Arguments Advanced Petitioner

V BENNETT NATIONAL MOOT COURT COMPETITION 2023
ARGUMENTS ADVANCED
1. WHETHER E-LEARNER CAN BE RESPONSIBLE FOR THE VIOLATION
OF FUNDAMENTAL RIGHTS UNDER THE CONSTITUTION OF WASAN
BECAUSE OF THE MASS DATA LEAK?
It is humbly submitted before this Hon’ble Court that ………….
1.1. THAT THE WRIT PETITION FILED UNDER ART. 32 IS NOT MAINTAINABLE AS
PUBLIC INTEREST LITIGATION
1.1.1. It is humbly submitted before this Court that the PIL has not been defined in any
Indian statute or in any Act. It has been interpreted by the judges to consider the
intent of the public at large. Actually, it is the power which is given to the public
by courts through judicial activism. Hence, the Supreme Court in the case of
Janata Dal v. H.S. Chaudhary1 has held that 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 pecuniary interest or
some interest by which their legal rights or liabilities are affected. However, the
person filing the petition must prove to the court’s satisfaction that the petition is
being filed for public interest, as public interest litigation cannot be used for
suspicious products of mischief2. It has to be aimed at redressal of genuine public
wrong or injury and not publicity oriented or founded on personal vendetta or
private motive.3
1.1.2. It is submitted that Under Art. 32 the Court confines itself to the question of
infringement of the Fundamental Rights and does not go into any other question. 4
As stated above, Art. 32 can be invoked only when there is an infringement of
fundamental right. In this context, it is pertinent to note that the Supreme Court
1
AIR 1993 SC 892 : 1993 Cri LJ 600 : 1992 (3) Crimes 199 SC.
2
Prashant Mehta v. State of H.P. & Ors Himachal Pradesh High Court CWP No. 6076/2020
3
Ibid.
4
Khyerbari Tea Co. v. State of Assam, AIR 1964 SC 925 : (1964) 5 SCR 1975
▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

▬ DRAWN AND FILED BY THE COUNSELS FOR THE ▬
has laid emphasis on this aspect of Art. 32 in the case of Hindi Hitrashak Samiti
v. Union of India5, as follows:
“It is well settled that, the jurisdiction conferred on the Supreme Court under Art.
32 is an important and integral part of the Indian Constitution, but violation of a
Fundamental Right is the sine qua non for seeking enforcement of those rights by
the Supreme Court. In order to establish the violation of Fundamental Right, the
court has to consider the direct and inevitable consequences of the action which
is sought to be enforced.”
Moreover, in order to enforce a Fundamental Right, judicial review of

administrative, legislative and governmental action or non-action is permissible.
But Art. 32 cannot be invoked simply to adjudge the validity of any legislation or
an administrative action unless it adversely affects petitioner’s Fundamental
Right.6
1.1.3. It is pertinent to bring to the notice of this Court that the Hon’ble Supreme Court
in the case of Chhetriya Pardushan Mukti Sangharsh Samiti vs. State of U.P 7,
has observed that, this weapon under Art. 32 as a safeguard must be utilised and
invoked by the Court with great deal of circumspection and caution. Where it
appears that this is only a cloak to "feed fact ancient grudge" and enmity, this
should not only be refused but strongly discouraged. While it is the duty of this
Court to enforce fundamental rights, it is also the duty of this Court to ensure that
this weapon under Art. 32 should not be misused or permitted to be misused
creating a bottleneck in the superior Court preventing other genuine violation of
fundamental rights being considered by the Court. That would be an act or a
conduct which will defeat the very purpose of preservation of fundamental rights.
1.1.4. It is humbly submitted before this Hon’ble Court that in State of Uttaranchal v.
Balwant Singh Chaufal8, the Supreme Court has reiterated the detail of the origin
5
AIR 1990 SC 851 : 1990 (2) SCC 352
6
Shantabai v. State of Maharashtra, AIR 1958 SC 532 : (1959) 1 SCR 265
7
1990 AIR 2060, 1990 SCR (3) 739
8
AIR 2010 SC 2551

and development of PIL and has laid down important guidelines for checking its
misuse. It was held that the Courts must encourage genuine and bona fide PIL and
effectively discourage and curb PIL filed for extraneous considerations. The
courts should also ensure that petitions filed by busybodies for extraneous and
ulterior motives must be discouraged by imposing exemplary costs or by adopting
similar novel methods to curb frivolous petitions and petitions filed for extraneous
consideration.
1.1.5. It is most humbly submitted that an instance of ulterior motive was observed in
the case of B. Singh v. Union of India9, where the petitioner on the basis of a
representation one Ramsarup, addressed to the President, published in a
newspaper, against a person likely to be appointed a Judge of the High Court filed
a Public Interest Litigation challenging his appointment. The petitioner nowhere
stated that he had any personal knowledge of the allegations made against the
respondent. He did not even make an effort to find out whether the allegations had
any basis. The Supreme Court held that this was a clear and blatant abuse of PIL
filed with oblique motive. The Court dismissed the suit and imposed an exemplary
cost of Rs. 10000/-. The Court held that the petitioner was seeking publicity and
was not interested in welfare of judicial system.
1.1.6. It is most humbly submitted that in the light of these situations, whether a person
who has filed a PIL has acted with mala fide or political motives or not, his
Lordship Bhagwati J, while expanding the scope of ‘Locus Standi’ rules in the
Judges Transfer Case10 has expressed a note of caution also. He observed:
“But we must be careful to see that the member of the public, who approaches the
Court in cases of this kind, is acting bona fide and not for personal gain or
private profit or political motivation or other oblique consideration. The Court
must not allow its process to be abused by politicians and others to delay
legitimate administrative action or to gain a political objective. Andre Rabie has
warned that "political pressure groups who could not achieve their aims through
the administrative process" and we might add, through the political process, "may
9
AIR 2004 SC 1923
10
S.P. Gupta and Ors. v. President of India and Ors., AIR 1982 SC 149.

try to use the courts to further their aims." These are some of the dangers in
public interest litigation which the court has to be careful to avoid. It is also
necessary for the court to bear in mind that there is a vital distinction between
locus standi and justiciability and it is not every default on the part of the State or
a public authority that is justiciable.”
1.1.7. It is further submitted that in the matter at hand, the writ petition filed by Diana
Young Lawyer Associations before the Hon’ble Supreme Court praying to issue
directive to allow women to of any age to enter temple 11 is baseless and with
oblique motive. The petitioners (here respondent) have contended in their petition
‘that discrimination in matters of entry into temples was anti-Hindu and had
nothing to do with rituals or ceremonies connected to religious texts and beliefs.’12
In this context, it is submitted before this court that neither the petitioners have the
proper knowledge about the customs which the devotees of Lord Inappa practice
nor they have tried to find the basis of essentiality of ‘Vrathm’ – where one has to
take penance for 43 day, irrespective of gender in order to pay obeisance to the
presiding deity i.e., Lord Inappa. Despite, it is a fact that the Inbari Temple is one
of the few temples in Diana that accepts people from every caste 13, the
respondents have contended that the temple practices anti-Hindu activities which
raises a question of doubt that has to be looked upon as for what reason petitioner
(respondent here) has filed this PIL.
1.1.8. It is most humbly submitted before this Court that while protecting the rights of
the people from being violated in any manner, utmost care has to be taken that the
Court does not transgress its jurisdiction, nor does it entertain petitions which are
motivated. After all, public interest litigation is not a pill or panacea for all
wrongs. It is essentially meant to protect basic human rights of the weak and
disadvantaged14. Public interest litigation is a weapon which has to be used with
great care and circumspection and the Judiciary has to be extremely careful to see
11
Moot Proposition, Para 4.
12
13
14
Supra Note 4.

that behind the beautiful veil of public interest an ugly private malice, vested
interest and/or public interest seeking is not lurking.15
1.1.9. It is highly pertinent to note that a large number of the PIL’s have been filed with
mala fide intention and political motive before the High Courts of Diana raising
questions over practices of another religious denomination or sects thereof. It
would be evident from the instances that took place in the chronological order;
Shani Shingnapur16 case was filed with a political motive in the year 2016
wherein the Bombay High Court allowed the entry of women into the sanctorum
of the temple which was prohibited vide a custom which was as old as 400 years,
thereafter subsequently the next question was raised over the practice of Haji Ali
Durgah17 wherein the Hon’ble High Court again allowed the entry of women in
the inner sanctum of the Dargah and here also the petition was politically
motivated in order to create unrest and promote the feeling of enmity in the
society; the present review petition is filed against such politically motivated
petitions which was mere continuation of the aforesaid trend to achieve political
gains and the same unnecessarily interferes into one’s fundamental right to
practice his\her religion, it is further submitted that around 65 petitions were filed
including 56 review petitions and four fresh petitions and five transfer pleas
questioning such politically motived petitions.18
1.1.10. Therefore, in the light of the submissions made above and going through the very
facts of the case, it is submitted that petition filed is not maintainable as the
Respondents neither have the sufficient interest nor do they have bona fide
intention to file P.I.L.
1.2. THAT THE INBARI TEMPLE FULFIL THE CHARACTERISTICS OF
DENOMINATIONAL CHARACTER
15
Ashok Kumar Pandey v. State of W.B. AIR 2004 SC 280
16
Smt. Vidya Bal & Anr. v. The State of Maharashtra & Ors. 2016 SCC Online Bom 5473.
17
Noorjehan Safia Niaz v. State of Maharastra 2016 SCC Online Bom 5394.
18
Found at https://www.indiatoday.in/india/story/supreme-court-sabarimala-verdict-1618582-2019-11-13

1.2.1. It is most humbly submitted before this Hon’ble Court that Art. 26 of the
Constitution gives special protection to religious denominations. Clause (b) of Art.
26 lays down that every religious denomination or section thereof has the right to
manage its own affairs in the matters of religion. 19 Thus, Art. 26 guarantees
collective freedom of religion.20
1.2.2. It is humbly submitted that the term ‘religious denomination’ in Art. 26 means a
religious sect having a common faith and organisation and designated by a
distinctive name.21 The word “religious denomination” must take their colour from
the word ‘religion’22. In order to form a religious denomination, three conditions
must be fulfilled,23 i.e., (i) it is a collection of individuals who have a system of
beliefs which they regarded as conducive to their spiritual well-being; (ii) They
have a common organization; (3) Collection of these individuals have a distinctive
name. Therefore, in case of a denomination, there must be a common faith of the
community based on religion, and the community members must have common
religious tenets peculiar to themselves.24 In this context, it would be pertinent to
observe the view of Hon’ble Supreme Court in the case of Nallor Marthandam
Vellalar v. Commissioner Hindu Religious and Charitable Endowments 25,
where it was held that:
“It necessarily follows that the common faith of the community should be based
on religion and in that they should have common religious tenets and the basic
cord which connects them should be religion and not merely considerations of
caste or community or societal status.”
1.2.3. It is pertinent to bring to the notice of this Court that the Hon’ble Supreme Court
in its December 2015 judgement in Adi Saiva Sivachariyargal Nala Sangam vs
government of Tamil Nadu26, has defined Hindu religion. It stated that the
19
S. Mahendran v. The Secretary, Travancore Dewasom Board & Ors. AIR 1993 KER 42.
20
Indian Young Lawyers Association v. State of Kerela (2019) 11 SCC 1.
21
Sri Adi Vishehwara of Kashi Vishwanath Temple v. State of U.P. (1997) 4 SCC 606.
22
Sastri Yagnapurshadji & Ors. v. Muldas Bhadar Das Vaishya & Anr. 1966 AIR 1119, 1966 SCR (3) 242.
23
The Durgah Committee Ajmer & Anr. v. Syed Hussain Ali & Ors. 1961 AIR 1402 1962 SCR (1) 383.
24
Ramaswami Mudaliar v. Commissioner, Hindu Religious Endownments AIR 1999 Mad 393
25
(2003) 10 SCC 712 : AIR 2005 SC 4225
26
(2016) 2 SCC 725

“Hinduism, as a religion, incorporates all forms of belief without mandating the

selection or elimination of any one single belief. It is a religion that has no single
founder, no single scripture and no single set of teachings. It has been described as
Sanatan Dharma, namely, eternal faith, as it is the collective wisdom and
inspiration of the centuries that Hinduism seeks to preach and propagate.” It is
further submitted that the Hindu Religion does not claim any one prophet; it does
not worship any one God; it does not subscribe to any one dogma; it does not
believe in any one philosophic concept; it does not follow any one set of religious
rites or performances; in fact, it does not appear to satisfy the narrow traditional
features of any religion or creed.27 It may broadly be described as a way of life and
nothing more.
1.2.4. It is most humbly submitted that the term denomination can be used in a larger or
narrower sense depending on the context, and therefore, all the followers of a
religion may quite appropriately be regarded as constituting a religious
denomination.28 It is further submitted here that while deciding the denominational
characteristics of the Inbari Temple, the focus should be made on the very facts
that how the temple was established and how are the practices are different from
other sect which the followers of Lord Inappa observe as the same was seen in the
case of Sri Venkataramana Devaru and Ors. vs. State of Mysore and Ors. 29
where Hon’ble Supreme Court in its judgement held:
When there is a question as to the nature and extent of a dedication of a temple,
that has to be determined on the terms of the deed of endowment if that is
available, and where it is not, on other materials legally admissible; and proof of
long and uninterrupted user would be cogent evidence of the terms thereof.
Where, therefore, the original deed of endowment is not available and it is found
that all persons are freely worshipping in the temple without let or hindrance, it
would be a proper inference to make that they do so as a matter of right, and that
the original foundation was for their benefit as well. But where it is proved by
27
Dr. Radhakrishnan, The Hindu View of Life", p. 12
28
Ramchandra v. State of Orissa, AIR 1959 Ori 5
29
1958 AIR 255, 1958 SCR 895

production of the deed of endowment or otherwise that the original dedication

was for the benefit of a particular community, the fact that members of other
communities were allowed freely to worship cannot lead to the inference that the
dedication was for their benefit as well.
1.2.5. It is most humbly submitted before this Hon’ble Court that the Lord Inappa is
born out of the Union of Lord Shiva and Mohini who is regarded as an avatar of
lord Vishnu30. Therefore, Lord Inappa is also called as ‘Hariharan Puthiran’ which
means the son of both Hari or Vishnu and Haran or Shiva. It is further submitted
that the King Rajasekara, ruler of Pandya Dynasty and the (Foster-father) of Lord
Inappa asked a boon to Manikandan (Other Name for Lord Inappa) that he wants
to construct a temple in his memory and beseeched him to suggest a suitable place
for the temple. Manikandan aimed an arrow which fell at a place called sabari,
where in Sri Rama's era a Sanyasini called sabari observed Dhavam. Lord
Manikandan told the King to build the temple in that place and then he
disappeared. Later, acting upon the advice of Saint Agasthya, King Rajasekara
laid the foundation stone of the temple at Sabrimala. However, Lord Manikandan,
had stated emphatically that he would grace only those devotees who offer
Darshan after observing forty-three days’ penance or vrutham that involves strict
abstinence from family desires and tastes; the devotees are expected to adhere to a
way of life akin to that of a brahmachari, constantly reflecting on the goodness of
life. Whilst they make their way up the steep slopes of Sabarimala, they adorn
themselves with three-eyed coconut and foodstuff/Aantha Garland in their heads,
as the Bhagwan did when he went to the forest to fetch tigress milk and bathed in
River Pampa raising slogans of Saranam and climb the eighteen stairs. King
Rajasekara, in due course of time completed the construction of the shrine and the
sacred eighteen stairs leading to the temple complex. As the King mulled over the
seemingly perplexing task of placing Dharmasastha's idol in the temple for
darshan, he was reminded of the words of the Lord himself - the River Pampa is a
holy river as River Ganga, Sabarimala is as holy as Kasi - Dharmasastha sent
30
Srimad Bhagavatam, Canto 8, SB 8.12

Parasuraman, who resurrected the land of Kerala from the bottom of the ocean, to
Sabarimala; it was he who carved the figure of Lord Ayyappa and installed it on
the day of Makarasankranthi.
1.2.6. It is also submitted before this Hon’ble Court that unlike other religious
denomination, sects, sub-sects or Maths, here devotees are called by the same
name as the deity, that is, both are called Swami Inappa (Lord Inappa). It is to
note that the holy eighteen steps are one of the specialities of the Inbari Temple. It
is who carries Irumudikketu is only allowed to step in that holy step. Every step is
representing some inner meanings, that is, those who steps will become free from
all sins like karma, krodha, labha, moha etc. At the top, there is eighteenth step,
which is called purifying step. After these all purifications (which starts from
Pamba), those who carried Irumudikketu will see a word “Tatwamasi”31 meaning
“it’s you”. Actually, this is the total meaning of Inbari Pilgrimage. The concept of
‘Adwaitham’32 is shown here. By saying the same name “Inappa” together, it
shows that we all including the lord Inappa are one and the same.
1.2.7. The temple is situated on a hilltop (about 3000 feet above sea level) named Inbari
in Pathanamthitta district, which is unique. The temple is open to people
belonging to all religions. There is a place near the temple; east of Sannidhanam
(the abode of Lord Inappa), dedicated to Vavar (a close friend of Lord Inappa who
was muslim) which is called Vavaru Nada, an epitome of religious harmony.
Another unique aspect of this temple is that it is not open throughout the year. It is
open for worship only during the days of Mandalapooja, Makaravilakku, Vishu
and also during the first day of every Malayalam month.
1.2.8. In the light of the above facts and scriptures submitted, it is contended here that
the Inbari Temple satisfies all the conditions of a test laid down by the Hon’ble
Supreme Court in the case of S.P. Mittal v. Union of India and Ors. 33 Inbari
temple, therefore, can be appropriately treated as a religious denomination, within
the Hindu religion as it constitutes a religious denomination having a distinct
31
Chandogya Upanishad (C. 600 BCE)
32
Narayan Gurus’ Atmopadesa Satakam
33
1983 AIR, 1, 1983 SCR (1) 729

faith, well- identified practises, being followed since time immemorial. Further,
the worshippers of this shrine observe the tenets of this faith, and are addressed as
“Swami Inappans.”
1.3. THAT NO FUNDAMENTAL RIGHTS HAS BEEN INFRINGED / VIOLATED
1.3.1. It is humbly submitted before this Hon’ble Court that the Indian Society is
fragmented into many religious, cultural, and linguistic groups, and it was
necessary to declare Fundamental Rights to give to the people a sense of security
and confidence. The need to have the Fundamental Rights was so very well
accepted on all hands that in the Constituent Assembly, the point was not even
considered whether or not to incorporate such Rights in the Constitution. In fact,
the fight all along was against the restrictions being imposed on them and the
effort all along was to have the Fundamental Rights on as broad and pervasive a
basis as possible.34
1.3.2. It is humbly submitted that in the matters of religion and religious practises,
Article 14 can be invoked only by persons who are similarly situated, that is,
persons belonging to the same faith, creed, or sect. The Petitioners (here
respondent) do not state that they are devotees of Lord Inappa, who are aggrieved
by the practises followed in the Inbari Temple. The right to equality under Article
14 in matters of religion and religious beliefs has to be viewed differently. It has
to be adjudged amongst the worshippers of a particular religion or shrine, who are
aggrieved by certain practises which are found to be oppressive or pernicious.
Hence, in the matter at hand, the difficulty lies in applying the tests under Article
14 to religious practises which are also protected as Fundamental Rights under our
Constitution. The right to equality claimed by the Petitioners under Article 14
conflicts with the rights of the worshippers of this shrine which is also a
Fundamental Right guaranteed by Articles 25, and 26 of the Constitution. It would
compel the Court to undertake judicial review under Article 14 to delineate the
rationality of the religious beliefs or practises, which would be outside the ken of
34
Gran Ville Austin, The Indian Constitution of a Nation, 50-113 (1966)

the Courts.35 It is not for the courts to determine which of these practises of a faith
are to be struck down, except if they are pernicious, oppressive, or a social evil,
like Sati.
1.3.3. It is submitted that the Article 15 of the Constitution prohibits differential
treatment of persons on the ground of ‘sex’ alone. Thefore, the limited restriction
on the entry of women during the notified age-group is due to the deep-rooted
belief of the worshippers that the deity in the Inbari Temple has manifested in the
form of a ‘Naishtik Brahmachari’. Further, it cannot be contended that the under
Art. 15 the Inbari Temple would be included in the phrase of “public resort”, as it
occurs in Article 15 (2) (b). In this regard reference should be made to the debates
of the Constituent Assembly on this issue, where the conscious deletion of
“temples” and “places of worship” from the Draft Article 9(1) has to be given due
consideration. Thus, the Inbari Temple would be included within the ambit of
‘places of public resort’ under Article 15(2) cannot be accepted and protection
cannot be guaranteed under it.
1.3.4. It is further submitted that unlike Article 25, which is subject to the other
provisions of Part III of the Constitution, Article 26 is subject only to public order,
morality, and health, and not to the other provisions of the Constitution. As a
result, the Fundamental Rights of the denomination is not subject to Articles 14 or
15 of the Constitution. The contention of the Petitioners that the restriction
imposed on the entry of women during the notified age group, tantamount to a
form of ‘Untouchability’ under Article 17 of the Constitution, is liable to be
rejected for the reasons stated hereinafter as all forms of exclusion would not
tantamount to untouchability. Article 17 pertains to untouchability based on caste
prejudice. Literally or historically, untouchability was never understood to apply
to women as a class. The right asserted by the Petitioners is different from the
right asserted by Dalits in the temple entry movement. The restriction on women
within a certain age-band, is based upon the historical origin and the beliefs and
practises of the Sabarimala Temple.
35
Supra Note 22.

1.4. CONCLUSION FOR THE SECOND ISSUE:

In the light of the submissions made it is contended that in matter of religion a
person belonging to that particular religion or denomination can only raise a
question. It is also established that it has been observed that various writ petitions
with mala fide motive have been filed before Hon’ble Supreme Court raising
questions over practices of religious denominations or sects thereof. Thereof, it is
submitted that the Hon’ble Court should not only reject this petition but at the
same should impose heavy cost.
2. WHAT IS THE SCOPE AND EXTENT OF JUDICIAL REVIEW WITH

REGARD TO RELIGIOUS PRATICE VIS-A-VIS FREEDOM TO PRATICE
ONE’S RELIGION AS ENVISAGED BY ARTICLE 25 OF THE
CONTITUTION OF INDIA?
It is humbly submitted before this Hon’ble Court that ‘Judicial Review’ is the power
of courts to pronounce upon the constitutionality of legislative acts which falls within
their normal jurisdiction to enforce and the power to refuse to enforce such as they
find to be unconstitutional and hence void.36 In the Fundamental Rights Case37,
Justice Khanna has said that the “Judicial Review’ has become an integral part of our
Constitutional System and a power has been vested in the High Courts and Supreme
Court to decide about the constitutional validity of the provisions of the statutes.
However, the Courts can strike down legislation either on the basis that it falls foul of
federal distribution of powers or that it contravenes fundamental rights or other
constitutional rights/provisions of the Constitution of India. 38 Where there is challenge
to the constitutional validity of a law enacted by the legislature, the Court must keep
in view that there is always a presumption of constitutionality of an enactment and a
clear transgression of constitutional principles must be shown.39
36
E.S. Crown – Essay on the Judicial Review in Encyclopaedia of Social Sciences, Vol. VIII, p. 457.
37
Kesvananda Bharati v. State of Kerala, AIR 1973 SC 1461.
38
Binoy Vishwam v. Union of India & Ors. (2017) 7 SCC 59 .
39
Madras Bar Association v. Union of India & Anr. 2021 SCC ONLINE SC 463.

2.1. THAT THE CUSTOMS WILL PREVAIL OVER THE EXISTING LAW
2.1.1. It is humbly submitted before this Hon’ble Court that the Customs have been the
most potent force in moulding the ancient Hindu Law. The variances in the laws
given in Smritis is said to be due to their incorporating local customs of the places
where they were written. Most of the law given in the Smritis and the
Commentaries had its origin in customs. The Smritis have strongly recommended
that the customs should be followed and recognised as it is.
Yajnavakya’s view is :-
यस्मिन देशे य : आचारोव्यवहार : कु लस्थिति :
तथैव परिपाल्यौडसौ यदा वंशमुपागत : || २/३४३ ||
It means that when a country is conquered, its usage and customs and family
traditions should be followed as they were followed before. Therefore, it is
submitted that the questions should not be raised on traditions and customs
followed at the Inbari temple as it has been observed for more than 600 years.40
2.1.2. It is most humbly submitted that the various Commentaries which were, later on,
written on the Smritis interpreted them in the light of the local customs. Naturally
they became very popular in the respective localities, and thus, the schools of
Hindu law emerged. In this way, customs worked as a reorienting force in Hindu
law. Under the British regime also, the importance and validity of the native
customs remained unimpaired and when law was enacted on any matter generally,
they were saved expressly.
2.1.3. It is humbly submitted before this Court that in the case of Doddi Appa Rao
(Dead) Per Lrs. v. General Manager, Telecom, Rajahmundry, East Godavari
Dist.41, it was contended that the first petitioner (Doddi Appa Rao) contracted the
marriage for the second time without obtaining legal divorce from his first wife
and has violated Rule 21(2) of CCS (Conduct) Rules, 1964. This was rejected by
the court, and it was held that the “in spite of making provisions and grounds for
dissolution of marriage in Section 13 of the Hindu Marriage Act, still the Hindu
40
Moot Proposition, Para 2
41
2000 (1) ALD 607, 1999 (6) ALT 721, I (2000) DMC 563, Para 11

Marriage Act recognises the divorce by custom. The said provision is contained
in Section 29(2) of the said Act. The provision is based on the very principle of
Hindu Law "HINDI MATTER" it means that the custom prevails over the
statutory law provided the custom is ancient continues and not against the public
policy etc.”
2.1.4. It is humbly submitted that the custom commands legitimacy not by an authority
of law formed by the State but rather from the public acceptance and
acknowledgment.42 The Hon’ble Supreme Court in Thakur Gokal Chand v.
Pravin Kumari43, has explained the ingredients of a valid custom in the following
manner-
A custom, in order to be binding, must derive its force from the fact that by long
usage it has obtained the force of law, but the English rule that "a custom, in
order that it may be legal and binding, must have been used so long that the
memory of man runneth not to the contrary" should not be strictly applied to
Indian condition. All that is necessary to prove is that the usage has been acted
upon in practice for such a long period and with such invariability as to show that
it has, by common consent, been submitted to as the established governing rule of
a particular locality”.
2.1.5. It is further submitted that the Black’s Law Dictionary defines Customary Laws as
“customs that are accepted as legal requirements or obligatory rules of
conduct, practices and beliefs that are so vital and intrinsic a part of a social
and economic system that they are treated as if they are laws”. 44 It was on the
basis of some texts that the Privy Council was led to overstate the importance of
the customs in Hindu law. Privy Council in The Collector of Madura v.
Moottoo Ramalinga Sathupathi,45 has observed that “under the Hindu System of
law, clear proof of usage will outweigh the written text of law”.
42
Ratanlal Babulal Chunilal vs. Sunderbai Govardhandas Samuka, AIR 2017 SC 5797
43
AIR 1952 SC 231
44
Bryan A. Garner, Black’s Law Dictionary (10th Ed.) P. 468.
45
12 MIA 397 (1868).

2.1.6. It is most humbly submitted before this Hon’ble Court that according to Puchta46,
the worthy disciple of Savigny, “Custom is not only self-sufficient, and
independent of legislative authority, but is a condition precedent of all sound
legislation.” It is not the spirit of customary law, nor any theory of custom or
deductions from other customs which is to be a rule of decision,47 but only ‘any
custom applicable to the parties concerned’ must be pleaded and proved. 48 It is
further submitted that in the matter at hand, the petitioners (here respondent) has
contended in their petition that ‘discrimination in matters of entry into temples
was anti-Hindu and had nothing to do with rituals or ceremonies connected to
religious texts and beliefs’49, however, this point is contrary as the practice
observed is based on sound religious requirements and that it is not based out of
any misogynist mindset of the management. As, this custom is practised from time
memorial which is clearly evident from the shloka of Yajnavalkya Smriti50 as it
says:
अनेन विधिना देहं सादयन्विजितेन्द्रियः |
ब्रह्मलोकमवाप्नोति न चेहाजायते पुनः ||
In this way a (naishtika brahmachari should) body should be subject to
stress and extreme sense control should be practised. Such a person shall attain
brahmaloka and will not be born again. So, two main requirements of a naishtika
brahmachari are 1) Physical hardship for one’s body and 2) Extreme indriya
nigraha or sense control.
As we have seen above, yajnavalkya smriti says “vijitendriyah” as the requirement
from a sense control point of view. In this ‘mitakshara’ commentary on the
above shloka, Sri Vijnaneshwara explains it as below:
विजितेन्द्रियः इन्द्रियविजये विशेषप्रयत्नवान्ब्रह्मचारी
In order to become a vijitendriya, a (naishtika) brahmachari should undertake
extreme efforts to maintain sense control. The sensory organs that need to be
46
Dr. B. N. Mani Tripathi, Jurisprudence – The Legal Theory, 19th ed. Pg. No. 200, Para 2.
47
H.H. Mir Abdul Hussain Khan v. Mussammat Bibi Sona Dero (1918) 20 BOMLR 528.
48
Ram Swaroop and Ors. v. Mahindra and Ors. (2003) 12 SCC 436.
49
50
Yajnavakya Smriti, Para 1-50.

controlled are eyes, ears, mouth (and tongue), nose, skin, hands, legs, reproductive
organ and excretory organ and mind. Now it is well known that sense control
involves control of actual performance of activities by the sense organs as also
avoiding any thoughts that could corrupt the mind.
Since, a naishtika brahmachari has been explicitly ordered to undertake extreme

measures, in order to avoid the deviation of his mind towards procreation as also
to keep the reproductive organs under control, he is required to completely stay
away from women who are in the age conducive to procreation. The usage and
practise is primary to preserve the sacred form and character of the deity.
2.2. THAT ARTICLE 14 PERMITS REASONABLE CLASSIFICATION
2.2.1. It is most humbly submitted that the Art 14 prescribes equality before law. But the
fact remains that all persons are not equal by nature, attainment, or circumstances,
and therefore, a mechanical equality before the law may result in injustice. Thus,
the guarantee against the denial of equal protection of the law does not mean that
the identically the same rules of law should be made applicable to all persons in
spite of difference in circumstances or conditions. 51 The varying needs of different
classes or sections of people require differential and separate treatment.52
2.2.2. It is submitted that from the very nature of the society, there should be different
laws in different places and the Legislature controls the policy and enacts the laws
in the best interest of the safety and security of the State. In fact, identical
treatment in unequal circumstances would amount to inequality.53 So, a reasonable
classification is not only permitted but is necessary if society is to progress. 54 In
this context, it would be pertinent here to take into the account the case of Union
of India v. M. V. Vallipan55, where the Hon’ble Supreme Court has observed:
51
Chiranjeet Lal v. Union of India, AIR 1951 SC 41 : 1950 SCR 869.
52
State of Bombay v. F. N. Balsara, AIR 1951 SC 318.
53
Abdul Rehman v. Pinto, AIR 1954 Hyd 28.
54
Jagjit Singh v. State, AIR 1954 Hyd 28.
55
(1999) 6 SCC 259, 269 : AIR 1999 SC 2526.

“It is settled law that differentiation is not always discriminatory. If there is a

rational nexus or the basis of which differentiation has been made with the object
sought to be achieved by particular provisions, then such differentiation is not
discriminatory and does not violate the principles of Art. 14 of the Constitution.”
2.2.3. It is further submitted that what Article 14 forbids is class-legislation, but it does
not forbid reasonable classification.56 The classification, however, must not be
“arbitrary, artificial or evasive”. It must always rest upon some real and
substantial distinction bearing a just and reasonable relation to the object sought to
be achieved by the legislation.57 Therefore, Classification to be reasonable must
fulfil the following two conditions, (i) the classification must be founded on an
intelligible differentia which distinguishes persons or things that are grouped
together from others left out of the group; and (ii) the differentia must have a
rational relation to the object sough to be achieved by the Act. 58 However, it is
important to note that the differentia which is the basis of the classification and the
object of the Act are two distinct things. What is necessary is that there must be
nexus between the basis of classification and the object of the Act which makes
the classification. It is only when there is no reasonable basis for a classification
that legislation making such classification may be declared discriminatory.
2.2.4. It is most humbly submitted that the classification can be made on different basis,
e.g., geographical or according to the objects or occupations or the like. Thus, the
classification made by a legislature need not be scientifically perfect or logically
complete.59 Mathematical nicety and perfect equality are not required.60 Equality
before the law does not require mathematical equality of all persons in all
circumstances. Equal treatment does not mean identical treatment. Similarity, not
identity, of treatment is enough.61
56
Dr. Subramanian Sway v. State of Uttrakhand PIL No. 26 of 2020.
57
R. K. Garg v. Union of India, AIR 1981 SC 2138.
58
K. Thimmappa v. Chairman, Central Board of Directors, SBI, AIR 2001 SC 467
59
Kedar Nath v. State of West Bengal, AIR 1953 SC 404 : 1954 SCR 30
60
Kameshwar Singh v. State of Bihar, AIR 1951 Pat 91.
61
Supra Note 55.

2.2.5. It is further submitted that in the matter at hand the Diana Young Lawyers
Association have filed the petition before the Hon’ble Supreme Court because
they felt strongly that this exclusionary practice is discriminatory against the
women.62 They have also contended in their petition that the “religious
denomination could only restrict entry into the sanctum sanctorum and could not
ban entry into the temple, discriminating on the basis of biological sex.” 63 In the
light of these, it is submitted here that the exclusion of women in this Temple is
not absolute or universal. It is limited to a particular age group in one particular
temple, with the view to preserve the character of the deity. Women outside the
age group of 10 to 50 years are entitled to offer their prayers in the service of Lord
Inappa64 as it is clearly evident from the facts that the women above the age of 50
and girls below the age of 10 can enter temple, though, only after observing
penance for the period of 43 days. Moreover, no special treatment is provided to
the men, as it is compulsory for all to observe the ‘Vrutham’ irrespective of their
gender, in order to pay obeisance to the presiding deity Inappa.
2.2.6. It is pertinent to bring to the notice of this court the propositions laid down in
Dalmia’s65 case by Justice Das, which holds a good governing of valid
classification and would be beneficial here as to understand the basis of
differentiation in the present situation. Some of them are as follows:
a. A law may be constitutional even though it relates to a single individual if on
account of some special circumstances or reasons applicable to him and not
applicable to others, that single individual may be treated as a class by itself.
b. It must be presumed that the Legislature understands and correctly appreciates
the need of its own people, that its laws are directed to problems made
manifest by experience and that its discriminations are based on adequate
grounds.
c. In order to sustain the presumption of constitutionality the court make take
into consideration matters of common knowledge, matters of report, the
62
63
64
65
Ramkrishna Dalmia v. Justice Tendolkar, AIR 1958 SC 538.

history of the times and may assume every state of facts which can be
conceived existing at the time of the legislation…………..
The religious denomination lays down restriction on the pilgrim in terms of

observing the ‘Vrutham’ for the period of 43 days which is essential, as
pilgrimage to Inbari temple can only be undertaken after observing the penance.
But as the rituals are so tough and physically hard that women between the age of
10-50 won’t be able to follow these rules and rituals of penance on those days
when they are prohibited to worship as per custom and usage to any god and this
would lead to the breaking of vrutham, making them unfit for the pilgrimage. In
view of the above it is important to understand the restrictions imposed on women
between 10-50 age is not only on the basis of physiological reasons i.e.
menstruation, but the rationale behind this is that the women because of these
physiological reasons would not be able to observe the Vrutham. It is pertinent to
note that a devotee aspiring for a darshan of Lord Ayyappan has to be pure both
mentally and physically and for this, he is expected to observe a mandatory fast
(vrutham) of 43 days that usually begins on the first day of the Malayalam month
of Vrischikam in mid-November. A pilgrim who is on his maiden trip to
Sabarimala is called a Kanni Ayyapppan. The 43-days fast highlights the
significance of austerity and abstinence in the lives of those seeking a complete
merger with the Ultimate. A devotee has to abide by several regulations and
dictates if he is to mount the pathinettu padikal and enter the temple on
Sabarimala. A devotee of Lord Inappa has to compulsorily observe the rituals
such as Malayidal, Mandala Vrutham, Kettunirakkal etc.
2.2.7. In the light of the above submissions made it is submitted that if women as a class
were prohibited from participation, it would amount to social discrimination.
However, this is not so in the present case. Girls below 10 years, and women after
50 years can freely enter this Temple, and offer worship Further, there is no
similar restriction on the entry of women at the other Temples of Lord Ayyappa.
The classification of women between the ages of 10 to 50 years, and men of the
same age group, has a reasonable nexus with the object sought to be achieved,

which is to preserve the identity and manifestation of the Lord as a ‘Naishtik

Brahmachari’. Thus, the objective behind the Inbari pilgrimage is to stand at the
same footing of Lord Inappa before taking his blessings. It is believed that Lord
Inappa himself undertook the 43-day ‘Vratham’ before he went to Inbari Temple
to merge with the deity. The whole process of the pilgrimage undertaken by a
pilgrim is to replicate the journey of Lord Inappa. The mode and manner of
worship at this Temple as revealed by the Lord himself is chronicled in the ‘Sthal
Purana’ i.e. the ‘Bhuthanatha Geetha’.66
2.3. THAT THE RULE 3(B) OF THE 1965 RULES67 IS NOT UNCONSTITUTIONAL
2.3.1. It is most humbly submitted before this Hon’ble Court that a practise started in
hoary antiquity, and continued since time immemorial without interruption,
becomes a usage and custom.68 As per Article 13(3)(a) of the Constitution, “law”
includes custom or usage, and would have the force of law. 69 The characteristics
and elements of a valid custom are that it must be of immemorial existence, it
must be reasonable, certain and continuous.70 Thus, the customs and usages,
religious beliefs and practises as mentioned above are peculiar to the Inbari
Temple and have been admittedly followed since centuries.71
2.3.2. It is humbly submitted that the preamble of the 1965 Act72 read as “An Act to
make better provisions for the entry of all classes and sections of Hindus into
places of public worship.” Thus, it is clear here that the object of the Act was only
to make the rules and regulations for the entry of all classes and sections of the
Hindus in temples of Irelam and there has been no statutory discrimination based
on gender. Further, Section 3 of the 1965 Act provides that 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
66
Supra Note 20.
67
Irelam Hindu Places of Public Worship (Authorization of Entry) Rules, 1965.
68
Ewanlangki-E-Rymbi v. Jaintia Hills District Council & Ors. (2006) 4 SCC 748.
69
Supra Note 20.
70
Salekh Chand (Dead) by LRs v. Satya Gupta & Ors. (2008) 13 SCC 119.
71
72
Irelam Hindu Places of Public Worship (Authorization of Entry) Act, 1965.

or class shall, in any manner be prevented, obstructed or discouraged from

entering such place of public worship or from worshipping or from offering
prayers there 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.
However, the proviso to Section 3 of the 1965 Act carves out an exception in the
case of public worship in a temple founded for the benefit of any religious
denomination or section thereof. The provisions of the main section would be
subject to the right of a religious denomination or section to manage its own
affairs in the matters of religion.73
2.3.3. It is humbly submitted that the section 2 (c) of the 1965 Act, defines “section or
class” to include any division, sub-division, caste, sub caste, sect, or denomination
whatsoever. Section 4(1) empowers the making of regulations for the maintenance
of orders and decorum in the place of public worship and the due observance of
the religious rites and ceremonies performed therein. The proviso carves out an
exception to the Section 3 itself. The declaration that places of public worship
shall be open to Hindus of all sections and classes is not absolute, but subject to
the right of a religious denomination to “manage its own affairs in matters of
religion”. Section 3 must be viewed in the Constitutional context where the
legislature has framed an enabling legislation under Article 25(2)(b) which has
been made expressly subject to religious practises peculiar to a denomination
under Article 26(b).
2.3.4. It is submitted that the Rule 3(b) of the 1965 rules 74 read as “Women at such time
during which they are not by custom and usage allowed to enter a place of public
worship”. Thus, it is a statutory recognition of a pre-existing custom and usage
being followed by this Temple. Rule 3(b)75 is within the ambit of the proviso to
Section 3 of the 1965 Act, as it recognises pre-existing customs and usages
including past traditions which have been practised since time immemorial qua
73
Supra Note 20.
74
Supra Note 69.
75
Supra Note 69.

the Temple. Moreover, the Notifications dated November 27, 1956, issued by the
Iravancore Devaswom Board restricts the entry of women between the ages of 10
to 55 years as a custom and practise integral to the sanctity of the Temple, and
having the force of law under Article 13(3)(a) of the Constitution . Therefore, this
the reason why, the Hon’ble High Court of Irelam noted that this practise of
restricting the entry of women is admitted to have been prevalent since the past
several centuries. In the light of the above submissions, it is contended that the
these practises are protected by the proviso to Section 3 of the 1965 Act which is
given effect to by Rule 3(b) of the 1965 Rules 76. Thus, Rule 3(b) of the 1965
Rules is not violative of Article 25(1) and Article 15(1) and therefore there are not
unconstitutional.
From the submissions tendered above, it can be concluded that the role of Courts
in matters concerning religion and religious practises under our secular
Constitutional set up is to afford protection under Article 25(1) to those practises
which are regarded as “essential” or “integral” by the devotees, or the religious
community itself. The Constitution lays emphasis on social justice and equality. It
has specifically provided for social welfare and reform and throwing open of
Hindu religious institutions of a public character to all classes and sections of
Hindus through the process of legislation in Article 25(2)(b) of the Constitution.
3. WHETHER THE PRACTICE OF EXCLUDING SUCH WOMEN CONSTITUTES AN
‘ESSENTIAL RELIGIOUS PRACTICE’ UNDER ARTICLE 25 AND WHETHER

‘ESSENTIAL RELIGIOUS PRACTICES’ OF A DENOMINATION OR EVEN A SECTION
THEREOF ARE AFFORDED CONSTITUTIONAL PROTECTION UNDER ARTICLE 26?

It is humbly submitted before this Hon’ble Court that the guarantee under the
Constitution, not only protects the freedom of religious opinion, but it also protects
acts done in pursuance of religion. 77 Religious practices are reflective of matters
concerning religion and if religion is to be venerated, then the practices annexed
76
77
Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar AIR 1954
SC 282, 290 : 1954 SCR 1002.

thereto are equally respectable and they demand compliance, even under the
Constitution.78 If in the Hindu religion, a place of worship is prescribed, then the
entire temple precincts from any part of which a devotee can usefully worship has
always held to be sacrosanct; no non-Hindu can for pleasure and social evaluation
seek entry into such temple.79
3.1. THAT THE EXCLUSION OF SUCH WOMEN CONSTITUTE AN ‘ESSENTIAL

RELIGIOUS PRACTICE’ UNDER ART. 25 OF THE CONSTITUTION
3.1.1. It is humbly submitted before this Hon’ble Court that Art. 25(1) guarantees to
every person, and not only to the citizens of India, the “freedom of conscience”
and “the right freely to profess, practise and propagate religion.” 80 Moreover, the
freedom of conscience and freedom of religion necessarily includes the freedom
to practice rituals and ceremonies.81 The right to perform religious worship at
public places on certain occasions have been acquired by custom and usage. Thus,
having been so acquired, such right enjoys the protection of Art. 25 of the
Constitution.82
3.1.2. It is humbly submitted before this Hon’ble Court that according to the Agamas, an
image becomes defiled if there is any departure or violation of any of the rules
relating to worship, and purificatory ceremonies (known as Samprokashana) have
to be performed for restoring the sanctity of the shrine. 83 It is pertinent here to take
into account the case of Sankaralinga Nadan v. Raja Rajeswara Dorai84, where
Privy Council affirming the judgement of the Madras High Court held that a
trustee who agreed to admit into the temple persons who were not entitled to
worship therein, according to the Agamas and the custom of the temple was guilty
of breach of trust. Thus, under ceremonial law pertaining to temples, who are
78
Kalyan Dass v. State of TamilNadu & Ors. AIR 1973 Madras 264 : (1972) 2 MadLJ 581.
79
Ibid.
80
Kerala Education Bill v. Unknown 1959 1 SCR 995.
81
Rama Boopathy v. Director General of Police AIR Online Mad 689.
82
Ibid.
83
Gopala Mooppanar v. Subramania Aiyar 27 Mad LJ 253 : (AIR 1914 Mad 363)
84
35 Ind App 176 (PC) (E)

entitled to enter into them for worship and where they are entitled to stand and
worship and how the worship it to be conducted are all matters of religion. The
conclusion is also implicit in Art. 25 which after declaring that all persons are
entitled freely to profess, practise and propagate religion, enacts that this should
not affect the operation of any law throwing open Hindu religious institutions of a
public character to all classes and sections of Hindus 85. Exclusion of persons from
temple is a matter of religion with reference to tenets of the institution.86
3.1.3. It is submitted that the exclusion of devotees on the basis of religious customs is
not limited to Inbari temple alone but is evident to various religious temples87
where restrictions on the entry of both men and women exist on the basis of
religious beliefs and practises being followed since time immemorial. It is
pertinent to take into account here that not only women but sometimes even men
are barred from entering temple and worshipping the deity, this instance could be
inferred from the Kamkhya Temple, a Shakti Peetham nestled high up on the
Nilachal Hills in west Guwahati of Assam, where the main door of the temple is
shut down for five days during the period when the Goddess is supposed to be
menstruating. It is only female priests or sanyasis that are allowed to serve the
temple during those days and the auspicious considered bleeding cloth of the
Goddess Kamkhya is distributed among the devotees.
3.1.4. It is humbly submitted before this Hon’ble Court that the ‘essential practice test’
was reiterated in Ratilal Panachand Gandhi v. The State of Bombay & Ors. 88,
where the narrow definition of “religion” given by the Bombay High Court was
discarded. It was held that all religious practises or performances of acts in
pursuance of religious beliefs were as much a part of religion, as faith or belief in
particular doctrines. This Court re-iterated the ‘essential practises test’ in the
following words:
“No outside authority has any right to say that these are not essential parts of
religion, and it is not open to the secular authority of the State to restrict or
85
Supra Note 29.
86
Ibid.
87
Found at - https://www.innfinity.in/limitless/temples-where-men-are-not-allowed/
88
(1954) SCR 1055 : AIR 1954 SC 388.

prohibit them in any manner they like under the guise of administering the trust
estate….”
In the light of these it is submitted that the in the case of ‘essential religious
practice’, in its application would have to be determined by the tenets of the
religion itself. The practises and beliefs which are considered to be integral by the
religious community are to be regarded as “essential”, and afforded protection
under Article 25.89
3.1.5. It is humbly submitted before this Hon’ble Court that the essential characteristic
of Hinduism is faith. Purity of character is ensured by rules which regulate the
practice of the worshippers as well as that of the priests.90 It is further submitted
that in the matter at hand reference is required to be made to the doctrines and
tenets of a religion, its historical background, and the scriptural texts to ascertain
the ‘essentiality’ of religious practises. The object of the whole pilgrimage of
Inbari Temple is to obtain the purification of the mind by adhering a way of life
akin to that of a Bhramachari. The austerities are performed with the objective of
controlling bodily desires and elevating the mind into a higher realm of existence.
For Hindus, the ultimate goal of life is the attainment of oneness with the Supreme
Power. By leading the life of an ascetic, a Inbari pilgrim learns to conquer at least
some of his desires and reaches a higher frame of mind.
3.1.6. It is submitted that the limited restriction on access of women during the notified
age of 10 to 50 years, is a religious practise which is central and integral to the
tenets of this shrine, since the deity Lord Inappa has manifested himself in the
form of a ‘Naishtik Brahmachari’. Moreover, Brahmacharya is particularly
important in spiritual pursuits and its importance has been emphasized in many of
our literatures including Raja Yoga, Jnana yoga, Advaita. It is also clear evident
from the slokas of Bhagavad Gita,91 that is:
प्रशान्तात्मा विगतभिर्ब्रह्माचरिव्रते स्तिथ: |

मन: संयम्य मच्चितो युक्त आसीत मत्पर: || १४ ||
89
Supra Note 20.
90
Sadasyathilakan Sri T. K. Velu Pillai, Travancore State Manual, Vol. I at p. 553.
91
A.C. Bhaktivedanta Swami Prabhpada, Bhagavad Gita As It Is, 2nd Ed., Sloka 14, Pg. No. 280.

It states that to realize the visnu-murti within the heart, one has to observe
complete abstinence from sex-life; therefore has to leave home and live alone in a
secluded place remaining seated as mentioned above. In the rules of celibacy
written by the great sage Yajnvalkya92 it is said:
Karmana manasa vaca sarvavasthasu sarvada
Sarvatra maithuna-tyago brahmacaryam pracaksate
“The vow of bramhcharya is meant to help one completely abstain from sex
indulgence in work, words and mind – at all times, under all circumatances, and in
all places.”
3.1.7. In the light of the above submission and scriptures it is contended that in the
present case of the Inbari Temple, the manifestation is in the form of a ‘Naishtik
Brahmachari’. The belief in a deity, and the form in which he has manifested
himself is a fundamental right protected by Article 25(1) of the Constitution. The
phrase “equally entitled to”, as it occurs in Article 25(1), must mean that each
devotee is equally entitled to profess, practise and propagate his religion, as per
the tenets of that religion. The religious practise of restricting the entry of women
between the ages of 10 to 50 years, is in pursuance of an ‘essential religious
practise’.
3.2. THAT WHETHER THE ‘ESSENTIAL RELIGIOUS PRACTICES’ OF A
DENOMINATION OR EVEN A SECTION THEREOF ARE AFFORDED

CONSTITUTIONAL PROTECTION UNDER ARTICLE 26 OR NOT
3.2.1. It is most humbly submitted before this Hon’ble Court that the religious
conceptions in this country are so vast that they cover every aspect of life, from
birth to death.93 It is often quoted that Hinduism is a way of life and not just a
religion. Therefore, the constitution in Part III under Articles 25 & 26, distinctly
grants the fundamental freedom to religion. This right is established in two
respects: first, the right of an individual to practice, profess and propagate
religion, second, the right of the denomination or sections. Article 25 is an
92
A.C. Bhaktivedanta Swami Prabhpada, Bhagavad Gita As It Is, 2nd Ed., Pg. No. 281.
93
Dr. B. R. Ambedkar, Constituent Assembly of India Debates (Proceedings) – Vol. VII.

individual right as opposed to the 26 which is a collective right granted to a

religious denomination. It forms an intricate intersection of individual and group
right in the constitution.94 Thus, the language of Articles 25 and 26 is sufficiently
clear to enable the Court to determine as to what matter comes within the purview
of religion and what do not. Freedom of religion in the Constitution is not
confirmed to religious beliefs only. It extends to religious practices as well as
subject to the restrictions which the Constitution itself has laid down.95
3.2.2. It is humbly submitted before this Hon’ble Court that the Public Institutions would
mean not merely temples dedicated to the public as a whole but also those
founded for the benefit of sections thereof, and denominational temples would be
compromised therein. The language of the Article being plain and unambiguous, it
is not open to the Courts to read into its limitations which are not there, based on
prior reasoning as to the probable intention of the Legislature. 96 Thus, under Art.
26 (b) a religious denomination or organization enjoys complete autonomy in the
matter of deciding as to what rites and ceremonies are essential according to the
tenets of the religion, and no outside authority has any jurisdiction to interfere
with their decision in such matters.97
3.2.3. It is pertinent to bring to the notice of this Court, the famous Mulki Temple case.
In this judgment, namely, Sri Venkataramana Devaru98, an ancient temple
dedicated to Sri Venkataramana, renowned for its sanctity, was before the Court in
a challenge to the Madras Temple Entry Authorisation Act (V of 1947). It was
noticed that the trustees of this temple were all members of a sect known as the
Gowda Saraswath Brahmins. Even though the temple had originally been founded
for the benefit of certain immigrant families of the Gowda Saraswath Brahmins, in
the course of time, however, worshippers consisted of all classes of Hindus.
Finding that the said temple is a public temple, it was further held that during
94
Abhishek Singhvi, “India‟s Constitution and Individual Rights: Diverse Perspectives” 41 George Washington
International Law Review 327 (2009), Pg. No. 333.
95
Supra Note 72.
96
Supra Note 29.
97
Supra Note 71.
98
Supra Note 31.

certain religious ceremonies, persons other than Gowda Saraswath Brahmins had
been wholly excluded, as a result of which, the temple was held to be a religious
denomination within the meaning of Article 26.
3.2.4. It is further submitted that the meaning ascribed to religious denomination by this
Court in Commissioner, Hindu Religious Endowments99 case, and subsequent
cases is not a strait-jacket formula, but a working formula. It provides guidance to
ascertain whether a group would fall within a religious denomination or not.
However, If there are clear attributes that there exists a sect, which is identifiable
as being distinct by its beliefs and practises, and having a collection of followers
who follow the same faith, it would be identified as a ‘religious denomination. 100
In this context, reference may be made to the concurring judgment of Chinnappa
Reddy, J. in the decision of this Court in S.P. Mittal v. Union of India & Ors. 101,
wherein he noted that the judicial definition of a religious denomination laid down
by this Court is, unlike a statutory definition, a mere explanation. After observing
that any freedom or right involving the conscience must be given a wide
interpretation, and the expressions ‘religion’ and ‘religious denomination’ must be
interpreted in a “liberal, expansive way.
3.2.5. In the light of the above submissions made it is contended here that the devotees
of Lord Inappa at Inbari Temple constitutes religious denomination, or sect
thereof, as the case maybe, following the ‘Inappan Dharma’. They are designated
by a distinctive name wherein all male devotees are called ‘Swami Inappans’; all
female devotees below the age of 10 years and above the age of 50 years, are
called ‘Malikapurnams’. A pilgrim on their maiden trip to Sabarimala Temple is
called a ‘Kanni Inappans’. The devotees are referred to as ‘Inappanswamis’. A
devotee has to observe the ‘Vratham’, and follow the code of conduct, before
embarking upon the ‘Pathinettu Padikal’ to enter the Temple at Inbari. The
devotees follow an identifiable set of beliefs, customs and usages, and code of
conduct which are being practised since time immemorial and are founded in a
99
Supra Note 79.
100
Supra Note 21.
101
Supra Note 35.

common faith. The religious practises being followed in this Temple are founded
on the belief that the Lord has manifested himself in the form of a ‘Naishtika
Brahmachari’. It is because of this nishtha, that women between the ages of 10 to
50 years, are not permitted to enter the temple. The practises followed by this
religious denomination, or sect thereof, as the case maybe, constitute a code of
conduct, which is a part of the essential spiritual discipline related to this
pilgrimage. As per the customs and usages practised in the Inbari Temple, the 43-
day ‘Vratham’ is a condition precedent for undertaking the pilgrimage to the
Inbari Temple. Thus, they constitute protection under Art. 26 of the Constitution
of Diana.
In the light of the aforementioned contentions, it can be concluded that the
exclusionary practice of women by the Inbari Temple can be construed as an
essential religious practice as it is a distinct faith, well- identified practises, being
followed since time immemorial. Also, it is clearly established that the Inbari
temple clear the essential religious practice test and does fulfil the conditions to
form a religious denomination, thus, it observes constitutional protection under
Art. 25 and 26 of the Constitution of the Diana.


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V BENNETT NATIONAL MOOT COURT COMPETITION 2023

It is humbly submitted before this Hon’ble Court that ………….

PUBLIC INTEREST LITIGATION

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

Moreover, in order to enforce a Fundamental Right, judicial review of

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

1.2. THAT THE INBARI TEMPLE FULFIL THE CHARACTERISTICS OF

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

“Hinduism, as a religion, incorporates all forms of belief without mandating the

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

production of the deed of endowment or otherwise that the original dedication

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

1.3. THAT NO FUNDAMENTAL RIGHTS HAS BEEN INFRINGED / VIOLATED

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

1.4. CONCLUSION FOR THE SECOND ISSUE:

2. WHAT IS THE SCOPE AND EXTENT OF JUDICIAL REVIEW WITH

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

Since, a naishtika brahmachari has been explicitly ordered to undertake extreme

2.2. THAT ARTICLE 14 PERMITS REASONABLE CLASSIFICATION

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

“It is settled law that differentiation is not always discriminatory. If there is a

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

The religious denomination lays down restriction on the pilgrim in terms of

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

which is to preserve the identity and manifestation of the Lord as a ‘Naishtik

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

or class shall, in any manner be prevented, obstructed or discouraged from

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

‘ESSENTIAL RELIGIOUS PRACTICE’ UNDER ARTICLE 25 AND WHETHER

THEREOF ARE AFFORDED CONSTITUTIONAL PROTECTION UNDER ARTICLE 26?

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

3.1. THAT THE EXCLUSION OF SUCH WOMEN CONSTITUTE AN ‘ESSENTIAL

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

प्रशान्तात्मा विगतभिर्ब्रह्माचरिव्रते स्तिथ: |

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

3.2. THAT WHETHER THE ‘ESSENTIAL RELIGIOUS PRACTICES’ OF A

DENOMINATION OR EVEN A SECTION THEREOF ARE AFFORDED

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

individual right as opposed to the 26 which is a collective right granted to a

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

▬ MEMORANDUM ON BEHALF OF THE PETITIONOR▬

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