In The Supreme Court of India: Appreciation of History/customs/essentiality During Adjudication

IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
I A. NO. 30 OF 2016
IN
WRIT PETITION (CIVIL) No.373 OF 2006
IN THE MATTER OF:

INDIAN YOUNG LAWYERS
ASSOCIATION & ORS. ……. PETITIONERS
VERSUS
STATE OF KERALA & ORS. ……. RESPONDENTS
LIST OF JUDGMENTS
S. No. Judgment Relevant

Paragraphs
Appreciation of history/customs/essentiality during adjudication
1. The Commissioner, Hindu Religious 11, 12, 15

Endowments, Madras v. Sri Lakshmindra
Thirtha Swamiar of Sri Shirur Mutt 1954
AIR 282
2. Sardar Syadna Taher Saifuddin Saheb v. 2, 19, 20, 22,

The State of Bombay 1962 AIR 853 24, 31, 41 – 46,
54, 63, 65 - 67
3. Tilkayat Shri Govindalji Maharaj v. State 5 – 15, 18 - 30

of Rajasthan (1964) 1 SCR 561
4. Noorjehan Safia Niaz and Ors. v. State of 17, 18, 24, 25 -

Maharashtra and Ors., 27
MANU/MH/1532/2016
“17. We would first like to consider,

whether the respondent No. 2 has relied
on any custom/usage, pursuant to which,
the ban was imposed, restricting the entry
of women in the sanctum sanctorum of
the Haji Ali Dargah. The relevant
constitutional provision that gives
recognition to customs/usages is Article
13 of the Constitution, which reads thus:
A plain reading of the Article 13 makes it

clear that the said Article provides that all
laws insofar as they are inconsistent with
the provisions of Part III shall, to the
extent of such inconsistency, be void. The
definition of the term "law" includes
custom or usage having the force of law in
the territory of India under Article 13(3)
(a).
18. In the context of Article 13(3)(a), if a

custom or usage has the force of "law",
then the State is under a Constitutional
obligation to ensure proper
implementation thereof.
24. The question then arises is, whether

the respondent No. 2 Trust has been able
to show whether the entry of women in
close proximity to the grave of male
Muslim Saint was sin in Islam?”
5. Shayara Bano and Ors. v. Union of India 18 – 22, 28,

(UOI) and Ors., MANU/SC/1031/2017 141, 145, 192,
209, 210
“18. During the course of hearing,
references to the Quran were made from
'The Holy Quran: Text Translation and
Commentary' by Abdullah Yusuf Ali,
(published by Kitab Bhawan, New Delhi,
14th edition, 2016). Learned Counsel
representing the rival parties commended,
that the text and translation in this book,
being the most reliable, could safely be
relied upon. The text and the inferences
are therefore drawn from the above
publication. …*
22. It would be relevant to record, that

'personal law' dealing with the affairs of
those professing the Muslim religion, was
also regulated by custom or usage. It was
also regulated by 'Shariat' - the Muslim
'personal law'.
28. …Firstly, to demonstrate that the

practice was prevalent across the globe in
States having sizeable Muslim
populations. And secondly, that the
practice has been done away with, by way
of legislation, in the countries referred to
below.
141. As a historical fact, 'talaq-e-biddat' is

known to have crept into Muslim tradition
more than 1400 years ago, at the
instance of Umayyad monarchs. It can
certainly be traced to the period of Caliph
Umar-a senior companion of Prophet
Muhammad. Caliph Umar succeeded Abu
Bakr (632-634) as the second Caliph on
23.8.634. If this position is correct, then
the practice of 'talaq-e-biddat' can most
certainly be stated to have originated
some 1400 years ago.
145. We are satisfied, that the practice of

'talaq-e-biddat' has to be considered
integral to the religious denomination in
question-Sunnis belonging to the Hanafi
school. There is not the slightest reason
for us to record otherwise. We are of the
view, that the practice of 'talaq-e-biddat',
has had the sanction and approval of the
religious denomination which practiced it,
and as such, there can be no doubt that
the practice, is a part of their 'personal
law'.
209. It is in that background that I make

an attempt to see what the Quran states
on talaq. There is reference to talaq in
three Suras-in Sura II while dealing with
social life of the community, in Sura IV
while dealing with decencies of family life
and in Sura LXV while dealing explicitly
with talaq.
210. Sura LXV of the Quran deals with

talaq. It reads as follows:
Treatment of Agama and Shastras under the Constitution
6. Seshammal v. State of Tamil Nadu AIR 10, 11

1972 SC 1586
7. Adi Saiva Sivachariyargal Nala Sangam v. 36, 37, 38

Government of Tamil Nadu and Another
(2016) 2 SCC 725
What constitutes Religious Denominations under the

Constitution
8. The Commissioner, Hindu Religious 1020, 1021, 1022,
Endowments, Madras v. Sri Lakshmindra (1023, 1024, 1028),
Thirtha Swamiar of Sri Shirur Mutt 1954 1025
AIR 282
(a) Restrictions would cease to be

reasonable if they are calculated to make
the Mathadhipati unfit to discharge his
duties.
(b) It is Mathadhipati’s duty to practice

and propagate the religious tenets and if
any provision of law prevents him from
propagating his doctrines, that would
affect the religious freedom under Article
25.
(c) Defined “religious denomination”.
(d) Explained, “matters of religion”.
(e) Expenditure of money would not

make religious activities secular.
9. Raja Bira Kishore Deb v. State of Orissa, 14

AIR 1964 SC 1501
10. Sri Venkataramana Devaru and Ors. v. 14

The State of Mysore and Ors. AIR 1958
SC 255
(a) What constitutes an essential part of

the religion is primarily to be ascertained
with reference to the doctrines of the
religion itself. Expenditure of money
would not make religious activities
secular.
(b)Addresses the conflict between Article

25(2)(b) and Article 26 of the
Constitution.
11. The Durgah Committee, Ajmer and Anr. v. 24

Syed Hussain Ali and Ors., AIR 1961 SC
1402
12. Sardar Syedna Taher Saifuddin Saheb v. 61

The State of Bombay, AIR 1962 SC 853
13. Tilkayat Shri Govindlalji Maharaj v. State 5

of Rajasthan, AIR 1963 SC 1638
14. State of Rajasthan and Ors. v. Shri 35

Sajjanlal Panjawat and Ors., AIR 1975 SC
706
15. SP Mittal v. Union of India AIR 1983 SC 1 12, 13, 21
(a) The expression “religion” or

“religious denomination” must be
interpreted in a liberal and an expansive
manner. (Reddy J., partly dissenting).
(b) ‘Religious denominations‘ must

satisfy three conditions. (Also in Nallor
Marthandam Vellalar & Ors. v. The
Commissioner, Hindu Religions and
Charitable Endowments and Ors., AIR
2003 SC 4225 - paragraph 7 at 716)
16. Acharya Jagdishwaranand Avadhuta and 11

Ors. v. Commissioner of Police, Calcutta
and Anr., AIR 1984 SC 51
17. Nallor Marthandam Vellalar and Ors. v. 8

The Commissioner, Hindu Religions and
Charitable Endowments and Ors., AIR
2003 SC 4225
18. Dr. Subramanian Swamy v. State of Tamil 54 at 97, (65 &

Nadu and Ors., AIR 2015 SC 460 66 at 100)
(a) The fundamental rights as protected

under Article 26 cannot be treated to have
been waived nor its protection denied.
Consequently, the power to supersede the
functions of a “religious denomination” is
to be read as regulatory for a certain
purpose and for a limited duration, and
not an authority to virtually abrogate the
rights of administration conferred on it.
(b) Even if the management of a temple

is taken over to remedy the evil, the
management must be handed over to the
person concerned immediately after the
evil stands remedied. Continuation
thereafter would tantamount to
usurpation of their proprietary rights or
violation of the fundamental rights
guaranteed in favor the persons deprived.
Therefore, taking over of the management
in such circumstances must be for a
limited period.
Rights of Deity under the Constitution
19. Pramatha Nath Mullick v. Pradyumna 8, 9

Kumar Mullick (1925) 27 BOMLR 1064
20. Yogendra Nath Naskar v. Commissioner of 7

Income-Tax, Calcutta 1969 AIR 1089
21. Ram Jankijee Deities v. State of Bihar 10, 11

1999 AIR SCW 1878
22. Bishwanath and Anr v. Shri Thakur 13 - 17

Radhaballabhji & Ors 1967 AIR 1044

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IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

IN THE MATTER OF:

ASSOCIATION & ORS. ……. PETITIONERS

STATE OF KERALA & ORS. ……. RESPONDENTS

S. No. Judgment Relevant

Appreciation of history/customs/essentiality during adjudication

1. The Commissioner, Hindu Religious 11, 12, 15

2. Sardar Syadna Taher Saifuddin Saheb v. 2, 19, 20, 22,

3. Tilkayat Shri Govindalji Maharaj v. State 5 – 15, 18 - 30

4. Noorjehan Safia Niaz and Ors. v. State of 17, 18, 24, 25 -

“17. We would first like to consider,

A plain reading of the Article 13 makes it

18. In the context of Article 13(3)(a), if a

24. The question then arises is, whether

5. Shayara Bano and Ors. v. Union of India 18 – 22, 28,

22. It would be relevant to record, that

28. …Firstly, to demonstrate that the

141. As a historical fact, 'talaq-e-biddat' is

145. We are satisfied, that the practice of

209. It is in that background that I make

210. Sura LXV of the Quran deals with

Treatment of Agama and Shastras under the Constitution

6. Seshammal v. State of Tamil Nadu AIR 10, 11

7. Adi Saiva Sivachariyargal Nala Sangam v. 36, 37, 38

What constitutes Religious Denominations under the

8. The Commissioner, Hindu Religious 1020, 1021, 1022,

Endowments, Madras v. Sri Lakshmindra (1023, 1024, 1028),

Thirtha Swamiar of Sri Shirur Mutt 1954 1025

(a) Restrictions would cease to be

(b) It is Mathadhipati’s duty to practice

(c) Defined “religious denomination”.

(d) Explained, “matters of religion”.

(e) Expenditure of money would not

9. Raja Bira Kishore Deb v. State of Orissa, 14

10. Sri Venkataramana Devaru and Ors. v. 14

(a) What constitutes an essential part of

(b)Addresses the conflict between Article

11. The Durgah Committee, Ajmer and Anr. v. 24

12. Sardar Syedna Taher Saifuddin Saheb v. 61

13. Tilkayat Shri Govindlalji Maharaj v. State 5

14. State of Rajasthan and Ors. v. Shri 35

15. SP Mittal v. Union of India AIR 1983 SC 1 12, 13, 21

(a) The expression “religion” or

(b) ‘Religious denominations‘ must

16. Acharya Jagdishwaranand Avadhuta and 11

17. Nallor Marthandam Vellalar and Ors. v. 8

18. Dr. Subramanian Swamy v. State of Tamil 54 at 97, (65 &

(a) The fundamental rights as protected

(b) Even if the management of a temple

Rights of Deity under the Constitution

19. Pramatha Nath Mullick v. Pradyumna 8, 9

20. Yogendra Nath Naskar v. Commissioner of 7

21. Ram Jankijee Deities v. State of Bihar 10, 11

22. Bishwanath and Anr v. Shri Thakur 13 - 17

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