(ii) The four majority judgments specifically grounded the

F(ii) The four majority judgments specifically grounded theright of women between the ages of 10 to 50, who are excludedfrom practicing their religion, under Article 25(1) of theConstitution, emphasizing the expression “all persons” and theexpression “equally” occurring in that Article, so that this rightis equally available to both men and women of all ages professingGthe same religion.

(iii) Section 3 of the 1965 Act traces its origin to Article25(2)(b) of the Constitution of India, and would applynotwithstanding any custom to the contrary, to enable Hinduwomen the right of entry in all public temples opento Hindus,Hso that they may exercise the right of worship therein. As a

concomitant thereof, Rule 3(b) of the Kerala Hindu Places ofPublic Worship (Authorisation of Entry) Rules, 1965 [“1965Rules”] is violative of Article 25(1) of the Constitution of Indiaand ultra vires Section 3 of the 1965 Act. [Para 9] [629-B-H]

2. The majority judgments of Dipak Misra, CJI,Khanwilkar, J., and Nariman, J. did not find it necessary to opineon Article 15(2) and Article 17 of the Constitution in view of theirfindings on various other points. Nariman, J. alone referred toArticle 15(1) of the Constitution when it came to striking downRule 3(b) of the 1965 Rules. The observations of Chandrachud,J. on Article 17 of the Constitution cannot be said to be amaterial error manifest on the face of the record whichundermines the soundness of the three conclusions reached byall the majority judgments supra. Further, since the view ofChandrachud, J. on Article 17 of the Constitution is a possibleview, it cannot be a subject matter of review. The interpretationof Article 15 and Article 17 of the Constitution were not treatedas central issues in the present case by at least three learnedJudges, namely, Dipak Misra, C.J., Khanwilkar, J., and Nariman,J. In this view of the matter, these arguments have necessarilyto be rejected. [Para 14] [632-E-F]

3. It is reiterated that the majority Judges have correctlyheld that the views of Chinnappa Reddy, J. in S.P. Mittal v. Unionof India (1983) 1 SCC 51 are dissentient, as was recognized byChinnappa Reddy, J. himself. This point also has to be rejectedas there is no error, let alone material error, manifest on theface of the record of the majority view. [Paras 16-17] [633-C-D;634-B]

S.P. Mittal v. Union of India (1983) 1 SCC 51 : [1983]

1 SCR 729 – referred to.

4. Three of the majority Judges held that religious practiceof excluding women between the ages of 10 to 50 from theshrine at Sabarimala could not be held to be an essentialreligious practice. Here again, it cannot be said that there is anyerror apparent. What has to be seen in the judgments of thisCourt is whether such practice is an essential practice relatableto the Hindu religion, and not the practice of one particulartemple. Nothing was shown, as was correctly pointed out by thelearned Chief Justice, from any textual or other authorities, to A

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Ashow that exclusion of women from ages 10 to 50 from Hindutemples is an essential part of the Hindu religion. This again isa ground that must be rejected, both because there is no errorapparent, and because the same ground that was argued inextenso before the original judgment was delivered, is beingreargued in review. [Para 18] [634-C-E]B

5. Apart from the fact that “constitutional morality” hasnow reached the level of stare decisis, and has been explainedin several Constitution Bench judgments, reliance thereoncannot be said to suffer from any error apparent. Constitutionallaw and constitutional interpretation stand on a different footingCfrom interpretation of statutes. Constitutional law keepsevolving keeping in view, among other things, the feltnecessities of the time. As has been explained in some of thejudgments, “constitutional morality” is nothing but the valuesinculcated by the Constitution, which are contained in thePreamble read with various other parts, in particular, Parts IIIDand IV thereof. This again is a mere rehash of what was arguedearlier, and can by no means be said to be an error apparent onthe face of the record. [Para 19] [634-G-H; 635-A]

6. Extreme arguments were made stating that belief andfaith are not judicially reviewable by courts, and that this CourtEcannot interfere by stating that a particular section of personsshall not hold a particular belief and act in accordance thereto.Not only such arguments do not constitute “errors apparent”,but are arguments that fly in the face of Article 25. Article 25,as has been held by the majority judgments, is not an Articlethat gives a carte blanche to one particular section of personsFto trample upon the right of belief and worship of another sectionof persons belonging to the same religion. The delicate balancebetween the exercise of religious rights by different groupswithin the same religious faith that is found in Article 25 has tobe determined on a case by case basis. The slippery-slopeGargument, that this judgment will be used to undermine thereligious rights of others, including religious minorities, iswholly without basis. The ratio of the majority judgments in thiscase is only that the exclusionary practice of keeping womenfrom the ages of 10 to 50 from exercising their right of worshipin a particular Hindu temple falls foul of Article 25 of theHConstitution of Indiain as much as (i) allpersonsare equally

entitled, when they belong to the same religious group, toexercise their fundamental right of practicing religion; and (ii)that this is a case covered by Article 25(2)(b), which deals withthrowing open all Hindu religious institutions of a public characterto all classes and sections of Hindus. The majority judgmentshave held that Section 3 of the 1965 Act is a legislation inpursuance of this part of Article 25(2)(b), which expressly comesin the way of any custom which interferes with the rights ofwomen from the ages of 10 to 50 from worshipping in a Hindureligious institution of a public character. Article 25(1) alsocontains two other exceptions, namely, that this right is (a)subject to public order, morality, and health; and (b) is alsosubject to the other provisions of Part III, as explained in themajority judgments. This argument must also, therefore, berejected. [Para 20] [635-B-G]

7. References made to the Hindi text of Article 26, andarguments based on the Hindi expression “sampradaya” asopposed to the English expression “denomination” is a newargument, made for the first time in review. This argument cannotbe countenanced for the reason that the Court is bound by alarge number of Constitution Bench decisions on whatconstitutes a religious denomination. Having followed theaforesaid judgments, which are binding, the Court cannot be saidto have committed any error. [Para 21] [635-H; 636-A-B]

8. Emotive arguments as to women between the ages of10 to 50 are not kept out on account of menstruation as apolluting agent, but on account of the deity being a NaisthikBrahmachari, who would be disturbed by the presence of womenbetween the ages of 10 to 50, as the deity has undertaken a vowof celibacy, are all arguments that were made at the initial stage,and were fully dealt with by all the judgments. Re-arguing thisaspect of the matter obviously does not fall within the parametersof a review petition. One more extreme argument that sinceworshippers from all faiths come to Sabarimala, Sabarimalacannot be held to be a Hindu temple. This argument, again, hasno legs to stand on. A Christian church cannot be said to be anythe less a church on account of allowing persons of all faiths toenter and worship therein. There is no doubt that the temple atSabarimala, being dedicated to a Hindu idol – Lord Ayyappa- isa Hindu public religious institution, like the other temples A

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Adedicated to Lord Ayyappa,which are undoubtedly Hindu publicreligious institutions. This argument is also rejected. Anargument was made that there are gender restrictions in otherplaces of worship, which, being essential religious practices,have not been interfered with. This is a general argument whichneeds to be rejected on the ground of vagueness, apart fromBthe fact that this is not an argument which could be made inreview. As and when such gender restrictions in other places ofworship are tested, they will be decided on their own meritskeeping in view the provisions of the Constitution. [Paras 22-24] [636-B-G]C9. When it comes to important issues as to theinterpretation of the Constitution, which is entrusted by theConstitution under Article 145(3) to a Bench consisting of aminimum of five Supreme Court Judges, it is obvious that anerroneous interpretation of the Constitution by a High Court(which affects the general public much more than an erroneousDinterpretation of a statutory prohibition enacted in publicinterest) cannot possibly be res judicata as against a judgmentof a Constitution Bench of the Supreme Court, as a rule ofprocedure cannot be exalted over Article 145(3) of theConstitution of India. By the judgment dated 28.09.2018 of aConstitution Bench of this Court, this Court has interpretedEArticle 25(1) to mean that allpersons are equallyentitled topractice the Hindu religion, which would include women betweenthe ages of 10 and 50. A previous decision by a High Court,erroneously interpreting Article 25 in an earlier PIL, canobviously not stand in the way, by resort to a rule of procedure,Fof a judgment of five Judges of the Supreme Court declaring thelaw of the land on this aspect. This objection also does notdisclose any error apparent on the face of the record. [Para 27][638-G-H; 639-A-B]

S. Mahendran v. Secretary, Travancore DevaswomBoard, Thiruvananthapuram AIR 1993 Ker 4 –Greferred to.

10. The majority judgment cannot be used to underminethe religious rights of others, including, in particular, religiousminorities. Besides, busybodies, religious fanatics, cranks andpersons with vested interests will be turned down by the CourtHat the threshold itself, by applying the parameters laid down in

State of Uttaranchal v. Balwant Singh Chaufal and Ors. (2010) 3SCC 402 (at paragraph 181). The fear expressed by the learneddissenting judge (Indu Malhotra, J.) is therefore quiteunfounded. As has been pointed by Nariman, J. in the majorityjudgment (at paragraph 175), the present case raises graveissues which relate to gender bias on account of a physiologicalor biological function which is common to all women. It is forthis reason that a bonafide public-interest litigation wasentertained by the majority judgment, having regard to women’srights, in the context of women worshippers as a class, beingexcluded on account of such physiological/biological functions forthe entirety of the period during which a woman enters pubertyuntil menopause sets in. Given the consensus on the threeissues delineated above by the four majority judgments, it isfound that no ground for review of the majority judgments hasbeen made out. The review petitions are hence dismissed.Equally, all writ petitions filed under Article 32 of theConstitution filed directly attacking the majority judgmentsdated 28.09.2018, are dismissed as not being maintainable inview of Naresh Shridhar Mirajkar v. State of Maharashtra (1966)3 SCR 744 as followed in Rupa Ashok Hurra v. Ashok Hurra(2002) 4 SCC 388 [see paragraphs 7 to 14]. [Paras 28, 29] [639-D-H; 640-A]

Naresh Shridhar Mirajkar v. State of Maharashtra[1966] 3 SCR 744 ; Rupa Ashok Hurra v. Ashok Hurra(2002) 4 SCC 388 : [2002] 2 SCR 1006– followed.

State of Uttaranchal v. Balwant Singh Chaufal and Ors.(2010) 3 SCC 402 : [2009] 15 SCR 1276 – relied on.

11. The expression “authorities” in Article 144 is to begiven the widest possible meaning. The position under theconstitutional scheme is that the Supreme Court of India is theultimate repository of interpretation of the Constitution. Oncea Constitution Bench of five learned Judges interprets theConstitution and lays down the law, the said interpretation isbinding not only as a precedent on all courts and tribunals, butalso on the coordinate branches of Government, namely, thelegislature and the executive. What follows from this is that oncea judgment is pronounced by the Constitution Bench and adecree on facts follows, the said decree must be obeyed by allpersons bound by it. In addition,Article 144 of the Constitution AB

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Amandates that all persons who exercise powers over the citizenryof India are obliged to aid in enforcing orders and decrees ofthe Supreme Court. This then is the constitutional scheme bywhich we are governed – the rule of law, as laid down by theIndian Constitution. So far as the Prime Minister and membersof his Cabinet are concerned, not only does the form of oathBcontained in the Third Schedule require that all such personswill bear true faith and allegiance to the Constitution of India asby law established, but also that they will do right to all mannerof people, in accordance with the Constitution and the law,without fear or favour, affection or ill will. The same goes for

Cthe oath taken by the Chief Ministers and Ministers within theStates. Read with Article 144, this would mean that it is thebounden duty of every Minister, whether Central or State, tofollow Article 144 in letter as well as spirit, and to do what isright to all manner of people, in accordance with the Constitutionand the law, which means in accordance with the interpretationDof the Constitution declared by the law laid down by the SupremeCourt. It is, therefore, incumbent upon the executive branch ofGovernment and all MPs and MLAs to faithfully aid in carryingout decrees and orders passed by the Supreme Court of Indiawhen such decrees and orders command a particular form ofEobedience, even where they are not parties to the litigationbefore the Supreme Court. Any deviation from this highconstitutional principle is in derogation of the oath taken byevery Minister and Legislator during his term of office. Oncethis is clearly understood and followed, the rule of law isestablished, and the shameful spectacle of political partiesFrunning after votes, or instigating or tolerating mob violence,in defiance of decrees or orders passed by the Supreme Courtof India does not reign instead. [Paras 36, 40 and 45] [642-G;644-C-E; 647-G-H; 648-A-C]

12. The history of democratic nations shows that what ourGfounding fathers handed to us in the form of the Constitution ofIndia was the result of centuries of struggle in both England andthe United States of America. The bloody revolutions that tookplace in France and Russia against absolute monarchs are a soberreminder to the people of the world that social transformation,which took place cataclysmically in rivers of human blood, is toHbe eschewed. [Para 46] [648-D-E]

Robert K. Massie, Peter The Great: His Life And World234-235 (Ballantine Books 1980 ; “Rule of Law” byBrian Z. Tamanaha ; Second Treatiseof Government(Chapter XVII, page 400) by John Locke ; “CommonSense” (Page 34) by Thomas Paine ; “An Introductionto the Study of the Law of the Constitution” (1885) byProf. A.V. Dicey ; “Famous Judges, Lawyers and Casesof Bombay” by P.B. Vachha – referred to.

13.1 Given the chequered history of the open flouting ofjudgments of superior courts in the 19[th]century, the 20[th ]centuryhas witnessed a complete about-turn, as can be seen by the U.S.Supreme Court judgment in Cooper v. Aaron. Today, it is nolonger open to any person or authority to openly flout a SupremeCourt judgment or order, given the constitutional scheme. It isnecessary to restate these constitutional fundamentals in thelight of the sad spectacle of unarmed women between the agesof 10 and 50 being thwarted in the exercise of their fundamentalright of worship at the Sabarimala temple. Whoever does not actin aid of our judgment, does so at his peril – so far as Ministers,both Central and State, and MPs and MLAs are concerned, theywould violate their constitutional oath to uphold, preserve, anddefend the Constitution of India. So far as the citizens of Indiaare concerned, the Court would do well to remind them of thefundamental duties of citizens laid down in Article 51A of theConstitution. [Para 63] [658-D-F]

Cherokee Nations v. State of Georgia 30 U.S. 1, 43(1831) ; Worcester v. State of Georgia 31 U.S. 515(1832) ; Brown v. Board of Education of Topeka 347U.S. 483 (1954) ; Plessy v. Ferguson 163 U.S. 537(1896) ; Cooper v. Aaron 358 U.S.1 (1958) ; Ambardv. Attorney-General for Trinidad And Tobago [1936]A.C. 322 – referred to.

13.2 The freedom to criticise the judgments of this Courtis not being interfered with. Bona fide criticism of a judgment,albeit of the highest court of the land, is certainly permissible,but thwarting, or encouraging persons to thwart, the directionsor orders of the highest court cannot be countenanced in ourConstitutional scheme of things. [Para 64] [659-G-H]

14. The Constitution places a non-negotiable obligation onall authorities to enforce the judgments of this Court. The duty A

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Ato do so arises because it is necessary to preserve the rule oflaw. If those whose duty it is to comply were to have a discretionon whether or not to abide by a decision of the court, the ruleof law would be set at naught. Judicial remedies are providedto stakeholders before a judgment is pronounced and eventhereafter. That, indeed, is how the proceedings in review in theBpresent case have been initiated. Hence arguments wereaddressed, exchanged between counsel and considered with thesense of objectivity and fairness on which the judicial processrests. These remedies within a rule of law framework providerecourse to all those who may be and are affected by the courseof a judicial decision. When the process is complete and aCdecision is pronounced, it is the decision of the Supreme Courtand binds everyone. Compliance is not a matter of option. If itwere to be so, the authority of the court could be diluted at theoption of those who are bound to comply with its verdicts. TheState of Kerala to give wide publicity to this judgment throughDthe medium of television, newspapers, etc. The governmentshould take steps to secure the confidence of the community inorder to ensure the fulfillment of constitutional values. The Stategovernment may have broad-based consultations withrepresentatives of all affected interests so that the modalitiesdevised for implementing the judgment of the Court meet theEgenuine concerns of all segments of the community. Organisedacts of resistance to thwart the implementation of this judgmentmust be put down firmly. Yet in devising modalities forcompliance, a solution which provides lasting peace, while at thesame time reaffirming human dignity as a fundamentalconstitutional value, should be adopted. Consistent with theFduties inhering in it, the State government is expected to ensurethat the rule of law is preserved. [Paras 65 and 66] [660-B-G]

Rajnarain Singh v. The Chairman, PatnaAdministration Committee, Patna and Ors. [1955] 1SCR 290 ; Rajasthan State Electricity Board v. MohanGLal [1967] 3 SCR 377 ; Supreme Court Bar Assn. v.Union of India (1998) 4 SCC 409 : [1998] 2 SCR 795– followed.

Sow Chandra Kante and Ors. v. Sheikh Habib (1975)H1 SCC 674 ; Kamlesh Verma v. Mayawati (2013) 8

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SCC 320 : [2013] 11 SCR 25 ; V. Purushotham Raov. Union of India & Ors. (2001) 10 SCC 305 : [2001]4 Suppl. SCR 411 ; Mathura Prasad Bajoo Jaiswal& Ors. v. Dossibai N.B. Jeejeebhoy [1970] 3 SCR830 ; Canara Bank v. N.G. Subbaraya Setty & Anr.AIR 2018 SC 3395 : [2018] 3 SCR 884 ; M.C. Mehtav. Union of India (2001) 3 SCC 763 ; State of TamilNadu v. State of Karnataka (2016) 10 SCC 617 –relied on.

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Commissioner, Hindu Religious Endowments, Madrasv. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt(Shirur Mutt) [1954] SCR 1005 ; Durgah Committee,Ajmer v. Syed Hussain Ali & Ors. [1962] 1 SCR 383 ;Re Delhi Laws Act [1951] SCR 747 ; Moran MarBasselios Catholicos v. Most Rev. Mar PouloseAthanasius [1955] 1 SCR 520 ; State of Madras v.Gannon Dunkerley & Co. (Madras) Ltd. [1959] SCR379 ; Rural Litigation and Entitlement Kendra v. Stateof U.P. (1989) Suppl. SCC 504 : [1988] 2 Suppl. SCR690 – referred to.

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Case Law Reference

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In the Judgment of Ranjan Gogoi, CJI (for himself andfor A. M. Khanwilkar and Indu Malhotra, JJ.) :

CIVIL INHERENT/ORIGINAL JURISDICTION : ReviewDPetition (Civil) No. 3358 of 2018 in Writ Petition (Civil) No. 373 of 2006.

Petition filed to Review the Judgment and Order dated 28.09.2018passed by this Hon’ble Court in Writ Petition (Civil) No. 376 of 2016.With ER.P.(C) No. 3359/2018 in W.P.(C) No. 373/2006, DiaryNos. 37946/2018, R.P.(C) No. 3469/2018 in W.P.(C) No. 373/2006, DiaryNo(s).38135/2018, 38136/2018, R.P.(C) No.3449/2018 in W.P.(C) No.373/2006, W.P.(C) No.1285/2018, R.P.(C) No.3470/2018 in W.P.(C) No.373/2006, R.P.(C) No.3380/2018 in W.P.(C) No. 373/2006, R.P.(C)No.3379/2018 in W.P.(C) No. 373/2006, R.P.(C) No.3444/2018 inFW.P.(C) No. 373/2006, R.P.(C) No.3462/2018 in W.P.(C) No. 373/2006,Diary No(s).38764/2018, 38769/2018, 38907/2018, R.P.(C) No.3377/2018 in W.P.(C) No. 373/2006, Diary No(s).39023/2018, 39135/2018,39248/2018, 39258/2018, 39317/2018, W.P.(C) No.1323/2018, 1305/2018,Diary No(s).39642/2018, R.P.(C) No.3381/2018 in W.P.(C) No. 373/2006, Diary No(s).40056/2018, 40191/2018, 40405/2018, 40570/2018,G40681/2018, 40713/2018, 40840/2018, 40885/2018, 40887/2018, 40888/2018, 40898/2018, R.P.(C) No.3457/2018 in W.P.(C) No. 373/2006,Diary No(s).40910/2018, 40924/2018, 40929/2018, 41005/2018, 41091/2018, W.P.(C) No.1339/2018, Diary No(s).41264/2018, R.P.(C)No.3473/2018 in W.P.(C) No. 373/2006, Diary No(s).41395/2018,H41586/2018, R.P.(C) No.3480/2018 in W.P.(C) No. 373/2006, Diary

No(s).41896/2018, 42085/2018, 42264/2018, 42337/2018, MA 3113/2018in W.P.(C) No. 373/2006, Diary No(s).44021/2018, 44991/2018, 46720/2018, 47720/2018, 2252/2019, R.P.(C) No.345/2019 in W.P.(C) No. 373/2006 and Diary No(s).2998/2019.

V. Giri, K. Parasaran, Dr. K.P. Kylasanatha Pillay, Acharya B.L.,N. Venkatraman, Ravindra Srivastava, P.N. Ravindran, Dr. AbhishekManu Singhvi, R. Venkataramani, Shekhar Naphade, Mohan Parasaran,K. Ramamoorthy, Mukul Rohatgi, Rakesh Dwivedi, C.U. Singh, VijayHansaria, P.N. Raveendran, Ravindra Raizada, B.V. Acharya, JaideepGupta, P.V. Surendranath, Ms. Indira Jaising, Sr. Advs., Krishna KumarSingh, Manav Vohra, Amith Krishnan, Ms. Svadha Shankar,Md. Sadique T.A., Krishna Dev, Muthucharan, Ms. Akanksha,Karunesh Kumar Shukla, K.V. Mohan, K.V. Balakrishnan, Ms. AditiDhani, Ashwin Kumar D.S., Mathews J. Nedumpara, A.C. Philip, R.R.Nair, C.J. Joveson, Rajvardhan Singh, Rabin Majumder, K. V. MuthuKumar, Mrs. G.P. Devi, Ms. Savita Singh, Akshay R., J. Sai Deepak,Suvidutt M.S., Avinash Sharma, Ashutosh, Ms. Smita Pandey, BoscoThomas, Debasis Misra, Vishaal S. Jogdand, Binay Kumar Jha, R.S.Jha, Rajnish Kumar, Beno Bencigar, Parijat Kishore, V.K. Biju, AbhayPratap Singh, Hiren Dasen, P.V. Yogeswaran, Krishnadev J.,Muthucharan Sundresh, Ms. Malini Poduval, Ms. Babita Sant, ManojPillai, A. Venayagam Balan, Bhavanishankar V. Gadnis, Vishwanath B.Gadnis, Ms. Radni Vishwanath Gadnis, V.S. Lakshmi, Bhavani ShankarGadnis, Ms. Radni V. Gadnis, P.R. Kovilan, Ms. Lakshmi K.G., K.G.Kaverivarman, Mrs. Geetha Kovilan, Gopal Sankara Narayanan,Ms. Usha Nandini V., Biju P Raman, Sivan Madathil, Ms. Prachi Bajpai,Sanand Ramakrishnan, Rajeev Mishra, R. Satish Kumar, Prateek Gupta,Madan M. Bora, Tom Joseph, Jayanth Muthuraj, Biju P. Raman, DeepakPrabhakaran, Santosh Kumar Pandey, Aditya Sharma, V. RanjithSankar, V. Shyamohan, Surya Prakash, T.G. Narayanan Nair, AmitBhandari, Piyush Dwivedi, Ms. Akanksha Mehra, Mrityunjai Singh, G.Sivabalamurugan, Karuppaih, Vivek Bharati, C.N. Sree Kumar, AmitSharma, Ms. Malavika B. Pillai, Renjith B. Barar, Ms. Lakshmi N.Kaimal, Badusha Sulaiman, Nishi Kurup, Jose Abraham, M.P.Srivignesh, B. Mathews, Ms. Sarah Shaji, Shaji Sebastian, M. T. George,K.K. Karunapanakutty, Subash Chandran, Ms. Kavitha K.T.,C. Rajendran, A. Raghunath (for M/s Mukesh Kumar Singh and Co.),Ramesh Babu M. R., Ms. Swati Setia, Chandy Oommon, AbhilashM.R., Sayooj Mohandas M., Sudheesh K.K., Ranjan Kumar, Ms. Anzu.

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AK. Varkey, N.P. Rakeesh Panicker, Rajesh B., Ranbir Singh Yadav,Nishad L.S., Yashraj Bundela, Praveen Vignesh, Ms. Anzu. K. Varkey,N.P. Rakeesh Panicker, Rajesh B., Ranbir Singh Yadav, Nishad L.S.,Yashraj Bundela, Praveen Vignesh, B. Vinodh Khanna, M.R. Abhilash,Abhikalp Pratap, Ms. S. Lakshmi Iyer, Vishal Arun, Ankit Shah, SantoshKumar, Praneet Pranav, Nachiketa Joshi, Anoop Prakash Awasthi,BJetender, Ms. Rashmi Singhania, M. A. Chinnasamy, Ms. C. Rubavathi,Ashish Kumar Upadhyay, P. Raja Ram, E. Ethiraj, Renjith B. Marar,Robin Khokhar, Manoj Nair, Kumar Gaurav, Anil Sharma, Ms. ShobhaRamamoorthy, Sriram J. Thalapathy, Shilp Vinod, Pushkin Rajkumar,K. Rajeev, Surya Prakash (for KMNP Law), A. Raghunath, JojoCJoseph, Shishir Pinaki, Rajiv Kumar Sinha, Vijendra Mishra, P.K.Madhu, Vishnu Shankar Jain, P. S. Sudheer, Raj Mohan, EklavyaDwivedi, Ms. Sansriti Pathak, Rishi Maheshwari, Ms. Anne Mathew,Bharat Sood, Ms. Shruti Jose, Rishi Singh, Amjid Maqbool, AnilUkatarki, Anil C. Nishani, P. Prasanna Kumar, T. R. B. Sivakumar,

G. Prakash, Ms. Sneha Kalita, Avnish Pandey, P. Narayanan, Manu,DJishnu M.L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, GopalSankaranarayanan, Ms. Aswathi M.K., Ms. Gayatri Verma,Ms. Aishwarya Kane, S. Manoj Selvaraj, Pradeep Kumar Gupta,Dr. Rajesh Pandey, Diganta Gogoi, B.K. Singh, R. Krishna Raj, Sajith.P. Warrier, Anish R. Shah, Aditya Sharma, Nachiketa Joshi, C.R. JayaSukin, Ashutosh Kumar Srivastava, K.R. Satheesh, Ms. Baby DeviEBonia, Dharmendra Kumar Yadav, Ms. Savita Devi, Narender KumarVerma, P.V. Dinesh, Mukund P. Unny, Bineesh K., T.R. VenkitaSubramoniam, P.B. Suresh, Karthik Jayashankar, B.L. Acharya, AnkitShah, Ms. Archana Pathak Dave, Ms. Ankita Chaudhary, Jishnu M.L.,Ms. Resmitha R. Chandran, Ms. Lekha Sudhakaran, Biju Joseph, FPrasanth P., Ms. Nehmat Kaur and Paras Singh, Advs. for the appearingparties.

Sreemithun, Petitioner-in-person.

The Judgments of the Court were delivered by RANJAN GOGOI, CJI*

G1. Ordinarily, review petitions ought to proceed on the principlepredicated in Order XLVII in Part IV of the Supreme Court Rules,2013. However, along with review petitions several fresh writ petitionshave been filed as a fall out of the judgment under review. All thesepetitions were heard together in the open Court.

*Ed. Note : Judgment delivered by Ranjan Gogoi, CJI (for himself and for A.M.HKhanwilkar and Indu Malhotra, JJ.)

2. The endeavour of the petitioners is to resuscitate the debateabout – what is essentially religious, essential to religion and integralpart of the religion. They would urge that ‘Religion’ is a means toexpress ones ‘Faith’. In the Indian context, given the plurality ofreligions, languages, cultures and traditions, what is perceived as faithand essential practices of the religion for a particular deity by a sectionof the religious group, may not be so perceived (as an integral part ofthe religion) by another section of the same religious group for the samedeity in a temple at another location. Both sections of the same religiousgroup have a right to freely profess, practise and propagate theirreligious beliefs as being integral part of their religion by virtue of Article25 of the Constitution of India. It matters not that they do not constitutea separate religious denomination. Further, as long as the practice(ostensibly restriction) associated with the religious belief is not opposedto public order, morality and health or the other provisions of Part IIIof the Constitution of India, the section of the religious group is free toprofess, practise and propagate the same as being integral part of theirreligion. The individual right to worship in a temple cannot outweighthe rights of the section of the religious group to which one may belong,to manage its own affairs of religion. This is broadly what has beencontended.

3. Concededly, the debate about the constitutional validity ofpractices entailing into restriction of entry of women generally in theplace of worship is not limited to this case, but also arises in respect ofentry of Muslim women in a Durgah/Mosque as also in relation to Parsiwomen married to a non-Parsi into the holy fire place of an Agyari.There is yet another seminal issue pending for consideration in this Courtregarding the powers of the constitutional courts to tread on questionas to whether a particular practice is essential to religion or is an integralof the religion, in respect of female genital mutilation in Dawoodi Bohracommunity.

4. It is time that this Court should evolve a judicial policy befittingto its plenary powers to do substantial and complete justice and for anauthoritative enunciation of the constitutional principles by a larger benchof not less than seven judges. The decision of a larger bench wouldput at rest recurring issues touching upon the rights flowing from Articles25 and 26 of the Constitution of India. It is essential to adhere to judicialdiscipline and propriety when more than one petition is pending on thesame, similar or overlapping issues in the same court for which all casesmust proceed together. Indubitably, decision by a larger bench will also AB

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Apave way to instil public confidence and effectuate the principleunderlying Article 145(3) of the Constitution - which predicates thatcases involving a substantial question of law as to the interpretation ofthe Constitution should be heard by a bench of minimum five judges ofthis Court. Be it noted that this stipulation came when the strength ofthe Supreme Court Judges in 1950 was only seven Judges. TheBpurpose underlying was, obviously, to ensure that the Supreme Courtmust rule authoritatively, if not as a full court (unlike the US SupremeCourt). In the context of the present strength of Judges of the SupremeCourt, it may not be inappropriate if matters involving seminal issuesincluding the interpretation of the provisions of the Constitution touchingCupon the right to profess, practise and propagate its own religion, areheard by larger bench of commensurate number of Judges. That wouldensure an authoritative pronouncement and also reflect the plurality ofviews of the Judges converging into one opinion. That may also ensureconsistency in approach for the posterity.

5. It is our considered view that the issues arising in the pendingDcases regarding entry of Muslim Women in Durgah/Mosque (being WritPetition (Civil) No.472 of 2019); of Parsi Women married to a non-Parsi in the Agyari (being Special Leave Petition (Civil) No. 18889/2012); and including the practice of female genital mutilation inDawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017)Emay be overlapping and covered by the judgment under review. Theprospect of the issues arising in those cases being referred to largerbench cannot be ruled out. The said issues could be:

(i) Regarding the interplay between the freedom of religionunder Articles 25 and 26 of the Constitution and otherFprovisions in Part III, particularly Article 14.

(ii) What is the sweep of expression ‘public order, morality andhealth’ occurring in Article 25(1) of the Constitution.

(iii) The expression ‘morality’ or ‘constitutional morality’ has notbeen defined in the Constitution. Is it over arching moralityGin reference to preamble or limited to religious beliefs orfaith. There is need to delineate the contours of thatexpression, lest it becomes subjective.

(iv) The extent to which the court can enquire into the issue ofa particular practice is an integral part of the religion orHreligious practice of a particular religious denomination or should that be left exclusively to be determined by the headof the section of the religious group.

(v) What is the meaning of the expression ‘sections of Hindus’appearing in Article 25(2)(b) of the Constitution.

(vi) Whether the “essential religious practices” of a religiousdenomination, or even a section thereof are affordedBconstitutional protection under Article 26.

(vii) What would be the permissible extent of judicial recognitionto PILs in matters calling into question religious practicesof a denomination or a section thereof at the instance ofpersons who do not belong to such religious denomination?

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6. In a legal framework where the courts do not have anyepistolary jurisdiction and issues pertaining to religion including religiouspractices are decided in exercise of jurisdiction under Section 9 of theCivil Procedure Code or Article 226/32 of the Constitution the courtsshould tread cautiously. This is time honoured principle and practice.

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7. In this context, the decision of the Seven Judges bench of thisCourt in Commissioner, Hindu Religious Endowments, Madrasvs. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (ShirurMutt)[1]holding that what are essential religious practices of a particularreligious denomination should be left to be determined by thedenomination itself and the subsequent view of a Five Judges bench inDurgah Committee, Ajmer vs. Syed Hussain Ali & Ors.[2]carvingout a role for the court in this regard to exclude what the courtsdetermine to be secular practices or superstitious beliefs seem to be inapparent conflict requiring consideration by a larger Bench.

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8. While deciding the questions delineated above, the larger benchmay also consider it appropriate to decide all issues, including thequestion as to whether the Kerala Hindu Places of Public Worship(Authorisation of Entry) Rules, 1965 govern the temple in question atall. Whether the aforesaid consideration will require grant of a freshopportunity to all interested parties may also have to be considered.

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9. The subject review petitions as well as the writ petitions may,accordingly, remain pending until determination of the questions indicatedabove by a Larger Bench as may be constituted by the Hon’ble theChief Justice of India.

1 (1954) SCR 10052 (1962) 1 SCR 383

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AR. F. NARIMAN, J.*

1. Having read the judgment of the learned Chief Justice of India,I regret my inability to agree with the same. The learned Chief Justicehas spoken of various matters which are sub judice in this Court inrelation to entry of Muslim women in a dargah/mosque; to Parsi womenmarried to non-Parsis and their entry into a fire temple; and issuesBrelating to female genital mutilation in the Dawoodi Bohra community.He has then outlined seven issues which may be referred to a larger7-judge bench as also the apparent conflict between a 7-judge benchin the Shirur Mutt case 1954 SCR 1005 and the Durgah Committeecase, (1962) 1 SCR 383. He then goes on to state, “the prospect ofCthe issues arising in those cases being referred to a larger bench cannotbe ruled out.” The larger bench may then also consider it appropriateto decide all issues including the question as to whether the Kerala HinduPlaces of Public Worship (Authorization of Entry) Rules, 1965 governsthe temple in question at all. He then states, “whether the aforesaidconsideration will require grant of a fresh opportunity to all interestedDparties may also have to be considered.” Hence the conclusion is thatthe review petitions and the fresh writ petitions may remain pendinguntil determination of the questions indicated above by a larger benchas may be constituted by the Chief Justice of India in any of theaforesaid pending matters.

2. What this Court has before it is review petitions arising out ofEthis Court’s judgment in Indian Young Lawyers Association andOrs. v. State of Kerala W.P. (C) No.373 of 2006, which was deliveredon 28 September, 2018, with regard to the Sabarimala temple dedicatedto Lord Ayyappa. What a future constitution bench or larger bench, ifconstituted by the learned Chief Justice of India, may or may not doFwhen considering the other issues pending before this Court is, strictlyspeaking, not before this Court at all. The only thing that is before thisCourt is the review petitions and the writ petitions that have now beenfiled in relation to the judgment in Indian Young Lawyers Associationand Ors. v. State of Kerala, dated 28 September, 2018. As and whenthe other matters are heard, the bench hearing those matters may wellGrefer to our judgment in Indian Young Lawyers Association andOrs. v. State of Kerala, dated 28 September, 2018, and may eitherapply such judgment, distinguish such judgment, or refer an issue/issueswhich arise from the said judgment for determination by a larger bench.All this is for future Constitution benches or larger benches to do.*Ed. Note : Judgment delivered by R.F. Nariman, J. (for himself and D.Y.HChandrachud, JJ.)

Consequently, if and when the issues that have been set out in thelearned Chief Justice’s judgment arise in future, they can appropriatelybe dealt with by the bench/benches which hear the petitions concerningMuslims, Parsis and Dawoodi Bohras. What is before us is only thenarrow question as to whether grounds for review and grounds for filingof the writ petitions have been made out qua the judgment in IndianYoung Lawyers Association and Ors. v. State of Kerala.Consequently, this judgment will dispose of the said review petitions andwrit petitions keeping the parameters of judicial intervention in suchcases in mind.

3. A number of points have been urged before us by a largenumber of counsel appearing on behalf of the review petitioners. Areview petition that is filed under Article 137 of the Constitution of India,read with Order XLVII of the Supreme Court Rules, 2013, has to bewithin certain parameters of a limited jurisdiction which is to beexercised. In a pithy one-paragraph judgment by Krishna Iyer, J.,reported as Sow Chandra Kante and Ors. v. Sheikh Habib, (1975)1 SCC 674, this Court laid down:

“…… A review of a judgment is a serious step and reluctantresort to it is proper only where a glaring omission or patentmistake or like grave error has crept in earlier by judicial fallibility.A mere repetition, through different Counsel, of old and overruledarguments, a second trip over ineffectually covered ground orminor mistakes of inconsequential import are obviouslyinsufficient. The very strict need for compliance with thesefactors is the rationale behind the insistence of Counsel’scertificate which should not be a routine affair or a habitual step.It is neither fairness to the Court which decided nor awarenessof the precious public time lost what with a huge backlog ofdockets waiting in the queue for disposal, for Counsel to issueeasy certificates for entertainment of review and fight over againthe same battle which has been fought and lost. The Bench andthe Bar, we are sure, are jointly concerned in the conservationof judicial time for maximum use. We regret to say that this caseis typical of the unfortunate but frequent phenomenon of repeatperformance with the review label as passport. Nothing whichwe did not hear then has been heard now, except a couple ofrulings on points earlier put forward. May be, as Counsel nowurges and then pressed, our order refusing special leave was AB

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622SUPREME COURT REPORTS

Acapable of a different course. The present stage is not a virginground but review of an earlier order which has the normalfeature of finality.”

(at page 675)

4. In Kamlesh Verma v. Mayawati (2013) 8 SCC 320, thisBCourt undertook an exhaustive review of the case law on reviewpetitions and finally summarised the principles laid down by thesejudgments as follows:

“Summary of the principles

20. Thus, in view of the above, the following grounds of reviewCare maintainable as stipulated by the statute:

20.1. When the review will be maintainable:

(i) Discovery of new and important matter or evidencewhich, after the exercise of due diligence, was not withinknowledge of the petitioner or could not be producedDby him;

(ii) Mistake or error apparent on the face of the record;

(iii) Any other sufficient reason.

The words “any other sufficient reason” have been interpretedin Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LWE37 : AIR 1922 PC 112] and approved by this Court in MoranMar Basselios Catholicos v. Most Rev. Mar PouloseAthanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean “areason sufficient on grounds at least analogous to those specifiedin the rule”. The same principles have been reiterated in UnionFof India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC337 : JT (2013) 8 SC 275]

20.2. When the review will not be maintainable:

(i) A repetition of old and overruled argument is not enoughto reopen concluded adjudications.

(ii) Minor mistakes of inconsequential import.

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(iii) Review proceedings cannot be equated with the originalhearing of the case.

(iv) Review is not maintainable unless the material error,manifest on the face of the order, undermines itsHsoundness or results in miscarriage of justice.

(v) A review is by no means an appeal in disguise wherebyan erroneous decision is reheard and corrected but liesonly for patent error.

(vi) The mere possibility of two views on the subject cannotbe a ground for review.

(vii) The error apparent on the face of the record should notbe an error which has to be fished out and searched.

(viii) The appreciation of evidence on record is fully withinthe domain of the appellate court, it cannot be permittedto be advanced in the review petition.

(ix) Review is not maintainable when the same relief soughtat the time of arguing the main matter had beennegatived.”

5. It is strictly within these parameters that the arguments that have been made before us have to be judged. Before stating what thesearguments are, it is important to first set down the summary ofconclusions by all the Judges who formed the five-Judge Bench whichdelivered the judgment of 28.09.2018. Dipak Misra, C.J., speaking forhimself and for Khanwilkar, J., formulated their conclusions in paragraph144 of the judgment as follows:

“144. In view of our aforesaid analysis, we record our conclusionsin seriatim:

(i) In view of the law laid down by this Court in ShirurMutt [The Commissioner Hindu ReligiousEndowments, Madras v. Shri Lakshmindra ThrithaSwaminar of Sri Shirur Mutt, [1954] SCR 1005]and S.P. Mittal [S.P. Mittal v. Union of India, (1983)1 SCC 51], the devotees of Lord Ayyappa do notconstitute a separate religious denomination. They do nothave common religious tenets peculiar to themselves,which they regard as conducive to their spiritual well-being, other than those which are common to the Hindureligion. Therefore, the devotees of Lord Ayyappa areexclusively Hindus and do not constitute a separatereligious denomination.

(ii) Article 25(1), by employing the expression ‘all persons’,demonstrates that the freedom of conscience and theright to freely profess, practise and propagate religion A

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is available, though subject to the restrictions delineatedin Article 25(1) itself, to every person including women.The right guaranteed under Article 25(1) has nothing todo with gender or, for that matter, certain physiologicalfactors specifically attributable to women.

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(iii) The exclusionary practice being followed at theSabrimala temple by virtue of Rule 3(b) of the 1965Rules violates the right of Hindu women to freelypractise their religion and exhibit their devotion towardsLord Ayyappa. This denial denudes them of their rightto worship. The right to practise religion under Article25(1) is equally available to both men and women of allage groups professing the same religion.

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(iv) The impugned Rule 3(b) of the 1965 Rules, framedunder the 1965 Act, that stipulates exclusion of entryof women of the age group of 10 to 50 years, is a clearviolation of the right of Hindu women to practise theirreligious beliefs which, in consequence, makes theirfundamental right of religion under Article 25(1) a deadletter.

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(v) The term ‘morality’ occurring in Article 25(1) of theConstitution cannot be viewed with a narrow lens so asto confine the sphere of definition of morality to whatan individual, a section or religious sect may perceivethe term to mean. Since the Constitution has beenadopted and given by the people of this country tothemselves, the term public morality in Article 25 hasto be appositely understood as being synonymous withconstitutional morality.

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(vi) The notions of public order, morality and health cannotbe used as colourable device to restrict the freedom tofreely practise religion and discriminate against womenof the age group of 10 to 50 years by denying them theirlegal right to enter and offer their prayers at theSabarimala temple.

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(vii) The practice of exclusion of women of the age groupof 10 to 50 years being followed at the SabarimalaTemple cannot be regarded as an essential part asHclaimed by the respondent Board.

(viii) In view of the law laid down by this Court in thesecond Ananda Marga case, the exclusionary practicebeing followed at the Sabarimala Temple cannot bedesignated as one, the non-observance of which willchange or alter the nature of Hindu religion. Besides,the exclusionary practice has not been observed withunhindered continuity as the Devaswom Board hadaccepted before the High Court that female worshippersof the age group of 10 to 50 years used to visit thetemple and conducted poojas in every month for fivedays for the first rice feeding ceremony of their children.

(ix) The exclusionary practice, which has been given thebacking of a subordinate legislation in the form of Rule3(b) of the 1965 Rules, framed by the virtue of the 1965Act, is neither an essential nor an integral part of thereligion.

(x) A careful reading of Rule 3(b) of the 1965 Rules makesit luculent that it is ultra vires both Section 3 as well asSection 4 of the 1965 Act, for the simon pure reasonthat Section 3 being a non-obstante provision clearlystipulates that every place of public worship shall beopen to all classes and sections of Hindus, women beingone of them, irrespective of any custom or usage to thecontrary.

(xi) Rule 3(b) is also ultra vires Section 4 of the 1965 Actas the proviso to Section 4(1) creates an exception tothe effect that the regulations/rules made under Section4(1) shall not discriminate, in any manner whatsoever,against any Hindu on the ground that he/she belongs toa particular section or class.

(xii) The language of both the provisions, that is, Section 3and the proviso to Section 4(1) of the 1965 Act clearlyindicate that custom and usage must make space to therights of all sections and classes of Hindus to offerprayers at places of public worship. Any interpretationto the contrary would annihilate the purpose of the 1965Act and incrementally impair the fundamental right topractise religion guaranteed under Article 25(1).

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Therefore, we hold that Rule 3(b) of the 1965 Rulesis ultra vires the 1965 Act.”

6. Nariman, J. concurred with these views, and concluded, inparagraph 172, that the Ayyappa temple at Sabarimala cannot claim tobe a religious denomination which can then claim the protection ofArticle 26 of the Constitution of India as follows:B

“172. In these circumstances, we are clearly of the view thatthere is no distinctive name given to the worshippers of thisparticular temple; there is no common faith in the sense of a beliefcommon to a particular religion or section thereof; or commonorganization of the worshippers of the Sabarimala temple so asCto constitute the said temple into a religious denomination. Also,there are over a thousand other Ayyappa temples in which thedeity is worshipped by practicing Hindus of all kinds. It is clear,therefore, that Article 26 does not get attracted to the facts ofthis case.”

DThe learned Judge thereafter concluded as follows:

“177. The facts, as they emerge from the writ petition and theaforesaid affidavits, are sufficient for us to dispose of this writpetition on the points raised before us. I, therefore, concur in thejudgment of the learned Chief Justice of India in allowing theEwrit petition, and declare that the custom or usage of prohibitingwomen between the ages of 10 to 50 years from entering theSabarimala temple is violative of Article 25(1), and violative ofthe Kerala Hindu Places of Public Worship (Authorisation ofEntry) Act, 1965 made under Article 25(2)(b) of the Constitution.Further, it is also declared that Rule 3(b) of the Kerala HinduFPlaces of Public Worship (Authorisation of Entry) Rules, 1965is unconstitutional being violative of Article 25(1) and Article 15(1)of the Constitution of India.”

7. Chandrachud, J. concluded, in paragraph 291, that Article 25of the Constitution of India implies equal entitlement of all persons toGprofess, practice, and propagate religion, as follows:

“291. The Constitution protects the equal entitlement of allpersons to a freedom of conscience and to freely profess, protectand propagate religion. Inhering in the right to religious freedom,is the equal entitlement of all persons, without exception, toHprofess, practice and propagate religion. Equal participation of

women in exercising their right to religious freedom is arecognition of this right. In protecting religious freedom, theframers subjected the right to religious freedom to the overridingconstitutional postulates of equality, liberty and personal freedomin Part III of the Constitution. The dignity of women cannot bedisassociated from the exercise of religious freedom. In theconstitutional order of priorities, the right to religious freedom isto be exercised in a manner consonant with the vision underlyingthe provisions of Part III. The equal participation of women inworship inheres in the constitutional vision of a just social order.”

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Thereafter, the learned Judge stated his conclusions as follows:

“296. I hold and declare that:

1) The devotees of Lord Ayyappa do not satisfy thejudicially enunciated requirements to constitute areligious denomination under Article 26 of theDConstitution;2) A claim for the exclusion of women from religiousworship, even if it be founded in religious text, issubordinate to the constitutional values of liberty, dignityand equality. Exclusionary practices are contrary toEconstitutional morality;

3) In any event, the practice of excluding women from thetemple at Sabarimala is not an essential religiouspractice. The Court must decline to grant constitutionallegitimacy to practices which derogate from the dignityof women and to their entitlement to an equal citizenship; F

4) The social exclusion of women, based on menstrualstatus, is a form of untouchability which is an anathemato constitutional values. Notions of “purity and pollution”,which stigmatize individuals, have no place in aGconstitutional order;

5) The notifications dated 21 October 1955 and 27November 1956 issued by the Devaswom Board,prohibiting the entry of women between the ages of tenand fifty, are ultra vires Section 3 of the Kerala Hindu H

628SUPREME COURT REPORTS

APlaces of Public Worship (Authorisation of Entry) Act,1965 and are even otherwise unconstitutional; and

6) Hindu women constitute a ‘section or class’ of Hindusunder clauses (b) and (c) of Section 2 of the 1965 Act.Rule 3(b) of the 1965 Rules enforces a custom contraryBto Section 3 of the 1965 Act. This directly offends theright of temple entry established by Section 3. Rule 3(b)is ultra vires the 1965 Act.”

8. Indu Malhotra, J. dissented. The summary of her conclusionsis reflected in paragraph 312 of the judgment as follows:

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“312. The summary of the aforesaid analysis is as follows:

(i) The Writ Petition does not deserve to be entertained forwant of standing. The grievances raised are non-justiciable at the behest of the Petitioners and Intervenorsinvolved herein.

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(ii) The equality doctrine enshrined under Article 14 doesnot override the Fundamental Right guaranteed by Article25 to every individual to freely profess, practise andpropagate their faith, in accordance with the tenets oftheir religion.

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(iii) Constitutional Morality in a secular polity would implythe harmonisation of the Fundamental Rights, whichinclude the right of every individual, religiousdenomination, or sect, to practise their faith and beliefin accordance with the tenets of their religion,Firrespective of whether the practise is rational or logical.

(iv) The Respondents and the Intervenors have made out aplausible case that the Ayyappans or worshippers of theSabarimala Temple satisfy the requirements of being areligious denomination, or sect thereof, which is entitledto the protection provided by Article 26. This is a mixedquestion of fact and law which ought to be decidedbefore a competent court of civil jurisdiction.

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(v) The limited restriction on the entry of women during thenotified age-group does not fall within the purview ofHArticle 17 of the Constitution.

(vi) Rule 3(b) of the 1965 Rules is not ultra vires Section 3of the 1965 Act, since the proviso carves out anexception in the case of public worship in a temple forthe benefit of any religious denomination or sect thereof,to manage their affairs in matters of religion.”

9. What emerges on a reading of the aforesaid four majorityjudgments is that there is a clear consensus on the following issues:

9.1. The devotees of Lord Ayyappa do not constitute a separatereligious denomination and cannot, therefore, claim the benefit of Article26 or the proviso to Section 3 of the Kerala Hindu Places of PublicWorship (Authorisation of Entry) Act, 1965 [“1965 Act”]. This isoutlined in paragraph 144(i) of the judgment of the learned C.J.;paragraph 172 of the judgment of Nariman, J.; and paragraph 296(1)of the judgment of Chandrachud, J. The judgment of Malhotra, J.records an opposite tentative conclusion in paragraph 312(iv).

9.2. The four majority judgments specifically grounded the rightof women between the ages of 10 to 50, who are excluded frompracticing their religion, under Article 25(1) of the Constitution,emphasizing the expression “all persons” and the expression “equally”occurring in that Article, so that this right is equally available to bothmen and women of all ages professing the same religion. Thisproposition becomes clear from paragraph 144(ii) and (iii) of thejudgment of the learned C.J.; from paragraph 174 read with paragraph177 of the judgment of Nariman, J.; and paragraph 291 of the judgmentof Chandrachud, J. As against this, the judgment of Malhotra, J. iscontained in paragraph 312(ii).

9.3. Section 3 of the 1965 Act traces its origin to Article 25(2)(b)of the Constitution of India, and would apply notwithstanding any customto the contrary, to enable Hindu women the right of entry in all publictemples open to Hindus, so that they may exercise the right of worshiptherein. As a concomitant thereof, Rule 3(b) of the Kerala Hindu Placesof Public Worship (Authorisation of Entry) Rules, 1965 [“1965 Rules”]is violative of Article 25(1) of the Constitution of India and ultra viresSection 3 of the 1965 Act. This proposition flows from paragraph144(iii), (iv), (x), and (xii) of the judgment of the learned C.J.; paragraph177 of the judgment of Nariman, J.; and paragraph 296(6) of the A

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Ajudgment of Chandrachud, J. As against this, Malhotra, J. states theopposite conclusion in paragraph 312(vi) of her judgment.[1]

10. In Rajnarain Singh v. The Chairman, PatnaAdministration Committee, Patna and Ors., (1955) 1 SCR 290, thisCourt had to consider the judgment in Re Delhi Laws Act, [1951] SCRB747, in which seven separate judgments were delivered on the vexedquestion of the legislature’s power to delegate essential legislativefunctions. In attempting to cull out a common ratio, this Court enunciateda working test as follows:

“Now what exactly does section 3(1)(f) authorise? After itsCamendment it does two things : first, it empowers the delegatedauthority to pick any section it chooses out of the Bihar andOrissa Municipal Act of 1922 and extend it to “Patna”; andsecond, it empowers the Local Government (and later theGovernor) to apply it with such “restrictions and modifications”as it thinks fit.DIn the Delhi Laws Act case [[1951] S.C.R. 747], the followingprovision was held to be good by a majority of four to three :

“The Provincial Government may …… extend with suchrestrictions and modifications as it thinks fit …… anyEenactment which is in force in any part of British India at thedate of such notification.”

Mukherjea and Bose JJ., who swung the balance, held that notonly could an entire enactment with modification be extended but

1 In the judgment of the learned Chief Justice, whether the 1965 Rules govern theFtemple in question at all is raised, which the larger bench, if constituted, may considerit appropriate to decide. This is will result in a piecemeal adjudication as a freshopportunity to interested parties may then have to be given in the pending reviewpetitions. The necessity for going into this question in the review petitions filed isitself questionable. On the assumption that the aforesaid Rule does not apply, thestriking down of an inapplicable rule does not in any manner detract from the ratioof the majority judgment. The ratio of the majority judgment, insofar as this aspectGof the case is concerned, is that Section 3 of the 1965 Act will apply by reason ofthe non-obstante clause contained therein, as a result of which every place of publicworship which is open to Hindus or any section or class thereof is open to all Hindusto worship therein in the like manner and to the like extent as any other Hindu; andno Hindu of whatsoever section or class shall in any manner be prevented, obstructedor discouraged from entering any such place of public worship or from worshippingHor offering prayers thereat or performing religious service therein.

also a part of one; and indeed that was the actual decision inBurah’s case [5 I.A. 178], on which the majority founded : (seeMukherjea J. at page 1000 and Bose J. at pages 1106 and 1121).But Mukherjea and Bose JJ., both placed a very restrictedmeaning on the words “restriction” and “modification” and, asthey swung the balance, their opinions must be accepted as thedecision of the Court because their opinions embody the greatestcommon measure of agreement among the seven Judges.”

(at pp. 302-303)

11. The greatest common measure of agreement among themajority judgments, being the test enunciated by this decision, is thethree propositions outlined above, to which all the four majority Judgesagree. On whether the exclusion of women from Hindu temples is anessential part of the Hindu religion, three Judges clearly held that it isnot, with Nariman, J. assuming that such exclusionary practice is anessential part of the Hindu religion. It is with these prefatory remarksthat we now begin to examine the arguments of counsel for the reviewpetitioners.

12. Shri K. Parasaran, who led the attack on behalf of the reviewpetitioners, placed at the forefront of his arguments the judgment ofthis Court in Moran Mar Basselios Catholicos v. Most Rev. MarPoulose Athanasius, (1955) 1 SCR 520, and relied strongly on thefollowing passage:

“ …… It does not appear that either of the two majority Judgesof the High Court adverted to either of these aspects of thematter, namely, service of notice to all churches and competencyof the persons who issued the notice of the Karingasserai meetingand in any case did not come to a definite finding on that question.The majority judgments, therefore, are defective on the face ofthem in that they did not effectively deal with and determine animportant issue in the case on which depends the title of theplaintiffs and the maintainability of the suit. This, in our opinion,is certainly an error apparent on the face of the record.”

(at page 534)

13. Based on this judgment, Shri Parasan argued that twolearned Judges, viz., Dipak Misra, C.J., and Khanwilkar, J., did not atall opine on Article 15 of the Constitution of India. Also, they did noteffectively deal with arguments based on Article 17 of the Constitution.

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AThe same goes for Nariman, J., when it comes to Article 17.Chandrachud, J. alone expounded on Article 17, and according to ShriParasaran, this exposition amounts to an error apparent on the face ofthe record inasmuch as the expression “untouchability” would refer onlyto the discrimination meted out to Harijans, regardless of their sex, andwould, therefore, not embrace members of the female sex alone whoBare regarded as “untouchables” during their period of menstruation.According to him, the judgment of Malhotra, J. correctly referred tothe Constituent Assembly Debates on this issue and arrived at thecorrect conclusion. Since the view of Chandrachud, J. cannot be saidto be a possible view, it would amount to an error apparent on the faceCof the record. Shri Parasaran argued that “untouchability” is nomenjuris and relied upon State of Madras v. Gannon Dunkerley & Co.(Madras) Ltd., 1959 SCR 379, which held that the expression “saleof goods”, being nomen juris, would not include works contracts. Hefurther argued that it took a constitutional amendment to add Article366(29-A) to expand the definition of “sale of goods” so as to includeDa works contract.

14. The majority judgments of Dipak Misra, C.J., Khanwilkar,J., and Nariman, J. did not find it necessary to opine on Article 15(2)and Article 17 of the Constitution in view of their findings on variousother points. Nariman, J. alone referred to Article 15(1) of theEConstitution when it came to striking down Rule 3(b) of the 1965 Rules.The observations of Chandrachud, J. on Article 17 of the Constitutioncannot be said to be a material error manifest on the face of the recordwhich undermines the soundness of the three conclusions reached byall the majority judgments supra. Further, since the view ofChandrachud, J. on Article 17 of the Constitution is a possible view, itFcannot be a subject matter of review. As stated hereinabove, theinterpretation of Article 15 and Article 17 of the Constitution were nottreated as central issues in the present case by at least three learnedJudges, namely, Dipak Misra, C.J., Khanwilkar, J., and Nariman, J. Inthis view of the matter, these arguments have necessarily to be rejected.G

15. Other learned counsel have essentially reargued the case onall other points. They argued that the Ayyappa temple at Sabarimalaconstituted a religious denomination and could, therefore, claim theprotection of Article 26 of the Constitution of India as well as the provisoto Section 3 of the 1965 Act. This argument is a re-argument of whatHwas argued before us before the judgment of 28.09.2018 was delivered.

16. Ms. Indira Jaising, learned Senior Advocate appearing onbehalf of the intervenors in I.A. Nos. 21515 and 21521 of 2019,specifically referred to and relied upon the judgment of one of us,Nariman, J., where it was made clear that the judgment of ChinnappaReddy, J. in S.P. Mittal v. Union of India, (1983) 1 SCC 51, was adissenting judgment [see paragraph 171]. According to her, in twoplaces, the dissenting judgment of Malhotra, J. has strongly relied uponthe judgment of Chinnappa Reddy, J. (in paragraphs 306.7 and 308.8),stating that the judgment of Chinnappa Reddy, J. is a concurringjudgment on the aspect of religious denomination. Therefore, on thecontrary, the conclusion of Malhotra, J., based on the observationscontained in the dissenting judgment of Chinnappa Reddy, J., could notbe said to be a possible view on this aspect. Without entering furtherinto this controversy, we may only reiterate that the majority Judgeshave correctly held that the views of Chinnappa Reddy, J. aredissentient, as was recognized by Chinnappa Reddy, J. himself. Thelearned Judge in his first paragraph states:

“I have the good fortune of having before me the scholarlyjudgment of my brother Misra, J. I agree with my brother Misra,J. that the writ petitions must fail. With much that he has said,also, I agree. But with a little, to my own lasting regret, I do notagree. It is, therefore, proper for me to explain the points of mydisagreement.”

17. The majority view of four Judges on this aspect is containedin paragraphs 110 to 122. In paragraphs 121 and 122, the majorityconcluded as follows:

“121. On the basis of the materials placed before us viz. theMemorandum of Association of the Society, the severalapplications made by the Society claiming exemption underSection 35 and Section 80 of the Income Tax Act, the repeatedutterings of Sri Aurobindo and the Mother that the Society andAuroville were not religious institutions and host of otherdocuments there is no room for doubt that neither the Societynor Auroville constitute a religious denomination and the teachingsof Sri Aurobindo only represented his philosophy and not areligion.

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A122. Even assuming but not holding that the Society or theAuroville were a religious denomination, the impugned enactmentis not hit by Articles 25 or 26 of the Constitution. The impugnedenactment does not curtail the freedom of conscience and theright freely to profess, practise and propagate religion. Therefore,there is no question of the enactment being hit by Article 25.”BThis point also has to be rejected as there is no error, let alonematerial error, manifest on the face of the record of the majority view.

18. A great deal of argument was devoted to whether the practiceof excluding women between the ages of 10 to 50 from the shrine atCSabarimala would constitute an essential religious practice. Three ofthe majority Judges held that such a religious practice, having no basisin the Hindu religion, could not be held to be an essential religiouspractice – see paragraphs 122 and 123 of the judgment of the learnedC.J., and paragraph 227 read with paragraph 296(3) of the judgmentof Chandrachud, J. Here again, it cannot be said that there is any errorDapparent. What has to be seen in the judgments of this Court is whethersuch practice is an essential practice relatable to the Hindu religion,and not the practice of one particular temple. Nothing has been shownto us, as was correctly pointed out by the learned Chief Justice, fromany textual or other authorities, to show that exclusion of women fromEages 10 to 50 from Hindu temples is an essential part of the Hindureligion. This again is a ground that must be rejected, both because thereis no error apparent, and because the same ground that was argued inextenso before the original judgment was delivered, is being rearguedin review.F19. It was then stated that the judgments of Dipak Misra, C.J.and Chandrachud, J., in relying upon “constitutional morality”, sufferedfrom an error apparent, in that constitutional morality is a vague conceptwhich cannot be utilised to undermine belief and faith. Here again, apartfrom the fact that “constitutional morality” has now reached the levelof stare decisis, and has been explained in several Constitution BenchGjudgments, reliance thereon cannot be said to suffer from any errorapparent. Constitutional law and constitutional interpretation stand ona different footing from interpretation of statutes. Constitutional lawkeeps evolving keeping in view, among other things, the felt necessitiesof the time. As has been explained in some of our judgments,H“constitutional morality” is nothing but the values inculcated by the Constitution, which are contained in the Preamble read with variousother parts, in particular, Parts III and IV thereof. This again is a mererehash of what was argued earlier, and can by no means be said to bean error apparent on the face of the record.

20. Extreme arguments were made by some learned counselstating that belief and faith are not judicially reviewable by courts, andthat this Court cannot interfere by stating that a particular section ofpersons shall not hold a particular belief and act in accordance thereto.Such arguments need to be rejected out of hand. Not only do they notconstitute “errors apparent”, but are arguments that fly in the face ofArticle 25. Article 25, as has been held by the majority judgments, isnot an Article that gives a carte blanche to one particular section ofpersons to trample upon the right of belief and worship of another sectionof persons belonging to the same religion. The delicate balance betweenthe exercise of religious rights by different groups within the samereligious faith that is found in Article 25 has to be determined on a caseby case basis. The slippery-slope argument, that this judgment will beused to undermine the religious rights of others, including religiousminorities, is wholly without basis. The ratio of the majority judgmentsin this case is only that the exclusionary practice of keeping womenfrom the ages of 10 to 50 from exercising their right of worship in aparticular Hindu temple falls foul of Article 25 of the Constitution ofIndia inasmuch as (i) all personsare equallyentitled, when they belongto the same religious group, to exercise their fundamental right ofpracticing religion; and (ii) that this is a case covered by Article 25(2)(b),which deals with throwing open all Hindu religious institutions of a publiccharacter to all classes and sections of Hindus. The majority judgmentshave held that Section 3 of the 1965 Act is a legislation in pursuanceof this part of Article 25(2)(b), which expressly comes in the way ofany custom which interferes with the rights of women from the agesof 10 to 50 from worshipping in a Hindu religious institution of a publiccharacter. Article 25(1) also contains two other exceptions, namely, thatthis right is (a) subject to public order, morality, and health; and (b) isalso subject to the other provisions of Part III, as has been explainedin the majority judgments. This argument must also, therefore, berejected.

21. References were made to the Hindi text of Article 26, andarguments were based on the Hindi expression “sampradaya” asopposed to the English expression “denomination”. This again is a new A

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Aargument, made for the first time in review. This argument cannot becountenanced for the reason that we are bound by a large number ofConstitution Bench decisions on what constitutes a religiousdenomination. Having followed the aforesaid judgments, which arebinding upon us, we cannot be said to have committed any error.

B22. Emotive arguments were made on how women between theages of 10 to 50 are not kept out on account of menstruation as apolluting agent, but on account of the deity being a NaisthikBrahmachari, who would be disturbed by the presence of womenbetween the ages of 10 to 50, as the deity has undertaken a vow ofcelibacy. These are all arguments that have been made at the initialCstage, and are fully dealt with by all the judgments. Re-arguing thisaspect of the matter obviously does not fall within the parameters of areview petition.

23. One more extreme argument that was made is that sinceworshippers from all faiths come to Sabarimala, Sabarimala cannot beDheld to be a Hindu temple. This argument, again, has no legs to standon. A Christian church cannot be said to be any the less a church onaccount of allowing persons of all faiths to enter and worship therein.There is no doubt that the temple at Sabarimala, being dedicated to aHindu idol – Lord Ayyappa – is a Hindu public religious institution, likeEthe other temples dedicated to Lord Ayyappa, which are undoubtedlyHindu public religious institutions. This argument must also be rejected.

24. An argument was made that there are gender restrictions inother places of worship, which, being essential religious practices, havenot been interfered with. This is a general argument which needs toFbe rejected on the ground of vagueness, apart from the fact that this isnot an argument which could be made in reviewoiation from this highC . As and when such gender restrictions in other places of worshipare tested, they will be decided on their own merits keeping in viewthe provisions of the Constitution.G

25. Another plea of some of the review petitioners is that theDivision Bench judgment in S. Mahendran v. Secretary, TravancoreDevaswom Board, Thiruvananthapuram, AIR 1993 Ker 42 wouldbe res judicata, as it was a Public Interest Litigation in which allnecessary parties were joined and heard, and the same issues that wereHraised before this Court were decided by the Division Bench.

26. It is true that the Division Bench judgment in Mahendran(supra), was a complaint which was converted into an original petitionunder Article 226 of the Constitution as a PIL. The Secretary,Travancore Devaswom Board, and the Chief Secretary to theGovernment of Kerala were made respondents to the petition. Further,the Indian Federation of Women Lawyers, Kerala Branch and thePresident of the Kerala Kshetra Samrakshana Samithi were impleadedand permitted to participate in the proceedings. As a matter of law, thereis no doubt whatsoever that res judicata as a principle does apply topublic interest litigation. However, this Court in V. Purushotham Raov. Union of India & Ors., (2001) 10 SCC 305, set out the law asstated in Rural Litigation and Entitlement Kendra v. State of U.P.,1989 Supp. (1) SCC 504, which it followed, and stated:

“We may not be taken to have said that for public interestlitigations, procedural laws do not apply. At the same time it hasto be remembered that every technicality in the procedural lawis not available as a defence when a matter of grave publicimportance is for consideration before the Court. Even if it issaid that there was a final order, in a dispute of this type it wouldbe difficult to entertain the plea of res judicata.

Thus even in the selfsame proceeding, the earlier order thoughfinal, was treated not to create a bar inasmuch as the controversybefore the Court was of grave public interest. The learned counselappearing for the appellants drew our attention to the decisionof this Court in the case of Forward Construction Co. v.Prabhat Mandal, AIR 1986 SC 391, whereunder the Court didrecord a conclusion that Section 11 of the Civil Procedure Codeapplied to public interest litigation. In our considered opinion,therefore, the principle of constructive res judicata cannot bemade applicable in each and every public interest litigation,irrespective of the nature of litigation itself and its impact on thesociety and the larger public interest which is being served.”

(at page 331)

This Court, in Mathura Prasad Bajoo Jaiswal & Ors. v.Dossibai N.B. Jeejeebhoy, (1970) 3 S.C.R. 830, [“MathuraPrasad”], had held:

“Where, however, the question is one purely of law and it relatesto the jurisdiction of the Court or a decision of the Court A

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Asanctioning something which is illegal, by resort to the rule ofres judicata a party affected by the decision will not be precludedfrom challenging the validity of that order under the rule of resjudicata, for a rule of procedure cannot supersede the law of theland.”

(at page 836)

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In a recent judgment, namely, Canara Bank v. N.G. SubbarayaSetty & Anr., AIR 2018 SC 3395, this Court after referring to MathuraPrasad (supra), held:

“(ii) An issue of law which arises between the same parties in aCsubsequent suit or proceeding is not res judicata if, by anerroneous decision given on a statutory prohibition in the formersuit or proceeding, the statutory prohibition is not given effectto. This is despite the fact that the matter in issue between theparties may be the same as that directly and substantially in issuein the previous suit or proceeding. This is for the reason that inDsuch cases, the rights of the parties are not the only matter forconsideration (as is the case of an erroneous interpretation of astatute inter parties), as the public policy contained in the statutoryprohibition cannot be set at naught. This is for the same reasonas that contained in matters which pertain to issues of law thatEraise jurisdictional questions. We have seen how, in NatrajStudios (AIR 1981 SC 537), it is the public policy of the statutoryprohibition contained in Section 28 of the Bombay Rent Act thathas to be given effect to. Likewise, the public policy containedin other statutory prohibitions, which need not necessarily go tojurisdiction of a Court, must equally be given effect to, asFotherwise special principles of law are fastened upon parties whenspecial considerations relating to public policy mandate that thiscannot be done.”

(at page 3414)

27. When it comes to important issues as to the interpretation ofGthe Constitution, which is entrusted by the Constitution under Article145(3) to a Bench consisting of a minimum of five Supreme CourtJudges, it is obvious that an erroneous interpretation of the Constitutionby a High Court (which affects the general public much more than anerroneous interpretation of a statutory prohibition enacted in publicHinterest) cannot possibly be res judicata as against a judgment of a Constitution Bench of the Supreme Court, as a rule of procedure cannotbe exalted over Article 145(3) of the Constitution of India. By thejudgment dated 28.09.2018 of a Constitution Bench of this Court, thisCourt has interpreted Article 25(1) to mean that allpersons are equallyentitled to practice the Hindu religion, which would include womenbetween the ages of 10 and 50. A previous decision by a High Court,erroneously interpreting Article 25 in an earlier PIL, can obviously notstand in the way, by resort to a rule of procedure, of a judgment offive Judges of the Supreme Court declaring the law of the land on thisaspect. This objection also does not disclose any error apparent on theface of the record.

28. The issue of locus-standi to file a public-interest litigationwas re-argued by some of the review petitioners. Indu Malhotra, J. inher dissenting judgment, has held that to entertain a public-interestlitigation at the behest of persons who are not worshippers at Sabrimalatemple would open the floodgates of petitions to be filed questioningthe validity of religious beliefs and practices followed by other religioussects. We have pointed out in this judgment that the majority judgmentcannot be used to undermine the religious rights of others, including, inparticular, religious minorities. Besides, busybodies, religious fanatics,cranks and persons with vested interests will be turned down by theCourt at the threshold itself, by applying the parameters laid down inState of Uttaranchal v. Balwant Singh Chaufal and Ors. (2010) 3SCC 402 (at paragraph 181). The fear expressed by the learneddissenting judge is therefore quite unfounded. As has been pointed byNariman, J. in the majority judgment (at paragraph 175), the presentcase raises grave issues which relate to gender bias on account of aphysiological or biological function which is common to all women. Itis for this reason that a bonafide public-interest litigation was entertainedby the majority judgment, having regard to women’s rights, in the contextof women worshippers as a class, being excluded on account of suchphysiological/biological functions for the entirety of the period duringwhich a woman enters puberty until menopause sets in.

29. Given the consensus on the three issues delineated aboveby the four majority judgments, we find that no ground for review ofthe majority judgments has been made out. The review petitions arehence dismissed. Equally, all writ petitions filed under Article 32 of theConstitution, that have been filed directly attacking the majority judgmentsdated 28.09.2018, are dismissed as not being maintainable in view of AB

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30. An argument was made by some of the review petitionersthat, given the fact that there have been mass protests againstBimplementation of this judgment, we ought to have a re-look at the entireproblem. On the other hand, Ms. Indira Jaising, learned Senior Advocateappearing on behalf of certain ladies, including Scheduled Caste ladieswho have been obstructed from entering the Sabarimala temple, orhaving entered the temple, have been subjected to physical and otherabuses, has made a fervent plea before us to ensure that our judgmentCis implemented in both letter and in spirit.

31. The arguments and counter-arguments so made, need us torestate a few constitutional fundamentals. Under our constitutionalscheme, the Supreme Court is given a certain pride of place. UnderArticle 129, the Supreme Court shall be a court of record and shallDhave all the powers of such a Court, including the power to punish forcontempt of itself. Under Article 136, the Supreme Court has beengranted a vast jurisdiction by which it may interfere with any judgment,decree, determination, sentence, or order made by any court or tribunalin the territory of India. Indeed, by Article 140, Parliamentary law mayEconfer upon the Supreme Court such supplemental powers as may benecessary or desirable for the purpose of enabling the Court to exercisethe jurisdiction conferred upon it by the Constitution more effectively.By Article 141 of the Constitution, the law declared by the SupremeCourt shall be binding on all courts, which includes tribunals, within theterritory of India, which ensures that the Supreme Court, being the finalFarbiter of disputes, will lay down law which will then be followed as aprecedent by all courts and tribunals within the territory of India. Article142 of the Constitution confers upon the Supreme Court the power tomake such decree or order as is necessary for doing complete justicein any cause or matter pending before it. By Article 145(3), a minimumGnumber of five Judges are the last word on the interpretation of theConstitution, as any case involving a substantial question of law as tointerpretation of the Constitution must be decided by this minimumnumber of Judges.

32. What is of particular importance in this case is Article 144Hof the Constitution of India, which is set out herein below:

“144. Civil and judicial authorities to act in aid of theSupreme Court.—All authorities, civil and judicial, in the territoryof India shall act in aid of the Supreme Court.”

At this juncture, it is important to understand the true reach ofArticle 144 of the Constitution of India. What is of great importance isthat it is not judicial authorities alone that are to act in aid of the SupremeCourt – it is all authoritiesi.e. authorities that are judicial as well asauthorities that are non-judicial. The expression “civil” is an expressionof extremely wide import, and deals with anything that affects the rightsof a citizen. Therefore, even textually, all “authorities” which exercisepowers over the citizens in the territory of India are mandated to actin aid of the Supreme Court.

33. The expression “authority” is not defined by the Constitutionof India. However, it is used in several Articles of the Constitution ofIndia. Depending upon the context in which it is used, the expressionis used either in a wide or narrow sense. Examples of the expressionbeing used in a narrow sense are as follows:

Article 73(2) of the Constitution states:

“73. Extent of executive power of the Union.—

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(2) Until otherwise provided by Parliament, a State and any officeror authority of a State may, notwithstanding anything in this article,continue to exercise in matters with respect to which Parliamenthas power to make laws for that State such executive power orfunctions as the State or officer or authority thereof couldexercise immediately before the commencement of thisConstitution.”

As can be seen from this Article, here, an authority is only of aState, when contrasted with authorities of the Union Government.Similarly, the converse case is referred to in the proviso to Article 162as follows:

“162. Extent of executive power of State.—Subject to theprovisions of this Constitution, the executive power of a Stateshall extend to the matters with respect to which the Legislatureof the State has power to make laws:

Provided that in any matter with respect to which the Legislatureof a State and Parliament have power to make laws, the A

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Aexecutive power of the State shall be subject to, and limited by,the executive power expressly conferred by this Constitution orby any law made by Parliament upon the Union or authoritiesthereof.”

34. The proviso speaks of authorities of the Union of India.BLikewise, Article 258(2) refers to authorities of the State whencontrasted with the authorities of the Union Government. Article 277refers to local authorities which would have reference to municipalities,panchayats, etc. Article 307 refers to an authority set up by Parliamentto carry out the purposes of Articles 301 to 304, which speak of trade,commerce and intercourse within the territory of India, and consequently,Cdeal with the economic unity of the nation. Article 329(b) speaks of aquasi-judicial authority before which an election petition may bepresented. Article 353(b) and Article 357(1)(b) speak of authorities ofthe Union, as contradistinguished with authorities of the State. Article356(1)(a) speaks of State authorities, when contradistinguished withDUnion authorities. Article 372(1) has reference to a “competentauthority”, being an authority which is competent to amend laws thatare in force in the territory of India immediately before thecommencement of the Constitution.

35. As against these Articles, other Articles speak of “authority”Ein a wide sense. Thus, under Article 12, when it comes to enforcingfundamental rights against a State, “local or other authorities” has beenheld to include all State instrumentalities, including governmentcompanies and cooperative societies, in which the State has a voice.As far back as in 1967, in Rajasthan State Electricity Board v.Mohan Lal, (1967) 3 SCR 377, the expression “other authorities” wasFheld not to be construed as ejusdem generis with the preceding word,“local”. Likewise, in Article 154(2)(a), the expression “any otherauthority” is used; and in Article 226 of the Constitution of India, whenthe High Court exercises its writ jurisdiction, it may do so against anyperson or authority.G36. A conspectus of the aforesaid Articles of the Constitution ofIndia leads to the conclusion that the expression “authorities” in Article144 is to be given the widest possible meaning.

37. In Supreme Court Bar Assn. v. Union of India, 1998 (4)SCC 409, this Court held that the Bar Council of India or the Bar CouncilHof a State would be covered, being an “authority” for the purposes of

Article 144, as it is a body created by statute, which performs a publicduty [see paragraph 79].

38. Likewise, any authority that exhibits a defiant attitude to anyorder of the Supreme Court has been castigated as being whollyobjectionable and not acceptable. In M.C. Mehta v. Union of India,(2001) 3 SCC 763, this Court stated as follows:

“11. We are distressed at certain reports which have appearedin the print and electronic media, exhibiting defiant attitude onthe part of Delhi Administration to comply with our orders. Theattitude, as reflected in the newspapers/electronic media, ifcorrect, is wholly objectionable and not acceptable. We have nodoubt that all those concerned with Delhi Administration areaware of the provisions of Article 144 of the Constitution whichreads, “144. Civil and judicial authorities to act in aid of theSupreme Court.—All authorities, civil and judicial, in theterritory of India shall act in aid of the Supreme Court.”

as also of the consequence of deliberately flouting the orders ofthis Court and non-compliance with the above constitutionalprovision…”

39. This Court, in State of Tamil Nadu v. State of Karnataka,(2016) 10 SCC 617, has castigated the State of Karnataka as follows:

“74. At this juncture, we may refer to Article 144 of theConstitution of India. It reads as follows:

“144. Civil and judicial authorities to act in aid of theSupreme Court.—All authorities, civil and judicial, in theterritory of India, shall act in aid of the Supreme Court.”

75. On a plain reading of the said Article 144, it is clear as crystalthat all authorities in the territory of India are bound to act in aidof the Supreme Court. Needless to say, they are bound to obeythe orders of the Supreme Court and also, if required, renderassistance and aid for implementation of the order(s) of this Court,but, unfortunately, the State of Karnataka is flouting the orderand, in fact, creating a situation where the majesty of law isdented. We would have proceeded to have taken steps for strictcompliance with our order, but as we are directing the CauveryManagement Board to study the ground reality and give us a A

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Areport forthwith, we reiterate our earlier direction that the Stateof Karnataka shall release 6000 cusecs of water from 1-10-2016till 6-10-2016. We are granting this opportunity as the last chanceand we repeat at the cost of repetition that we are passing thisorder despite the resolution passed by the Joint Houses of StateLegislature of the State of Karnataka. We had clearly mentionedBso in our earlier order, while we stated Annexure IV to IA No.16 of 2016. We are sure that the State of Karnataka being apart of the federal structure of this country will rise to theoccasion and not show any kind of deviancy and follow thedirection till the report on the ground reality is made available tothis Court.”C

40. The position under our constitutional scheme is that theSupreme Court of India is the ultimate repository of interpretation ofthe Constitution. Once a Constitution Bench of five learned Judgesinterprets the Constitution and lays down the law, the said interpretationis binding not only as a precedent on all courts and tribunals, but alsoDon the coordinate branches of Government, namely, the legislature andthe executive. What follows from this is that once a judgment ispronounced by the Constitution Bench and a decree on facts follows,the said decree must be obeyed by all persons bound by it. In addition,Article 144 of the Constitution mandates that all persons who exerciseEpowers over the citizenry of India are obliged to aid in enforcing ordersand decrees of the Supreme Court. This then is the constitutionalscheme by which we are governed – the rule of law, as laid down bythe Indian Constitution.

41. Looked at from another angle, every member of the executiveFGovernment i.e. every Central Minister, including the Prime Minister,as well as every State Minister, including the Chief Ministers in thevarious States are bound vide Article 75(4) and Article 164(3), readwith the Third Schedule, to uphold and defend the Constitution. Thus,insofar as Ministers belonging to the Centre are concerned, Article 75(4)states:G

“75. Other provisions as to Ministers.—

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(4) Before a Minister enters upon his office, the President shalladminister to him the oaths of office and of secrecy accordingHto the forms set out for the purpose in the Third Schedule.

The Third Schedule of the Constitution insofar it applies to suchMinisters reads as follows:

“THIRD SCHEDULE

Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219

FORMS OF OATHS OR AFFIRMATIONS

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Form of oath of office for a Minister for the Union:—

swear in the name of God

“I, A.B., do ———————————————— that I will

solemnly affirm

bear true faith and allegiance to the Constitution of India as bylaw established, that I will uphold the sovereignty and integrityof India, that I will faithfully and conscientiously discharge myduties as a Minister for the Union and that I will do right to allmanner of people in accordance with the Constitution and thelaw, without fear or favour, affection or ill-will.”

42. Insofar as their oath to uphold and defend the Constitutionof India is concerned, the Chief Ministers of the several States, togetherwith Ministers of their cabinets, are bound by Article 164(3), read withthe Third Schedule, to uphold and defend the Constitution in the followingterms:

“164. Other provisions as to Ministers.—

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(3) Before a Minister enters upon his office, the Governor shalladminister to him the oaths of office and of secrecy accordingto the forms set out for the purpose in the Third Schedule.

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swear in the name of God

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bear true faith and allegiance to the Constitution of India as bylaw established, that I will uphold the sovereignty and integrityof India, that I will faithfully and conscientiously discharge myduties as a Minister for the State of………….and that I will doright to all manner of people in accordance with the Constitutionand the law without fear or favour, affection or ill-will.”

43. Insofar as the Members of Parliament are concerned, i.e.,the Members of both the Lok Sabha and the Rajya Sabha, Article 99,read with the Third Schedule, is as follows:

“99. Oath or affirmation by members.—Every member ofeither House of Parliament shall, before taking his seat, makeand subscribe before the President, or some person appointed inthat behalf by him, an oath or affirmation according to the formset out for the purpose in the Third Schedule.”

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Form of oath or affirmation to be made by a member ofParliament:—

‘I, A.B., having been elected (or nominated) a member of theCouncil of States (or the House of the People)

swear in the name of God

do ———————————————— that I will bear true

solemnly affirm

faith and allegiance to the Constitution of India as by lawestablished, that I will uphold the sovereignty and integrity ofIndia and that I will faithfully discharge the duty upon which Iam about to enter.”

44. Insofar as the Members of State Legislative Assemblies andCouncils are concerned, Article 188, read with the Third Schedule, isas follows:

“188. Oath or affirmation by members.—Every member ofthe Legislative Assembly or the Legislative Council of a Stateshall, before taking his seat, make and subscribe before theGovernor, or some person appointed in that behalf by him, anoath or affirmation according to the form set out for the purposein the Third Schedule.”

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Form of oath or affirmation to be made by a member of theLegislature of a State:—

“I, A.B., having been elected (or nominated) a member of theLegislative Assembly (or Legislative

swear in the name of God

Council), do ———————————————— that I will

solemnly affirm

bear true faith and allegiance to the Constitution of India as bylaw established, that I will uphold the sovereignty and integrityof India and that I will faithfully discharge the duty upon whichI am about to enter.”

45. It is important to notice, at this juncture, that so far as thePrime Minister and members of his Cabinet are concerned, not onlydoes the form of oath contained in the Third Schedule require that allsuch persons will bear true faith and allegiance to the Constitution ofIndia as by law established, but also that they will do right to all mannerof people, in accordance with the Constitution and the law, without fearor favour, affection or ill will. The same goes for the oath taken by theChief Ministers and Ministers within the States. Read with Article 144,this would mean that it is the bounden duty of every Minister, whether

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ACentral or State, to follow Article 144 in letter as well as spirit, and todo what is right to all manner of people, in accordance with theConstitution and the law, which means in accordance with theinterpretation of the Constitution declared by the law laid down by theSupreme Court. It is, therefore, incumbent upon the executive branchBof Government and all MPs and MLAs to faithfully aid in carrying outdecrees and orders passed by the Supreme Court of India when suchdecrees and orders command a particular form of obedience, evenwhere they are not parties to the litigation before the Supreme Court.Any deviation from this high constitutional principle is in derogation of the oath taken by every Minister and Legislator during his term of office.COnce this is clearly understood and followed, the rule of law isestablished, and the shameful spectacle of political parties running aftervotes, or instigating or tolerating mob violence, in defiance of decreesor orders passed by the Supreme Court of India does not reign instead.

46. The history of democratic nations shows that what ourDfounding fathers handed to us in the form of the Constitution of Indiawas the result of centuries of struggle in both England and the UnitedStates of America. The bloody revolutions that took place in Franceand Russia against absolute monarchs are a sober reminder to thepeople of the world that social transformation, which took placeEcataclysmically in rivers of human blood, is to be eschewed. An absolutemonarch like Peter the Great of Russia, could order, by decree, thatno adult male shall, in the future, have a beard. This was done as partof a move to bring Russia out of the middle ages and in line with otheradvanced European nations. For most Orthodox Russians, the beardFwas a fundamental symbol of religious belief and self-respect. It wasan ornament given by God, worn by the prophets, the apostles and byJesus himself. Ivan the Terrible expressed the traditional Muscovitefeeling when he declared, “to shave the beard is a sin that the blood ofall the martyrs cannot cleanse. It is to deface the image of man createdby God.” This decree was carried out overnight, with RussianGofficialdom being armed with razors with which they were to shave,on the spot, those unfortunate wretches who had not obeyed the decree.Eventually those who insisted on keeping their beards were permittedto do so on paying an annual tax. Payment entitled the owner to a smallbronze medallion with a picture of a beard on it and the words “TAXHPAID”, which was worn on a chain around the neck to prove to any

challengers that his beard was legal. The tax was graduated; peasantspaid only two kopeks a year, wealthy merchants paid as much as ahundred roubles.[2] It is in the wake of such tumultuous events in history,that the great democratic constitutions of the world have beenpromulgated, so that social transformation takes place peaceably, as theresult of the application of the rule of law.

47. The expression “rule of law” can be traced back to the greatGreek philosopher Aristotle, who lived 2,400 years ago. In his book onthe ‘Rule of Law’ by Brian Z. Tamanaha, Aristotle is reported to havesaid:

“It is better for the law to rule than one of the citizens…so thateven the guardians of the law are obeying the laws.”

48. John Locke had stated, in 1690, in his Second Treatise ofGovernment, Chapter XVII, page 400, that, “wherever law ends, tyrannybegins”.

49. In the year of the American Declaration of Independence,i.e. 1776, Thomas Paine, in his book, “Common Sense”, at page 34,stated:

“…In America the law is king. For as in absolute governmentsthe King is law, so in free countries the law ought to be king;and there ought to be no other.”

50. Prof. A.V. Dicey, the Vinerian Professor of English Law atthe University of Oxford, in his book, “An Introduction to the Study ofthe Law of the Constitution”, published in 1885, gave three meaningsto the rule of law. We are directly concerned with the second meaningthat was thus given. He stated, “We mean in the second place, when we speak of the “rule oflaw” as a characteristic of our country, not only that with us noman is above the law, but (what is a different thing) that hereevery man, whatever be his rank or condition, is subject to theordinary law of the realm and amenable to the jurisdiction of theordinary tribunals.”

(at page 193)

2 ROBERT K. MASSIE, PETER THE GREAT: HIS LIFE AND WORLD, 234-235(Ballantine Books 1980).

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A51. The rule of law was first established against absolutistmonarchs. Thus, in the Magna Carta, which was signed by King Johnof England on 15 June, 1215, it was stated:

“39.No free man shall be seized or imprisoned or stripped of hisrights or possessions, or outlawed or exiled, or deprived of hisBstanding in any other way, nor will we proceed with force againsthim, or send others to do so, except by the lawful judgment ofhis equals or by the law of the land.

40. To no one will we sell, to no one deny or delay right or justice.”52. Despite the fact that Pope Innocent III, by a papal bull, inCAugust of that year, annulled the Magna Carta, the Magna Carta wasrepeatedly affirmed by English monarchs. Copies of it were printed anddistributed both in the time of Henry III, i.e., the son of King John,and Edward I, King John’s grandson.

53. The next important landmark in English Law, so far as theDrule of law is concerned, is the famous Petition of Right[3] of 1628, inclause VIII of which, it was stated:

“They do therefore humbly pray your most excellent majesty thatno man hereafter be compelled to make or yield any gift, loan,benevolence, tax or such like charge without common consentEby act of parliament, and that none be called to make answer ortake such oath or to give attendance or be confined or otherwisemolested or disquieted concerning the same or for refusalthereof. And that no freeman in any such manner as is beforementioned be imprisoned or detained. And that your MajestyFwould be pleased to remove the said soldiers and mariners, andthat your people may not be so burdened in time to come. Andthat the aforesaid commissions for proceeding by martial law maybe revoked and annulled. And that hereafter no commissions oflike nature may issue forth to any person or persons whatsoeverto be executed as aforesaid, lest by colour of them any of yourG

3 This Petition of Right was signed by King Charles I, who was one of the StuartKings of England, who believed that he governed the realm by divine right. His father,King James I’s Chief Justice, Lord Edward Coke, stated a fundamental of the BritishConstitution when he said to his King that, “Bracton saith, quod Rex non debet essesub-homine set sub Deo et lege”, i.e., the King ought not to be under any man, butHunder God and the law.

Majesty’s subjects be destroyed or put to death contrary to thelaws and franchises of the land.”

54. The next great landmark establishing the rule of law inEngland was the Bill of Rights, 1689, under which no monarch couldrely on divine authority to override the law. The authority andindependence of Parliament was proclaimed, and the power to suspendlaws without the consent of Parliament was condemned as illegal.Personal liberty and security were protected by prohibiting therequirement of excessive fines, the imposition of excessive bail, andthe infliction of cruel and unusual punishments.

55. In the United States, the rule of law was established by theConstitution of the United States, 1789. In particular, Article VI of theU.S. Constitution states:

“This Constitution, and the laws of the United States which shallbe made in pursuance thereof; and all treaties made, or whichshall be made, under the authority of the United States, shall bethe supreme law of the land; and the judges in every state shallbe bound thereby, anything in the Constitution or laws of anyState to the contrary notwithstanding.”

56. When it came to the judicial branch of Government, AlexanderHamilton, in Federalist Paper No.78, had this to say:

“Whoever attentively considers the different departments ofpower must perceive, that, in a government in which they areseparated from each other, the judiciary, from the nature of itsfunctions, will always be the least dangerous to the political rightsof the Constitution; because it will be least in a capacity to annoyor injure them. The Executive not only dispenses the honors, butholds the sword of the community. The legislature not onlycommands the purse, but prescribes the rules by which the dutiesand rights of every citizen are to be regulated. The judiciary, onthe contrary, has no influence over either the sword or the purse;no direction either of the strength or of the wealth of the society;and can take no active resolution whatever. It may truly be saidto have neither FORCE nor WILL, but merely judgment; and mustultimately depend upon the aid of the executive arm even for”the efficacy of its judgments.

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(emphasis supplied)

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A57. Given the fact that the U.S. Constitution did not contain anyArticle resembling Article 144 of our Constitution, the case of theCherokee Indians vis-à-vis the State of Georgia is instructive. In thefirst judgment dealing with the Cherokee Indians, Chief Justice Marshallstated that the Supreme Court had no original jurisdiction to try the caseas the Cherokee nation was not a foreign nation [see CherokeeBNations v. State of Georgia, 30 U.S. 1, 43 (1831)]. However, afterthis first case was decided, the Georgia legislature passed a lawrequiring all white persons living within the Cherokee territory of theState of Georgia to obtain a license, and to take an oath of allegianceto the State of Georgia. Two white missionaries refused to do so, andwere arrested and convicted by a Georgian Court to four years’Cimprisonment. This time, Chief Justice Marshall, in 1832, held theGeorgia statute unconstitutional on the ground that the jurisdiction ofthe Federal Courts over Cherokee Indians was exclusive, andconsequently, the State of Georgia had no power to pass laws affectingthem or their territory. Consequently, the judgment of the Georgiasuperior court, convicting the two white missionaries and sentencingDthem to prison was overturned, and the Supreme Court ordered theirrelease [see Worcester v. State of Georgia, 31 U.S. 515 (1832)].The writ that was issued in favour of the two white missionaries was,however, never executed. President Andrew Jackson is supposedfamously to have said, “Well, John Marshall has made his decision; nowElet him enforce it.” President Jackson was of the opposite view to thatof the Court, stating that the state legislatures had powers to extendtheir laws over all persons living within their boundaries. So, a judgmentof the highest court of the land was blatantly disobeyed by the State ofGeorgia, with the backing of the President of the United States.

58. One hundred and twenty years later, the U.S. Supreme Court,Fin Brown v. Board of Education of Topeka, 347 U.S. 483 (1954),overruled a long-standing precedent of 1896, namely, Plessy v.Ferguson, 163 U.S. 537 (1896), to now declare that there shall bedesegregation of black and white students in state schools. Aconstitutional crisis was reached, when the Governor of Arkansas openlyGflouted the desegregation order mandated by the U.S. Supreme Courtin Brown (supra). In 1957, as stated hereinabove, the Governor ofArkansas and officers of the Arkansas National Guard obstructed blackchildren from entering the high school at Little Rock, Arkansas. Anuneasy tension prevailed as the students were prevented entry.However, President Eisenhower then despatched federal troops to theHhigh school, as a result of which, admission of black students to the school was thereby effected. In 1958, the School Board and theSuperintendent of Schools filed a petition in the District Court seekingpostponement of their programme for desegregation. This was becauseof conditions at the ground level of “chaos, bedlam, and turmoil”. TheDistrict Court granted the relief requested by the Board. The Court ofAppeals for the Eighth Circuit stayed the aforesaid judgment.

59. In Cooper v. Aaron, 358 U.S. 1 (1958), [“Cooper”] theUS Supreme Court, by a unanimous judgment, held:

“The controlling legal principles are plain. The command of theFourteenth Amendment is that no “State” shall deny to any personwithin its jurisdiction the equal protection of the laws. “A Stateacts by its legislative, its executive, or its judicial authorities. Itcan act in no other way. The constitutional provision, therefore,must mean that no agency of the State, or of the officers oragents by whom its powers are exerted, shall deny to any personwithin its jurisdiction the equal protection of the laws. Whoever,by virtue of public position under a State government . . . deniesor takes away the equal protection of the laws violates theconstitutional inhibition; and, as he acts in the name and for theState, and is clothed with the State’s power, his act is that of theState. This must be so, or the constitutional prohibition has nomeaning.” Ex parte Virginia, 100 U. S. 339, 347; 25 L ed 676,679. Thus, the prohibitions of the Fourteenth Amendment extendto all action of the State denying equal protection of the laws;whatever the agency of the State taking the action, see Virginiav. Rives, 100 U. S. 313; Pennsylvania v. Board of Directorsof City Trusts of Philadelphia, 353 U. S. 230; Shelley v.Kraemer, 334 U. S. 1; or whatever the guise in which it is taken,see Derrington v. Plummer, 240 F.2d 922; Department ofConservation and Development v. Tate, 231 F.2d 615.

In short, the constitutional rights of children not to be discriminatedagainst in school admission on grounds of race or colour declaredby this Court in the Brown case can neither be nullified openlyand directly by state legislators or state executive or judicialofficers nor nullified indirectly by them through evasive schemesfor segregation whether attempted “ingeniously or””ingenuously.Smith v. Texas, 311 U. S. 128, 132.

(at pp. 16-17)

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A60. Justice Frankfurter, in a separate concurring opinion, stated:

“When defiance of law, judicially pronounced, was last soughtto be justified before this Court, views were expressed whichare now especially relevant:

“The historic phrase ‘a government of laws, and not of men’epitomizes the distinguishing character of our political society.When John Adams put that phrase into the MassachusettsDeclaration of Rights, he was not indulging in a rhetoricalflourish. He was expressing the aim of those who, with him,framed the Declaration of Independence and founded theRepublic. ‘A government of laws, and not of men,’ was therejection in positive terms of rule by fiat, whether by the fiatof governmental or private power. Every act of governmentmay be challenged by an appeal to law, as finally pronouncedby this Court. Even this Court has the last say only for a time.Being composed of fallible men, it may err. But revision ofits errors must be by orderly process of law. The Court maybe asked to reconsider its decisions, and this has been donesuccessfully again and again throughout our history. Or whatthis Court has deemed its duty to decide may be changed bylegislation, as it often has been, and, on occasion, byconstitutional amendment.”

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“But, from their own experience and their deep reading in history,the Founders knew that Law alone saves a society from beingrent by internecine strife or ruled by mere brute power howeverdisguised. ‘Civilization involves subjection of force to reason, andthe agency of this subjection is law.’ (Pound, The Future of Law(1937) 47 Yale L.J. 1, 13.) The conception of a government bylaws dominated the thoughts of those who founded this Nationand designed its Constitution, although they knew as well as thebelittlers of the conception that laws have to be made, interpretedand enforced by men. To that end, they set apart a body of menwho were to be the depositories of law, who, by their disciplinedtraining and character and by withdrawal from the usualtemptations of private interest, may reasonably be expected tobe ‘as free, impartial, and independent as the lot of humanity willadmit.’ So strongly were the framers of the Constitution bent onsecuring a reign of law that they endowed the judicial office withextraordinary safeguards and prestige. No one, no matter how F

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exalted his public office or how righteous his private motive, canbe judge in his own case. That is what courts are for.” UnitedStates v. United Mine Workers, 330 U. S. 258, 307-309(concurring opinion).

The duty to abstain from resistance to “the supreme Law of theLand,” U.S. Const., Art. VI, ¶ 2, as declared by the organ ofour Government for ascertaining it, does not require immediateapproval of it, nor does it deny the right of dissent. Criticism neednot be stilled. Active obstruction or defiance is barred.Our kindof society cannot endure if the controlling authority of the Lawas derived from the Constitution is not to be the tribunal speciallycharged with the duty of ascertaining and declaring what is “thesupreme Law of the Land.” See President Andrew Jackson’sMessage to Congress of January 16, 1833, II Richardson,Messages and Papers of the Presidents (1896 ed.) 610, 623.)”

“That the responsibility of those who exercise power in ademocratic government is not to reflect inflamed public feeling,but to help form its understanding, is especially true when theyare confronted with a problem like a racially discriminatingpublic school system. This is the lesson to be drawn from theheartening experience in ending enforced racial segregationin the public schools in cities with Negro populations of largeproportions. Compliance with decisions of this Court, as theconstitutional organ of the supreme Law of the Land, hasoften, throughout our history, depended on active support bystate and local authorities. It presupposes such support. Towithhold it, and indeed to use political power to try to paralyzethe supreme Law, precludes the maintenance of our federalsystem as we have known and cherished it for one hundred”and seventy years.

(at page 26)

61. The aftermath of this decision was the enactment of the CivilRights Act by the U.S. Congress in 1964. It was thanks to the decisionin Cooper (supra) that the U.S. Congress finally outlawed racialdiscrimination in every form, including segregation of races at schools.Social transformation, therefore, took place as a result of the decisions A

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Ain Brown (supra) and Cooper (supra). Constitutional morality didultimately triumph over racial discrimination.

62. In our country, an interesting incident took place in 1828, asa result of which, there was a direct confrontation between the SupremeCourt at Bombay and Governor Malcolm. This incident is narrated inBP.B. Vachha’s book, “Famous Judges, Lawyers and Cases of Bombay”as follows:

“In 1828, a few days after the death of West, the two remainingjudges of the Supreme Court issued a writ of Habeas Corpusto the Poona court, for the production before them of one Moro,Ca boy of 14, who was in the guardianship of his uncle Pandurang,at the instance of the boy’s father-in-law, who complained of theevil influences of the uncle on the minor. It seems that thejurisdiction of the Supreme Court was vaguely defined in itsCharter; and Malcolm thought that the judges in issuing the writDhad exceeded their powers. He regarded the occasion as a mostfavourable opportunity for striking a blow at the Supreme Court.“The opportunity of striking a blow at these courts,” he wrote,“was given me, and to the utmost of my strength, I will inflictit.” He issued orders instructing the Poona court to ignore thewrit, with the result that the writ remained unserved. This wasEa direct and calculated challenge to the authority of the SupremeCourt. The Governor added insult to injury by addressing a letterto the judges, informing them that he had given orders to theCompany’s servants to take no notice of any writs issued by theSupreme Court to the mofussil courts, or to native subjectsFresident outside the limits of the town and island of Bombay.When the Clerk of the Court read out this communication in opencourt at its next sitting, the judges strongly and rightly resentedthe discourteous and dictatorial tone of the communication; andthey nobly and valiantly declared that “the court would not allowany individual, be his rank ever so distinguished, or his powersGever so predominant, to address it in any other way respectingits judicial and public functions, than as the humblest suitor, whoapplies for its protection”; adding, “within these walls, we knowno equal and no superior but God and the King”. They warnedthe government against instigating any persons to disobey theHwrits of the King issued by his judges.

Chambers died within a fortnight. At the next sitting of the court,Grant, sitting alone, said that the government had killed his brotherjudge, “but they shall not kill me”; and that he was prepared tofight singlehanded for the rights and privileges of his officer.Finding that no return to the writ of Habeas Corpus wasforthcoming, owing to the obstruction of the government, Grantissued a fresh writ returnable immediately, with a penalty ofRs.10,000 in case of disobedience. A special constable was sentto Poona with authority to seek military aid, if the civil authoritiesobstructed him in the discharge of his duty. The Commander ofthe Bombay forces, Sir Thomas Bradford, who was at firstdisposed to support the government, now veered round to theside of the judiciary, declaring that to oppose the writ was tooppose the King, and he would call out the military to enforceHis Majesty’s writ.

Malcolm retorted by declaring that, if the Commander interfered,he would “deport him bag and baggage” out of India, regardlessof all consequences. Grant then took the extreme measure ofgoing on strike with his entire staff, and locked up the High Court,suspending its functions for a period of about five months.Malcolm, of course, was banking upon the support of the homeauthorities. His friend, the Duke of Wellington, being now PrimeMinister, Malcolm hastened to forward to London his ownversion of the case. Grant also had sent his protest to the Boardof Control. After some interval, the long awaited despatch of theBoard arrived. The Board condemned the attitude of the SupremeCourt, fortified it seems by the Privy Council’s ruling, that thewrit was improperly issued by the Supreme Court over a personoutside their jurisdiction. As stated before, the territorial limits ofthe jurisdiction of the Supreme Court had been ill-defined in itsCharter; and it is also possible that, since only the King’s Courthad power to issue a writ of Habeas Corpus, the judges mighthave thought that, in the matter of this writ at least, theirjurisdiction extended beyond the town and island of Bombay.

The despatch of the India Board further contained ordersappointing Dewar, who was then Advocate-General, as ChiefJustice, and William Seymour, a barrister, as puisne judge,Chambers being dead. Lord Ellenborough, President of the Boardof Control, expressed the hope that “these appointments will AB

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Aprevent all mischief in future; as Grant will now be like a wildelephant between two tame elephants.” But Grant was “wildelephant” with a very tough hide, and made of sterner stuff fortwenty years’ and closed his stormy and valiant judicial careerin 1848, as judge of the Supreme Court of Calcutta. Grantforfeited the favour of the authorities, but gained immensely inBpopularity with the Bombay public. It is said that on his departurefrom Bombay, “the natives drew his carriage”. Grant died at seaon his voyage home, after his retirement from the Calcutta HighCourt.”

(emphasis supplied)(at pp. 196-198)

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63. Given the chequered history of the open flouting of judgmentsof superior courts in the 19[th] century, the 20[th] century has witnessed acomplete about-turn, as can be seen by the U.S. Supreme CourtDjudgment in Cooper v. Aaron (supra). Today, it is no longer open toany person or authority to openly flout a Supreme Court judgment ororder, given the constitutional scheme as stated by us hereinabove. Itis necessary for us to restate these constitutional fundamentals in thelight of the sad spectacle of unarmed women between the ages of 10and 50 being thwarted in the exercise of their fundamental right ofEworship at the Sabarimala temple.[4] Let it be said that whoever doesnot act in aid of our judgment, does so at his peril – so far as Ministers,both Central and State, and MPs and MLAs are concerned, they wouldviolate their constitutional oath to uphold, preserve, and defend theConstitution of India. So far as the citizens of India are concerned, weFwould do well to remind them of the fundamental duties of citizens laiddown in Article 51A of the Constitution, in particular, clauses (a), (e),and (h) thereof, which state:

“51A. Fundamental duties.—It shall be the duty of everycitizen of India—

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4 The Travancore Devaswom Board, in the initial round of hearing, opposed the publicinterest writ petitions that were filed in this Court. However, after the judgmentdated 28.09.2018 was delivered by the Constitution Bench, Shri Rakesh Dwivedi,learned Senior Advocate appearing on behalf of the Board, appeared before us andopposed the review petitions that were filed in this Court, stating that the Board hasHdecided to accept this Court’s judgment.

(a) to abide by the Constitution and respect its ideals andinstitutions, the National Flag and the National Anthem; xxx xxx xxx

(e) to promote harmony and the spirit of common brotherhoodamongst all the people of India transcending religious, linguisticand regional or sectional diversities; to renounce practicesderogatory to the dignity of women; xxx xxx xxx (h) to develop the scientific temper, humanism and the spirit ofinquiry and reform;

We may, at this juncture, make it clear that the freedom tocriticise the judgments of this Court is not being interfered with. LordAtkin’s famous words, in the case of Ambard v. Attorney-Generalfor Trinidad And Tobago, [1936] A.C. 322, come to mind:

“But whether the authority and position of an individual judge,or the due administration of justice, is concerned, no wrong iscommitted by any member of the public who exercises theordinary right of criticising, in good faith, in private or public, thepublic act done in the seat of justice. The path of criticism is apublic way: the wrong headed are permitted to err therein:provided that members of the public abstain from imputingimproper motives to those taking part in the administration ofjustice, and are genuinely exercising a right of criticism, and notacting in malice or attempting to impair the administration ofjustice, they are immune. Justice is not a cloistered virtue: shemust be allowed to suffer the scrutiny and respectful, even thoughoutspoken, comments of ordinary men.”

64. Bona fide criticism of a judgment, albeit of the highest courtof the land, is certainly permissible, but thwarting, or encouragingpersons to thwart, the directions or orders of the highest court cannotbe countenanced in our Constitutional scheme of things. After all, inIndia’s tryst with destiny, we have chosen to be wedded to the rule oflaw as laid down by the Constitution of India. Let every person A

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Aremember that the “holy book” is the Constitution of India, and it iswith this book in hand that the citizens of India march together as anation, so that they may move forward in all spheres of humanendeavour to achieve the great goals set out by this “Magna Carta” orGreat Charter of India.

B65. The Constitution places a non-negotiable obligation on allauthorities to enforce the judgments of this Court. The duty to do soarises because it is necessary to preserve the rule of law. If those whoseduty it is to comply were to have a discretion on whether or not toabide by a decision of the court, the rule of law would be set at naught.Judicial remedies are provided to stakeholders before a judgment isCpronounced and even thereafter. That, indeed, is how the proceedingsin review in the present case have been initiated. Hence argumentshave been addressed, exchanged between counsel and considered withthe sense of objectivity and fairness on which the judicial process rests.These remedies within a rule of law framework provide recourse toall those who may be and are affected by the course of a judicialDdecision. When the process is complete and a decision is pronounced,it is the decision of the Supreme Court and binds everyone. Complianceis not a matter of option. If it were to be so, the authority of the courtcould be diluted at the option of those who are bound to comply withits verdicts.

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66. The State of Kerala is directed to give wide publicity to thisjudgment through the medium of television, newspapers, etc. Thegovernment should take steps to secure the confidence of thecommunity in order to ensure the fulfillment of constitutional values.The State government may have broad-based consultations withFrepresentatives of all affected interests so that the modalities devisedfor implementing the judgment of the Court meet the genuine concernsof all segments of the community. Organised acts of resistance to thwartthe implementation of this judgment must be put down firmly. Yet indevising modalities for compliance, a solution which provides lastingpeace, while at the same time reaffirming human dignity as aGfundamental constitutional value, should be adopted. Consistent with theduties inhering in it, we expect the State government to ensure that therule of law is preserved. All petitions are disposed of accordingly.

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Divya Pandey

Directions issued.