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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 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 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 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.

(ix) The exclusionary practice, which has been given the 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 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 one of them, irrespective of any custom or usage to the contrary.

“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 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 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.”

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 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 judgment of Chandrachud, J. As against this, Malhotra, J. states the opposite conclusion in paragraph 312(vi) of her judgment.1 In the judgment of the learned Chief Justice, whether the 1965 Rules govern the 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 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 or offering prayers thereat or performing religious service therein.