Petitioner Sample Memorial

BEFORE THE HON’BLE SUPREME COURT OF INDICA
BEFORE SUBMISSION TO
THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICES
OF
THE HONOURABLE SUPREME COURT OF INDICA
KRIPA PETITIONER
versus
UNION OF INDIA AND ORS. RESPONDENTS
PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION
MEMORIAL ON BEHALF OF THE PETITIONER

CMRU SOLS, MOOT COURT SOCIETY 1ST INTRA MEMORIAL DRAFTING COMPETITION, 2021
TABLE OF CONTENTS
LIST OF ABBREVIATIONS..................................................................................................4
INDEX OF AUTHORITIES...................................................................................................5
CASES REFERRED..............................................................................................................5
CONSTITUTIONAL PROVISIONS.....................................................................................6
BOOKS...................................................................................................................................6
ONLINE SOURCES..............................................................................................................6
WEBSITES REFERRED.......................................................................................................6
STATEMENT OF JURISDICTION......................................................................................7
STATEMENT OF FACTS......................................................................................................8
STATEMENT OF ISSUES.....................................................................................................9
SUMMARY OF ARGUMENTS...........................................................................................10
ISSUE 1: WHETHER SECTION 9 OF THE HINDU MARRIAGE ACT, 1955

VIOLATES ARTICLE 14 OF THE CONSTITUTION OF INDICA?................................10
ISSUE 2: WHETHER SECTION 9 OF THE HINDU MARRIAGE ACT, 1955

VIOLATES ARTICLE 21 OF THE CONSTITUTION OF INDICA?................................10
ARGUMENTS ADVANCED................................................................................................11
ISSUE 1: WHETHER THE PIL IS MAINTAINABLE BEFORE THE HON’BLE

SUPREME COURT OF INDIA........................................................................................11
1.1 THE PETITONER HAS LOCUS STANDI..........................................................11
1.2 THE PIL IS CONCERNING A MATTER OF PUBLIC INTEREST........................12
1.3 THERE IS NO REQUIREMENT FOR THE PETITONER TO EXHAUST

ALTERNATE REMEDIES..............................................................................................12
ISSUE 2: WHETHER THE PRACTICE VIOLATES FUNDAMENTAL RIGHTS

CONFERRED UNDER ARTICLES 14 AND 21 OF THE CONSTITUTION OF
INDIA...................................................................................................................................14
2.1 THE PRACTICE VIOLATES ARTICLE 14 OF THE CONSTITUTION OF INDIA

..........................................................................................................................................14
2
2.1.1 The practice is in violation of Article 15 of the Constitution..............................15
2.2 THE PRACTICE VIOLATES ARTICLE 21 OF THE CONSTITUTION................16
ISSUE 3: WHETHER THE PRACTICE VIOLATES FUNDAMENTAL RIGHTS

INDIA..................................................................................................................................19

..........................................................................................................................................19
3.1.1 The practice violates Article 25(2)(b) of the Constitution..................................21
3.1.2 The practice does not come within the ambit of an essential practice of the religion
......................................................................................................................................21
3.2 WHETHER SECTION 9 OF THE HINDU MARRIAGE ACT, 1955 VIOLATES

ARTICLE 14 OF THE CONSTITUTION OF INDICA?ARTICLE 26 OF THE
CONSTITUTION OF INDIA...........................................................................................22
PRAYER.................................................................................................................................25

3
LIST OF ABBREVIATIONS
¶ Paragraph
AIR All India Report
Art. Article
Bom. Bombay
CONST. Constitution
Constr. Construction
DLT Delhi Law Times
Hon’ble Honourable
Ibid Ibīdem
Ltd. Limited
Mad. Madras
NCT National Capital Territory
Ors. Others
PIL Public Interest Litigation
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
UOI Union of India
v. Versus
W.P Writ Petition

4
INDEX OF AUTHORITIES
CASES REFERRED
1. Anuj Garg and others v. Hotel Association of India & Ors., (2008) 3 SCC 1
2. Banti Devi v. Moti Ram, AIR (1990) HP 35
3. Brijrajsingh &Ors v. Bitto Devi (1994) MPLJ 192
4. Charan Singh v. Babulal (1967) AIR 57
5. Dadaji Bhikaji vs Rukhmabai, ILR (1885) 9 Bom 529
6. Dwarkadas Shrinivas of Bombay v. The Sholapur Spinning and Weaving Co., Ltd.,
(1954) S.C.R. 674
7. Ela Dasu v. Ela Lachamma, (1990) 2 HLR 249 (Ori)
8. Express Newspaper (P) Ltd. & Ors. v. Union of India (1962) 3 SCR 842
9. Harvinder Kaur v. Harmandar Singh, AIR (1984) Del. 66
10. Jaswider Kaur v. Kulwant singh ,AIR (1980) P&H 220
11. Jivrathanammal v. P.S. Mudaliar AIR 1959 Mad 482
12. Joseph Shine v Union of India, (2018) 2 SCC 189
13. Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors., AIR 2017 SC
4161
14. Kharak Singh v. State of Uttar Pradesh AIR 1963 SC 1295.
15. Matd. Works v. The Asst. Collector (1974) AIR 497
16. Navtej Singh Johar v. Union of India, AIR 2018 SC 4321
17. Ojaswa Pathak v. Union of India (2021)
18. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180
19. Powell v. Powell 92 LJP 6
20. Ramesh Chandra v. Prem Latha (1979) MP 15
21. R.C.Cooper v. Union of India, AIR 1970 SC 564.
22. Santosh Kumari v. Mohan Lal ,AIR (1980) P&H 325
23. Saroj Rani v. Sudarshan Kumar, AIR (1984) SC 1562
24. Smt. Sumanbai v. Anandrao Onkar Panpatil AIR (1976)
25. Sneh Prabha v. Ravindra Kumar AIR (1995) SC2170
26. State of Bombay v. Bombay Education Society, AIR (1954) SC 561
27. Sushila Bai v. Prem Narayan (1976) AIR MP 225
28. T. Sareeta v. Venkata Subbaiah, AIR (1983) AP 356
29. Tirath Kaur v Kirpal Singh (1964) AIR 1964 Punj 28.
30. Vinita Saxena vs. Pankaj Pandit (2006) 3 SCC 778
31. Weldon v. Weldon (1883) 99 PD 52
CONSTITUTIONAL PROVISIONS
INDIA CONST. art.14
INDIA CONST. art.21

5
BOOKS
BLACK’S LAW DICTIONARY 1162 (10th ed. 2015)..........................................................11
DD Basu, Commentary on the Constitution of India (9th ed. 2014).........................................21
V. N. Shukla’s Constitution of India (14th Edition)
Paras Diwan, Family Law
S.P. RAMANATHA AIYAR, THE MAJOR LAW LEXICON (4th ed. 2010).....................11
WEBSITES REFERRED
https://manupatrafast.com
https://indiankanoon.org
https://advance.lexis.com

6
STATEMENT OF JURISDICTION
The Petitioner has moved to the Hon’ble Supreme Court of Indica under Article 32 of the
Constitution of Indica, 1949. The Hon’ble Supreme Court of Indica has the jurisdiction to
hear the present matter under Article 32 of the Constitution of Indica, 1949, which reads as:
“32. Remedies for enforcement of rights conferred by Part III
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.”

7
STATEMENT OF FACTS
PARTIES TO THE SUIT:
1. Petitioner: Rights for Righteous (hereinafter the Petitioner)

2. Respondent: Union of India and Ors. (hereinafter the Respondents)
BACKGROUND:
The Kamakhya temple is situated atop scenic hills in the State of India which is renowned for
worshipping the “Bleeding Goddess”. This temple is predominantly for the devotion towards
the menstrual cycle of the goddess that occurs bi-monthly. The history of this temple
originates from the legend that the Goddess’s body was split in to several parts that fell in
distinct parts of the world. The parts where the charred remains of the Goddess fell have now
gone on to become temples.
FACTS:
The temple organizes a bi-monthly Mela in order to celebrate the menstrual cycle of the
Bleeding Goddess. The Mela lasts for 4 days in total during which devotees from all across
the world come together in attendance. During this period, only the female devotees are
allowed inside the shrine and furthermore, only the female priests or sanyasis are allowed to
serve the Goddess on the most auspicious and celebrated days of the temple.
PRESENT MATTER:
This practice has been alleged by the Petitioners to create a form of reverse discrimination
amongst the non-female devotees and priests or sanyasis which obstructs them from freely
practicing their religion. Therefore, in light of this alleged discriminatory practice that lacks
gender neutrality against the non-female devotees the Right for Righteous have filed a Public
Interest Litigation under Article 32 of the Constitution in front of the Hon’ble Supreme Court
of India.

8
STATEMENT OF ISSUES
ISSUE 1
WHETHER OR NOT THE PIL IS MAINTAINABLE BEFORE THE SUPREME

COURT OF INDIA?
ISSUE 2
WHETHER OR NOT THE PRACTICE VIOLATES FUNDAMENTAL RIGHTS

INDIA?
ISSUE 3
WHETHER OR NOT THE PRACTICE VIOLATES FUNDAMENTAL RIGHT TO

RELIGION ENSHRINED UNDER ARTICLES 25 AND 26 OF THE CONSTITUTION
OF INDIA?

9
SUMMARY OF ARGUMENTS
ISSUE 1: WHETHER OR NOT THE PIL IS MAINTAINABLE BEFORE THE

SUPREME COURT OF INDIA?
It is most humbly submitted before this Hon’ble Court that the PIL filed by the petitioner is
maintainable under Article 32 of the Constitution of India. This contention will be dealt in a
threefold manner; first, that the Petitioner has the locus standi; secondly, that the PIL is
concerning a matter of public interest; lastly, that exhaustion of alternate remedies is not a
mandatory requirement before approaching this Hon’ble Court under Article 32 of the
Constitution.
ISSUE 2: WHETHER OR NOT THE PRACTICE VIOLATES FUNDAMENTAL

RIGHTS CONFERRED UNDER ARTICLES 14 AND 21 OF THE CONSTITUTION
OF INDIA?
It is most humbly submitted before this Hon’ble Court that the practice followed in the
Kamakhya Temple that restrains all the non-female devotees from entering the temple for 4
days during the Mela is in violation of Article 14 and Article 21 of the Constitution of India.
This contention will be dealt in a two-fold manner; first, that this practice violates Art. 14 of
the Constitution; and lastly, that this practice violates Art. 21 of the Constitution.
ISSUE 3: WHETHER OR NOT THE PRACTICE VIOLATES

FUNDAMENTAL RIGHT TO RELIGION ENSHRINED UNDER ARTICLES 25
AND 26 OF THE CONSTITUTION OF INDIA?
It is most humbly submitted before this Hon’ble Court that the practice followed in the
Kamakhya Temple is in violation of Article 25 and its abolishment will not be in violation of
Article 26 of the Constitution of India. This contention will be dealt in a two-fold manner;
first, that this practice violates Art. 25 of the Constitution; and lastly, that abolishment of the
practice will not lead to violation of Article 26 of the Constitution.

10
ARGUMENTS ADVANCED
ISSUE 1
WHETHER THE PIL IS MAINTAINABLE BEFORE THE HON’BLE SUPREME
COURT OF INDIA
1. It is most humbly submitted before this Hon’ble Court that the PIL filed by the
petitioner is maintainable under Article 32 of the Constitution of India. This
contention will be dealt in a threefold manner; first, that the Petitioner has the locus
standi; secondly, that the PIL is concerning a matter of public interest; lastly, that
exhaustion of alternate remedies is not a mandatory requirement before approaching
this Hon’ble Court under Article 32 of the Constitution.
1.1 THE PETITONER HAS LOCUS STANDI

2. It is most humbly submitted before this Hon’ble Court that the Petitioner has the locus
standi to file a PIL before this Hon’ble Court under Article 32 of the Constitution of
India. The term ‘locus standi’ stands for the right to bring an action 1 and to be heard.2
Furthermore, any person having a bona fide3 and “sufficient interest”, and also, no
personal gain can approach the court for enforcing constitutional or legal rights of
other persons and redressal of a common grievance.4
3. Moreover, in order to protect their diffused rights and interests the initiative and zeal
of public minded persons and organisations must be utilized “by allowing them to
move the court and act for a general or group interest, even though they may not be
directly injured in their own interest.” 5
Furthermore, this Hon’ble Court has also
observed that the public-spirited citizens who have faith in the rule of law and are
rendering great social and legal service by espousing causes of public nature
cannot be ignored or
1
S.P. RAMANATHA AIYAR, THE MAJOR LAW LEXICON 4041 (4th ed. 2010).
2
BLACK’S LAW DICTIONARY 1162 (10th ed. 2015).
3
Raunaq Int’l Ltd. v. I.V.R. Constr. Ltd., (1999) 1 SCC 492.
4
S.P Gupta and Ors. v. President of India and Ors., AIR 1982 SC 149; Janata Dal v. H.S. Chowdhari, (1992) 4
SCC 305 [hereinafter Janata Dal].
5
Id.
11
overlooked on technical or conservative yardstick of the rule of locus standi or

absence of personal loss or injury.6
4. It is humbly submitted that the Petitioner has filed this PIL in order to seek redressal
for the non-female devotees who have been restricted from entering the Kamakhya
Temple during its most celebrated festival [hereinafter “the practice”].7 Furthermore,
since the Petitioner is not seeking to achieve any form of personal gain through this
petition the PIL filed by the Petitioner cannot be considered to be frivolous in any
nature.
5. Moreover, these restrictions have been imposed arbitrarily which further has violated
their fundamental rights. Therefore, due to the presence of required locus standi and
violation of fundamental rights which are being dealt in the subsequent issues, the
Petitioner is entitled to approach this Hon’ble Court under Art. 32 of the Constitution.
1.2 THE PIL IS CONCERNING A MATTER OF PUBLIC INTEREST

6. It is most humbly submitted that this Hon’ble Court in Janata Dal v. H.S Chowdhary
had held that “Lexically the expression PIL means a legal action initiated in a court
of law for the enforcement of public interest or general interest in which the public or
a class of the community have a pecuniary interest or some interest by which their
legal rights or liabilities are affected."8
7. Furthermore, the Mela festival which is celebrated bi-monthly is one of the biggest
congregations of India and the most auspicious festival of the Kamakhya temple. Due
to this, the Mela and seeking blessings of the goddess becomes even more important.
This festival attracts not only the inhabitants of that particular locality but also
devotees from all across the world.9 Thus, the concerned issue becomes a matter of
public interest and is sufficient to seek redressal for in form a PIL.
1.3 THERE IS NO REQUIREMENT FOR THE PETITONER TO

EXHAUST ALTERNATE REMEDIES
8. It is most humbly submitted that the right to approach this Hon’ble Court when the
fundamental rights have been violated is in itself a fundamental right. 10 Furthermore,
in Prem Chand Garg, it was held that this right cannot be impaired on any ground as
6
The Chairman, Railway Board & Ors vs Mrs. Chandrima Das & Ors., AIR 2000 SC 98.
7
Moot Proposition, ¶2.
8
Janata Dal, supra note 4.
9

12
10
INDIA CONST. art.32.

13
this right is absolute11 and this court cannot refuse to entertain a petition under that
Article simply because the petitioner might have any other adequate, alternative, legal
remedy.12
9. Moreover, under the Constitution this Hon’ble Court is considered as the protector
and guarantor of the fundamental rights. Therefore, this Hon’ble Court cannot refuse
to entertain applications seeking the protection of this Court against infringement of
such rights, even though such applications are made to this Court in the first instance
and without resort to a High Court having concurrent jurisdiction in the matter. The
mere existence of an adequate alternative legal remedy cannot per se be a good and
sufficient ground for throwing out a petition under Art. 32 in the existence of violation
of a fundamental right.13
10. Furthermore, restrictions imposed on the right of the Petitioner to seek remedy merely
because of the presence of alternative remedies is contrary to the spirit of Art. 32 that
guarantees every citizen of India to move to the highest Court of the nation for the
enforcement of their fundamental rights. Therefore, it is not mandatory for the
Petitioner to exhaust all the alternate remedies before approaching this Hon’ble Court.
11
Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.
12
Kavalappara Kottarathil v. The State of Madras and Ors., AIR 1959 SC 725.
13
Romesh Thappar v. The State of Madras, AIR 1950 SC 124.

14
ISSUE 2
WHETHER THE PRACTICE VIOLATES FUNDAMENTAL RIGHTS CONFERRED
UNDER ARTICLES 14 AND 21 OF THE CONSTITUTION OF INDIA
11. It is most humbly submitted before this Hon’ble Court that the practice followed in
the Kamakhya Temple that restrains all the non-female devotees from entering the
temple for 4 days during the Mela is in violation of Article 14 and Article 21 of the
Constitution of India. This contention will be dealt in a two-fold manner; first, that
this practice violates Art. 14 of the Constitution; and lastly, that this practice violates
Art. 21 of the Constitution.

12. It is most humbly submitted before this Hon’ble Court that the practice of allowing
only female devotees the entry into the temple during the Mela is in violation of Art.
14 of the Constitution of India. Art. 14 forbids class legislation but however it does
not forbid reasonable classification. Classification must not be unreasonable, 14
manifestly arbitrary, 15
artificial or evasive; it needs to satisfy two conditions: (i) that
the classification is found on intelligible differentia and there is a substantial reason
why the two groups have been separated into two categories. This is done by
examining the purpose and policy of the act, which can be ascertained from its title,
preamble16 and provisions17 ; and (ii) that differentia must have a rational relation to
the object sought to be achieved by the Act.18
13. Furthermore, the practice at the Kamakhya Temple is classifying between female
devotees and the non-female devotees based on former’s ability to menstruate. This is
a trait which is largely seen in females, but discrimination on the basis of an intrinsic
14
Bidhannagar (Salt Lake) Welfare Assn.v. Central Valuation Board and Ors., AIR 2007 SC 2276.
15
Bombay Dyeing & Manufacturing Co. Ltd.v. Bombay Environmental Action Group, AIR 2006 SC 1489.
16
Kausha PN v. Union of India, AIR 1978 SC 1457.
17
P. B. Roy v. Union of India, AIR 1972 SC 908.
18
K. Thimmappa v. Chairman, Central Board of Directors, SBI, AIR 2001 SC 467.

15
and core trait of an individual cannot form a reasonable classification based on an

intelligible differentia.19
14. Moreover, it not only discriminates between males and females but also between
females and the third gender – transgenders. This Hon’ble Court in National Legal
Services Authority v. Union of India 20
recognized transgenders on par with other
genders and held that discrimination on the ground of gender identity, impairs
equality before law and equal protection of law and violates Article 14 of the
Constitution of India. Therefore, discriminating transgenders from entering the temple
clearly violates their right to be treated equally.
15. Furthermore, arbitrariness is another facet under Article 14 wherein equality and
arbitrariness are held to be sworn enemies. The former belongs to the rule of law in
a republic while the latter, to the whim and caprice of an absolute monarch.
Where an act is arbitrary, it is implicit in it that it is unequal both according to
political logic and constitutional law and is therefore violative of Article 14. 21
16. Furthermore, the classification between female and non-female devotees based
on their biological trait is manifestly arbitrary. Every month, 1.8 billion people
across the world menstruate. This includes girls, women, transgender men and non-
binary persons, and not just females.22 Therefore, classification between female and
non-female devotees based on who can menstruate is arbitrary as female gender is not
the only one that menstruates. This exclusionary practice is arbitrary as its based on
physiological factors alone which further, lacks a valid constitutional object. 23
Therefore, this practice is in violation of Art. 14 of the Constitution.
2.1.1 The practice is in violation of Article 15 of the Constitution

17. It is humbly submitted before this Hon’ble Court that as per Art. 15 of the
Constitution there can be no discrimination against any citizens on the grounds of
religion, race, caste, sex, place of birth or any of them.24 The word “discrimination”
connotes making an adverse distinction or to distinguish unfavourable from others.25
In the present case
19
Navtej Singh Johar v. Union of India, AIR 2018 SC 4321.
20
National Legal Services Authority v. Union of India, AIR 2014 SC 1863.
21
E.P. Royappa v. State of T.N., (1974) 4 SCC 3.
22
UNICEF, https://www.unicef.org/wash/menstrual-hygiene (last visit Oct. 7 2021).
23
Shayara Bano v. Union of India and Ors., (2017) 9 SCC 1.
24
INDIA CONST. art.15.

16
25
Sriniwas Aiyer v. Sarawathi Ammal, AIR 1952 Mad. 193.

17
at hand the practice is adversely discriminating between female and non-female

devotees based on the ground of sex as the physiological feature of menstruation is
largely presumed to be exclusive to females alone, thus, violating the latter’s
fundamental rights.26
18. Moreover, if religious practices run counter to public order, morality or health or a
policy of social welfare upon which the State has embarked, then
the religious practices must give way before the good of the people of the State as a
whole.27 Therefore, the practice must be discontinued in order to treat all the genders
of the society on par with each other as gender bias in any form is opposed to the
constitutional norms.28
19. Furthermore, the entry to temple when the goddess is believed to be menstruating is
only restricted to female priests or sanyasis, and only they are allowed to serve the
temple during this time.29 The male priests are not allowed entry during the most
auspicious festival of the goddess that they believe in. This again, violates Art. 15 of
the Constitution as there is discrimination solely based upon the sex of the priests.
Moreover, in order to give effect to the constitutional mandate of Art. 15 there cannot
be any sort of gender bias at the “altars of God”.30 Therefore, this practice is in
violation of Art. 15 of the Constitution.
2.2 THE PRACTICE VIOLATES ARTICLE 21 OF THE CONSTITUTION

20. It is most humbly submitted before this Hon’ble Court that the impugned practice is in
violation of Art. 21 of the Constitution of India. Furthermore, the dignity of the
individual, equality between human beings and the quest for liberty are the
foundational pillars of the Indian Constitution. 31 Dignity is the core which unites the
fundamental rights because the fundamental rights seek to achieve for each individual
the dignity of existence. It is only when life can be enjoyed with dignity can
liberty be of true
26
Indian Young Lawyers Association vs The State of Kerala, AIR 2018 SC 243.
27
The State of Bombay vs Narasu Appa Mali, AIR 1952 Bom 84.
28
Anuj Garg and others v. Hotel Association of India & Ors., (2008) 3 SCC 1; Charu Khurana and others v.
Union of India & Ors., (2015) 1 SCC 192.
29
30
Pinniyakkal v. The District Collector, W.P 9704 (2007).

18
31
Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors., AIR 2017 SC 4161.

19
substance. Privacy ensures the fulfilment of dignity and is a core value which the
protection of life and liberty was intended to achieve.32
21. Furthermore, privacy is the constitutional core of human dignity, and it is a

constitutionally protected right which emerges primarily from the guarantee of life
and personal liberty in Article 21 of the Constitution. The doors of the shrine are
closed based on the presence of physiological trait of menstruation for not just for
males but transgenders as well. The transgender community includes transgender
male, transgender female and non-binary persons who can menstruate as well yet,
they are restricted from entering the sanctorum of the temple.
22. Although, not all the transgenders menstruate, but in order to ensure there is no
inequality between female and transgender devotees who menstruate when it comes to
entering inside the temple devotees will be forced to involuntarily disclose their
menstrual status. But involuntary disclosure by the devotees of their menstrual status
which amounts to forced disclosure consequently, violates the right to dignity and
privacy embedded in Article 21 of the Constitution of India.33
23. Furthermore, this Hon’ble Court has held that any custom or usage irrespective of
even any proof of their existence in pre-constitutional days or opposed to public
policy or social decency cannot be accepted or upheld by courts in the country. 34
Moreover, in order to avoid violation of right to dignity and privacy of transgenders,
the entire community could be allowed entry into the temple. But this would lead to
gross violation of right to be treated equally of the male devotees who do not
menstruate as this practice would err in allowing entry to transgenders who do not
menstruate. Since, in order to prove that a religious practice is not in violation of Art.
21 of the Constitution, it must also stand test to Art. 14 of the Constitution, the
aforementioned method of entry cannot be followed. 35
24. Moreover, a fundamental right to privacy would cover the privacy of choice, which
protects an individual's autonomy over fundamental personal choices. Wherein, the
privacy of choice is found in Articles 19(1)(a) to (c), 20(3), 21 and 25. Therefore,
right of privacy is a fundamental right which protects the inner sphere of the
individual from
32
Ibid.
33
Supra note 26.
34
N. Adithayan v. Travancore Devaswom Board and Ors.,(2002) 8 SCC 106.

20
35
Maneka Gandhi v. Union of India, AIR 1978 SC 597.

21
interference from both State, and non-State actors and allows the individuals to make
autonomous life choices.36
25. It is most humbly submitted before this Hon’ble Court that the right to enter a temple
is a private choice and it must not be interfered with by anyone. Individuals must have
the liberty and the privacy to choose to enter temple on the most fulfilling and
auspicious occasions which is conducive to their spiritual-being. Moreover,
right to life includes all those aspects of life which goes to make a life meaningful,
complete and worth living.37 The impugned practice violates this privacy of choice of
non-female devotees by restricting their entry into the temple on the most auspicious
festival which is celebrated at the Kamakhya temple.
36
Ibid.
37
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490.

22
ISSUE 3
WHETHER THE PRACTICE VIOLATES FUNDAMENTAL RIGHTS CONFERRED
UNDER ARTICLES 25 AND 26 OF THE CONSTITUTION OF INDIA
26. It is most humbly submitted before this Hon’ble Court that the practice followed in
the Kamakhya Temple is in violation of Article 25 and its abolishment will not be in
violation of Article 26 of the Constitution of India. This contention will be dealt in a
two-fold manner; first, that this practice violates Art. 25 of the Constitution; and
lastly, that abolishment of the practice will not lead to violation of Article 26 of the
Constitution.

27. It is most humbly submitted before this Hon’ble Court that Part III of Constitution
guarantees to every person the freedom of conscience and the right to profess, practice
and propagate religion.38 The freedom of ‘conscience’ is the absolute inner freedom of
the citizen to mold his own relation with God in whatever manner he likes. When this
freedom becomes articulate and expressed in outward form it is to ‘profess and
practice religion’.
28. Moreover, the right to freely profess and practise religion would include the freedom
of religious opinion as well as acts done in pursuance of religion. 39 Furthermore, Art.
25 (1) guarantees the right to practise religion to every individual and the act of
practice is concerned, primarily, with religious worship, rituals and observations.40
29. Moreover, freedom guaranteed under Article 25 of the Constitution is such freedom
which does not encroach upon a similar freedom of other persons. Under the
constitutional scheme, every person has a fundamental right not merely to entertain
religious belief of his choice, but also to exhibit this belief and ideas in a manner
which does not infringe the religious right and personal freedom of others. 41
Article 25
38
INDIA CONST. art.25(1).
39
The Commissioner, Hindu Religious Endowment, Madras v. Sri Lakshmindra Thirtha Swamiar, AIR 1954 SC
282.
40
Rev. Stainislaus v. State of Madhya Pradesh & Ors., AIR 1977 SC 908.

23
41
Lily Thomas v. UOI, AIR 2000 SC 1650.

24
pertinently declares that all persons are equally entitled to freely practise religion.
Therefore, the primary right under, Article 25 (1) is a non-discriminatory right and
thus, must be available to men, transgenders and women professing the same faith.
30. Art. 25(1) of the Constitution guarantees every person the freedom to freely practice,
profess and propagate their religion but with subject to public order, health and
morality. “Public order” has a larger connotation than law and order. It signifies state
of tranquility which prevails among the members of a political society as a result of
internal regulations enforced by the Government which they have established. In the
name of public order, one cannot prohibit a person from performing the essential rites
and ceremonies prescribed by one’s religion. Thus, Government authorities cannot
prohibit the Hindus from going to temple on the ground that this would result in a
breach of public order.42
31. Furthermore, the term morality occurring in Article 25(1) of the Constitution cannot
be viewed with a narrow lens so as to confine the sphere of definition of morality to
what an individual, a section or religious sect may perceive the term to mean. When
there is a violation of the fundamental rights, the term morality naturally implies
constitutional morality. Constitutional morality in its strictest sense of the term
implies strict and complete adherence to the constitutional principles as enshrined in
various segments of the Constitution.43
32. Therefore, the notions of public order, morality and health cannot be used as
colourable device to restrict the freedom to freely practise religion and to
discriminate. Furthermore, Article 25 (1) is not only subject to public order, morality
and health, but it is also subordinate to the other freedoms that are guaranteed by Part
III of the Constitution. Arguendo, if the impugned practice is not in violation of Art.
25(1) it would still be subject to Art. 14, 15 & 21 of our Constitution, which are being
violated as stated in “Issue 2”.
33. Therefore, all the non-female devotees must also be treated on par with the female
devotees and also, must not be restrained from following essential rites and
ceremonies that are part of the Kamakhya Temple. Furthermore, since the entry of
men inside the shrine during the Mela won’t affect public order, morality and health
in any from, non-
42
Mohammed Gani .v Superintendent of Police, Dindigul Dt., AIR 2005 Mad. 354.
43
Government of NCT of Delhi v. Union of India and Ors., (2018) 8 SCC 501.
25
female devotees must hence, not be restrained from their freedom to freely practice
their religion.
3.1.1 The practice violates Article 25(2)(b) of the Constitution

34. It is most humbly submitted before this Hon’ble Court that the impugned practice
further violates the objective enumerated in Art. 25(2)(b) of the Constitution. This
clause confers rights on all classes and sections of Hindus to enter into a public
temple, and on the unqualified terms of that Article, that right must be available,
whether it is sought to be exercised against an individual under Article 25(1) or
against a denomination under Article 26 (b).44
35. Thus, Article 25(2)(b) protects the right to enter into a public temple for the purpose
of worship. “Public” here includes any section of the public. Public institutions would
thus mean not merely temples dedicated to the public as a whole, but even those
which are founded for the benefit of sections thereof, and denominational temples
would thus fall within the scope of this clause.45 Therefore, restricting entry of non-
female devotees from entering the temple during the most celebrated time at the
Kamakhya temple would further result in violation of Art. 25(2)(b) of the
Constitution.
3.1.2 The practice does not come within the ambit of an essential practice of the religion
36. It is most humbly submitted before this Hon’ble Court that the impugned practice is
not an essential part of the religion and hence is not guaranteed with the protection
Art. 25 and Art. 26 of the Constitution offers. Furthermore, the protection guaranteed
under Articles 25 and 26 of the Constitution is not confined to matters of doctrine or
belief but extends to acts done in pursuance of religion and therefore, contains a
guarantee for rituals, observances, ceremonies and modes of worship which are
essential or integral part of religion. What constitutes an integral or essential part of
religion has to be determined with reference to its doctrines, practices, tenets,
historical background etc. of the given religion.46
37. Moreover, “essential practice means those practices that are fundamental to follow a
religious belief. Without which, a religion will be no religion. Test to determine
whether a part or practice is essential to the religion is - to find out whether the
nature of
44
Sri Venkatramana Devaru v. State of Mysore and Ors., AIR 1958 SC 55.
45
DD Basu, Commentary on the Constitution of India 222 (9th ed. 2014).
26
46
The Commissioner v. L T Swamiar of Srirur Mutt, 1954 SCR 1005; Seshammal v. State of Tamil Nadu, 1972
3 SCR 815.

27
religion will be changed without that part or practice. If the taking away of that part
or practice could result in a fundamental change in the character of that religion or
in its belief, then such part could be treated as an essential or integral part. There
cannot be additions or subtractions to such part. Because it is the very essence of that
religion and alterations will change its fundamental character. It is such permanent
essential parts is what is protected by the Constitution.”47
38. Furthermore, practices, though religious, may have sprung from merely superstitious
beliefs and would then be extraneous and unessential accretions to religion itself.48 The
impugned practice has therefore, arisen from the superstition of secluding women
during their menstruation and this does not form an essential part of the religion.
Furthermore, the essentiality of a practice can be determined based on the tenets of the
religion; Kamakhya Temple is a place of worship of Goddess Shakti, wife of Lord
Shiva; they are the deities of Hindu religion. The Hindu doctrines have never ascribed
exclusion of its followers no matter which sex they belong to.49
39. Moreover, the impugned practice is not the fundamental belief based upon which
worship of Goddess Shakti was established. It holds no important place and thus,
abolishment of this practice would not alter the character of the devotee’s beliefs or
religion. Therefore, the impugned practice does not form an essential part of the
religion and thus, is not entitled to the protection given under Art. 25 & 26 of the
Constitution.
3.2 ABOLISHMENT OF THE PRACTICE WILL NOT LEAD TO VIOLATION

OF ARTICLE 26 OF THE CONSTITUTION OF INDIA
40. It is most humbly submitted before this Hon’ble Court that the impugned practice due
to its violation of Art. 14,15,21 & 25 of the Constitution must be abolished. This
would not lead to violation of fundamental rights that are guaranteed under Art. 26(b)
of the Constitution to religious denomination. But instead, it is currently violating
various fundamental rights of the non-female devotees as the protection of Art. 26 is
only available to religious denominations, which Kamakhya temple is not. Art. 26
deals with the freedom given to religious denominations in order to manage their
religious affairs and is subjected to public order, morality and health. Therefore,
every religious
47
Commissioner of Police and Ors. v. Acharya Jagadishwarananda Avadhuta and Ors., 2004 12 SCC 770.
28
48
Supra, note 44.
49
Supra, note 26.

29
denomination or any section thereof shall have the right to manage its own affairs in
matters of religion.50
41. Since, the freedom under Art. 26 is guaranteed only to religious denominations it
becomes necessary to first establish if the temple forms a religious denomination. As
held in the case of S.P. Mittal v. Union of India and Ors.51, there are predominantly
three tests which must be satisfied for determining whether a temple could be
considered to be a religious denomination and that are as follows:
(a) It must be a collection of individuals who have a system of beliefs or doctrines
which they regard as conducive to their spiritual well-being, that is, a common faith;
(b) common organization; and
(c) designation by a distinctive name.
There is a fourth test as well - (d) a common thread of religion which runs through
them is the requirement of a religious identity, which is fundamental to the character
of a religious denomination.
42. Furthermore, believers of a particular religion are to be distinguished from
denominational worshippers. Since, all persons, regardless of caste or religion from
all around the world are worshippers at the Kamakhya temple, thus, Hindus of all
kinds, Muslims, Christians etc., all visit the temple as worshippers, without, in any
manner, ceasing to be Hindus, Christians or Muslims. Merely having practices
associated with the forms of worship do not constitute the devotees into a religious
denomination. The devotees of Goddess Shakti are not unified on the basis of some
distinct set of practises. Moreover, every temple in India has its own different set of
rituals that differs from region to region. A minor difference in rituals and ceremonies
does not make them a separate religious denomination.
43. Moreover, 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
Kamakhya temple so as to constitute the said temple into a religious denomination.
Therefore, Hindus who worship the yoni of Goddess Shakti as part of the Hindu
religious form of worship are not denominational worshippers. Furthermore, worship
of Shakti, may be common, as
50
INDIA CONST. art.26(b).

30
51
S.P. Mittal v. Union of India and Ors., (1983) 1 SCC 51.

31
it celebrates "female" power but that alone is an insufficient premise to conclude

existence of a denomination.52
44. Arguendo, even if Kamakhya Temple is regarded as a denomination, any law or
custom to be protected under Article 26 must have Constitutional legitimacy, which
means that it would still be subjected to Art. 25(2)(b) of the Constitution; in case of
conflict latter prevails over the former,53 and thus, both these articles must be read
harmoniously.54
45. Furthermore, discriminating entry into a public place of worship under the guise of
'managing the affairs of religion' under Article 26 and as such, the State will have to
ensure protection of rights of all its citizens guaranteed under Part III of the
Constitution, including Articles 14 and 15, to protect against discrimination based on
gender. 55 Moreover, the right to manage the Trust cannot override the right to practice
religion itself, as Article 26 cannot be seen to abridge or abrogate the right guaranteed
under Article 25 of the Constitution.
46. Therefore, it is humbly submitted before this Hon’ble Court that Kamakhya Temple
does not form a religious denomination as the worshippers of the deity are of
Shaktism order of Hindu religion. Since, it’s a public temple wherein anyone
irrespective of their religion can enter it fails to constitute as a religious denomination.
Hence, abolishment of the impugned practice will not be in violation of Art. 26(b) of
the Constitution.
52
Shri U.N. Bhardwaj vs Shri Y.N. Bhardwaj & Ors., 2010 (173) DLT 483.
53
Supra, note 44.
32
54
Ibid; Riju Prasad Sarma and Ors. v. State of Assam and Ors., (2015) 9 SCC 461.
55
Dr. Noorjehan Safia Niaz v. State of Maharashtra, 2016 SCC OnLine Bom 5394.

33
PRAYER
In the light of the issues raised, arguments advanced, and authorities cited it is most humbly
prayed before this Hon’ble Court:
 To adjudge and declare that: The exclusionary practice of non-female devotees

from the Kamakhya Temple during the bi-monthly Mela festival is in violation of
Article 14,15, 21, and 25 of the Constitution of India;
 To issue directions to the Union of India, Chief of the Kamakhya temple to ensure
entry of all non-female devotees at all times.
Or pass any other order that this Hon’ble Court may deem fit in the interest of justice. For
this act of kindness, the Counsel for the Petitioner shall duty bound forever pray.
All of which is most humbly submitted.
Counsel for Petitioner
Sd/-

34

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BEFORE THE HON’BLE SUPREME COURT OF INDICA

THE HONOURABLE CHIEF JUSTICE AND HIS COMPANION JUSTICES

THE HONOURABLE SUPREME COURT OF INDICA

UNION OF INDIA AND ORS. RESPONDENTS

PETITION FILED UNDER ARTICLE 32 OF THE CONSTITUTION

MEMORIAL ON BEHALF OF THE PETITIONER

ISSUE 1: WHETHER SECTION 9 OF THE HINDU MARRIAGE ACT, 1955

ISSUE 2: WHETHER SECTION 9 OF THE HINDU MARRIAGE ACT, 1955

ISSUE 1: WHETHER THE PIL IS MAINTAINABLE BEFORE THE HON’BLE

1.1 THE PETITONER HAS LOCUS STANDI..........................................................11

1.2 THE PIL IS CONCERNING A MATTER OF PUBLIC INTEREST........................12

1.3 THERE IS NO REQUIREMENT FOR THE PETITONER TO EXHAUST

ISSUE 2: WHETHER THE PRACTICE VIOLATES FUNDAMENTAL RIGHTS

2.1 THE PRACTICE VIOLATES ARTICLE 14 OF THE CONSTITUTION OF INDIA

2.2 THE PRACTICE VIOLATES ARTICLE 21 OF THE CONSTITUTION................16

ISSUE 3: WHETHER THE PRACTICE VIOLATES FUNDAMENTAL RIGHTS

3.1 THE PRACTICE VIOLATES ARTICLE 25 OF THE CONSTITUTION OF INDIA

3.1.1 The practice violates Article 25(2)(b) of the Constitution..................................21

3.2 WHETHER SECTION 9 OF THE HINDU MARRIAGE ACT, 1955 VIOLATES

MEMORIAL ON BEHALF OF THE PETITIONER

AIR All India Report

DLT Delhi Law Times

NCT National Capital Territory

PIL Public Interest Litigation

SCC Supreme Court Cases

SCR Supreme Court Reports

UOI Union of India

W.P Writ Petition

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

“32. Remedies for enforcement of rights conferred by Part III

MEMORIAL ON BEHALF OF THE PETITIONER

PARTIES TO THE SUIT:

1. Petitioner: Rights for Righteous (hereinafter the Petitioner)

MEMORIAL ON BEHALF OF THE PETITIONER

WHETHER OR NOT THE PIL IS MAINTAINABLE BEFORE THE SUPREME

WHETHER OR NOT THE PRACTICE VIOLATES FUNDAMENTAL RIGHTS

WHETHER OR NOT THE PRACTICE VIOLATES FUNDAMENTAL RIGHT TO

MEMORIAL ON BEHALF OF THE PETITIONER

ISSUE 1: WHETHER OR NOT THE PIL IS MAINTAINABLE BEFORE THE

ISSUE 2: WHETHER OR NOT THE PRACTICE VIOLATES FUNDAMENTAL

ISSUE 3: WHETHER OR NOT THE PRACTICE VIOLATES

MEMORIAL ON BEHALF OF THE PETITIONER

1.1 THE PETITONER HAS LOCUS STANDI

overlooked on technical or conservative yardstick of the rule of locus standi or

1.2 THE PIL IS CONCERNING A MATTER OF PUBLIC INTEREST

1.3 THERE IS NO REQUIREMENT FOR THE PETITONER TO

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

2.1 THE PRACTICE VIOLATES ARTICLE 14 OF THE CONSTITUTION OF INDIA

MEMORIAL ON BEHALF OF THE PETITIONER

and core trait of an individual cannot form a reasonable classification based on an

Therefore, this practice is in violation of Art. 14 of the Constitution.

2.1.1 The practice is in violation of Article 15 of the Constitution

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

at hand the practice is adversely discriminating between female and non-female

2.2 THE PRACTICE VIOLATES ARTICLE 21 OF THE CONSTITUTION

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

21. Furthermore, privacy is the constitutional core of human dignity, and it is a