Holding

The review petitions are dismissed as no material error is apparent, and the writ petitions are dismissed as not maintainable.

Summary

The petitioners sought a review of the Supreme Court's 28 September 2018 judgment in Indian Young Lawyers Association v. State of Kerala, which struck down the exclusion of women aged 10‑50 from the Sabarimala temple. The Court examined whether any material error or patent mistake existed in the earlier judgment, particularly concerning the interpretation of Articles 25, 26, 14, 15 and 17 of the Constitution and the validity of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. After analysing the majority opinions, the dissent, and the applicable precedents, the Court found a clear consensus on the three core issues and concluded that no ground for review was made out. Consequently, the review petitions and the accompanying writ petitions filed under Article 32 were dismissed, with a direction that any overlapping matters may be referred to a larger bench if the Chief Justice so decides.

Issues considered

The existence of any material error or patent mistake justifying a review of the 2018 Sabarimala judgment
Whether the writ petitions challenging the judgment are maintainable under Article 32
The applicability and constitutionality of Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965, particularly Rule 3(b)
The interpretation of Articles 25, 26, 14, 15 and 17 in relation to the exclusion of women from places of worship
The need for a larger bench to resolve overlapping religious‑freedom issues arising in other pending cases

Legislation cited

Code of Civil Procedure, 1908s. 9
Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965s. 3, s. 4
Kerala Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965s. 3(b)
Supreme Court Rules, 2013s. Order XLVII

Subjects

review petitionSabarimala templefreedom of religiongender equalityconstitutional moralityArticle 25Article 26public orderessential religious practicelarger benchpublic interest litigationrule of lawArticle 144

Judgment

[2019] 17 S.C.R. 599 599

KANTARU RAJEEVARU A
v.
INDIAN YOUNG LAWYERS ASSOCIATION THR. ITS
GENERAL SECRETARY AND ORS.
(Review Petition (Civil) No. 3358/2018) B
In
(Writ Petition (Civil) No. 373/2006)
NOVEMBER 14, 2019
[RANJAN GOGOI, CJI, A. M. KHANWILKAR, C
INDU MALHOTRA, R. F. NARIMAN AND
DR. 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/w
Third Schedule, 129, 136, 140, 141, 142, 144, 145(3), 154(2)(a),
D
162, 266, 258(2), 277, 301-304, 307, 329(b), 353(b), 356(1)(a),
357(1)(b), 372(1) – Sabarimala temple case – Review Petitions
filed u/Art.137 r/w Or. XLVII of 2013 Rules – Fresh writ petitions
also filed u/Art.32– Held: Per Ranjan Gogoi, CJI (for himself and
A.M. Khanwilkar, Indu Malhotra, JJ.) – Debate about
constitutional validity of practices entailing into restriction of entry E
of women generally in the place of worship is not limited to this
case, but also arises in respect of entry of Muslim women in
Durgah/Mosque; Parsi women married to a non-Parsi into the holy
fire place of an Agyari – Another seminal issue pending
consideration in Supreme Court relates to female genital mutilation
in Dawoodi Bohra community – Issues arising in such pending F
cases may be overlapping and covered by the judgment under
review – Prospect of the issues arising therein being referred to
larger bench cannot be ruled out – Further, conflict between
decision of the Seven Judges bench in Commissioner, Hindu Religious
Endowments, Madras v. Shri Lakshmindra Tirtha Swamiar of Shirur G
Mutt (Shirur Mutt) reported as [1954] SCR 1005 and the subsequent
view of Five Judges bench in Durgah Committee, Ajmer v. Syed
Hussain Ali & Ors. reported as [1962] 1 SCR 383 requires
consideration by a larger bench – Larger bench may also consider
it appropriate to decide all issues, including the question as to
whether the 1965 Rules govern the temple in question at all – H
599
600 SUPREME COURT REPORTS [2019] 17 S.C.R.

A Review petitions and the writ petitions may remain pending until
determination of the questions, as indicated, by a Larger Bench
as 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 narrow
question as to whether grounds for review and for filing of the
B writ petitions have been made out qua the judgment under review
in Indian Young Lawyers Association and Ors. v. State of Kerala
reported as [2018] 9 SCR 561 – What a future constitution bench/
larger bench, if constituted by the Chief Justice of India, may or
may not do when considering the other issues pending before this
C Court is not before this Court at all – In the five-Judge Bench
Indian Young Lawyers Association’s case, four majority judgments
had clear consensus on the issues- (i) that the devotees of Lord
Ayyappado not constitute a separate religious denomination and
thus, cannot claim the benefit of Art.26 or the proviso to s.3 of
the 1965 Act; (ii) aforesaid four judgments specifically grounded
D the right of women between the ages of 10 to 50, excluded from
practicing their religion, u/Art.25(1) emphasizing the expression
“all persons” and the expression “equally” occurring in that
Article, so that this right is equally available to both men and
women of all ages professing the same religion and; (iii) that s.3
E of the 1965 Act traces its origin to Art.25(2)(b) and would apply
notwithstanding any custom to the contrary, to enable Hindu women
the right of entry in all public temples open to Hindus, so that they
may 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 vires
s.3 of the 1965 Act – Further, observations of Chandrachud, J.
F on Art.17 cannot be said to be a material error manifest on the
face of the record undermining the soundness of the three
conclusions reached by all the majority judgments – On whether
the exclusion of women from Hindu temples is an essential part of
the Hindu religion, three Judges clearly held that it is not – There
is no error apparent here again – Also, “constitutional morality”
G has now reached the level of stare decisis, and has been explained
in several Constitution Bench judgments, reliance thereon cannot
be said to suffer from any error apparent– Extreme arguments that
belief and faith are not judicially reviewable by courts, and that
this Court cannot interfere by stating that a particular section of
H persons shall not hold a particular belief and act in accordance
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 601
THR. ITS GENERAL SECRETARY

thereto, not only do not constitute “errors apparent”, but are A
arguments that fly in the face of Art.25 – Given the consensus on
the three issues by the four majority judgments, no ground for
review of the majority judgments made out – Review petitions
dismissed – Writ petitions also dismissed as not being maintainable
– State of Kerala to give wide publicity to this judgment through
the medium of television, newspapers, etc. – Organised acts of B
resistance to thwart the implementation of the judgment be put
down firmly – State government to ensure that the rule of law is
preserved – Supreme Court Rules, 2013 – Or.XLVII – Kerala Hindu
Places of Public Worship (Authorisation of Entry) Act, 1965 – s.3
– Kerala Hindu Places of Public Worship (Authorisation of Entry) C
Rules,1965–r.3(b)–Doctrine of stare decisis – Public Interest
Litigation – Principle of Res Judicata.
Directing that the subject Review Petitions as well as the
Writ Petitions may remain pending until determination of the
questions, as indicated, by a Larger Bench as may be constituted D
by the Hon’ble the Chief Justice of India, the Court
HELD: Per Ranjan Gogoi, CJI (for himself and
for A. M. Khanwilkar and Indu Malhotra, JJ.)
1.1 Concededly, the debate about the constitutional validity
of practices entailing into restriction of entry of women generally E
in the place of worship is not limited to this case, but also arises
in respect of entry of Muslim women in a Durgah/Mosque as
also in relation to Parsi women married to a non-Parsi into the
holy fire place of an Agyari. There is yet another seminal issue
pending for consideration in this Court regarding the powers of
the constitutional courts to tread on question as to whether a F
particular practice is essential to religion or is an integral of the
religion, in respect of female genital mutilation in Dawoodi Bohra
community. It is time that this Court should evolve a judicial
policy befitting to its plenary powers to do substantial and
complete justice and for an authoritative enunciation of the G
constitutional principles by a larger bench of not less than seven
judges. The decision of a larger bench would put at rest recurring
issues touching upon the rights flowing from Articles 25 and 26
of the Constitution of India. It is essential to adhere to judicial
discipline and propriety when more than one petition is pending
on the same, similar or overlapping issues in the same court for H
602 SUPREME COURT REPORTS [2019] 17 S.C.R.

A which all cases must proceed together. Indubitably, decision by
a larger bench will also pave way to instil public confidence and
effectuate the principle underlying Article 145(3) of the
Constitution- which predicates that cases involving a substantial
question of law as to the interpretation of the Constitution should
be heard by a bench of minimum five judges of this Court. [Paras
B 3, 4] [617-E-H; 618-A-B]
1.2 The issues arising in the pending cases regarding entry
of Muslim Women in Durgah/Mosque (being Writ Petition (Civil)
No.472 of 2019); of Parsi Women married to a non-Parsi in the
Agyari (being Special Leave Petition (Civil) No. 18889/2012);
C and including the practice of female genital mutilation in Dawoodi
Bohra 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 referred
to larger bench cannot be ruled out. The said issues could be:

D (i) Regarding the interplay between the freedom of religion
under Articles 25 and 26 of the Constitution and other provisions
in Part III, particularly Article 14; (ii) What is the sweep of
expression ‘public order, morality and health’ occurring in Article
25(1) of the Constitution; (iii) The expression ‘morality’ or
‘constitutional morality’ has not been defined in the Constitution.
E Is it over arching morality in reference to preamble or limited
to religious beliefs or faith. There is need to delineate the
contours of that expression, lest it becomes subjective; (iv) The
extent to which the court can enquire into the issue of a
particular practice is an integral part of the religion or religious
practice of a particular religious denomination or should that be
F left exclusively to be determined by the head of 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 religious denomination, or even a section thereof are afforded
constitutional protection under Article 26 and; (vii) What would
G be the permissible extent of judicial recognition to PILs in
matters calling into question religious practices of a
denomination or a section thereof at the instance of persons who
do not belong to such religious denomination?
In a legal framework where the courts do not have any
H epistolary jurisdiction and issues pertaining to religion including
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 603
THR. ITS GENERAL SECRETARY

religious practices are decided in exercise of jurisdiction under A
Section 9 of the Civil Procedure Code or Article 226/32 of the
Constitution the courts should tread cautiously. This is time
honoured principle and practice. In this context, the decision of
the Seven Judges bench of this Court in Commissioner, Hindu
Religious Endowments, Madras vs. Shri Lakshmindra Tirtha
Swamiar of Shirur Mutt (Shirur Mutt) holding that what are B
essential religious practices of a particular religious
denomination should be left to be determined by the
denomination itself and the subsequent view of a Five Judges
bench in Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors.
carving out a role for the court in this regard to exclude what C
the courts determine to be secular practices or superstitious
beliefs seem to be in apparent conflict requiring consideration
by a larger Bench. While deciding the questions delineated
above, the larger bench may also consider it appropriate to
decide all issues, including the question as to whether the Kerala
Hindu Places of Public Worship (Authorisation of Entry) Rules, D
1965 govern the temple in question at all. Whether the aforesaid
consideration will require grant of a fresh opportunity to all
interested parties may also have to be considered. [Paras 5-8]
[618-D-H; 619-A-G]
Commissioner, Hindu Religious Endowments, Madras E
v. 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. F
Chandrachud, J.) (Dissenting)
1.1 What this Court has before it is review petitions arising
out of this Court’s judgment in Indian Young Lawyers Association
and Ors. v. State of Kerala W.P. (C) No.373 of 2006, which was
delivered on 28 September, 2018, with regard to the Sabarimala
G
temple dedicated to Lord Ayyappa. What a future constitution
bench or larger bench, if constituted by the learned Chief Justice
of India, may or may not do when considering the other issues
pending before this Court is, strictly speaking, not before this
Court at all. The only thing that is before this Court is the review
petitions and the writ petitions that have now been filed in H
604 SUPREME COURT REPORTS [2019] 17 S.C.R.

A relation to the judgment in Indian Young Lawyers Association
and Ors. v. State of Kerala, dated 28 September, 2018. As and
when the other matters are heard, the bench hearing those
matters may well refer to the judgment in Indian Young Lawyers
Association and Ors. v. State of Kerala, dated 28 September,
2018, and may either apply such judgment, distinguish such
B judgment, or refer an issue/issues which arise from the said
judgment for determination by a larger bench. All this is for
future Constitution benches or larger benches to do.
Consequently, if and when the issues that have been set out in
the learned Chief Justice’s judgment arise in future, they can
C appropriately be dealt with by the bench/benches which hear the
petitions concerning Muslims, Parsis and Dawoodi Bohras. What
is before this Court is only the narrow question as to whether
grounds for review and grounds for filing of the writ petitions
have been made out qua the judgment in Indian Young Lawyers
Association and Ors. v. State of Kerala. [Para 2] [620-E-H; 621-
D A-B]
Indian Young Lawyers Association and Ors. v. State of
Kerala [2018] 9 SCR 561 – referred to.
1.2 On a reading of the four majority judgments it emerges
that there is a clear consensus on the following issues:
E (i) The devotees of Lord Ayyappa do not constitute a
separate religious denomination and cannot, therefore, claim the
benefit of Article 26 or the proviso to Section 3 of the Kerala
Hindu Places of Public Worship (Authorisation of Entry) Act,
1965 [“1965Act”].
F (ii) The four majority judgments specifically grounded the
right of women between the ages of 10 to 50, who are excluded
from practicing 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 both men and women of all ages professing
G the same religion.
(iii) Section 3 of the 1965 Act traces its origin to Article
25(2)(b) of the Constitution of India, and would apply
notwithstanding any custom to the contrary, to enable Hindu
women the right of entry in all public temples opento Hindus,
H so that they may exercise the right of worship therein. As a
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 605
THR. ITS GENERAL SECRETARY

concomitant thereof, Rule 3(b) of the Kerala Hindu Places of A
Public Worship (Authorisation of Entry) Rules, 1965 [“1965
Rules”] is violative of Article 25(1) of the Constitution of India
and 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 opine B
on Article 15(2) and Article 17 of the Constitution in view of their
findings on various other points. Nariman, J. alone referred to
Article 15(1) of the Constitution when it came to striking down
Rule 3(b) of the 1965 Rules. The observations of Chandrachud,
J. on Article 17 of the Constitution cannot be said to be a
material error manifest on the face of the record which C
undermines the soundness of the three conclusions reached by
all the majority judgments supra. Further, since the view of
Chandrachud, J. on Article 17 of the Constitution is a possible
view, it cannot be a subject matter of review. The interpretation
of Article 15 and Article 17 of the Constitution were not treated
as central issues in the present case by at least three learned D
Judges, namely, Dipak Misra, C.J., Khanwilkar, J., and Nariman,
J. In this view of the matter, these arguments have necessarily
to be rejected. [Para 14] [632-E-F]
3. It is reiterated that the majority Judges have correctly
held that the views of Chinnappa Reddy, J. in S.P. Mittal v. Union E
of India (1983) 1 SCC 51 are dissentient, as was recognized by
Chinnappa Reddy, J. himself. This point also has to be rejected
as there is no error, let alone material error, manifest on the
face of the record of the majority view. [Paras 16-17] [633-C-D;
634-B]
F
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 practice
of excluding women between the ages of 10 to 50 from the
shrine at Sabarimala could not be held to be an essential
G
religious practice. Here again, it cannot be said that there is any
error apparent. What has to be seen in the judgments of this
Court is whether such practice is an essential practice relatable
to the Hindu religion, and not the practice of one particular
temple. Nothing was shown, as was correctly pointed out by the
learned Chief Justice, from any textual or other authorities, to H
606 SUPREME COURT REPORTS [2019] 17 S.C.R.

A show that exclusion of women from ages 10 to 50 from Hindu
temples is an essential part of the Hindu religion. This again is
a ground that must be rejected, both because there is no error
apparent, and because the same ground that was argued in
extenso before the original judgment was delivered, is being
reargued in review. [Para 18] [634-C-E]
B
5. Apart from the fact that “constitutional morality” has
now reached the level of stare decisis, and has been explained
in several Constitution Bench judgments, reliance thereon
cannot be said to suffer from any error apparent. Constitutional
law and constitutional interpretation stand on a different footing
C from interpretation of statutes. Constitutional law keeps
evolving keeping in view, among other things, the felt
necessities of the time. As has been explained in some of the
judgments, “constitutional morality” is nothing but the values
inculcated by the Constitution, which are contained in the
Preamble read with various other parts, in particular, Parts III
D and IV thereof. This again is a mere rehash of what was argued
earlier, and can by no means be said to be an error apparent on
the face of the record. [Para 19] [634-G-H; 635-A]
6. Extreme arguments were made stating that belief and
faith are not judicially reviewable by courts, and that this Court
E cannot interfere by stating that a particular section of persons
shall 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 Article
that gives a carte blanche to one particular section of persons
F to trample upon the right of belief and worship of another section
of persons belonging to the same religion. The delicate balance
between the exercise of religious rights by different groups
within the same religious faith that is found in Article 25 has to
be determined on a case by case basis. The slippery-slope
G argument, that this judgment will be used to undermine the
religious rights of others, including religious minorities, is
wholly without basis. The ratio of the majority judgments in this
case is only that the exclusionary practice of keeping women
from the ages of 10 to 50 from exercising their right of worship
in a particular Hindu temple falls foul of Article 25 of the
H Constitution of Indiain as much as (i) allpersons are equally
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 607
THR. ITS GENERAL SECRETARY

entitled, when they belong to the same religious group, to A
exercise their fundamental right of practicing 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 public character
to all classes and sections of Hindus. The majority judgments
have held that Section 3 of the 1965 Act is a legislation in
pursuance of this part of Article 25(2)(b), which expressly comes B
in the way of any custom which interferes with the rights of
women from the ages of 10 to 50 from worshipping in a Hindu
religious institution of a public character. Article 25(1) also
contains two other exceptions, namely, that this right is (a)
subject to public order, morality, and health; and (b) is also C
subject to the other provisions of Part III, as explained in the
majority judgments. This argument must also, therefore, be
rejected. [Para 20] [635-B-G]
7. References made to the Hindi text of Article 26, and
arguments based on the Hindi expression “sampradaya” as
opposed to the English expression “denomination” is a new D
argument, made for the first time in review. This argument cannot
be countenanced for the reason that the Court is bound by a
large number of Constitution Bench decisions on what
constitutes a religious denomination. Having followed the
aforesaid judgments, which are binding, the Court cannot be said E
to have committed any error. [Para 21] [635-H; 636-A-B]
8. Emotive arguments as to women between the ages of
10 to 50 are not kept out on account of menstruation as a
polluting agent, but on account of the deity being a Naisthik
Brahmachari, who would be disturbed by the presence of women
between the ages of 10 to 50, as the deity has undertaken a vow F
of celibacy, are all arguments that were made at the initial stage,
and were fully dealt with by all the judgments. Re-arguing this
aspect of the matter obviously does not fall within the parameters
of a review petition. One more extreme argument that since
worshippers from all faiths come to Sabarimala, Sabarimala G
cannot be held to be a Hindu temple. This argument, again, has
no legs to stand on. A Christian church cannot be said to be any
the less a church on account of allowing persons of all faiths to
enter and worship therein. There is no doubt that the temple at
Sabarimala, being dedicated to a Hindu idol – Lord Ayyappa- is
a Hindu public religious institution, like the other temples H
608 SUPREME COURT REPORTS [2019] 17 S.C.R.

A dedicated to Lord Ayyappa,which are undoubtedly Hindu public
religious institutions. This argument is also rejected. An
argument was made that there are gender restrictions in other
places of worship, which, being essential religious practices,
have not been interfered with. This is a general argument which
needs to be rejected on the ground of vagueness, apart from
B the fact that this is not an argument which could be made in
review. As and when such gender restrictions in other places of
worship are tested, they will be decided on their own merits
keeping in view the provisions of the Constitution. [Paras 22-
24] [636-B-G]
C 9. When it comes to important issues as to the
interpretation of the Constitution, which is entrusted by the
Constitution under Article 145(3) to a Bench consisting of a
minimum of five Supreme Court Judges, it is obvious that an
erroneous interpretation of the Constitution by a High Court
(which affects the general public much more than an erroneous
D interpretation of a statutory prohibition enacted in public
interest) cannot possibly be res judicata as against a judgment
of a Constitution Bench of the Supreme Court, as a rule of
procedure cannot be exalted over Article 145(3) of the
Constitution of India. By the judgment dated 28.09.2018 of a
Constitution Bench of this Court, this Court has interpreted
E
Article 25(1) to mean that all persons are equally entitled to
practice the Hindu religion, which would include women between
the ages of 10 and 50. A previous decision by a High Court,
erroneously interpreting Article 25 in an earlier PIL, can
obviously not stand in the way, by resort to a rule of procedure,
F of a judgment of five Judges of the Supreme Court declaring the
law of the land on this aspect. This objection also does not
disclose any error apparent on the face of the record. [Para 27]
[638-G-H; 639-A-B]
S. Mahendran v. Secretary, Travancore Devaswom
Board, Thiruvananthapuram AIR 1993 Ker 4 –
G referred to.
10. The majority judgment cannot be used to undermine
the religious rights of others, including, in particular, religious
minorities. Besides, busybodies, religious fanatics, cranks and
persons with vested interests will be turned down by the Court
H at the threshold itself, by applying the parameters laid down in
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 609
THR. ITS GENERAL SECRETARY

State of Uttaranchal v. Balwant Singh Chaufal and Ors. (2010) 3 A
SCC 402 (at paragraph 181). The fear expressed by the learned
dissenting judge (Indu Malhotra, J.) is therefore quite
unfounded. As has been pointed by Nariman, J. in the majority
judgment (at paragraph 175), the present case raises grave
issues which relate to gender bias on account of a physiological
or biological function which is common to all women. It is for B
this reason that a bonafide public-interest litigation was
entertained by the majority judgment, having regard to women’s
rights, in the context of women worshippers as a class, being
excluded on account of such physiological/biological functions for
the entirety of the period during which a woman enters puberty C
until menopause sets in. Given the consensus on the three
issues delineated above by the four majority judgments, it is
found that no ground for review of the majority judgments has
been made out. The review petitions are hence dismissed.
Equally, all writ petitions filed under Article 32 of the
Constitution filed directly attacking the majority judgments D
dated 28.09.2018, are dismissed as not being maintainable in
view 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]
E
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 be F
given the widest possible meaning. The position under the
constitutional scheme is that the Supreme Court of India is the
ultimate repository of interpretation of the Constitution. Once
a Constitution Bench of five learned Judges interprets the
Constitution and lays down the law, the said interpretation is G
binding not only as a precedent on all courts and tribunals, but
also on the coordinate branches of Government, namely, the
legislature and the executive. What follows from this is that once
a judgment is pronounced 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 H
610 SUPREME COURT REPORTS [2019] 17 S.C.R.

A mandates that all persons who exercise powers over the citizenry
of India are obliged to aid in enforcing orders and decrees of
the Supreme Court. This then is the constitutional scheme by
which we are governed – the rule of law, as laid down by the
Indian Constitution. So far as the Prime Minister and members
of his Cabinet are concerned, not only does the form of oath
B contained in the Third Schedule require that all such persons
will bear true faith and allegiance to the Constitution of India as
by law established, but also that they will do right to all manner
of people, in accordance with the Constitution and the law,
without fear or favour, affection or ill will. The same goes for
C the oath taken by the Chief Ministers and Ministers within the
States. Read with Article 144, this would mean that it is the
bounden duty of every Minister, whether Central or State, to
follow Article 144 in letter as well as spirit, and to do what is
right to all manner of people, in accordance with the Constitution
and the law, which means in accordance with the interpretation
D of the Constitution declared by the law laid down by the Supreme
Court. It is, therefore, incumbent upon the executive branch of
Government and all MPs and MLAs to faithfully aid in carrying
out decrees and orders passed by the Supreme Court of India
when such decrees and orders command a particular form of
E obedience, even where 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. Once
this is clearly understood and followed, the rule of law is
established, and the shameful spectacle of political parties
F running after votes, or instigating or tolerating mob violence,
in defiance of decrees or orders passed by the Supreme Court
of 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 our
G founding fathers handed to us in the form of the Constitution of
India was the result of centuries of struggle in both England and
the United States of America. The bloody revolutions that took
place in France and Russia against absolute monarchs are a sober
reminder to the people of the world that social transformation,
which took place cataclysmically in rivers of human blood, is to
H be eschewed. [Para 46] [648-D-E]
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 611
THR. ITS GENERAL SECRETARY

Robert K. Massie, Peter The Great: His Life And World A
234-235 (Ballantine Books 1980 ; “Rule of Law” by
Brian Z. Tamanaha ; Second Treatiseof Government
(Chapter XVII, page 400) by John Locke ; “Common
Sense” (Page 34) by Thomas Paine ; “An Introduction
to the Study of the Law of the Constitution” (1885) by
Prof. A.V. Dicey ; “Famous Judges, Lawyers and Cases B
of Bombay” by P.B. Vachha – referred to.
13.1 Given the chequered history of the open flouting of
judgments of superior courts in the 19thcentury, the 20th century
has witnessed a complete about-turn, as can be seen by the U.S.
Supreme Court judgment in Cooper v. Aaron. Today, it is no C
longer open to any person or authority to openly flout a Supreme
Court judgment or order, given the constitutional scheme. It is
necessary to restate these constitutional fundamentals in the
light of the sad spectacle of unarmed women between the ages
of 10 and 50 being thwarted in the exercise of their fundamental
right of worship at the Sabarimala temple. Whoever does not act D
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
would violate their constitutional oath to uphold, preserve, and
defend the Constitution of India. So far as the citizens of India
are concerned, the Court would do well to remind them of the
fundamental duties of citizens laid down in Article 51A of the E
Constitution. [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 347
U.S. 483 (1954) ; Plessy v. Ferguson 163 U.S. 537 F
(1896) ; Cooper v. Aaron 358 U.S.1 (1958) ; Ambard
v. Attorney-General for Trinidad And Tobago [1936]
A.C. 322 – referred to.
13.2 The freedom to criticise the judgments of this Court
is not being interfered with. Bona fide criticism of a judgment,
albeit of the highest court of the land, is certainly permissible, G
but thwarting, or encouraging persons to thwart, the directions
or orders of the highest court cannot be countenanced in our
Constitutional scheme of things. [Para 64] [659-G-H]
14. The Constitution places a non-negotiable obligation on
all authorities to enforce the judgments of this Court. The duty H
612 SUPREME COURT REPORTS [2019] 17 S.C.R.

A to do so arises because it is necessary to preserve the rule of
law. If those whose duty it is to comply were to have a discretion
on whether or not to abide by a decision of the court, the rule
of law would be set at naught. Judicial remedies are provided
to stakeholders before a judgment is pronounced and even
thereafter. That, indeed, is how the proceedings in review in the
B present case have been initiated. Hence arguments were
addressed, exchanged between counsel and considered with the
sense of objectivity and fairness on which the judicial process
rests. These remedies within a rule of law framework provide
recourse to all those who may be and are affected by the course
of a judicial decision. When the process is complete and a
C
decision is pronounced, it is the decision of the Supreme Court
and binds everyone. Compliance is not a matter of option. If it
were to be so, the authority of the court could be diluted at the
option of those who are bound to comply with its verdicts. The
State of Kerala to give wide publicity to this judgment through
D the medium of television, newspapers, etc. The government
should take steps to secure the confidence of the community in
order to ensure the fulfillment of constitutional values. The State
government may have broad-based consultations with
representatives of all affected interests so that the modalities
devised for implementing the judgment of the Court meet the
E genuine concerns of all segments of the community. Organised
acts of resistance to thwart the implementation of this judgment
must be put down firmly. Yet in devising modalities for
compliance, a solution which provides lasting peace, while at the
same time reaffirming human dignity as a fundamental
constitutional value, should be adopted. Consistent with the
F duties inhering in it, the State government is expected to ensure
that the rule of law is preserved. [Paras 65 and 66] [660-B-G]
Rajnarain Singh v. The Chairman, Patna
Administration Committee, Patna and Ors. [1955] 1
SCR 290 ; Rajasthan State Electricity Board v. Mohan
G
Lal [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)
H 1 SCC 674 ; Kamlesh Verma v. Mayawati (2013) 8
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 613
THR. ITS GENERAL SECRETARY

SCC 320 : [2013] 11 SCR 25 ; V. Purushotham Rao A
v. 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 SCR
830 ; Canara Bank v. N.G. Subbaraya Setty & Anr.
AIR 2018 SC 3395 : [2018] 3 SCR 884 ; M.C. Mehta B
v. Union of India (2001) 3 SCC 763 ; State of Tamil
Nadu v. State of Karnataka (2016) 10 SCC 617 –
relied on.
Commissioner, Hindu Religious Endowments, Madras
v. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt C
(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 Mar
Basselios Catholicos v. Most Rev. Mar Poulose
Athanasius [1955] 1 SCR 520 ; State of Madras v.
Gannon Dunkerley & Co. (Madras) Ltd. [1959] SCR D
379 ; Rural Litigation and Entitlement Kendra v. State
of U.P. (1989) Suppl. SCC 504 : [1988] 2 Suppl. SCR
690 – referred to.
Case Law Reference
In the Judgment of Ranjan Gogoi, CJI (for himself and E
for A. M. Khanwilkar and Indu Malhotra, JJ.) :
[1954] SCR 1005 referred to Para 7
[1962] 1 SCR 383 referred to Para 7
In the Judgment of R. F. Nariman, J. (for himself and
F
Dr. Dhananjaya Y. Chandrachud, J.) (Dissenting):
[2018] 9 SCR 561 referred to Para 2
(1975) 1 SCC 674 relied on Para 3
[2013] 11 SCR 25 relied on Para 4
[1955] 1 SCR 290 followed Para 10 G
[1951] SCR 747 referred to Para 10
[1955] 1 SCR 520 referred to Para 12
[1959] SCR 379 referred to Para 13
[1983] 1 SCR 729 referred to Para 16 H
614 SUPREME COURT REPORTS [2019] 17 S.C.R.

A AIR 1993 Ker 4 referred to Para 25
[2001] 4 Suppl. SCR 411 relied on Para 26
[1988] 2 Suppl. SCR 690 referred to Para 26
[1970] 3 SCR 830 relied on Para 26
B [2018] 3 SCR 884 relied on Para 26
[2009] 15 SCR 1276 relied on Para 28
[1966] 3 SCR 744 followed Para 29
[2002] 2 SCR 1006 followed Para 29
[1967] 3 SCR 377 followed Para 35
C
[1998] 2 SCR 795 followed Para 37
(2001) 3 SCC 763 relied on Para 38
(2016) 10 SCC 617 relied on Para 39
CIVIL INHERENT/ORIGINAL JURISDICTION : Review
D Petition (Civil) No. 3358 of 2018 in Writ Petition (Civil) No. 373 of 2006.
Petition filed to Review the Judgment and Order dated 28.09.2018
passed by this Hon’ble Court in Writ Petition (Civil) No. 376 of 2016.
With
E R.P.(C) No. 3359/2018 in W.P.(C) No. 373/2006, Diary
Nos. 37946/2018, R.P.(C) No. 3469/2018 in W.P.(C) No. 373/2006, Diary
No(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 in
F W.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,
G
40681/2018, 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,
H 41586/2018, R.P.(C) No.3480/2018 in W.P.(C) No. 373/2006, Diary
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 615
THR. ITS GENERAL SECRETARY

No(s).41896/2018, 42085/2018, 42264/2018, 42337/2018, MA 3113/2018 A
in 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. Abhishek B
Manu Singhvi, R. Venkataramani, Shekhar Naphade, Mohan Parasaran,
K. Ramamoorthy, Mukul Rohatgi, Rakesh Dwivedi, C.U. Singh, Vijay
Hansaria, P.N. Raveendran, Ravindra Raizada, B.V. Acharya, Jaideep
Gupta, P.V. Surendranath, Ms. Indira Jaising, Sr. Advs., Krishna Kumar
Singh, Manav Vohra, Amith Krishnan, Ms. Svadha Shankar,
Md. Sadique T.A., Krishna Dev, Muthucharan, Ms. Akanksha, C
Karunesh Kumar Shukla, K.V. Mohan, K.V. Balakrishnan, Ms. Aditi
Dhani, Ashwin Kumar D.S., Mathews J. Nedumpara, A.C. Philip, R.R.
Nair, C.J. Joveson, Rajvardhan Singh, Rabin Majumder, K. V. Muthu
Kumar, Mrs. G.P. Devi, Ms. Savita Singh, Akshay R., J. Sai Deepak,
Suvidutt M.S., Avinash Sharma, Ashutosh, Ms. Smita Pandey, Bosco D
Thomas, Debasis Misra, Vishaal S. Jogdand, Binay Kumar Jha, R.S.
Jha, Rajnish Kumar, Beno Bencigar, Parijat Kishore, V.K. Biju, Abhay
Pratap Singh, Hiren Dasen, P.V. Yogeswaran, Krishnadev J.,
Muthucharan Sundresh, Ms. Malini Poduval, Ms. Babita Sant, Manoj
Pillai, A. Venayagam Balan, Bhavanishankar V. Gadnis, Vishwanath B.
Gadnis, Ms. Radni Vishwanath Gadnis, V.S. Lakshmi, Bhavani Shankar E
Gadnis, 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, Deepak F
Prabhakaran, Santosh Kumar Pandey, Aditya Sharma, V. Ranjith
Sankar, V. Shyamohan, Surya Prakash, T.G. Narayanan Nair, Amit
Bhandari, Piyush Dwivedi, Ms. Akanksha Mehra, Mrityunjai Singh, G.
Sivabalamurugan, Karuppaih, Vivek Bharati, C.N. Sree Kumar, Amit
Sharma, Ms. Malavika B. Pillai, Renjith B. Barar, Ms. Lakshmi N.
Kaimal, Badusha Sulaiman, Nishi Kurup, Jose Abraham, M.P. G
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, Abhilash
M.R., Sayooj Mohandas M., Sudheesh K.K., Ranjan Kumar, Ms. Anzu. H
616 SUPREME COURT REPORTS [2019] 17 S.C.R.

A K. 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, Santosh
Kumar, Praneet Pranav, Nachiketa Joshi, Anoop Prakash Awasthi,
B Jetender, 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. Shobha
Ramamoorthy, Sriram J. Thalapathy, Shilp Vinod, Pushkin Rajkumar,
K. Rajeev, Surya Prakash (for KMNP Law), A. Raghunath, Jojo
C Joseph, Shishir Pinaki, Rajiv Kumar Sinha, Vijendra Mishra, P.K.
Madhu, Vishnu Shankar Jain, P. S. Sudheer, Raj Mohan, Eklavya
Dwivedi, Ms. Sansriti Pathak, Rishi Maheshwari, Ms. Anne Mathew,
Bharat Sood, Ms. Shruti Jose, Rishi Singh, Amjid Maqbool, Anil
Ukatarki, Anil C. Nishani, P. Prasanna Kumar, T. R. B. Sivakumar,
G. Prakash, Ms. Sneha Kalita, Avnish Pandey, P. Narayanan, Manu,
D Jishnu M.L., Mrs. Priyanka Prakash, Mrs. Beena Prakash, Gopal
Sankaranarayanan, 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. Jaya
Sukin, Ashutosh Kumar Srivastava, K.R. Satheesh, Ms. Baby Devi
E Bonia, Dharmendra Kumar Yadav, Ms. Savita Devi, Narender Kumar
Verma, P.V. Dinesh, Mukund P. Unny, Bineesh K., T.R. Venkita
Subramoniam, P.B. Suresh, Karthik Jayashankar, B.L. Acharya, Ankit
Shah, Ms. Archana Pathak Dave, Ms. Ankita Chaudhary, Jishnu M.L.,
Ms. Resmitha R. Chandran, Ms. Lekha Sudhakaran, Biju Joseph,
F Prasanth P., Ms. Nehmat Kaur and Paras Singh, Advs. for the appearing
parties.
Sreemithun, Petitioner-in-person.
The Judgments of the Court were delivered by
RANJAN GOGOI, CJI*
G 1. Ordinarily, review petitions ought to proceed on the principle
predicated in Order XLVII in Part IV of the Supreme Court Rules,
2013. However, along with review petitions several fresh writ petitions
have been filed as a fall out of the judgment under review. All these
petitions were heard together in the open Court.
*Ed. Note : Judgment delivered by Ranjan Gogoi, CJI (for himself and for A.M.
H Khanwilkar and Indu Malhotra, JJ.)
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 617
THR. ITS GENERAL SECRETARY [RANJAN GOGOI, CJI.]

2. The endeavour of the petitioners is to resuscitate the debate A
about – what is essentially religious, essential to religion and integral
part of the religion. They would urge that ‘Religion’ is a means to
express ones ‘Faith’. In the Indian context, given the plurality of
religions, languages, cultures and traditions, what is perceived as faith
and essential practices of the religion for a particular deity by a section
of the religious group, may not be so perceived (as an integral part of B
the religion) by another section of the same religious group for the same
deity in a temple at another location. Both sections of the same religious
group have a right to freely profess, practise and propagate their
religious beliefs as being integral part of their religion by virtue of Article
25 of the Constitution of India. It matters not that they do not constitute C
a separate religious denomination. Further, as long as the practice
(ostensibly restriction) associated with the religious belief is not opposed
to public order, morality and health or the other provisions of Part III
of the Constitution of India, the section of the religious group is free to
profess, practise and propagate the same as being integral part of their
religion. The individual right to worship in a temple cannot outweigh D
the 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 been
contended.
3. Concededly, the debate about the constitutional validity of
practices entailing into restriction of entry of women generally in the E
place of worship is not limited to this case, but also arises in respect of
entry of Muslim women in a Durgah/Mosque as also in relation to Parsi
women married to a non-Parsi into the holy fire place of an Agyari.
There is yet another seminal issue pending for consideration in this Court
regarding the powers of the constitutional courts to tread on question
as to whether a particular practice is essential to religion or is an integral F
of the religion, in respect of female genital mutilation in Dawoodi Bohra
community.
4. It is time that this Court should evolve a judicial policy befitting
to its plenary powers to do substantial and complete justice and for an
authoritative enunciation of the constitutional principles by a larger bench G
of not less than seven judges. The decision of a larger bench would
put at rest recurring issues touching upon the rights flowing from Articles
25 and 26 of the Constitution of India. It is essential to adhere to judicial
discipline and propriety when more than one petition is pending on the
same, similar or overlapping issues in the same court for which all cases
must proceed together. Indubitably, decision by a larger bench will also H
618 SUPREME COURT REPORTS [2019] 17 S.C.R.

A pave way to instil public confidence and effectuate the principle
underlying Article 145(3) of the Constitution - which predicates that
cases involving a substantial question of law as to the interpretation of
the Constitution should be heard by a bench of minimum five judges of
this Court. Be it noted that this stipulation came when the strength of
the Supreme Court Judges in 1950 was only seven Judges. The
B purpose underlying was, obviously, to ensure that the Supreme Court
must rule authoritatively, if not as a full court (unlike the US Supreme
Court). In the context of the present strength of Judges of the Supreme
Court, it may not be inappropriate if matters involving seminal issues
including the interpretation of the provisions of the Constitution touching
C upon the right to profess, practise and propagate its own religion, are
heard by larger bench of commensurate number of Judges. That would
ensure an authoritative pronouncement and also reflect the plurality of
views of the Judges converging into one opinion. That may also ensure
consistency in approach for the posterity.
5. It is our considered view that the issues arising in the pending
D
cases regarding entry of Muslim Women in Durgah/Mosque (being Writ
Petition (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 in
Dawoodi Bohra community (being Writ Petition (Civil) No.286 of 2017)
E may be overlapping and covered by the judgment under review. The
prospect of the issues arising in those cases being referred to larger
bench cannot be ruled out. The said issues could be:
(i) Regarding the interplay between the freedom of religion
under Articles 25 and 26 of the Constitution and other
F provisions in Part III, particularly Article 14.
(ii) What is the sweep of expression ‘public order, morality and
health’ occurring in Article 25(1) of the Constitution.
(iii) The expression ‘morality’ or ‘constitutional morality’ has not
been defined in the Constitution. Is it over arching morality
G in reference to preamble or limited to religious beliefs or
faith. There is need to delineate the contours of that
expression, lest it becomes subjective.
(iv) The extent to which the court can enquire into the issue of
a particular practice is an integral part of the religion or
H religious practice of a particular religious denomination or
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 619
THR. ITS GENERAL SECRETARY [RANJAN GOGOI, CJI.]

should that be left exclusively to be determined by the head A
of 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 religious
denomination, or even a section thereof are afforded B
constitutional protection under Article 26.
(vii) What would be the permissible extent of judicial recognition
to PILs in matters calling into question religious practices
of a denomination or a section thereof at the instance of
persons who do not belong to such religious denomination? C
6. In a legal framework where the courts do not have any
epistolary jurisdiction and issues pertaining to religion including religious
practices are decided in exercise of jurisdiction under Section 9 of the
Civil Procedure Code or Article 226/32 of the Constitution the courts
should tread cautiously. This is time honoured principle and practice.
D
7. In this context, the decision of the Seven Judges bench of this
Court in Commissioner, Hindu Religious Endowments, Madras
vs. Shri Lakshmindra Tirtha Swamiar of Shirur Mutt (Shirur
Mutt)1 holding that what are essential religious practices of a particular
religious denomination should be left to be determined by the
denomination itself and the subsequent view of a Five Judges bench in E
Durgah Committee, Ajmer vs. Syed Hussain Ali & Ors.2 carving
out a role for the court in this regard to exclude what the courts
determine to be secular practices or superstitious beliefs seem to be in
apparent conflict requiring consideration by a larger Bench.
8. While deciding the questions delineated above, the larger bench F
may also consider it appropriate to decide all issues, including the
question as to whether the Kerala Hindu Places of Public Worship
(Authorisation of Entry) Rules, 1965 govern the temple in question at
all. Whether the aforesaid consideration will require grant of a fresh
opportunity to all interested parties may also have to be considered.
9. The subject review petitions as well as the writ petitions may, G
accordingly, remain pending until determination of the questions indicated
above by a Larger Bench as may be constituted by the Hon’ble the
Chief Justice of India.
1
(1954) SCR 1005
2
(1962) 1 SCR 383 H
620 SUPREME COURT REPORTS [2019] 17 S.C.R.

A R. 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 Justice
has spoken of various matters which are sub judice in this Court in
relation to entry of Muslim women in a dargah/mosque; to Parsi women
married to non-Parsis and their entry into a fire temple; and issues
B
relating to female genital mutilation in the Dawoodi Bohra community.
He has then outlined seven issues which may be referred to a larger
7-judge bench as also the apparent conflict between a 7-judge bench
in the Shirur Mutt case 1954 SCR 1005 and the Durgah Committee
case, (1962) 1 SCR 383. He then goes on to state, “the prospect of
C the issues arising in those cases being referred to a larger bench cannot
be ruled out.” The larger bench may then also consider it appropriate
to decide all issues including the question as to whether the Kerala Hindu
Places of Public Worship (Authorization of Entry) Rules, 1965 governs
the temple in question at all. He then states, “whether the aforesaid
consideration will require grant of a fresh opportunity to all interested
D parties may also have to be considered.” Hence the conclusion is that
the review petitions and the fresh writ petitions may remain pending
until determination of the questions indicated above by a larger bench
as may be constituted by the Chief Justice of India in any of the
aforesaid pending matters.
2. What this Court has before it is review petitions arising out of
E this Court’s judgment in Indian Young Lawyers Association and
Ors. v. State of Kerala W.P. (C) No.373 of 2006, which was delivered
on 28 September, 2018, with regard to the Sabarimala temple dedicated
to Lord Ayyappa. What a future constitution bench or larger bench, if
constituted by the learned Chief Justice of India, may or may not do
F when considering the other issues pending before this Court is, strictly
speaking, not before this Court at all. The only thing that is before this
Court is the review petitions and the writ petitions that have now been
filed in relation to the judgment in Indian Young Lawyers Association
and Ors. v. State of Kerala, dated 28 September, 2018. As and when
the other matters are heard, the bench hearing those matters may well
G refer to our judgment in Indian Young Lawyers Association and
Ors. v. State of Kerala, dated 28 September, 2018, and may either
apply such judgment, distinguish such judgment, or refer an issue/issues
which 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.
H Chandrachud, JJ.)
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 621
THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

Consequently, if and when the issues that have been set out in the A
learned Chief Justice’s judgment arise in future, they can appropriately
be dealt with by the bench/benches which hear the petitions concerning
Muslims, Parsis and Dawoodi Bohras. What is before us is only the
narrow question as to whether grounds for review and grounds for filing
of the writ petitions have been made out qua the judgment in Indian
B
Young Lawyers Association and Ors. v. State of Kerala.
Consequently, this judgment will dispose of the said review petitions and
writ petitions keeping the parameters of judicial intervention in such
cases in mind.
3. A number of points have been urged before us by a large
number of counsel appearing on behalf of the review petitioners. A C
review petition that is filed under Article 137 of the Constitution of India,
read with Order XLVII of the Supreme Court Rules, 2013, has to be
within certain parameters of a limited jurisdiction which is to be
exercised. In a pithy one-paragraph judgment by Krishna Iyer, J.,
reported as Sow Chandra Kante and Ors. v. Sheikh Habib, (1975) D
1 SCC 674, this Court laid down:
“…… A review of a judgment is a serious step and reluctant
resort to it is proper only where a glaring omission or patent
mistake or like grave error has crept in earlier by judicial fallibility.
A mere repetition, through different Counsel, of old and overruled
E
arguments, a second trip over ineffectually covered ground or
minor mistakes of inconsequential import are obviously
insufficient. The very strict need for compliance with these
factors is the rationale behind the insistence of Counsel’s
certificate which should not be a routine affair or a habitual step.
It is neither fairness to the Court which decided nor awareness F
of the precious public time lost what with a huge backlog of
dockets waiting in the queue for disposal, for Counsel to issue
easy certificates for entertainment of review and fight over again
the same battle which has been fought and lost. The Bench and
the Bar, we are sure, are jointly concerned in the conservation
G
of judicial time for maximum use. We regret to say that this case
is typical of the unfortunate but frequent phenomenon of repeat
performance with the review label as passport. Nothing which
we did not hear then has been heard now, except a couple of
rulings on points earlier put forward. May be, as Counsel now
urges and then pressed, our order refusing special leave was H
622 SUPREME COURT REPORTS [2019] 17 S.C.R.

A capable of a different course. The present stage is not a virgin
ground but review of an earlier order which has the normal
feature of finality.”
(at page 675)
4. In Kamlesh Verma v. Mayawati (2013) 8 SCC 320, this
B Court undertook an exhaustive review of the case law on review
petitions and finally summarised the principles laid down by these
judgments as follows:
“Summary of the principles
20. Thus, in view of the above, the following grounds of review
C are maintainable as stipulated by the statute:
20.1. When the review will be maintainable:
(i) Discovery of new and important matter or evidence
which, after the exercise of due diligence, was not within
knowledge of the petitioner or could not be produced
D by 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 interpreted
in Chhajju Ram v. Neki [(1921-22) 49 IA 144 : (1922) 16 LW
E 37 : AIR 1922 PC 112] and approved by this Court in Moran
Mar Basselios Catholicos v. Most Rev. Mar Poulose
Athanasius [AIR 1954 SC 526 : (1955) 1 SCR 520] to mean “a
reason sufficient on grounds at least analogous to those specified
in the rule”. The same principles have been reiterated in Union
F of India v. Sandur Manganese & Iron Ores Ltd. [(2013) 8 SCC
337 : JT (2013) 8 SC 275]
20.2. When the review will not be maintainable:
(i) A repetition of old and overruled argument is not enough
to reopen concluded adjudications.
G (ii) Minor mistakes of inconsequential import.
(iii) Review proceedings cannot be equated with the original
hearing of the case.
(iv) Review is not maintainable unless the material error,
manifest on the face of the order, undermines its
H soundness or results in miscarriage of justice.
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 623
THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

(v) A review is by no means an appeal in disguise whereby A
an erroneous decision is reheard and corrected but lies
only for patent error.
(vi) The mere possibility of two views on the subject cannot
be a ground for review.
(vii) The error apparent on the face of the record should not B
be an error which has to be fished out and searched.
(viii) The appreciation of evidence on record is fully within
the domain of the appellate court, it cannot be permitted
to be advanced in the review petition.
(ix) Review is not maintainable when the same relief sought C
at the time of arguing the main matter had been
negatived.”
5. It is strictly within these parameters that the arguments that
have been made before us have to be judged. Before stating what these
arguments are, it is important to first set down the summary of D
conclusions by all the Judges who formed the five-Judge Bench which
delivered the judgment of 28.09.2018. Dipak Misra, C.J., speaking for
himself and for Khanwilkar, J., formulated their conclusions in paragraph
144 of the judgment as follows:
“144. In view of our aforesaid analysis, we record our conclusions
in seriatim: E

(i) In view of the law laid down by this Court in Shirur
Mutt [The Commissioner Hindu Religious
Endowments, Madras v. Shri Lakshmindra Thritha
Swaminar of Sri Shirur Mutt, [1954] SCR 1005]
and S.P. Mittal [S.P. Mittal v. Union of India, (1983) F
1 SCC 51], the devotees of Lord Ayyappa do not
constitute a separate religious denomination. They do not
have common religious tenets peculiar to themselves,
which they regard as conducive to their spiritual well-
being, other than those which are common to the Hindu
G
religion. Therefore, the devotees of Lord Ayyappa are
exclusively Hindus and do not constitute a separate
religious denomination.
(ii) Article 25(1), by employing the expression ‘all persons’,
demonstrates that the freedom of conscience and the
right to freely profess, practise and propagate religion H
624 SUPREME COURT REPORTS [2019] 17 S.C.R.

A is available, though subject to the restrictions delineated
in Article 25(1) itself, to every person including women.
The right guaranteed under Article 25(1) has nothing to
do with gender or, for that matter, certain physiological
factors specifically attributable to women.
B (iii) The exclusionary practice being followed at the
Sabrimala temple by virtue of Rule 3(b) of the 1965
Rules violates the right of Hindu women to freely
practise their religion and exhibit their devotion towards
Lord Ayyappa. This denial denudes them of their right
to worship. The right to practise religion under Article
C 25(1) is equally available to both men and women of all
age groups professing the same religion.
(iv) The impugned Rule 3(b) of the 1965 Rules, framed
under the 1965 Act, that stipulates exclusion of entry
of women of the age group of 10 to 50 years, is a clear
D violation of the right of Hindu women to practise their
religious beliefs which, in consequence, makes their
fundamental right of religion under Article 25(1) a dead
letter.
(v) The term ‘morality’ occurring in Article 25(1) of the
Constitution cannot be viewed with a narrow lens so as
E
to confine the sphere of definition of morality to what
an individual, a section or religious sect may perceive
the term to mean. Since the Constitution has been
adopted and given by the people of this country to
themselves, the term public morality in Article 25 has
F to be appositely understood as being synonymous with
constitutional morality.
(vi) The notions of public order, morality and health cannot
be used as colourable device to restrict the freedom to
freely practise religion and discriminate against women
of the age group of 10 to 50 years by denying them their
G
legal right to enter and offer their prayers at the
Sabarimala temple.
(vii) The practice of exclusion of women of the age group
of 10 to 50 years being followed at the Sabarimala
Temple cannot be regarded as an essential part as
H claimed by the respondent Board.
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 625
THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

(viii) In view of the law laid down by this Court in the A
second Ananda Marga case, the exclusionary practice
being followed at the Sabarimala Temple cannot be
designated as one, the non-observance of which will
change or alter the nature of Hindu religion. Besides,
the exclusionary practice has not been observed with
B
unhindered continuity as the Devaswom Board had
accepted before the High Court that female worshippers
of the age group of 10 to 50 years used to visit the
temple and conducted poojas in every month for five
days for the first rice feeding ceremony of their children.
(ix) The exclusionary practice, which has been given the C
backing of a subordinate legislation in the form of Rule
3(b) of the 1965 Rules, framed by the virtue of the 1965
Act, is neither an essential nor an integral part of the
religion.
(x) A careful reading of Rule 3(b) of the 1965 Rules makes D
it luculent that it is ultra vires both Section 3 as well as
Section 4 of the 1965 Act, for the simon pure reason
that Section 3 being a non-obstante provision clearly
stipulates that every place of public worship shall be
open to all classes and sections of Hindus, women being E
one of them, irrespective of any custom or usage to the
contrary.
(xi) Rule 3(b) is also ultra vires Section 4 of the 1965 Act
as the proviso to Section 4(1) creates an exception to
the effect that the regulations/rules made under Section F
4(1) shall not discriminate, in any manner whatsoever,
against any Hindu on the ground that he/she belongs to
a particular section or class.
(xii) The language of both the provisions, that is, Section 3
and the proviso to Section 4(1) of the 1965 Act clearly
G
indicate that custom and usage must make space to the
rights of all sections and classes of Hindus to offer
prayers at places of public worship. Any interpretation
to the contrary would annihilate the purpose of the 1965
Act and incrementally impair the fundamental right to
practise religion guaranteed under Article 25(1). H
626 SUPREME COURT REPORTS [2019] 17 S.C.R.

A Therefore, we hold that Rule 3(b) of the 1965 Rules
is ultra vires the 1965 Act.”
6. Nariman, J. concurred with these views, and concluded, in
paragraph 172, that the Ayyappa temple at Sabarimala cannot claim to
be a religious denomination which can then claim the protection of
B Article 26 of the Constitution of India as follows:
“172. In these circumstances, we are clearly of the view that
there is no distinctive name given to the worshippers of this
particular temple; there is no common faith in the sense of a belief
common to a particular religion or section thereof; or common
organization of the worshippers of the Sabarimala temple so as
C
to constitute the said temple into a religious denomination. Also,
there are over a thousand other Ayyappa temples in which the
deity is worshipped by practicing Hindus of all kinds. It is clear,
therefore, that Article 26 does not get attracted to the facts of
this case.”
D The learned Judge thereafter concluded as follows:
“177. The facts, as they emerge from the writ petition and the
aforesaid affidavits, are sufficient for us to dispose of this writ
petition on the points raised before us. I, therefore, concur in the
judgment of the learned Chief Justice of India in allowing the
E writ petition, and declare that the custom or usage of prohibiting
women between the ages of 10 to 50 years from entering the
Sabarimala temple is violative of Article 25(1), and violative of
the Kerala Hindu Places of Public Worship (Authorisation of
Entry) Act, 1965 made under Article 25(2)(b) of the Constitution.
Further, it is also declared that Rule 3(b) of the Kerala Hindu
F Places of Public Worship (Authorisation of Entry) Rules, 1965
is 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 25
of the Constitution of India implies equal entitlement of all persons to
G profess, practice, and propagate religion, as follows:
“291. The Constitution protects the equal entitlement of all
persons to a freedom of conscience and to freely profess, protect
and propagate religion. Inhering in the right to religious freedom,
is the equal entitlement of all persons, without exception, to
H profess, practice and propagate religion. Equal participation of
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 627
THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

women in exercising their right to religious freedom is a A
recognition of this right. In protecting religious freedom, the
framers subjected the right to religious freedom to the overriding
constitutional postulates of equality, liberty and personal freedom
in Part III of the Constitution. The dignity of women cannot be
disassociated from the exercise of religious freedom. In the
B
constitutional order of priorities, the right to religious freedom is
to be exercised in a manner consonant with the vision underlying
the provisions of Part III. The equal participation of women in
worship inheres in the constitutional vision of a just social order.”
(emphasis in original)
C
Thereafter, the learned Judge stated his conclusions as follows:
“296. I hold and declare that:
1) The devotees of Lord Ayyappa do not satisfy the
judicially enunciated requirements to constitute a
religious denomination under Article 26 of the D
Constitution;
2) A claim for the exclusion of women from religious
worship, even if it be founded in religious text, is
subordinate to the constitutional values of liberty, dignity
and equality. Exclusionary practices are contrary to E
constitutional morality;
3) In any event, the practice of excluding women from the
temple at Sabarimala is not an essential religious
practice. The Court must decline to grant constitutional
legitimacy to practices which derogate from the dignity F
of women and to their entitlement to an equal citizenship;
4) The social exclusion of women, based on menstrual
status, is a form of untouchability which is an anathema
to constitutional values. Notions of “purity and pollution”,
which stigmatize individuals, have no place in a G
constitutional order;
5) The notifications dated 21 October 1955 and 27
November 1956 issued by the Devaswom Board,
prohibiting the entry of women between the ages of ten
and fifty, are ultra vires Section 3 of the Kerala Hindu H
628 SUPREME COURT REPORTS [2019] 17 S.C.R.

A Places of Public Worship (Authorisation of Entry) Act,
1965 and are even otherwise unconstitutional; and
6) Hindu women constitute a ‘section or class’ of Hindus
under clauses (b) and (c) of Section 2 of the 1965 Act.
Rule 3(b) of the 1965 Rules enforces a custom contrary
B to Section 3 of the 1965 Act. This directly offends the
right 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 conclusions
is reflected in paragraph 312 of the judgment as follows:
C “312. The summary of the aforesaid analysis is as follows:
(i) The Writ Petition does not deserve to be entertained for
want of standing. The grievances raised are non-
justiciable at the behest of the Petitioners and Intervenors
involved herein.
D
(ii) The equality doctrine enshrined under Article 14 does
not override the Fundamental Right guaranteed by Article
25 to every individual to freely profess, practise and
propagate their faith, in accordance with the tenets of
their religion.
E
(iii) Constitutional Morality in a secular polity would imply
the harmonisation of the Fundamental Rights, which
include the right of every individual, religious
denomination, or sect, to practise their faith and belief
in accordance with the tenets of their religion,
F irrespective of whether the practise is rational or logical.
(iv) The Respondents and the Intervenors have made out a
plausible case that the Ayyappans or worshippers of the
Sabarimala Temple satisfy the requirements of being a
religious denomination, or sect thereof, which is entitled
G to the protection provided by Article 26. This is a mixed
question of fact and law which ought to be decided
before a competent court of civil jurisdiction.
(v) The limited restriction on the entry of women during the
notified age-group does not fall within the purview of
H Article 17 of the Constitution.
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 629
THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

(vi) Rule 3(b) of the 1965 Rules is not ultra vires Section 3 A
of the 1965 Act, since the proviso carves out an
exception in the case of public worship in a temple for
the 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 majority B
judgments is that there is a clear consensus on the following issues:

9.1. The devotees of Lord Ayyappa do not constitute a separate
religious denomination and cannot, therefore, claim the benefit of Article
26 or the proviso to Section 3 of the Kerala Hindu Places of Public
C
Worship (Authorisation of Entry) Act, 1965 [“1965 Act”]. This is
outlined 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).
D
9.2. The four majority judgments specifically grounded the right
of women between the ages of 10 to 50, who are excluded from
practicing 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 both
E
men and women of all ages professing the same religion. This
proposition becomes clear from paragraph 144(ii) and (iii) of the
judgment of the learned C.J.; from paragraph 174 read with paragraph
177 of the judgment of Nariman, J.; and paragraph 291 of the judgment
of Chandrachud, J. As against this, the judgment of Malhotra, J. is
contained in paragraph 312(ii). F

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 custom
to the contrary, to enable Hindu women the right of entry in all public
temples open to Hindus, so that they may exercise the right of worship
therein. As a concomitant thereof, Rule 3(b) of the Kerala Hindu Places G
of Public Worship (Authorisation of Entry) Rules, 1965 [“1965 Rules”]
is violative of Article 25(1) of the Constitution of India and ultra vires
Section 3 of the 1965 Act. This proposition flows from paragraph
144(iii), (iv), (x), and (xii) of the judgment of the learned C.J.; paragraph
177 of the judgment of Nariman, J.; and paragraph 296(6) of the H
630 SUPREME COURT REPORTS [2019] 17 S.C.R.

A judgment of Chandrachud, J. As against this, Malhotra, J. states the
opposite conclusion in paragraph 312(vi) of her judgment. 1
10. In Rajnarain Singh v. The Chairman, Patna
Administration Committee, Patna and Ors., (1955) 1 SCR 290, this
Court had to consider the judgment in Re Delhi Laws Act, [1951] SCR
B 747, in which seven separate judgments were delivered on the vexed
question of the legislature’s power to delegate essential legislative
functions. In attempting to cull out a common ratio, this Court enunciated
a working test as follows:
“Now what exactly does section 3(1)(f) authorise? After its
C amendment it does two things : first, it empowers the delegated
authority to pick any section it chooses out of the Bihar and
Orissa Municipal Act of 1922 and extend it to “Patna”; and
second, it empowers the Local Government (and later the
Governor) to apply it with such “restrictions and modifications”
as it thinks fit.
D
In the Delhi Laws Act case [[1951] S.C.R. 747], the following
provision was held to be good by a majority of four to three :
“The Provincial Government may …… extend with such
restrictions and modifications as it thinks fit …… any
E enactment which is in force in any part of British India at the
date of such notification.”
Mukherjea and Bose JJ., who swung the balance, held that not
only could an entire enactment with modification be extended but
1
In the judgment of the learned Chief Justice, whether the 1965 Rules govern the
F temple in question at all is raised, which the larger bench, if constituted, may consider
it appropriate to decide. This is will result in a piecemeal adjudication as a fresh
opportunity to interested parties may then have to be given in the pending review
petitions. The necessity for going into this question in the review petitions filed is
itself questionable. On the assumption that the aforesaid Rule does not apply, the
striking down of an inapplicable rule does not in any manner detract from the ratio
of the majority judgment. The ratio of the majority judgment, insofar as this aspect
G of the case is concerned, is that Section 3 of the 1965 Act will apply by reason of
the non-obstante clause contained therein, as a result of which every place of public
worship which is open to Hindus or any section or class thereof is open to all Hindus
to worship therein in the like manner and to the like extent as any other Hindu; and
no Hindu of whatsoever section or class shall in any manner be prevented, obstructed
or discouraged from entering any such place of public worship or from worshipping
H or offering prayers thereat or performing religious service therein.
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 631
THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

also a part of one; and indeed that was the actual decision in A
Burah’s case [5 I.A. 178], on which the majority founded : (see
Mukherjea J. at page 1000 and Bose J. at pages 1106 and 1121).
But Mukherjea and Bose JJ., both placed a very restricted
meaning on the words “restriction” and “modification” and, as
they swung the balance, their opinions must be accepted as the
B
decision of the Court because their opinions embody the greatest
common measure of agreement among the seven Judges.”
(at pp. 302-303)
11. The greatest common measure of agreement among the
majority judgments, being the test enunciated by this decision, is the C
three propositions outlined above, to which all the four majority Judges
agree. On whether the exclusion of women from Hindu temples is an
essential part of the Hindu religion, three Judges clearly held that it is
not, with Nariman, J. assuming that such exclusionary practice is an
essential part of the Hindu religion. It is with these prefatory remarks
that we now begin to examine the arguments of counsel for the review D
petitioners.
12. Shri K. Parasaran, who led the attack on behalf of the review
petitioners, placed at the forefront of his arguments the judgment of
this Court in Moran Mar Basselios Catholicos v. Most Rev. Mar
Poulose Athanasius, (1955) 1 SCR 520, and relied strongly on the E
following passage:
“ …… It does not appear that either of the two majority Judges
of the High Court adverted to either of these aspects of the
matter, namely, service of notice to all churches and competency
of the persons who issued the notice of the Karingasserai meeting
F
and in any case did not come to a definite finding on that question.
The majority judgments, therefore, are defective on the face of
them in that they did not effectively deal with and determine an
important issue in the case on which depends the title of the
plaintiffs and the maintainability of the suit. This, in our opinion,
is certainly an error apparent on the face of the record.” G
(at page 534)
13. Based on this judgment, Shri Parasan argued that two
learned Judges, viz., Dipak Misra, C.J., and Khanwilkar, J., did not at
all opine on Article 15 of the Constitution of India. Also, they did not
effectively deal with arguments based on Article 17 of the Constitution. H
632 SUPREME COURT REPORTS [2019] 17 S.C.R.

A The same goes for Nariman, J., when it comes to Article 17.
Chandrachud, J. alone expounded on Article 17, and according to Shri
Parasaran, this exposition amounts to an error apparent on the face of
the record inasmuch as the expression “untouchability” would refer only
to the discrimination meted out to Harijans, regardless of their sex, and
would, therefore, not embrace members of the female sex alone who
B are regarded as “untouchables” during their period of menstruation.
According to him, the judgment of Malhotra, J. correctly referred to
the Constituent Assembly Debates on this issue and arrived at the
correct conclusion. Since the view of Chandrachud, J. cannot be said
to be a possible view, it would amount to an error apparent on the face
C of the record. Shri Parasaran argued that “untouchability” is nomen
juris and relied upon State of Madras v. Gannon Dunkerley & Co.
(Madras) Ltd., 1959 SCR 379, which held that the expression “sale
of goods”, being nomen juris, would not include works contracts. He
further argued that it took a constitutional amendment to add Article
366(29-A) to expand the definition of “sale of goods” so as to include
D a 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 various
other points. Nariman, J. alone referred to Article 15(1) of the
E Constitution when it came to striking down Rule 3(b) of the 1965 Rules.
The observations of Chandrachud, J. on Article 17 of the Constitution
cannot be said to be a material error manifest on the face of the record
which undermines the soundness of the three conclusions reached by
all the majority judgments supra. Further, since the view of
Chandrachud, J. on Article 17 of the Constitution is a possible view, it
F
cannot be a subject matter of review. As stated hereinabove, the
interpretation of Article 15 and Article 17 of the Constitution were not
treated as central issues in the present case by at least three learned
Judges, namely, Dipak Misra, C.J., Khanwilkar, J., and Nariman, J. In
this view of the matter, these arguments have necessarily to be rejected.
G 15. Other learned counsel have essentially reargued the case on
all other points. They argued that the Ayyappa temple at Sabarimala
constituted a religious denomination and could, therefore, claim the
protection of Article 26 of the Constitution of India as well as the proviso
to Section 3 of the 1965 Act. This argument is a re-argument of what
H was argued before us before the judgment of 28.09.2018 was delivered.
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 633
THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

16. Ms. Indira Jaising, learned Senior Advocate appearing on A
behalf 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 Chinnappa
Reddy, J. in S.P. Mittal v. Union of India, (1983) 1 SCC 51, was a
dissenting judgment [see paragraph 171]. According to her, in two B
places, the dissenting judgment of Malhotra, J. has strongly relied upon
the judgment of Chinnappa Reddy, J. (in paragraphs 306.7 and 308.8),
stating that the judgment of Chinnappa Reddy, J. is a concurring
judgment on the aspect of religious denomination. Therefore, on the
contrary, the conclusion of Malhotra, J., based on the observations
contained in the dissenting judgment of Chinnappa Reddy, J., could not C
be said to be a possible view on this aspect. Without entering further
into this controversy, we may only reiterate that the majority Judges
have correctly held that the views of Chinnappa Reddy, J. are
dissentient, as was recognized by Chinnappa Reddy, J. himself. The
learned Judge in his first paragraph states: D
“I have the good fortune of having before me the scholarly
judgment 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 not
agree. It is, therefore, proper for me to explain the points of my E
disagreement.”
(at page 59)
17. The majority view of four Judges on this aspect is contained
in paragraphs 110 to 122. In paragraphs 121 and 122, the majority
concluded as follows: F

“121. On the basis of the materials placed before us viz. the
Memorandum of Association of the Society, the several
applications made by the Society claiming exemption under
Section 35 and Section 80 of the Income Tax Act, the repeated
utterings of Sri Aurobindo and the Mother that the Society and G
Auroville were not religious institutions and host of other
documents there is no room for doubt that neither the Society
nor Auroville constitute a religious denomination and the teachings
of Sri Aurobindo only represented his philosophy and not a
religion. H
634 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 122. Even assuming but not holding that the Society or the
Auroville were a religious denomination, the impugned enactment
is not hit by Articles 25 or 26 of the Constitution. The impugned
enactment does not curtail the freedom of conscience and the
right freely to profess, practise and propagate religion. Therefore,
there is no question of the enactment being hit by Article 25.”
B
This point also has to be rejected as there is no error, let alone
material error, manifest on the face of the record of the majority view.
18. A great deal of argument was devoted to whether the practice
of excluding women between the ages of 10 to 50 from the shrine at
C Sabarimala would constitute an essential religious practice. Three of
the majority Judges held that such a religious practice, having no basis
in the Hindu religion, could not be held to be an essential religious
practice – see paragraphs 122 and 123 of the judgment of the learned
C.J., and paragraph 227 read with paragraph 296(3) of the judgment
of Chandrachud, J. Here again, it cannot be said that there is any error
D apparent. What has to be seen in the judgments of this Court is whether
such practice is an essential practice relatable to the Hindu religion,
and not the practice of one particular temple. Nothing has been shown
to us, as was correctly pointed out by the learned Chief Justice, from
any textual or other authorities, to show that exclusion of women from
E ages 10 to 50 from Hindu temples is an essential part of the Hindu
religion. This again is a ground that must be rejected, both because there
is no error apparent, and because the same ground that was argued in
extenso before the original judgment was delivered, is being reargued
in review.
F 19. It was then stated that the judgments of Dipak Misra, C.J.
and Chandrachud, J., in relying upon “constitutional morality”, suffered
from an error apparent, in that constitutional morality is a vague concept
which cannot be utilised to undermine belief and faith. Here again, apart
from the fact that “constitutional morality” has now reached the level
of stare decisis, and has been explained in several Constitution Bench
G judgments, reliance thereon cannot be said to suffer from any error
apparent. Constitutional law and constitutional interpretation stand on
a different footing from interpretation of statutes. Constitutional law
keeps evolving keeping in view, among other things, the felt necessities
of the time. As has been explained in some of our judgments,
H “constitutional morality” is nothing but the values inculcated by the
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 635
THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

Constitution, which are contained in the Preamble read with various A
other parts, in particular, Parts III and IV thereof. This again is a mere
rehash of what was argued earlier, and can by no means be said to be
an error apparent on the face of the record.
20. Extreme arguments were made by some learned counsel
stating that belief and faith are not judicially reviewable by courts, and B
that this Court cannot interfere by stating that a particular section of
persons shall not hold a particular belief and act in accordance thereto.
Such arguments need to be rejected out of hand. Not only do they 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 Article that gives a carte blanche to one particular section of C
persons to trample upon the right of belief and worship of another section
of persons belonging to the same religion. The delicate balance between
the exercise of religious rights by different groups within the same
religious faith that is found in Article 25 has to be determined on a case
by case basis. The slippery-slope argument, that this judgment will be D
used to undermine the religious rights of others, including religious
minorities, is wholly without basis. The ratio of the majority judgments
in this case is only that the exclusionary practice of keeping women
from the ages of 10 to 50 from exercising their right of worship in a
particular Hindu temple falls foul of Article 25 of the Constitution of
India inasmuch as (i) all persons are equally entitled, when they belong E
to the same religious group, to exercise their fundamental right of
practicing 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 public
character to all classes and sections of Hindus. The majority judgments
have held that Section 3 of the 1965 Act is a legislation in pursuance
F
of this part of Article 25(2)(b), which expressly comes in the way of
any custom which interferes with the rights of women from the ages
of 10 to 50 from worshipping in a Hindu religious institution of a public
character. Article 25(1) also contains two other exceptions, namely, that
this right is (a) subject to public order, morality, and health; and (b) is
also subject to the other provisions of Part III, as has been explained G
in the majority judgments. This argument must also, therefore, be
rejected.
21. References were made to the Hindi text of Article 26, and
arguments were based on the Hindi expression “sampradaya” as
opposed to the English expression “denomination”. This again is a new H
636 SUPREME COURT REPORTS [2019] 17 S.C.R.

A argument, made for the first time in review. This argument cannot be
countenanced for the reason that we are bound by a large number of
Constitution Bench decisions on what constitutes a religious
denomination. Having followed the aforesaid judgments, which are
binding upon us, we cannot be said to have committed any error.
B 22. Emotive arguments were made on how women between the
ages of 10 to 50 are not kept out on account of menstruation as a
polluting agent, but on account of the deity being a Naisthik
Brahmachari, who would be disturbed by the presence of women
between the ages of 10 to 50, as the deity has undertaken a vow of
celibacy. These are all arguments that have been made at the initial
C
stage, and are fully dealt with by all the judgments. Re-arguing this
aspect of the matter obviously does not fall within the parameters of a
review petition.
23. One more extreme argument that was made is that since
worshippers from all faiths come to Sabarimala, Sabarimala cannot be
D
held to be a Hindu temple. This argument, again, has no legs to stand
on. A Christian church cannot be said to be any the less a church on
account of allowing persons of all faiths to enter and worship therein.
There is no doubt that the temple at Sabarimala, being dedicated to a
Hindu idol – Lord Ayyappa – is a Hindu public religious institution, like
E the other temples dedicated to Lord Ayyappa, which are undoubtedly
Hindu public religious institutions. This argument must also be rejected.
24. An argument was made that there are gender restrictions in
other places of worship, which, being essential religious practices, have
not been interfered with. This is a general argument which needs to
F be rejected on the ground of vagueness, apart from the fact that this is
not an argument which could be made in reviewoiation from this high
C . As and when such gender restrictions in other places of worship
are tested, they will be decided on their own merits keeping in view
the provisions of the Constitution.
G 25. Another plea of some of the review petitioners is that the
Division Bench judgment in S. Mahendran v. Secretary, Travancore
Devaswom Board, Thiruvananthapuram, AIR 1993 Ker 42 would
be res judicata, as it was a Public Interest Litigation in which all
necessary parties were joined and heard, and the same issues that were
H raised before this Court were decided by the Division Bench.
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 637
THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

26. It is true that the Division Bench judgment in Mahendran A
(supra), was a complaint which was converted into an original petition
under Article 226 of the Constitution as a PIL. The Secretary,
Travancore Devaswom Board, and the Chief Secretary to the
Government of Kerala were made respondents to the petition. Further,
the Indian Federation of Women Lawyers, Kerala Branch and the
President of the Kerala Kshetra Samrakshana Samithi were impleaded B
and permitted to participate in the proceedings. As a matter of law, there
is no doubt whatsoever that res judicata as a principle does apply to
public interest litigation. However, this Court in V. Purushotham Rao
v. Union of India & Ors., (2001) 10 SCC 305, set out the law as
stated in Rural Litigation and Entitlement Kendra v. State of U.P., C
1989 Supp. (1) SCC 504, which it followed, and stated:
“We may not be taken to have said that for public interest
litigations, procedural laws do not apply. At the same time it has
to be remembered that every technicality in the procedural law
is not available as a defence when a matter of grave public
D
importance is for consideration before the Court. Even if it is
said that there was a final order, in a dispute of this type it would
be difficult to entertain the plea of res judicata.
Thus even in the selfsame proceeding, the earlier order though
final, was treated not to create a bar inasmuch as the controversy
before the Court was of grave public interest. The learned counsel E
appearing for the appellants drew our attention to the decision
of this Court in the case of Forward Construction Co. v.
Prabhat Mandal, AIR 1986 SC 391, whereunder the Court did
record a conclusion that Section 11 of the Civil Procedure Code
applied to public interest litigation. In our considered opinion, F
therefore, the principle of constructive res judicata cannot be
made applicable in each and every public interest litigation,
irrespective of the nature of litigation itself and its impact on the
society and the larger public interest which is being served.”
(at page 331) G
This Court, in Mathura Prasad Bajoo Jaiswal & Ors. v.
Dossibai N.B. Jeejeebhoy, (1970) 3 S.C.R. 830, [“Mathura
Prasad”], had held:
“Where, however, the question is one purely of law and it relates
to the jurisdiction of the Court or a decision of the Court H
638 SUPREME COURT REPORTS [2019] 17 S.C.R.

A sanctioning something which is illegal, by resort to the rule of
res judicata a party affected by the decision will not be precluded
from challenging the validity of that order under the rule of res
judicata, for a rule of procedure cannot supersede the law of the
land.”
B (at page 836)
In a recent judgment, namely, Canara Bank v. N.G. Subbaraya
Setty & Anr., AIR 2018 SC 3395, this Court after referring to Mathura
Prasad (supra), held:
“(ii) An issue of law which arises between the same parties in a
C subsequent suit or proceeding is not res judicata if, by an
erroneous decision given on a statutory prohibition in the former
suit or proceeding, the statutory prohibition is not given effect
to. This is despite the fact that the matter in issue between the
parties may be the same as that directly and substantially in issue
in the previous suit or proceeding. This is for the reason that in
D
such cases, the rights of the parties are not the only matter for
consideration (as is the case of an erroneous interpretation of a
statute inter parties), as the public policy contained in the statutory
prohibition cannot be set at naught. This is for the same reason
as that contained in matters which pertain to issues of law that
E raise jurisdictional questions. We have seen how, in Natraj
Studios (AIR 1981 SC 537), it is the public policy of the statutory
prohibition contained in Section 28 of the Bombay Rent Act that
has to be given effect to. Likewise, the public policy contained
in other statutory prohibitions, which need not necessarily go to
jurisdiction of a Court, must equally be given effect to, as
F otherwise special principles of law are fastened upon parties when
special considerations relating to public policy mandate that this
cannot be done.”
(at page 3414)
27. When it comes to important issues as to the interpretation of
G
the Constitution, which is entrusted by the Constitution under Article
145(3) to a Bench consisting of a minimum of five Supreme Court
Judges, it is obvious that an erroneous interpretation of the Constitution
by a High Court (which affects the general public much more than an
erroneous interpretation of a statutory prohibition enacted in public
H interest) cannot possibly be res judicata as against a judgment of a
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 639
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Constitution Bench of the Supreme Court, as a rule of procedure cannot A
be exalted over Article 145(3) of the Constitution of India. By the
judgment dated 28.09.2018 of a Constitution Bench of this Court, this
Court has interpreted Article 25(1) to mean that all persons are equally
entitled to practice the Hindu religion, which would include women
between the ages of 10 and 50. A previous decision by a High Court,
erroneously interpreting Article 25 in an earlier PIL, can obviously not B
stand in the way, by resort to a rule of procedure, of a judgment of
five Judges of the Supreme Court declaring the law of the land on this
aspect. This objection also does not disclose any error apparent on the
face of the record.
28. The issue of locus-standi to file a public-interest litigation C
was re-argued by some of the review petitioners. Indu Malhotra, J. in
her dissenting judgment, has held that to entertain a public-interest
litigation at the behest of persons who are not worshippers at Sabrimala
temple would open the floodgates of petitions to be filed questioning
the validity of religious beliefs and practices followed by other religious D
sects. We have pointed out in this judgment that the majority judgment
cannot be used to undermine the religious rights of others, including, in
particular, religious minorities. Besides, busybodies, religious fanatics,
cranks and persons with vested interests will be turned down by the
Court at the threshold itself, by applying the parameters laid down in
State of Uttaranchal v. Balwant Singh Chaufal and Ors. (2010) 3 E
SCC 402 (at paragraph 181). The fear expressed by the learned
dissenting judge is therefore quite unfounded. As has been pointed by
Nariman, J. in the majority judgment (at paragraph 175), the present
case raises grave issues which relate to gender bias on account of a
physiological or biological function which is common to all women. It F
is for this reason that a bonafide public-interest litigation was entertained
by the majority judgment, having regard to women’s rights, in the context
of women worshippers as a class, being excluded on account of such
physiological/biological functions for the entirety of the period during
which a woman enters puberty until menopause sets in.
G
29. Given the consensus on the three issues delineated above
by the four majority judgments, we find that no ground for review of
the majority judgments has been made out. The review petitions are
hence dismissed. Equally, all writ petitions filed under Article 32 of the
Constitution, that have been filed directly attacking the majority judgments
dated 28.09.2018, are dismissed as not being maintainable in view of H
640 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 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].
30. An argument was made by some of the review petitioners
that, given the fact that there have been mass protests against
B implementation of this judgment, we ought to have a re-look at the entire
problem. On the other hand, Ms. Indira Jaising, learned Senior Advocate
appearing on behalf of certain ladies, including Scheduled Caste ladies
who have been obstructed from entering the Sabarimala temple, or
having entered the temple, have been subjected to physical and other
abuses, has made a fervent plea before us to ensure that our judgment
C
is implemented in both letter and in spirit.
31. The arguments and counter-arguments so made, need us to
restate a few constitutional fundamentals. Under our constitutional
scheme, the Supreme Court is given a certain pride of place. Under
Article 129, the Supreme Court shall be a court of record and shall
D
have all the powers of such a Court, including the power to punish for
contempt of itself. Under Article 136, the Supreme Court has been
granted a vast jurisdiction by which it may interfere with any judgment,
decree, determination, sentence, or order made by any court or tribunal
in the territory of India. Indeed, by Article 140, Parliamentary law may
E confer upon the Supreme Court such supplemental powers as may be
necessary or desirable for the purpose of enabling the Court to exercise
the jurisdiction conferred upon it by the Constitution more effectively.
By Article 141 of the Constitution, the law declared by the Supreme
Court shall be binding on all courts, which includes tribunals, within the
territory of India, which ensures that the Supreme Court, being the final
F
arbiter of disputes, will lay down law which will then be followed as a
precedent by all courts and tribunals within the territory of India. Article
142 of the Constitution confers upon the Supreme Court the power to
make such decree or order as is necessary for doing complete justice
in any cause or matter pending before it. By Article 145(3), a minimum
G number of five Judges are the last word on the interpretation of the
Constitution, as any case involving a substantial question of law as to
interpretation of the Constitution must be decided by this minimum
number of Judges.
32. What is of particular importance in this case is Article 144
H of the Constitution of India, which is set out herein below:
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 641
THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

“144. Civil and judicial authorities to act in aid of the A
Supreme Court.—All authorities, civil and judicial, in the territory
of India shall act in aid of the Supreme Court.”
At this juncture, it is important to understand the true reach of
Article 144 of the Constitution of India. What is of great importance is
that it is not judicial authorities alone that are to act in aid of the Supreme B
Court – it is all authorities i.e. authorities that are judicial as well as
authorities that are non-judicial. The expression “civil” is an expression
of extremely wide import, and deals with anything that affects the rights
of a citizen. Therefore, even textually, all “authorities” which exercise
powers over the citizens in the territory of India are mandated to act
in aid of the Supreme Court. C
33. The expression “authority” is not defined by the Constitution
of India. However, it is used in several Articles of the Constitution of
India. Depending upon the context in which it is used, the expression
is used either in a wide or narrow sense. Examples of the expression
being used in a narrow sense are as follows: D
Article 73(2) of the Constitution states:
“73. Extent of executive power of the Union.—
xxx xxx xxx
(2) Until otherwise provided by Parliament, a State and any officer E
or authority of a State may, notwithstanding anything in this article,
continue to exercise in matters with respect to which Parliament
has power to make laws for that State such executive power or
functions as the State or officer or authority thereof could
exercise immediately before the commencement of this
Constitution.” F
As can be seen from this Article, here, an authority is only of a
State, when contrasted with authorities of the Union Government.
Similarly, the converse case is referred to in the proviso to Article 162
as follows:
“162. Extent of executive power of State.—Subject to the G
provisions of this Constitution, the executive power of a State
shall extend to the matters with respect to which the Legislature
of the State has power to make laws:
Provided that in any matter with respect to which the Legislature
of a State and Parliament have power to make laws, the H
642 SUPREME COURT REPORTS [2019] 17 S.C.R.

A executive power of the State shall be subject to, and limited by,
the executive power expressly conferred by this Constitution or
by any law made by Parliament upon the Union or authorities
thereof.”
34. The proviso speaks of authorities of the Union of India.
B Likewise, Article 258(2) refers to authorities of the State when
contrasted with the authorities of the Union Government. Article 277
refers to local authorities which would have reference to municipalities,
panchayats, etc. Article 307 refers to an authority set up by Parliament
to carry out the purposes of Articles 301 to 304, which speak of trade,
commerce and intercourse within the territory of India, and consequently,
C deal with the economic unity of the nation. Article 329(b) speaks of a
quasi-judicial authority before which an election petition may be
presented. Article 353(b) and Article 357(1)(b) speak of authorities of
the Union, as contradistinguished with authorities of the State. Article
356(1)(a) speaks of State authorities, when contradistinguished with
D Union authorities. Article 372(1) has reference to a “competent
authority”, being an authority which is competent to amend laws that
are in force in the territory of India immediately before the
commencement of the Constitution.
35. As against these Articles, other Articles speak of “authority”
E in a wide sense. Thus, under Article 12, when it comes to enforcing
fundamental rights against a State, “local or other authorities” has been
held to include all State instrumentalities, including government
companies 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” was
F held not to be construed as ejusdem generis with the preceding word,
“local”. Likewise, in Article 154(2)(a), the expression “any other
authority” is used; and in Article 226 of the Constitution of India, when
the High Court exercises its writ jurisdiction, it may do so against any
person or authority.
G 36. A conspectus of the aforesaid Articles of the Constitution of
India leads to the conclusion that the expression “authorities” in Article
144 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 Council
H of a State would be covered, being an “authority” for the purposes of
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 643
THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

Article 144, as it is a body created by statute, which performs a public A
duty [see paragraph 79].
38. Likewise, any authority that exhibits a defiant attitude to any
order of the Supreme Court has been castigated as being wholly
objectionable and not acceptable. In M.C. Mehta v. Union of India,
(2001) 3 SCC 763, this Court stated as follows: B
“11. We are distressed at certain reports which have appeared
in the print and electronic media, exhibiting defiant attitude on
the part of Delhi Administration to comply with our orders. The
attitude, as reflected in the newspapers/electronic media, if
correct, is wholly objectionable and not acceptable. We have no C
doubt that all those concerned with Delhi Administration are
aware of the provisions of Article 144 of the Constitution which
reads,
“144. Civil and judicial authorities to act in aid of the
Supreme Court.—All authorities, civil and judicial, in the
D
territory of India shall act in aid of the Supreme Court.”
as also of the consequence of deliberately flouting the orders of
this Court and non-compliance with the above constitutional
provision…”
39. This Court, in State of Tamil Nadu v. State of Karnataka, E
(2016) 10 SCC 617, has castigated the State of Karnataka as follows:
“74. At this juncture, we may refer to Article 144 of the
Constitution of India. It reads as follows:
“144. Civil and judicial authorities to act in aid of the
Supreme Court.—All authorities, civil and judicial, in the F
territory of India, shall act in aid of the Supreme Court.”
75. On a plain reading of the said Article 144, it is clear as crystal
that all authorities in the territory of India are bound to act in aid
of the Supreme Court. Needless to say, they are bound to obey
the orders of the Supreme Court and also, if required, render G
assistance and aid for implementation of the order(s) of this Court,
but, unfortunately, the State of Karnataka is flouting the order
and, in fact, creating a situation where the majesty of law is
dented. We would have proceeded to have taken steps for strict
compliance with our order, but as we are directing the Cauvery
Management Board to study the ground reality and give us a H
644 SUPREME COURT REPORTS [2019] 17 S.C.R.

A report forthwith, we reiterate our earlier direction that the State
of Karnataka shall release 6000 cusecs of water from 1-10-2016
till 6-10-2016. We are granting this opportunity as the last chance
and we repeat at the cost of repetition that we are passing this
order despite the resolution passed by the Joint Houses of State
Legislature of the State of Karnataka. We had clearly mentioned
B so in our earlier order, while we stated Annexure IV to IA No.
16 of 2016. We are sure that the State of Karnataka being a
part of the federal structure of this country will rise to the
occasion and not show any kind of deviancy and follow the
direction till the report on the ground reality is made available to
C this Court.”
40. The position under our constitutional scheme is that the
Supreme Court of India is the ultimate repository of interpretation of
the Constitution. Once a Constitution Bench of five learned Judges
interprets the Constitution and lays down the law, the said interpretation
is binding not only as a precedent on all courts and tribunals, but also
D
on the coordinate branches of Government, namely, the legislature and
the executive. What follows from this is that once a judgment is
pronounced 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 exercise
E powers over the citizenry of India are obliged to aid in enforcing orders
and decrees of the Supreme Court. This then is the constitutional
scheme by which we are governed – the rule of law, as laid down by
the Indian Constitution.
41. Looked at from another angle, every member of the executive
F Government i.e. every Central Minister, including the Prime Minister,
as well as every State Minister, including the Chief Ministers in the
various States are bound vide Article 75(4) and Article 164(3), read
with 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.—
xxx xxx xxx
(4) Before a Minister enters upon his office, the President shall
administer to him the oaths of office and of secrecy according
H to the forms set out for the purpose in the Third Schedule.
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 645
THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

xxx xxx xxx” A
The Third Schedule of the Constitution insofar it applies to such
Ministers reads as follows:
“THIRD SCHEDULE
Articles 75(4), 99, 124(6), 148(2), 164(3), 188 and 219 B
FORMS OF OATHS OR AFFIRMATIONS
I
Form of oath of office for a Minister for the Union:—
swear in the name of God C
“I, A.B., do ———————————————— that I will
solemnly affirm
bear true faith and allegiance to the Constitution of India as by
law established, that I will uphold the sovereignty and integrity
D
of India, that I will faithfully and conscientiously discharge my
duties as a Minister for the Union and that I will do right to all
manner of people in accordance with the Constitution and the
law, without fear or favour, affection or ill-will.”
42. Insofar as their oath to uphold and defend the Constitution
of India is concerned, the Chief Ministers of the several States, together E
with Ministers of their cabinets, are bound by Article 164(3), read with
the Third Schedule, to uphold and defend the Constitution in the following
terms:
“164. Other provisions as to Ministers.—
F
xxx xxx xxx
(3) Before a Minister enters upon his office, the Governor shall
administer to him the oaths of office and of secrecy according
to the forms set out for the purpose in the Third Schedule.
xxx xxx xxx” G
“THIRD SCHEDULE
xxx xxx xxx
V
Form of oath of office for a Minister for a State:— H
646 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 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 by
B law established, that I will uphold the sovereignty and integrity
of India, that I will faithfully and conscientiously discharge my
duties as a Minister for the State of………….and that I will do
right to all manner of people in accordance with the Constitution
and the law without fear or favour, affection or ill-will.”
C 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 of
either House of Parliament shall, before taking his seat, make
D and subscribe before the President, or some person appointed in
that behalf by him, an oath or affirmation according to the form
set out for the purpose in the Third Schedule.”
“THIRD SCHEDULE

E xxx xxx xxx
III
B
Form of oath or affirmation to be made by a member of
F Parliament:—
‘I, A.B., having been elected (or nominated) a member of the
Council of States (or the House of the People)
swear in the name of God

G do ———————————————— that I will bear true
solemnly affirm
faith and allegiance to the Constitution of India as by law
established, that I will uphold the sovereignty and integrity of
India and that I will faithfully discharge the duty upon which I
H am about to enter.”
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 647
THR. ITS GENERAL SECRETARY [R. F. NARIMAN, J.]

44. Insofar as the Members of State Legislative Assemblies and A
Councils are concerned, Article 188, read with the Third Schedule, is
as follows:
“188. Oath or affirmation by members.—Every member of
the Legislative Assembly or the Legislative Council of a State
shall, before taking his seat, make and subscribe before the B
Governor, or some person appointed in that behalf by him, an
oath or affirmation according to the form set out for the purpose
in the Third Schedule.”
“THIRD SCHEDULE
C
xxx xxx xxx
VII
B
Form of oath or affirmation to be made by a member of the D
Legislature of a State:—
“I, A.B., having been elected (or nominated) a member of the
Legislative Assembly (or Legislative
swear in the name of God
E
Council), do ———————————————— that I will
solemnly affirm
bear true faith and allegiance to the Constitution of India as by
law established, that I will uphold the sovereignty and integrity
of India and that I will faithfully discharge the duty upon which F
I am about to enter.”
45. It is important to notice, at this juncture, that so far as the
Prime Minister and members of his Cabinet are concerned, not only
does the form of oath contained in the Third Schedule require that all
G
such persons will bear true faith and allegiance to the Constitution of
India as by law established, but also that they will do right to all manner
of people, in accordance with the Constitution and the law, without fear
or favour, affection or ill will. The same goes for the oath taken by the
Chief Ministers and Ministers within the States. Read with Article 144,
this would mean that it is the bounden duty of every Minister, whether H
648 SUPREME COURT REPORTS [2019] 17 S.C.R.

A Central or State, to follow Article 144 in letter as well as spirit, and to
do what is right to all manner of people, in accordance with the
Constitution and the law, which means in accordance with the
interpretation of the Constitution declared by the law laid down by the
Supreme Court. It is, therefore, incumbent upon the executive branch
B of Government and all MPs and MLAs to faithfully aid in carrying out
decrees and orders passed by the Supreme Court of India when such
decrees and orders command a particular form of obedience, even
where 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.
C Once this is clearly understood and followed, the rule of law is
established, and the shameful spectacle of political parties running after
votes, or instigating or tolerating mob violence, in defiance of decrees
or orders passed by the Supreme Court of India does not reign instead.
46. The history of democratic nations shows that what our
D
founding fathers handed to us in the form of the Constitution of India
was the result of centuries of struggle in both England and the United
States of America. The bloody revolutions that took place in France
and Russia against absolute monarchs are a sober reminder to the
people of the world that social transformation, which took place
E cataclysmically in rivers of human blood, is to be eschewed. An absolute
monarch like Peter the Great of Russia, could order, by decree, that
no adult male shall, in the future, have a beard. This was done as part
of a move to bring Russia out of the middle ages and in line with other
advanced European nations. For most Orthodox Russians, the beard
F was a fundamental symbol of religious belief and self-respect. It was
an ornament given by God, worn by the prophets, the apostles and by
Jesus himself. Ivan the Terrible expressed the traditional Muscovite
feeling when he declared, “to shave the beard is a sin that the blood of
all the martyrs cannot cleanse. It is to deface the image of man created
by God.” This decree was carried out overnight, with Russian
G officialdom 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 permitted
to do so on paying an annual tax. Payment entitled the owner to a small
bronze medallion with a picture of a beard on it and the words “ TAX
H PAID”, which was worn on a chain around the neck to prove to any
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 649
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challengers that his beard was legal. The tax was graduated; peasants A
paid only two kopeks a year, wealthy merchants paid as much as a
hundred roubles.2 It is in the wake of such tumultuous events in history,
that the great democratic constitutions of the world have been
promulgated, so that social transformation takes place peaceably, as the
result of the application of the rule of law. B
47. The expression “rule of law” can be traced back to the great
Greek philosopher Aristotle, who lived 2,400 years ago. In his book on
the ‘Rule of Law’ by Brian Z. Tamanaha, Aristotle is reported to have
said:
“It is better for the law to rule than one of the citizens…so that C
even the guardians of the law are obeying the laws.”
48. John Locke had stated, in 1690, in his Second Treatise of
Government, Chapter XVII, page 400, that, “wherever law ends, tyranny
begins”.
D
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 governments
the King is law, so in free countries the law ought to be king;
E
and there ought to be no other.”
50. Prof. A.V. Dicey, the Vinerian Professor of English Law at
the University of Oxford, in his book, “An Introduction to the Study of
the Law of the Constitution”, published in 1885, gave three meanings
to the rule of law. We are directly concerned with the second meaning F
that was thus given. He stated,
“We mean in the second place, when we speak of the “rule of
law” as a characteristic of our country, not only that with us no
man is above the law, but (what is a different thing) that here
every man, whatever be his rank or condition, is subject to the G
ordinary law of the realm and amenable to the jurisdiction of the
ordinary tribunals.”
(at page 193)
2
ROBERT K. MASSIE, PETER THE GREAT: HIS LIFE AND WORLD, 234-235
(Ballantine Books 1980). H
650 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 51. The rule of law was first established against absolutist
monarchs. Thus, in the Magna Carta, which was signed by King John
of England on 15 June, 1215, it was stated:
“39.No free man shall be seized or imprisoned or stripped of his
rights or possessions, or outlawed or exiled, or deprived of his
B standing in any other way, nor will we proceed with force against
him, or send others to do so, except by the lawful judgment of
his 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, in
C
August of that year, annulled the Magna Carta, the Magna Carta was
repeatedly affirmed by English monarchs. Copies of it were printed and
distributed 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 the
D
rule of law is concerned, is the famous Petition of Right3 of 1628, in
clause VIII of which, it was stated:
“They do therefore humbly pray your most excellent majesty that
no man hereafter be compelled to make or yield any gift, loan,
benevolence, tax or such like charge without common consent
E
by act of parliament, and that none be called to make answer or
take such oath or to give attendance or be confined or otherwise
molested or disquieted concerning the same or for refusal
thereof. And that no freeman in any such manner as is before
mentioned be imprisoned or detained. And that your Majesty
F would be pleased to remove the said soldiers and mariners, and
that your people may not be so burdened in time to come. And
that the aforesaid commissions for proceeding by martial law may
be revoked and annulled. And that hereafter no commissions of
like nature may issue forth to any person or persons whatsoever
to be executed as aforesaid, lest by colour of them any of your
G
3
This Petition of Right was signed by King Charles I, who was one of the Stuart
Kings 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 British
Constitution when he said to his King that, “Bracton saith, quod Rex non debet esse
sub-homine set sub Deo et lege”, i.e., the King ought not to be under any man, but
H under God and the law.
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 651
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Majesty’s subjects be destroyed or put to death contrary to the A
laws and franchises of the land.”
54. The next great landmark establishing the rule of law in
England was the Bill of Rights, 1689, under which no monarch could
rely on divine authority to override the law. The authority and
independence of Parliament was proclaimed, and the power to suspend B
laws without the consent of Parliament was condemned as illegal.
Personal liberty and security were protected by prohibiting the
requirement of excessive fines, the imposition of excessive bail, and
the infliction of cruel and unusual punishments.
55. In the United States, the rule of law was established by the C
Constitution of the United States, 1789. In particular, Article VI of the
U.S. Constitution states:
“This Constitution, and the laws of the United States which shall
be made in pursuance thereof; and all treaties made, or which
shall be made, under the authority of the United States, shall be D
the supreme law of the land; and the judges in every state shall
be bound thereby, anything in the Constitution or laws of any
State to the contrary notwithstanding.”
56. When it came to the judicial branch of Government, Alexander
Hamilton, in Federalist Paper No.78, had this to say: E
“Whoever attentively considers the different departments of
power must perceive, that, in a government in which they are
separated from each other, the judiciary, from the nature of its
functions, will always be the least dangerous to the political rights
of the Constitution; because it will be least in a capacity to annoy F
or injure them. The Executive not only dispenses the honors, but
holds the sword of the community. The legislature not only
commands the purse, but prescribes the rules by which the duties
and rights of every citizen are to be regulated. The judiciary, on
the contrary, has no influence over either the sword or the purse;
no direction either of the strength or of the wealth of the society; G
and can take no active resolution whatever. It may truly be said
to have neither FORCE nor WILL, but merely judgment; and must
ultimately depend upon the aid of the executive arm even for
the efficacy of its judgments.”
(emphasis supplied) H
652 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 57. Given the fact that the U.S. Constitution did not contain any
Article resembling Article 144 of our Constitution, the case of the
Cherokee Indians vis-à-vis the State of Georgia is instructive. In the
first judgment dealing with the Cherokee Indians, Chief Justice Marshall
stated that the Supreme Court had no original jurisdiction to try the case
as the Cherokee nation was not a foreign nation [see Cherokee
B Nations v. State of Georgia, 30 U.S. 1, 43 (1831)]. However, after
this first case was decided, the Georgia legislature passed a law
requiring all white persons living within the Cherokee territory of the
State of Georgia to obtain a license, and to take an oath of allegiance
to the State of Georgia. Two white missionaries refused to do so, and
were arrested and convicted by a Georgian Court to four years’
C imprisonment. This time, Chief Justice Marshall, in 1832, held the
Georgia statute unconstitutional on the ground that the jurisdiction of
the Federal Courts over Cherokee Indians was exclusive, and
consequently, the State of Georgia had no power to pass laws affecting
them or their territory. Consequently, the judgment of the Georgia
superior court, convicting the two white missionaries and sentencing
D
them to prison was overturned, and the Supreme Court ordered their
release [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 supposed
famously to have said, “Well, John Marshall has made his decision; now
E let him enforce it.” President Jackson was of the opposite view to that
of the Court, stating that the state legislatures had powers to extend
their laws over all persons living within their boundaries. So, a judgment
of the highest court of the land was blatantly disobeyed by the State of
Georgia, with the backing of the President of the United States.
58. One hundred and twenty years later, the U.S. Supreme Court,
F in 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 be
desegregation of black and white students in state schools. A
constitutional crisis was reached, when the Governor of Arkansas openly
G flouted the desegregation order mandated by the U.S. Supreme Court
in Brown (supra). In 1957, as stated hereinabove, the Governor of
Arkansas and officers of the Arkansas National Guard obstructed black
children from entering the high school at Little Rock, Arkansas. An
uneasy tension prevailed as the students were prevented entry.
However, President Eisenhower then despatched federal troops to the
H high school, as a result of which, admission of black students to the
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 653
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school was thereby effected. In 1958, the School Board and the A
Superintendent of Schools filed a petition in the District Court seeking
postponement of their programme for desegregation. This was because
of conditions at the ground level of “chaos, bedlam, and turmoil”. The
District Court granted the relief requested by the Board. The Court of
Appeals for the Eighth Circuit stayed the aforesaid judgment.
B
59. In Cooper v. Aaron, 358 U.S. 1 (1958), [“Cooper”] the
US Supreme Court, by a unanimous judgment, held:
“The controlling legal principles are plain. The command of the
Fourteenth Amendment is that no “State” shall deny to any person
within its jurisdiction the equal protection of the laws. “A State
acts by its legislative, its executive, or its judicial authorities. It C
can act in no other way. The constitutional provision, therefore,
must mean that no agency of the State, or of the officers or
agents by whom its powers are exerted, shall deny to any person
within its jurisdiction the equal protection of the laws. Whoever,
by virtue of public position under a State government . . . denies D
or takes away the equal protection of the laws violates the
constitutional inhibition; and, as he acts in the name and for the
State, and is clothed with the State’s power, his act is that of the
State. This must be so, or the constitutional prohibition has no
meaning.” Ex parte Virginia, 100 U. S. 339, 347; 25 L ed 676,
679. Thus, the prohibitions of the Fourteenth Amendment extend E
to all action of the State denying equal protection of the laws;
whatever the agency of the State taking the action, see Virginia
v. Rives, 100 U. S. 313; Pennsylvania v. Board of Directors
of 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 of F
Conservation and Development v. Tate, 231 F.2d 615.
In short, the constitutional rights of children not to be discriminated
against in school admission on grounds of race or colour declared
by this Court in the Brown case can neither be nullified openly
and directly by state legislators or state executive or judicial G
officers nor nullified indirectly by them through evasive schemes
for segregation whether attempted “ingeniously or
ingenuously.” Smith v. Texas, 311 U. S. 128, 132.”
(emphasis supplied)
(at pp. 16-17) H
654 SUPREME COURT REPORTS [2019] 17 S.C.R.

A 60. Justice Frankfurter, in a separate concurring opinion, stated:
“When defiance of law, judicially pronounced, was last sought
to be justified before this Court, views were expressed which
are now especially relevant:
“The historic phrase ‘a government of laws, and not of men’
B epitomizes the distinguishing character of our political society.
When John Adams put that phrase into the Massachusetts
Declaration of Rights, he was not indulging in a rhetorical
flourish. He was expressing the aim of those who, with him,
framed the Declaration of Independence and founded the
C Republic. ‘A government of laws, and not of men,’ was the
rejection in positive terms of rule by fiat, whether by the fiat
of governmental or private power. Every act of government
may be challenged by an appeal to law, as finally pronounced
by this Court. Even this Court has the last say only for a time.
Being composed of fallible men, it may err. But revision of
D its errors must be by orderly process of law. The Court may
be asked to reconsider its decisions, and this has been done
successfully again and again throughout our history. Or what
this Court has deemed its duty to decide may be changed by
legislation, as it often has been, and, on occasion, by
constitutional amendment.”
E
“But, from their own experience and their deep reading in history,
the Founders knew that Law alone saves a society from being
rent by internecine strife or ruled by mere brute power however
disguised. ‘Civilization involves subjection of force to reason, and
the agency of this subjection is law.’ (Pound, The Future of Law
F (1937) 47 Yale L.J. 1, 13.) The conception of a government by
laws dominated the thoughts of those who founded this Nation
and designed its Constitution, although they knew as well as the
belittlers of the conception that laws have to be made, interpreted
and enforced by men. To that end, they set apart a body of men
who were to be the depositories of law, who, by their disciplined
G
training and character and by withdrawal from the usual
temptations of private interest, may reasonably be expected to
be ‘as free, impartial, and independent as the lot of humanity will
admit.’ So strongly were the framers of the Constitution bent on
securing a reign of law that they endowed the judicial office with
H extraordinary safeguards and prestige. No one, no matter how
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 655
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exalted his public office or how righteous his private motive, can A
be judge in his own case. That is what courts are for.” United
States v. United Mine Workers, 330 U. S. 258, 307-309
(concurring opinion).
The duty to abstain from resistance to “the supreme Law of the
Land,” U.S. Const., Art. VI, ¶ 2, as declared by the organ of B
our Government for ascertaining it, does not require immediate
approval of it, nor does it deny the right of dissent. Criticism need
not be stilled. Active obstruction or defiance is barred. Our kind
of society cannot endure if the controlling authority of the Law
as derived from the Constitution is not to be the tribunal specially
charged with the duty of ascertaining and declaring what is “the C
supreme Law of the Land.” See President Andrew Jackson’s
Message to Congress of January 16, 1833, II Richardson,
Messages and Papers of the Presidents (1896 ed.) 610, 623.)”
(at pp. 23-24)
“That the responsibility of those who exercise power in a D
democratic government is not to reflect inflamed public feeling,
but to help form its understanding, is especially true when they
are confronted with a problem like a racially discriminating
public school system. This is the lesson to be drawn from the
heartening experience in ending enforced racial segregation E
in the public schools in cities with Negro populations of large
proportions. Compliance with decisions of this Court, as the
constitutional organ of the supreme Law of the Land, has
often, throughout our history, depended on active support by
state and local authorities. It presupposes such support. To
withhold it, and indeed to use political power to try to paralyze F
the supreme Law, precludes the maintenance of our federal
system as we have known and cherished it for one hundred
and seventy years.”
(emphasis supplied)
(at page 26) G

61. The aftermath of this decision was the enactment of the Civil
Rights Act by the U.S. Congress in 1964. It was thanks to the decision
in Cooper (supra) that the U.S. Congress finally outlawed racial
discrimination in every form, including segregation of races at schools.
Social transformation, therefore, took place as a result of the decisions H
656 SUPREME COURT REPORTS [2019] 17 S.C.R.

A in Brown (supra) and Cooper (supra). Constitutional morality did
ultimately triumph over racial discrimination.
62. In our country, an interesting incident took place in 1828, as
a result of which, there was a direct confrontation between the Supreme
Court at Bombay and Governor Malcolm. This incident is narrated in
B P.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 remaining
judges of the Supreme Court issued a writ of Habeas Corpus
to the Poona court, for the production before them of one Moro,
C a 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 the
evil influences of the uncle on the minor. It seems that the
jurisdiction of the Supreme Court was vaguely defined in its
Charter; and Malcolm thought that the judges in issuing the writ
D had exceeded their powers. He regarded the occasion as a most
favourable 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 inflict
it.” He issued orders instructing the Poona court to ignore the
writ, with the result that the writ remained unserved. This was
E a direct and calculated challenge to the authority of the Supreme
Court. The Governor added insult to injury by addressing a letter
to the judges, informing them that he had given orders to the
Company’s servants to take no notice of any writs issued by the
Supreme Court to the mofussil courts, or to native subjects
F resident outside the limits of the town and island of Bombay.
When the Clerk of the Court read out this communication in open
court at its next sitting, the judges strongly and rightly resented
the discourteous and dictatorial tone of the communication; and
they nobly and valiantly declared that “the court would not allow
any individual, be his rank ever so distinguished, or his powers
G ever so predominant, to address it in any other way respecting
its judicial and public functions, than as the humblest suitor, who
applies for its protection”; adding, “within these walls, we know
no equal and no superior but God and the King”. They warned
the government against instigating any persons to disobey the
H writs of the King issued by his judges.
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 657
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Chambers died within a fortnight. At the next sitting of the court, A
Grant, sitting alone, said that the government had killed his brother
judge, “but they shall not kill me”; and that he was prepared to
fight singlehanded for the rights and privileges of his officer.
Finding that no return to the writ of Habeas Corpus was
forthcoming, owing to the obstruction of the government, Grant
issued a fresh writ returnable immediately, with a penalty of B
Rs.10,000 in case of disobedience. A special constable was sent
to Poona with authority to seek military aid, if the civil authorities
obstructed him in the discharge of his duty. The Commander of
the Bombay forces, Sir Thomas Bradford, who was at first
disposed to support the government, now veered round to the C
side of the judiciary, declaring that to oppose the writ was to
oppose the King, and he would call out the military to enforce
His Majesty’s writ.
Malcolm retorted by declaring that, if the Commander interfered,
he would “deport him bag and baggage” out of India, regardless
D
of all consequences. Grant then took the extreme measure of
going 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 home
authorities. His friend, the Duke of Wellington, being now Prime
Minister, Malcolm hastened to forward to London his own E
version of the case. Grant also had sent his protest to the Board
of Control. After some interval, the long awaited despatch of the
Board arrived. The Board condemned the attitude of the Supreme
Court, fortified it seems by the Privy Council’s ruling, that the
writ was improperly issued by the Supreme Court over a person
F
outside their jurisdiction. As stated before, the territorial limits of
the jurisdiction of the Supreme Court had been ill-defined in its
Charter; and it is also possible that, since only the King’s Court
had power to issue a writ of Habeas Corpus, the judges might
have thought that, in the matter of this writ at least, their
jurisdiction extended beyond the town and island of Bombay. G
The despatch of the India Board further contained orders
appointing Dewar, who was then Advocate-General, as Chief
Justice, and William Seymour, a barrister, as puisne judge,
Chambers being dead. Lord Ellenborough, President of the Board
of Control, expressed the hope that “these appointments will H
658 SUPREME COURT REPORTS [2019] 17 S.C.R.

A prevent all mischief in future; as Grant will now be like a wild
elephant between two tame elephants.” But Grant was “wild
elephant” with a very tough hide, and made of sterner stuff for
twenty years’ and closed his stormy and valiant judicial career
in 1848, as judge of the Supreme Court of Calcutta. Grant
forfeited the favour of the authorities, but gained immensely in
B
popularity with the Bombay public. It is said that on his departure
from Bombay, “the natives drew his carriage”. Grant died at sea
on his voyage home, after his retirement from the Calcutta High
Court.”
(emphasis supplied)
C (at pp. 196-198)
63. Given the chequered history of the open flouting of judgments
of superior courts in the 19th century, the 20th century has witnessed a
complete about-turn, as can be seen by the U.S. Supreme Court
D judgment in Cooper v. Aaron (supra). Today, it is no longer open to
any person or authority to openly flout a Supreme Court judgment or
order, given the constitutional scheme as stated by us hereinabove. It
is necessary for us to restate these constitutional fundamentals in the
light of the sad spectacle of unarmed women between the ages of 10
and 50 being thwarted in the exercise of their fundamental right of
E worship at the Sabarimala temple.4 Let it be said that whoever does
not 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 would
violate their constitutional oath to uphold, preserve, and defend the
Constitution of India. So far as the citizens of India are concerned, we
F would do well to remind them of the fundamental duties of citizens laid
down 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 every
citizen of India—
G
4
The Travancore Devaswom Board, in the initial round of hearing, opposed the public
interest writ petitions that were filed in this Court. However, after the judgment
dated 28.09.2018 was delivered by the Constitution Bench, Shri Rakesh Dwivedi,
learned Senior Advocate appearing on behalf of the Board, appeared before us and
opposed the review petitions that were filed in this Court, stating that the Board has
H decided to accept this Court’s judgment.
KANTARU RAJEEVARU v. INDIAN YOUNG LAWYERS ASSN. 659
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(a) to abide by the Constitution and respect its ideals and A
institutions, the National Flag and the National Anthem;
xxx xxx xxx
(e) to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic
and regional or sectional diversities; to renounce practices B
derogatory to the dignity of women;
xxx xxx xxx
(h) to develop the scientific temper, humanism and the spirit of
inquiry and reform;
C
xxx xxx xxx”
(emphasis supplied)
We may, at this juncture, make it clear that the freedom to
criticise the judgments of this Court is not being interfered with. Lord
Atkin’s famous words, in the case of Ambard v. Attorney-General D
for 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 is
committed by any member of the public who exercises the
ordinary right of criticising, in good faith, in private or public, the E
public act done in the seat of justice. The path of criticism is a
public way: the wrong headed are permitted to err therein:
provided that members of the public abstain from imputing
improper motives to those taking part in the administration of
justice, and are genuinely exercising a right of criticism, and not
acting in malice or attempting to impair the administration of F
justice, they are immune. Justice is not a cloistered virtue: she
must be allowed to suffer the scrutiny and respectful, even though
outspoken, comments of ordinary men.”
(at page 335)
G
64. 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 directions or orders of the highest court cannot
be countenanced in our Constitutional scheme of things. After all, in
India’s tryst with destiny, we have chosen to be wedded to the rule of
law as laid down by the Constitution of India. Let every person H
660 SUPREME COURT REPORTS [2019] 17 S.C.R.

A remember that the “holy book” is the Constitution of India, and it is
with this book in hand that the citizens of India march together as a
nation, so that they may move forward in all spheres of human
endeavour to achieve the great goals set out by this “Magna Carta” or
Great Charter of India.
B 65. The Constitution places a non-negotiable obligation on all
authorities to enforce the judgments of this Court. The duty to do so
arises because it is necessary to preserve the rule of law. If those whose
duty it is to comply were to have a discretion on whether or not to
abide by a decision of the court, the rule of law would be set at naught.
Judicial remedies are provided to stakeholders before a judgment is
C pronounced and even thereafter. That, indeed, is how the proceedings
in review in the present case have been initiated. Hence arguments
have been addressed, exchanged between counsel and considered with
the sense of objectivity and fairness on which the judicial process rests.
These remedies within a rule of law framework provide recourse to
all those who may be and are affected by the course of a judicial
D
decision. When the process is complete and a decision is pronounced,
it is the decision of the Supreme Court and binds everyone. Compliance
is not a matter of option. If it were to be so, the authority of the court
could be diluted at the option of those who are bound to comply with
its verdicts.
E 66. The State of Kerala is directed to give wide publicity to this
judgment through the medium of television, newspapers, etc. The
government should take steps to secure the confidence of the
community in order to ensure the fulfillment of constitutional values.
The State government may have broad-based consultations with
F representatives of all affected interests so that the modalities devised
for implementing the judgment of the Court meet the genuine concerns
of all segments of the community. Organised acts of resistance to thwart
the implementation of this judgment must be put down firmly. Yet in
devising modalities for compliance, a solution which provides lasting
peace, while at the same time reaffirming human dignity as a
G fundamental constitutional value, should be adopted. Consistent with the
duties inhering in it, we expect the State government to ensure that the
rule of law is preserved. All petitions are disposed of accordingly.

Divya Pandey Directions issued.
H