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MOOT COURT PRACTICE ASSINGMENT NO:2,KIIT SCHOOL OF LAW, 2019

IN THE HON’BLE SUPREME COURT OF INDIA

SPECIAL LEAVE PETITION ARTICLE 136 OF THE CONSTITUTION OF INDIA READ WITH
ORDER XXXIV OF THE SUPREME COURT RULES, 2013

IN THE MATTER OF:

CIVIL APPEAL NO.____ OF 2019

ARISING OUT OF SPECIAL LEAVE PETITION NO.___ OF 2019

FRIENDS OF WOMEN

…APPLICANT

V.

UNION OF INDIA

…RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE OF INDIA

AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDIA

~MEMORIALFORTHE RESPONDENT~
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TABLE OF CONTENTS

LIST OF ABBREVIATIONS…………………………………………………………………3

INDEX OF AUTHORITIES………………………………………………………………….4

STATEMENT OF JURISDICTION…………………………………………………………..5

QUESTIONS PRESENTED......................................................................................................6

STATEMENT OF FACTS........................................................................................................7

SUMMARY OF PLEADINGS..................................................................................................9

PLEADINGS............................................................................................................................10

PRAYER FOR RELIEF...........................................................................................................13

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LIST OF ABBREVIATIONS

ABBREVIATIONS EXPANSIONS
& AND
ART. ARTICLE
§ SECTION
¶ PARAGRAPH
HON’BLE HONOURABLE
H.C HIGH COURT
S.C SUPREME COURT
V. VERSUS
SLP SPECIAL LEAVE PETITION
LD. LEARNED
NOS. NUMBERS
KER KERALA
MAD MADRAS
CRLJ CRIMINAL LAW JOURNAL
CRI CRIMINAL
LW LAW WEEKLY
ALL ER ALL ENGLAND REPORT
AIR ALL INDIA REPORT
SCC SUPREME COURT CASES
A.P ANDHRA PARDESH
ORI ORISSA
PUNJ PUNJAB
SCR SUPREME COURT WEEKLY REPORTS
LR LAW REPORT

INDEX OF AUTHORITIES

SUPREME COURT CASES

1. Indian Young Lawyers Association vs The State Of Kerala 2018

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WEB RESOURCES
Serial
Name of the Web Resources
No.
(¶ 1.) www.manupatrafast.com (MANUPATRA)
(¶ 2.) www.judis.nic.in (SUPREME COURT OF INDIA OFFICIAL)
(¶ 3.) www.jstor.org (JSTOR)
(¶ 4.) www.scconline.com (SCC ONLINE)
(¶ 5.) www.westlaw.india.com (WEST LAW INDIA)

STATEMENT OF JURISDICTION

The Republic of India, Respondent has approached this Hon’ble Court under Art.136 of the
Constitution of India, read with Order XXII of the Supreme Court rules. 2013.

Art. 136 reads as:

Article 136: Special leave to appeal by the Supreme Court

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(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or order in
any cause or matter passed or made by any court or tribunal in the territory of India

(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Force.

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QUESTIONS PRESENTED

ISSUE - I

[1] Whether the exclusionary practice which is based upon a biological factor exclusive
to the female gender amounts to discrimination and there by violates Art 14, 15 and 17
of the Constitution?

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STATEMENT OF FACTS

BACKGROUND
Shanthisthan is a State in the Indian Union. One of the most important pilgrimage
destinations in the State is the Prathan’s temple called Sapthagiri which is located in the
Vanniar Tiger Reserve in Shanthisthan. The temple will remain open for five days every
month and the major festival which is called as “Mandalakalam” spans during the adjoining
months of Vrishchikam and Dhanu of the Traditional Malayalam Calendar (November and
December according to English Calendar). The temple will be open from the first day of the
'Vrishchikam' and would close on the eleventh day of the 'Dhanu' as per the traditional
Malayalam calendar. A devotee who desires to visit the temple during “Mandalakalam” has
to follow ‘Vratham’ or penance which is a hard and rigid life style regimen for a period of 41
days prior to the pilgrimage wherein purity in thought, word and deed is insisted. The 41 days
vratham starts by wearing a special chain which consists of ‘Rudraksha’ and during the
course of the 41 days of Vratham, the devotee is supposed to have a lacto-vegetarian diet,
abstain from marriage and sexual relations, not to consume alcohol in any form, and are not
even allowed to style and dress their hair and nails. Devotees are also expected to serve the
society and others as much as possible and realize that God is everywhere. The Sapthagiri
Temple Administration Board (hereinafter STAB) records reflect that about 5.5 crore
pilgrims from across the country had visited the temple in 2016-17 and the temple earned Rs.
393.69 crore as revenue.

The temple was visited by poor and rich alike in the past until the year 1981. In the past, only
few women pilgrims visited the temple due to the hardships of pilgrimage. The main reason
was the topography of the place where the temple situates and also the route to the temple
which passes through hilly and forest tracts where there is presence of wild animals. Usually
women between the age of 10 and 50 abstained from visiting the temple as it will not be
physically capable of observing vratham or or penance for 41 days on physiological grounds.
There were instances where women below the age of 50 had visited the temple to conduct the
first feeding ceremony of their children and also during the monthly ceremonies wherein the

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temple will be open for five days. The number of pilgrims visiting the temple during monthly
opening is far less compared to the festival season, “Mandalakalam” wherein crores of people
visit.
In 1981, a Notification was issued by the STAB during “Mandalakalam”, prohibiting
the entry of women of the age group 10 to 50, taking into account the religious sentiments
and practices followed in the temple since centuries. Consequently, a devotee approached the

Hon’ble High Court of Shanthistan seeking action against a young woman who visited the
temple for her infant’s first-feeding ceremony. The Division Bench of Shanthisthan High
Court, vide its judgment in the year 1981, banned the entry of women in the age group of 10-
50 claiming that such a practice of not allowing women of that age group was very much
prevalent in the past and that it was according to the traditional practices irrespective of the
monthly opening festival or the major festival season. The High Court directed the
Government of Shanthisthan to use all the measures required to implement the decision of the
High Court and accordingly, Sapthagiri Temple Administration Rules 1956, was amended

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SUMMARY OF PLEADINGS

[1] Whether the exclusionary practice which is based upon a biological factor exclusive
to the female gender amounts to discrimination and there by violates Art 14, 15 and 17
of the Constitution?

It is contended from the petitioners that the ban of entry of women aged between 10-50 in the
Sapthagiri temple is in violation of Art 15 and 17. According to Art 15 (1), no citizen shall be
discriminated on the basis of ‘sex’ which is in contravention against the judgement passed by
the Hon’ble Kerala HC by exercising its jurisdiction under Art 226 of the Constitution.
The customary practice followed in the temple which is managed by the Devaswom Board is
a form of untouchability which is prohibited as per Art 17. It is a well settled position of law
that untouchability is prohibited and no customary practices, penal provision, can violate the
essence of Art 17.

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PLEADINGS

[1] Whether the exclusionary practice which is based upon a biological factor exclusive
to the female gender amounts to discrimination and there by violates Art 14, 15 and 17
of the Constitution?

It is submitted before this hon’ble court that the exclusionary practice of preventing women
between the age of 10-50 yrs based on physiological factors exclusively to be found in female
gender violates Art. 14 as such a classification does not have a constitutional object.
The test to determine the validity of any law under Art.14 is the “intelligble differentia” test
which means that their must be a nexus between the classification and the intention of the
legislature. Art 14 also states that their cannot be any further sub- classification among
women on the basis of physiological factors such as mensturation by which women below 10
years and above 50 years are allowed.
The object as claimed by the respondent is to prevent the deity from being polluted, which in
view of the petitioners violate the constitutional objects such as justice, liberty, equality,
fraternity as enshrined in the Preamble to our Constitution.
Violation of Art.15
It is also the submission of the applicant that the order of the HC and the practice followed by
the STAB Board violates Art.15
Art 15 states that the state cannot discriminate between citizens of the country on grounds
only of religion , race , caste, sex, place of birth or any of them.
In the said case their is discrimination on the basis of ‘sex’ which is an essence of Art.15.
Discrimination under Art 15 means difference in treatment. The said practice in the
Sapthagiri temple of not allowing women between the age of 10-50 based on physiological
factors or on the grounds of pollution is a discrimination on the basis of sex as menstruation
is exclusive to females alone. The offending ground must also be the ‘ immediate and direct’
cause of the discrimination1.
A discrimination against a man or a woman, only on the ground of sex would be violative of
Art 15(1).

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The applicant have also placed reliance upon the judgments of Anuj Garg and others v Hotel
Association of India and others2 and Charu Khurana and others v Union of India and others3
to that gender bias in any form is opposed to constitutional norms.
It is also believed by the applicant that exclusionary practice has the impact of casting a
stigma on women of menstruating age for it considers them polluted and thereby has a huge
psychological impact on them which leads to violation of Article 17 of the Const.
Prohibiting entry of women on the basis of such baseless norms is a form of untouchability
mentioned under Art.17. The word untouchability has no where been defined in the
Constitution . A single bench of the Mysore HC has held that ‘untouchability’ refers to the
social disabilities historically imposed on certain classes of people on the basis of their birth.4
Discrimination under Art.21
It was held by the hon’ble court in the National Legal Services Authority v Union of India
where rights of transgender was also recognized by the hon’ble court and they were also
entitled to rights under Art.15.
The applicant also wishes to submit the Justice K.S. Puttaswamy v UOI (Right to Privacy
judgement) the exclusionary practice pertaining to women is violative of Art. 21 of the
Constitution, as it impacts the ovulating and menstruating women to have a normal social day
to day rein the society, undermines their dignity by violating Art 21. of the Const.
It is a settled position in law that Right to live with dignity is a facet under Art 215
Invalid Customary Law
It is the submission of the applicant that the customary practice followed in the Sapthagiri
temple since time immemorial not allowing women between the age of 10-50 yrs for
worshiping Lord Ayyappa is an invalid customary law as it does not meet the requisites of a
valid custom.
The requisites of valid custom include:
1. Reasonableness
2. Conformity with statute law
3. Continuity
4. Certainity
5. Consistency

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6. Immemorial antiquity ( its origin is so ancient that to living man can testify its beginning )
7. Must be General or universal
8. Must not be opposed to public policy.
It is the submission of the applicant that the said exclusionary practice followed in the
Sapthagiri temple followed by the STAB Board does not satisfy most of the requisites of a
valid custom.
Thus it is the request of the applicant to from the hon’ble court that they should declare the
said customary practice as followed by the STAB board, the respondents as derogatory to
the spirit of the Constitution.

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PRAYER FOR RELIEF

In the light of arguments advanced and authorities cited, the Respondent humbly
submits that the Honble Court may be pleased to adjudge and declare that:

1. The Hon’ble SC court has jurisdiction to entertain the matter.

2. The Hon’ble SC should quash the order passed by the Division Bench of Shanthisthan
HC in 1981.

3. The court should declare that, the customary practice followed by the STAB Board is
violating Art15, 17, 25 and 26 of the applicant in the above case.

4. The Sapthagiri temple should be open to all persons for offering their prayer
including, women between the age of 10-50.
And pass any other order it may deem fit in the interest of justice, equity and good
conscience.

Any other order as it deems fit in the interest of equity, justice and good
conscience.

For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray.

Place: ________S/d_________
Date: __th March, 2019
Counsel for the Respondents
COUNSEL FOR PETITONERS

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