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There would only be one and I would utilize every single bit of political capital I had to get it done, even if it meant not a single person that was on “my side” got re-elected. Because if this got fixed, a LOT of things would naturally fall out from it.Education in this country is broken. It is not a little broken, it is COMPLETELY AND UTTERLY BROKEN. It’s a national embarrassment and the fact that we keep trying the same thing over and over and over and make things worse and worse should embarrass every politician and education policy maker in the country.Let’s start with literacy. The rate of high school students who are illiterate AND GRADUATING is increasing[1] . The literacy rate among graduating seniors in the US, depending on the state, varies between 75% and 85%. The national average is that about 20% of high school graduates can’t read[2] . This number has increased from 14% over the last 20 years. Worse, is this does not address high school dropouts. In Texas (my state), twenty five percent of students don’t graduate. I would assume that the illiteracy rate among these kids is a LOT higher than those who do graduate. Which means, at minimum, 25% of our young adults are entering adult life not being able to read. The number is probably closer to 33%. And that’s functionally illiterate…the numbers don’t include those who read at a low grade level and still get out.Math statistics are even worse — much worse.On the other hand, the US spends more per child than any other country in the world[3] . The national average per student is $11,752/year[4] . This number is also horribly understated as most school districts (a) have a strong incentive to keep this number reported as low so as to gin up support for more money and (b) because most school districts have numerous “off book” items. For instance, many school districts don’t count bond raises for new capital structures (e.g. building a new school) into the cost per student. Which is absurd, as capital expenditures can be in the hundreds of millions in larger school districts. In 2015 alone, the US spent $53b in capital outlay expenditures[5] . That’s another $1,000 or so per child. It also frequently doesn’t include pension information (variably by state), which further increases the amount spent per student.For instance, Dallas reports that it received $11,527 per student[6] in 2015. But this number only includes revenues received from property and sales taxes — not bond issues, federal grants, donations, and other sources. My last estimate showed that the total spending per student in the US is, in real dollars, closer to $16,000 if you account for every penny from every source.And the numbers keep going up[7] . In fact, in some areas of the country, spending per student has more than doubled in the last 25 years.Yet at the same time teacher salaries have been declining[8] . Does everyone out there not realize how incredibly insane that is? Nothing has bigger impact on the students than the teachers at schools (I’d argue parents and home environment are more important). Not the curriculum, not sports, not special activities, and certainly not administration and overhead.I cannot wrap my head around the fact that we keep spending more money and the results keep getting worse. Our current system does not work, has not worked, and needs to be completely re-worked. I don’t care what party you are in, what your position on “hot button” education issues are — if you think we don’t have a major problem and aren’t failing our children, then you likely are a product of the current education system which explains why you feel that way. (Controlling my urge to make this my first Quora post ever laced with profanity is difficult).And it angers me to no end that our politicians, and citizenry, argue over things like regulating emissions from cars, or how a reduction in corporate tax rates by X% will help or hurt, when there’s a system that literally is damaging millions of people per year.Now that I’m done ranting about how much we are failing, we need to dig in and find out how to fix things. In order to do that, we have to identify WHY we are failing. And this is where the debates start kicking in.In my opinion, based on hundreds of hours of researching this, is that there are multiple reasons why we are failing, which I’m setting out below. I will acknowledge that there likely are more or that I may have mis-weighted how much each of these factor into our national failure. I’m willing to talk to anyone about it at all in a rational manner:Our single biggest problem is our “one size fits all” system. This is unfair to everyone. If you have a recent immigrant seven year old child who has never read any book ever written in English and another seven year old child with a 150 IQ that is already reading the Wall Street Journal (not a hypothetical, one of my daughters seven year old friends reads the WSJ with fair regularity — don’t think she comprehends what it is always saying, but she can hammer right through it) then, why for the love of God, are they in the same class? Two things happen — the lower educated child does not get the full attention they deserve and the higher educated child is pulled down. We therefore are harming both children. Which is obscene. I won’t pee in the political correctness punch here either. I don’t care WHY we do this. It doesn't work. It can’t work. It has to change;The lack of discipline in schools. An educator I respect very much summed it up best — “Whenever a student figures out they don’t have to work or listen to the teachers anymore, the jig is up.” I volunteered in a fifth grade class at one point. One of the teachers showed me the math homework the students had turned in. About 1/3 of the students did the assignment. About 1/2 just didn’t turn them in at all. The remainder got more creative. One of my favorite answers to a math problem was “Go F*(* yourself.” What’s a teacher to do here? Yell (that might get you fired). Berate the student in front of the class? (might get them fired and the kid likely doesn’t care). Send the child to detention? (Again very unlikely to care). There has to be a way to introduce consequences for poor behavior into school. Which flows some into my next point:The lack of parental responsibility. I cannot imagine the living hell I would have gone through if I ever showed up at home with the teacher having called my parents and told them I told her to go F herself. I would have had my butt beat black and blue. All video games and privileges revoked. I would have been doing my dad’s favorite punishment of digging a hole I can stand in and filling it back in till dark every day for a year. (That’s worse than you think because you never have enough dirt to fill it back in, so you have to get a wheelbarrow, walk a ways to a field, and wheel it back). The number of parents who blame the TEACHER for this issue is mind numbing. Similarly when a student is not meeting expectations, instead of calling the teacher saying what do I NEED TO DO to help my child succeed and catchup, the teacher gets blamed for not teaching appropriately. In VERY rare instances it is a teacher, but those instances are far and few. And even if that is the case, then we should be teaching our kids how to deal with the adversity of butting heads with someone and achieving in spite of that. I’ve had bosses I couldn’t stand and that actively worked to sabotage me. Teach the kids to deal with that in order to succeed;The “everyone must pass” philosophy. Teachers, and schools, are measured on things such as how many students pass on to the next grade. MANY school districts now have a lowest set grade of 60 (see discipline problem, if you can’t get below a 60, why do anything at all?). I’m sorry, not everyone learns at the same rate, speed, or even necessarily has the ability to do certain work. Passing them is child abandonment. It’s the equivalent of wanting a potential NBA all star for a child and when you learn, at age 8, that they’ll never make it, dropping them off at the fire station to be an orphan and make it on their own. It’s a nauseating practice that has to stop. You are ONLY hurting the student more by doing so — and putting them FURTHER behind in material — which as shown above — hurts both them and the students in the next grade that earned their way there; which goes to my last point:NOT EVERYONE CAN DO EVERYTHING. Some people are smarter than others. Some will have the mental ability to go to college and learn high level calculus and become great engineers. Some people are not capable of this. That is not discriminatory. That is not sexist. That is a fact. Some people are not as smart as each other. And until we can admit that, and deal with it, we will continue to have problems.So what do we do to FIX these problems? I have a very high level suggestion, then something I would like to see implemented.At a high level, I would love to see the Federal Government’s role completely change. Instead of dictating what and how things should be taught, play the role of encouraging different solutions and monitoring their effectiveness. For instance, if Florida wanted to go to a 100% voucher system for a fully privatized school system, encourage it, but have a system of measurement and metrics that can be compared with other states. If Massachusetts wanted to adopt the German system of everyone going to kindergarten and then elementary school through age nine, then dividing them into one of four secondary levels, it could[9] . California could then eliminate school districts and run everything from the State level. Then have the Federal government observe each system, for a period of 5–15 years, and then actually look at what each method costs and how well it succeeds, then we can find out what works well. I would bet all 50 states adopt something slightly different. I would HOPE the Federal Government encouraged 50 VERY different possibilities.The amazing thing about that is how well we’d learn real quick what improves and what doesn’t. Because people move with their feet. Families who move to new communities, the schools are often the most important thing they look at. If California’s system is an utter failure, while Florida has taken off, well that’s going to be obvious pretty quickly. If the Feds encouraged a whole variety of systems, we could lick this problem in under a generation.Moving to my solution that I’d like to see at least one state implement - it’s a public/private system, and as this post is getting very long at this point, I’ll try to only hit the highlights.Any student that wants to go to a private school can. They will receive a voucher for 90% of the total amount currently spent per child. This includes ALL dollars. So if a district spends $15,000 per kid, the voucher would be worth $13,500;No private school can have more than 40% of the private schools in the area — we have to foster competition;Private schools are NOT required to accept students. If they want to have certain defined academic criteria they can. If they want to expel discipline problems they can;Every school district will have to maintain at least one public school for those who either can’t hack the private school or are discipline issues. However, to encourage teachers, at least 75% of the dollars saved by only having 90% vouchers must go to teacher salaries. In other words, public school teachers are going to be making significantly more than a lot of their private counterparts;All advancement, in public and private schools, must be merit based. If you can’t read past a 5th grade level, you don’t go to 6th grade. This means you teach students based on ABILITY and not age. For a while this may “hurt” the feelings of children, but after it is seen as the way things are, that’ll fade some;To encourage more private schools, setup a property grant system. In that a school district will GIVE a private school the building, the land around it, and the local assets already there, provided the private school then is responsible for all maintenance and upkeep and that school MAY NOT charge more than each voucher is worth or ability to pay is never a factor in admitting students. E.g. you’d have to have some sort of scholarship system in place (this could be done, yes rules and thought would have to be put into it);For discipline issue children, set up a reward system. Most of the discipline students will fall back into the public system. With the balance of that 25% from the voucher savings (plus savings from less overhead), start rewarding the child’s PARENTS if they succeed. With the above numbers, that would be about $1,000/year. Make it CLEAR that if the child stops being a discipline problem and moves on, there’s a monetary reward. Make it something like $250/year for behavioral corrections and put the other $750 into a fund every year that the child gets upon graduation AND having graduated at a high school grade level (or their respective school level). This could be several thousand dollars and should be in an account they see. Numbers can obviously be flexible;We have to move to a non-one size fits all system. That means, at some point, putting students on different tracks — from trade school or technical school, to college, to graduate level items. Cater to each students skill set and set them up to succeed. There must be an easy way to switch between tracts though and the rules for each must be clearly defined; andEither eliminate or reduce the availability of government benefits to students who drop out. (Must be allowed to re-enroll at any age). So if you are on a trade school tract when you turn 16, if you quit, you don’t qualify for government support in your life — from food stamps to unemployment to government funded health care. The multi-tract system MUST exist to do this (and of course there are exceptions for the disabled and certain circumstances). But there MUST BE CONSEQUENCES TO QUITTING.I’ve got pages of information on how to fairly implement such a system, how to prevent the private schools from abusing it, how to deal with particularly problematic children, how to most help the ESL (English as a second language) crowd, ways to save more money, etc.But a combined system that includes choice, monetary incentives, rewards, and costs stands a much better chance than what we have now.And if this was obviously failing in a 10 year period, then we try something else — or move to a system another state successfully implemented.Something has to give though, and failing to get things changed, costs the entire country. We end up with a bad workforce, increased social costs later in life, and a shrinking economy. It hurts the entirety of society across the board.And the fact that we aren’t trying SOMETHING different other than throwing more money into a failed system is beyond stupid.Footnotes[1] https://files.eric.ed.gov/fulltext/ED507600.pdf [2] Can illiterate Students Graduate from High School?[3] U.S. education spending tops global list, study shows[4] Education Spending Per Student by State[5] https://nces.ed.gov/pubs2018/2018303.pdf[6] https://nces.ed.gov/pubs2018/2018303.pdf[7] Does Spending More on Education Improve Academic Achievement?[8] The Data Tells All: Teacher Salaries Have Been Declining For Years - EdSurge News[9] Image on howtogermany.com

Boy, I have had so much tumult with this issue! Before I got involved in schooling [Footnote1], my answer would have been a big Yes! to vouchers, but I have become so aware of the downsides that I’m very concerned about vouchers as a solution.The Case for VouchersFirst, there are innumerable systemic problems with government schooling, which cannot be fixed as long as politics, schooling, and governmental violence are intermingled.(I listed over 30 problems here <What is wrong with government schooling?>)Currently, we have a bureaucratic, government, institutional monopoly that controls over 90% of the market. It extorts from all taxpayers, whether they use the government schooling or not. Parents are largely ignored because they are not paying customers. Children are held hostage to monopolist interests, and by many measures are poorly served even after twelve years in these institutions. (There is little internal incentive to serve any child, and children and parents, unless politically connected to a politician, bureaucrat, or union, have little market power.)Yet, many people have lots of fears about a free market in schooling [Footnote 2], where:Current government school buildings are sold to the highest bidders (including teachers’ unions) and then compete for students against on-line, private, parochial, alternative, or homeschooling options.Entry of new schools is opened fully to anyone who wants to hang a shingle.Teachers start up schools using specific methods to reach particular segments, teaching however they think is best.Investors fund the schools that they think work best towards their personal and societal goals.Parents choose the school that they think best matches their family and individual child.Parents may move their child at will.Admissions and retention is up to the school, according to their goals, standards, and methods.Prices fluctuate depending on demand and supply.Salaries fluctuate depending on demand and supply.Charities support schools that they think work best for the various constituency segments they are charted to be concerned about.(More: <How would schooling work in a libertarian society?>)So, reformers search for some incremental step towards freedom, but one that:Will not scare those who believe that only government can school. (e.g., graduates of government schools)Will not scare those who currently profit from the current government school monopoly. (E.g., unions, senior teachers, administrators, suppliers)Will not scare politicians who fear a loss of the power base — in their ability to raise funds and get boots on the ground.Vouchers are a pragmatist’s attempt at a solution.Allow government to continue to extort funding.Give some parents some choice of where to spend the vouchers.Control entry of any new schools.Ensure continued payments to current monopolists.Ensure continued control by (and kickback to) politiciansSome Problems with VouchersRestricted to certain (poor and minority) segments:Because the results of government schools are so bad for some segments (e.g., poor, minority, and special needs), vouchers are often targeted to just those people. This decreases the ability for vouchers to diffuse quickly and revolutionize schooling (imagine limiting cell phones only to poor people in 1980s), and allows current monopolists to continue profiting.Restricted only for those in “failing” schools:Bureaucrats define “failing” in collectivist fashion, assigning the label to a building (and only after many students have suffered), rather than where failing makes sense, which is at the individual student level. A particular school could be successful for many students, but fail a particular student — it is that student who needs the voucher to escape the program that doesn’t match him.Restricted to government-approved schools:One cannot use the voucher for any school of your choice. Government bureaucracy will severely restrict what schools can look like, which is silly : government bureaucrats cannot predict the future, so they do not know what skills students will need in the future. Allowing bureaucrats to maintain failed schooling paradigms will reduce revolutionary new innovative goals and approaches.Decreases diversity of schooling:Because government monopolists can determine what type of “school” may receive vouchers, vouchers have reduce even the minimal diversity we have in schooling today; more alternative approaches are junked in favor of schools approved by the failed government monopoly. Government approval boards is a sneaky way for government bureaucrats to control all schoolingUsed as cudgel against alternative schools and homeschooling:Disliked approaches are actively discriminated against by the government monopolists. This includes approaches that diverge from government on economics, politics, culture, and character.Continues extortion:The ethical evil of government extortion continues.Continues payments to government schools:Voucher programs try to ensure that the government monopolists do not lose money even when their customers leave them. The institution that is supposed to teach our children how to succeed in life is incapable of doing the minimum that all other companies must do: attracting customers and controlling costs when customers leave.Increases the prices of schooling.As we have seen with universities, government aid distorts the market into a gigantic price bubble. There is little force keeping prices down and enormous incentive to increase prices. The political process will continue fueling the malinvestment, distorting the entire economy, until an inevitable ‘pop’.Does not advance charities quicklyWe want targeted charities to develop quickly to take over the welfare functions that government schooling currently try to do (poorly). Vouchers continue to crowd out charities.My Tentative SupportMy long-term solution is the complete separation of school and state, as we did with religion. Arguably, schooling is more important to our children’s future than is religion, and small changes in better fitting child with approach can have a much larger impact on their future.And controlling our children’s minds is dangerous to give to government politicians and bureaucrats. It is too tempting for them to use their power over our children and over our purses to indoctrinate, to amass political power, to pay back cronies, to limit innovation. The arrogance and narcissism to limit opportunity for their own benefit and aggrandizement is cruelest when done to our most vulnerable — our children.Nonetheless, an intermediate voucher program I could get behind would include:No restrictions whatsoever on which families may use the vouchers.No restrictions whatsoever on where parents may use the vouchers.Price vouchers pay decreasing levels. (E.g., Vouchers pay 90% up to $8,000, 75% to $12,000, 50% to $16,000, 25% to $18,000.) Parents have some skin in the game.Parents homeschooling receive full minimum $8000.Parents, charities, and the schools themselves can supplement as they will.Government schools budgets are decreased by the loss of the child. Familes will finally have some financial recourse on their school’s treatment of them.Now schools may rent rooms and fields and halls fromgovernment schools.Explicit interfaces with schooling charities.This approach covers some of the nominal concerns of authoritarians (e.g., paying for the poor).However, their real concern is having less control over your children and over your money for their benefit. This should mean that this type of voucher will face strong institutional resistance as “Bad for our children, for our schools, and for our society!”Which means bad for their pocketbooks.[Footnote 1]:My experiences include: creating and leading an after-schooling discussion board; forming and leading parent teaching at our local school; running a school computer lab; starting up and running a school newsletter; leading a school-wide Great Books discussion program and teaching two of the classes myself; teaching a hands-on Museum of Science physics class to three classes of third graders at a government school; teaching a Junior Achievement class at a government high school; teaching an Arts Appreciation class at a grammar school; supporting homeschooling parents; teaching economics and business formation homeschooling co-op classes; helping alternative schools start up; being on the board of an alternative school; founding an organization to match parents with schooling approaches, and organizing an alternative schooling "expo". Oh, and homeschooling my daughter, fighting the local school administration as the first parent in our town to homeschool.[Footnote 2]: This probably stems from government schooling indoctrinating its own usefulness, as well as a strong governmental dislike for free markets (i.e., those outside the control of them).See related:How would schooling work in a libertarian society?How do schools indoctrinate authoritarianism?What is wrong with government schooling?Does it takes a village to raise a child?What is the solution to bullying in schools?Should all U.S. government schools have equal funding?Should schooling be paid for by taxes?Should teachers or entrepreneurs run schools?Why do people disrespect government teachers?Should schools ban certain political groups?How can good people refuse to support government welfare?Why do all the best-educated people seem to be liberals?

A2A.I’ve been debating whether to share my views on this or not, but here we go.I recognize the fact that this issue is extremely contentious and is personal for many people. Thousands and thousands of devotees feel this goes to the core of their religious beliefs while others strongly believe this is an issue of gender equality and right of women to practice their religion as well.Long story short, it is claimed that there is a custom that prevents the entry of women in to the Sabarimala shrine in Kerala. This custom has been reflected in Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry) Rules (hereafter, “the Rules”) which has been framed under the Kerala Hindu Places of Public Worship (Authorization of Entry) Act (hereafter, “the Act”If you want to avoid the legalese, that Rule 3(b) said that women between ages 10 to 50 cannot enter Sabarimala shrine. The rules were framed under a specific Act. It is a principle of law that when rules are framed under the Act, the rules cannot go against/violate the Act under which it is framed. If it does so, the rule is invalid.I will attempt to first deal with a few issues in question-answer form so that the law behind the issue is set out. Then I will outline (very briefly) the judgments provided by the Court in the case which lead to the verdict. Then I shall share my thoughts. I also want to point out that this though slightly detailed, is not comprehensive. For the full picture/comprehensive details, please read the actual judgment here-> https://www.supremecourtofindia.nic.in/supremecourt/2006/18956/18956_2006_Judgement_28-Sep-2018.pdfThe Supreme Court verdict legally declared the custom of preventing entry of women (aged between 10 and 50) in to the shrine to be unconstitutional. A bench of 5 judges heard the case and 4 of them delivered the majority opinion, while the only female judge on the bench disagreed and was the opinion that the Court must not interfere with such customs.Let us first see what happened in the case and what the verdict was. Let us break down each aspect.Do customs have force of law? Can the Supreme Court interfere with customs?The short answer to this question is yes. This comes from the Constitution of India.As per Article 13, all laws in force in India immediately before the commencement of the Constitution are void to the extent that they are inconsistent with Part III of the Constitution (Part III is Article 12 to 35 and provides the Fundamental Rights.) The Article also says that no new law can be made after the commencement of the Constitution that takes away or abridges any right provided in Article 13.Article 13 also defines what is meant by laws and states that “law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usages .. . ”Article 32 provides that every citizen has the right to approach the Supreme Court for enforcement of rights provided by Part III.Therefore, because of Article 13 and 32, as long as a custom violates Part III of the Constitution, The Supreme Court can interfere and declare a custom to be invalid. This is the power provided to the Supreme Court under the Constitution.What are the fundamental right violations argued in the Sabarimala case? What rights did the petitioners allege was violated and what was the counter argument?Amongst others, the petitioners argued that the following rights were violated:Article 14- The Right to EqualityArticle 15- The Right to non-discrimination on grounds of sexArticle 17- Abolition of UntouchabilityArticle 25 and Article 26- We will get to these in detail later.Article 14 and 15 are self explanatory when it comes to this issue. However, the argument was made that Article 14 and 15 are rights that are only enforceable as against the State or against a Government. Though there are exceptions in certain cases, generally it is understood that fundamental rights deal with the rights that the person has against the Government and not against other private parties. For eg, if “A” murders “B”, B’s family can file a criminal complaint, but cannot come to the Court and argue “violation of fundamental right to life”. Hence, there was an argument that 14 & 15 cannot be argued in the Sabarimala case as the custom was not a creation of the State.When it comes to Article 17, the petitioners tried arguing that the stigma and taboo associated with menstruating women was the reason for this ban on entry, and that isolating and disallowing access to public places to menstruating woman was a “form of untouchability”. The other side argued two points in response to this:(a) The reason for the ban was not menstruation, but due to the celibate nature of the deity as a Naishtika Brahmacharya.(b) It is obvious that the framers of the Constitution used the word “untouchability” with reference to practices based on caste, and the meaning of the word should not be extended to gender based issues.What about Article 25 and Article 26? How were they argued in this case?This is where the legal debate gets really interesting. In my view, this is the crux of the debate and the various accounts of the hearings in the Supreme Court record wonderful arguments made on this point.To fully appreciate this, the text of Article 25 and Article 26 must be seen. (Please keep the 2 links open on separate tabs and read them before continuing)It is important to note that Article 25 provides rights to all persons, whereas Article 26 provides rights to religious denominations or sections of religious denominations.Art. 25(1) states that all persons are equally entitled to practice, profess and propogate religion and to the freedom of conscience. Art 25(2) states that nothing can prevent the State from throwing open access of Hindu religious institutions of a public character to all classes and sections of Hindus.The petitioners relied on this to state that women are also equally entitled to the freedom of conscience, and to practice/profess/propagate their religion and hence must be allowed to worship at the Sabarimala shrine if they wished to do so. They also relied on 25(2) to state that access to shrines of a public character could be thrown open to all sections and classes of Hindus.The Respondent’s rebuttal was simple. With regards to Art 25(2), the Respondents said 2 things:(a) 25(2) is a provision that was intended to end caste-based discrimination. It was meant to protect laws made by the State that allowed SCs/STs access to temples. It does not and should not be extended to gender. That was never the intention with which the provision was drafted.(b) Even if that is not the case, 25(2) is a provision that protects laws made by the State that give access to all sections of Hindus. It only means that if a State government decided to make a law that opened access to certain sections, 25(2) would protect the law from religious groups who want to claim that the law violates their freedom to practice their religious beliefs/practices. Therefore, it is a provision to defend a decision of a Government and cannot be used to come to Court and ask the Court to throw open the temple to all classes.With regards to Art 25(1), the Respondents said that 25(1) says that the freedom of conscience, and the freedom to practice, profess and propagate religion is subject to public order, morality and health and to other provisions of Part III. This means that the rights of individuals in Art 25(1) is subject to the right of denominations to manage their own affairs as per Art 26.The Respondents argued that Art 26 gave religious denominations or sections thereof the right (amongst other rights) to manage their own affairs in matters of religion. They also noted that Art 26 begins with “subject to public order, morality and health” but does NOT contain the words “other provisions of this Part” as present in Art 25. This means the right under Art 26 is not subject to other rights provided for in Part 3 of the Constitution and hence, the Sabarimala shrine, as an institution could manage it’s own religious affairs and deny entry to women.However, for this argument to succeed, it had to be shown that there existed a separate religious denomination because Art 26 did NOT give rights to all religious institutions but only to religious denominations to manage their own affairs. So unless it was shown that there was a separate religious denomination in this case, Art 26 would not apply, which means Art 25 would prevail.What is a “religious denomination”? Does Art 26 apply here?This is the crux of the issue. If there was a separate religious denomination in the instant case, they would definitely have a right to manage their own religious affairs as per the Constitution. But what is a religious denomination?A “religious denomination” was defined in the landmark Shirur Mutt case in the Supreme Court.In the judgment, the Supreme Court referred to the Oxford dictionary definition of “denomination” and stated that a denomination is a “collection of individuals, classed together under the same name; now almost always specifically, specially a religious sect or body having a common faith and organisation and designated by a distinct name”.Over the years, the test for “religious denomination” has remained stringent. Primarily, the following has to be proved in order to establish the existence of a separate religious denomination:(a) A common, distinct faith(b) A common organization(c) Being designated by a distinct name.This can be determined by analyzing factors such as how the practices of the denomination are distinct from the rest of the religion, whether there is separate administration of the temple, etc.Examples of religious denominations (or classes thereof) include the Chidambaram Dikshithars and the Shirur Mutt.This is where it gets tricky.The Petitioners argue that there is no common faith that is distinct from the rest of Hinduism. It is not that those who visit Sabarimala are exclusively Ayyappa devotees and hence have a distinct faith when compared to rest of the Hindu community. The petitioners also argue that there is no common organization under which all devotees can be grouped under. No denomination can be identified with certainty. You cannot also identify membership to the denomination due to the lack of distinctiveness. There is also no distinct “designated” name in the instant case. The procedure for worship inside the shrine and the administrative procedures are also not distinct from other temples in Kerala (considering that Sabarimala was also administered by the Devaswom board, like multiple other temples) and hence, it cannot be held that there is a separate religious denomination and hence, protection of Article 26 would not apply.The other side argued that those who visited the temple were called “Ayyappans” and hence there was a level of distinctiveness.However, the question now arises that even if it is proved that there exists a separate religious denomination, can the denomination wholly exclude a class of Hindus from worship?The answer is no. This was answered by the Supreme Court in the Devaru case where the Supreme Court held: “….the right of a denomination to wholly exclude members of the public from worshipping in the temple, though comprised in Art. 26(b) must yield to the overriding right declared by Art. 25(2)(b) in favour of the public to enter into a temple for worship. But where the right claimed is not one of general and total exclusion of the public from worship in the temple at all times but of exclusion from certain religious services, they being limited by the rules of the foundation to the members of the denomination, then the question is not whether Art. 25(2)(b) overrides that right so as to extinguish it, but whether it is possible so to regulate the rights of the persons protected by Art. 25(2)(b) as to give effect to both the rights. If the denominational rights are such that to give effect to them would substantially reduce the right conferred by Art. 25(2)(b), then of course, on our conclusion that Art. 25(2)(b) prevails as against Art. 26(b), the denominational rights must vanish. But where that is not the position, and after giving effect to the rights of the denomination what is left to the public of the right of worship is something substantial and not merely the husk of it, there is no reason why we should not so construe Art. 25(2)(b) as to give effect to Art. 26(b) and recognise the rights of the denomination in respect of matters which are strictly denominational, leaving the rights of the public in other respects unaffected.”The point being that though denominations have special rights to manage their affairs under Art 26, they cannot wholly exclude a class of Hindus from worship and may limitedly exclude them from certain ceremonies only. Therefore, even if existence of a religious denomination was shown, wholly excluding women of a particular age from worship would not be allowed, especially in light of Art 25 which states that access to temples must be open to all. (The rebuttal on this point would again be that 25 was drafted keeping in mind caste inequalities and it was not for gender). The Devaru judgment clearly held that Art 26(b) (Right of denominations to manage their own affairs in religion) must be read subject to Art 25(2)(b) (throwing open of religious institutions to all classes of Hindus).So can all religious practices be reviewed and struck down? Are there no protection for religious beliefs and practices then?The Supreme Court had developed and has been using this test called the “Essential religious practice test”. They examined religious practices to see if the practice was “essential and integral to the religion and if altering the practice would alter the character of the religion”.Over the years, the Supreme Court has held that performing Tandav on the streets, Triple Talaq, etc are not essential features of religion.Determining whether a practice falls under “Essential practice” or not must be done by referring to doctrines, tenets and scriptures of that religion in itself.THE VERDICT:There were a total of 5 judges who heard the case, and the 5 judges gave out 4 separate judgments. In total, 4 of the 5 judges were of the opinion that the custom must be struck down and hence, the decision of the court was that the custom was unconstitutional. Let us look at all 4 judgments in brief:Judgment of CJI Dipak Misra (for himself and for Justice Khanwilkar) (Held that women must be allowed to enter)This judgment was authored by then Chief Justice Dipak Misra on behalf of himself and Justice Khanwilkar. This judgment held the following, amongst other findings:(a) The devotees of Ayyappa do not constitute a separate religious denomination as they do not have any peculiar distinct faith or common religious tenets peculiar to themselves and distinct from the rest of the Hinduism. The devotees are exclusively Hindus and do not form a separate denomination.(b) The right to practice, profess and propagate religion under Art 25 is available to all persons including women and exclusion of women violates that right.(c) Notions of public order, health and morality cannot be used to deny the freedom to practice religion and discriminate against women between the age of 10 to 50 their legal right to enter the temple and offer prayers.(d) The exclusionary practice is not an essential aspect of religion. It is neither essential nor integral. It is also not one that has been consistently followed or antique in nature as the Devaswom board themselves have admitted that women used to enter the shrine for the first rice-feeding ceremony for their children.(e) Rule 3(b) of the Rules (which stated that women must not be allowed to enter Sabarimala shrine) violated the Act and was hence invalid. (Read parts below in the segment dedicated to the judgment of Nariman J. for clarity)It is important to note that this judgment did not address the argument relating to untouchability and did not answer the question as to whether the meaning of the word “untouchability” could be extended to gender based oppression as well.Judgment of Justice R.F. Nariman (held that women must be allowed to enter)Justice Nariman’s judgment largely agreed with the judgment authored by the then CJI. Justice Nariman argues that the test for “religious denomination” is rigorous and that there was no religious denomination made out in the instant case and that therefore, Art 26 would not be attracted. Justice Nariman also points out that the right under Art 25 is a right guaranteed to all natural persons, and equally entitles them to practice, propagate and profess their beliefs and that this right included the all acts done in the furtherance of thought, belief, faith and worship.Justice Nariman also states that Art 26(b) does not provide the right to denominations to ban entry or completely prohibit entry to certain classes of Hindus (this follows established Supreme Court jurisprudence). However, regulations such as regulating entry into sanctum sanctorum or time management would be permissible under Art. 26(b).Justice Nariman also refers to an affidavit filed by a Thanthri before the Supreme Court on 23.04.2016 in which the Thanthri specifically states that there is a prohibition on religious austerity by menstruating women and provides the additional reason that since the deity is a Naishtika Brahmachari, women must not enter the shrine to prevent deflecting the deity. This is only a second reason that has been given. (Nariman J. goes on to quote texts from multiple religions which all considered menstruating women as impure).Nariman J., does not rule on whether the exclusion is an essential religious practice or not. However, his Lordship says that even if such exclusion is viewed as an essential practice, it is hit by Section 3 of the Act which states as follows:“Notwithstanding anything to the contrary contained in any other law for the time being in force or any custom or usage or any instrument having effect by virtue of any such law or any decree or order of court, every place of public worship which is open to Hindus generally or to any section or class thereof, shall be open to all sections and classes of Hindus; and no Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or discouraged from entering such place of public worship, or from worshipping or offering prayers thereat, or performing any religious service therein, in the like manner and to the like extent as any other Hindu of whatsoever section or class may enter, worship, pray or perform:Provided that in the case of a public of public worship which is a temple founded for the benefit of any religious denomination or section thereof, the provisions of this section, shall be subject to the right of that religious denomination or section as the case may be, to manage its own affairs in matters of religion.”Nariman J. uses this to say that the Rule prohibiting entry of women goes against the Act. This is because the Act effectively invalidated all customs in favor of a legal right to entry. The only exception to this was in cases of religious denominations and since Nariman J had already held that there was no such denomination in the instant case, the Rule was invalid and had to be struck down. For reference, Rule 3(b) was as follows:3. The classes of persons mentioned here under shall not be entitled to offer worship in any place of public worship or bath in or use of water of any sacred tank, well, spring or water course appurtenant to a place of public worship whether situate within or outside precincts thereof, or any sacred place including a hill or hill lock, or a road, street or pathways which is requisite for obtaining access to place of public worship:(a)….(b)Women at such time during which they are not by custom and usage allowed to enter a place of public worship.…”Nariman J.’s judgment also did not deal with the concept of untouchability.Justice Indu Malhotra’s judgment (held that women can be prevented from entering the shrine)This judgment was the dissenting opinion and made the following observations:(a) In a secular polity, issues which are matters of deep religious faith and sentiment must not be ordinarily interfered with by Courts.(b) The petitioner’s do not claim to be believers or devotees of Ayyappa. They have not described how their rights have been violated. Accepting such a petition would open floodgates for “interlopers to question religious beliefs and practices, even if the Petitioner is not a believer of a particular religion, or a worshipper of a particular shrine”. The judgment adds that “the perils are even graver for religious minorities if such petitions are entertained”.(c) The issue of what constitutes an essential religious practice is for the community to decide. To test the rationality of religious beliefs using Article 14 is outside the ken of the Courts. It is not for the Courts to decide which practices of a faith are to be struck down, unless the practice is a social evil like Sati.(d) Article 15 cannot be used to claim access to temples as when the Constitution was being debated and amended, the words “places of worship” were consciously deleted from the Article when it dealt with denial of access to public spaces.(e) Ayyappa devotees are called “Ayyappans” and have specific procedures to follow including a 41 day vratham, bathing in the river Pampa etc. There being a distinct name and distinct practices, it constitutes a religious denomination or sect thereof and therefore, Art 26 will apply.(f) There is a plausible case that the practice of restricting women between the ages of 10–50 has been followed from time immemorial and is an essential practice of the said religion.(g) “Untouchability” only refers to exclusion based on caste and not on gender, and therefore, Art 17 will not apply.(h) Rule 3(b) does not violate Section 3 of the Act, as Section 3 has an exception for religious denominations. Since it has been held that Ayyappans are a religious denomination, the rule would not be invalid.Judgment of Justice Chandrachud (held that women must be allowed to enter)The judgment of Justice Chandrachud held as follows:(a) A petition cannot be dismissed for maintainability when “issues that have been highlighted” concern the “religious faith and practice of a large number of citizens of the country and raises claims of century-old traditions and usage having the force of law… the gravity of the issues that arise, that impel us to make an attempt to answer the issues raised and arising in the writ petitions for determination on the merits thereof.”(b) The devotees of Lord Ayyappa do not satisfy the requirements necessary to qualify as a “religious denomination”(c) Exclusionary practices by themselves are contrary to constitutional morality. So even if the claim for exclusion of women from worship is founded on references from religious texts, scriptures, and is claimed to be an essential practice, etc. it is still in violation of the Constitution(d) The practice of excluding women from Sabarimala is in any case not an essential religious practice(e) Social exclusion of women based on menstrual status is a form of untouchability. To make this point, Justice Chandachud analyses the Constitutional debates and points out that there was no consensus about the scope of the phrase “untouchability” amongst Constituent Assembly members. Rather, Justice Chandrachud points out that the reason for abolishment of untouchability was due to a struggle to secure social, political, economic equality. He points out that the caste system was a reflection of hierarchial notions of “purity” and “pollution” and untouchability was social exclusion on the basis of such notions. The social exclusion of mensturating women are also founded on notions of “purity” and “pollution” and therefore, the term “untouchability” would also cover social exclusion of females during menstruation.(f) Justice Chandrachud also rejected the argument that women should not be allowed inside the Sabarimala shrine as due to the status of the deity as a Naishtik Brahmachari. Justice Chandrachud says that such an argument cannot be accepted as it imposes the burden of man’s vow of celibacy on a woman and to paint her as the cause for deviation from celibacy.(g) The judgment also states that to say that a woman cannot keep a 41 day vratham is to stereotype them as lesser, weaker human beings.(h) Rule 3(b) of the Rules goes against Section 3 of the Act and hence, the Rule is invalid.CONCLUSIONMy opinion on the verdict is as follows:With regards to Justice Indu Malhotra’s objections on grounds that the petitioners are not affected by the rule as they do not claim to believers, I believe that quite simply, the rule that only an aggrieved party can approach the Court can be relaxed when it comes to matters of Public Interest Litigations.J. Indu Malhotra’s concern seems to be that allowing such petitions would open floodgates for various “interlopers” to file cases against religious practices that they dont even believe in. Accepting such petitions would pose a grave threat to minorities as their religious practices can be challenged in Court by any third party.With the utmost respect, I do not see this as a concern. Eitherway, the test in the Supreme Court shall be as to whether fundamental rights are violated or not. If it is not violated, the Supreme Court will uphold the custom/practice in any case.Further, the only consideration of the Courts then must be to look at if the PIL was filed vexatiously, to abuse the process of the Court, or for publicity and dismiss with costs in such cases.However, I do recognize that my stand on maintainability is a bit extreme and that J. Indu Malhotra’s concerns are some that must atleast be given some consideration. However, I strongly disagree with the assertion that public interest litigations must not be taken up in such matters.I also disagree with the finding that matters of religious faith and belief must not be interfered with by Courts unless it is a “social evil”. The Constitution clearly grants the Supreme Court the power to review customs. The Courts must not shirk away from their responsibility simply because these customs are matter of deep personal faith. Any unconstitutional practice, no matter where it comes from or which religion practices such acts, must be checked by the Courts. As the guardian of fundamental rights, the Supreme Court must not fail the citizens just to protect the sentiments of those perpetuating unconstitutional behavior.The next problem is to define “social evil”. For J. Indu Malhotra, “social evil” may mean Sati. For me, denial of access to public spaces is a social evil. We cannot have such subjective standards. It would be much better for the Supreme Court to go ahead and check for violations of the Constitution.With regards to the findings with respect to whether the custom constitutes an essential religious practice- it is pretty obvious that this custom is not one which has been continuously practiced without interruption since antiquity. There is a Tamil film song featuring an actress dancing on the 18 steps of Sabarimala. There are various documented and recorded instances of “Choroonu” or the rice feeding ceremony having taken place in Sabarimala with mothers feeding their children rice for the first time. This was conducted officially with vouchers/tickets being provided for the conduct of such ceremonies. Therefore, I strongly disagree with Justice Indu Malhotra’s finding that there is a plausible case for this being a practice since time immemorial. Even if it was, it has not been practiced continuously and hence, loses the status of a “custom”. In either case, it is clear that the practice could not amount to an “essential practice” of the religionEstablished jurisprudence would clearly show that there exists no religious denomination in the instant case. The threshold for attaining the status of a religious denomination is much higher than the standards applied by J. Indu Malhotra in her dissenting opinion. J. Indu Malhotra seems to suggest a more liberal view must be taken when it comes to interpreting the term “religious denomination”. However, the fact is that such denominations are entitled to special privileges in the Constitution in matters of finance, administration etc. It cannot be that any group within a religion reaches the status of a denomination to whom Art 26 gives protection.With regards to other observations, as a consequence of agreeing with the majority on the question of whether there exists a religious denomination or not, I also agree with the majority on the observation that Rule 3(b) goes against Section 3 of the Act and is hence, invalid.I would also like to state that when the shrine opened recently and women were still unable to enter the shrine, one of the priests came out and spoke to the media and clearly said that “women of menstruating ages” must not be let in the temple as per tradition. It is very obvious that the patriarchal notions of impurity with respect to menstruation is the reason for this ban. The arguments in the Supreme Court that the ban on entry had nothing to do with menstruation but was due to the nature of the deity is clearly an attempt to escape the censure of the Courts. Saying that they do not want to let women in because of menstruation will ensure that they lose the case.It is okay for them to adopt stratergies and arguments in an attempt to win the case, but the words of the mantri made it very clear what this was about- denial of access to public spaces to menstruating women. As simple as that.