TC- CPUH11/23

IVTH CAREER POINT UNVERSITY NATIONAL MOOT COURT COMPETITION,

2023

BEFORE THE HON’BLE

SUPREME COURT OF KAHLER

ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO. _____OF 2002

UNDER ARTICLE 32 OF THE CONSTITUTION OF KAHLER

HERSELF

…………. PETITIONER

V.

STATE OF UTTAR RAYAN & ORS.

…………RESPONDENTS

MEMORIAL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

➢ LIST OF ABBREVIATIONS……………………………………………………………4
➢ INDEX OF AUTHORITIES…………………………………………………………….5
➢ STAETEMENT OF JURISDICTION………………………………………………….7
➢ STATEMENT OF FACTS……………………………………………………………….8
➢ STATEMENT OF ISSUES……………………………………………………………...11
➢ SUMMARY OF ARGUMENTS………………………………………………………..12
➢ ARGUMENTS ADVANCED………………………….……………………………......14
[ ISSUE NO. 1] WHTHER THE EXCLUSIONARY PRACTICE WHICH IS
BASED UPON A BIOLOGICAL FACTOR EXCLUSIVE TO THE FEAMLE
GENDER AMOUNTS TO ‘‘DISCRIMINATION’’ AND THEREBY VIOLATES
THE VERY CORE OF ARTICLES 14, 15 AND 17 AND ARE NOT PROTECTED
BY ‘‘MORALITY’’ AS USED IN ARTICLES 25 AND 26 OF THE
CONSTITUTION?...........................................................................................................14
[1.1] THERE IS A VIOLATION OF FUNDAMENTAL RIGHT MENTIONED IN
ARTICLE 14
[1.2] THE BAN ALSO VIOLATES THE FUNDAMENTAL RIGHT MENTIONED IN
ARTICLE 15

[1.3] THE IMPUGNED RULE VIOLATES ARTICLES 17

[1.4] THE BAN VIOLATES THE FUNDAMENTAL RIGHT MENTIONED IN

ARTICLE 25

[ ISSUE NO. 2] WHETHER THE CUSTOM OF EXCLUDING SUCH WOMEN

CONSTITUTES AN ‘‘ESSENTIAL RELIGIOUS PRACTICE’’ UNDER ARTICLE
25 AND WHETHER A RELIGIOUS INSTITUION CAN ASSERT A CLAIM IN
THAT REGARD UNDER THE UMBRELLA OF RIGHT TO MANAGE ITS OWN
AFFARIS IN THE MATTERS OF RELIGION?..........................................................19
[2.1] THE LORD DEVAN TEMPLE DOES NOT FULFIL THE CHARACTERISTIC OF
DENOMINATIONAL CHARACTER

[2.2] THAT THE IMPUGNED RULE VIOLATES ARTICLES 25

[2.3] THAT PRACTICE OF RESTRICTING ENTRY OF WOMEN IS NOT AN

ESSENTIAL PRACTICE

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[ ISSUE NO. 3] WHTHER RULE 3 OF THE UTTAR RAYAN HINDU PLACES

OF WORSHIP (AUTHORIZATION OF ENTRY) RULES PERMITS
‘‘RELIGIOUS DENOMINATION’’ TO BAN ENTRY OF WOMEN BETWEEN
THE AGE OF 10 TO 50 YEARS? AND IF SO, WOULD IT NOT PLAY FOUL OF
ARTICLE 14 AND 15(3) OF THE CONSTITUTION BY RESTRICTING ENTRY
OF WOMEN ON THE GROUND OF SEX?................................................................23

[3.1] RULE 3 OF THE UTTAR RAYAN HINDU PLACES OF PUBLIC WORSHIP

(AUTHORIZATION OF ENTRY) RULES DOES NOT PERMITS ‘‘RELIGIOUS
DENOMINATION’’ TO BAN ENTRY OF WOMEN

[3.2] THE LORD DEVAN TEMPLE DOES NOT FULFIL THE ESSENTIAL
CONDITIONS OF RELIGIOUS DENOMINATION.

[ISSUE NO.4] WHETHER RULE 3(B) OF UTTAR RAYAN HINDU PLACES OF

WORSHIP (AUTHORIZATION OF ENTRY) RULES, 1965 IS ULTRA VIRES
THE UTTAR RAYAN HINDU PLACES OF WORSHIP (AUTHORIZATION OF
ENTRY) ACT, 1965 AND, IF TREATED TO BE INTRA VIRES, WHETHER IT
WILL BE VIOLATIVE OF THE PROVISIONS OF THE PART-III OF THE
CONSTITUTION?..........................................................................................................26

[4.1] VIOLATION OF THE OBJECTIVES AND PROVISIONS OF THE UTTAR

RAYAN HINDU PLACES OF PUBLIC WORSHIP (AUTHORIZATION OF ENTRY)
ACT, 1965

[4.2] VIOLATION OF THE FUNDAMENTAL RIGHT TO EQUALITY

[4.3] VIOLATION OF THE FUNDAMENTAL RIGHT TO FREEDOM OF RELIGION

[4.4] VIOLATION OF THE PRINCIPLE OF SECULARISM

➢ PRAYER…………………………………………………………………………………30

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LIST OF ABREVIATIONS

& and

AIR All India Reporter

Art. Article

Anr. Another

Ed. Edition

Const. Constitution

Govt. Government

Hon’ble Honourable

International Covenant on Civil and Political

ICCPR
Rights

Ors. Others

PIL Public Interest Litigation

Pub. Public

SCC Supreme Court Cases

SC Supreme Court

Vol. Volume

V. Versus

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INDEX OF AUTHORITIES

LIST OF CASES
• Adi Saiva Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and
others, (2016) 2 S.C.C.725
• Tilkayat Shri Govindalji Maharaj v. State of Rajasthan, 1964 (1) S.C.R. 561
• Shayara Bano v. Union of India (2017) 6 M.L.J. 378
• Deoki Nandan v. Murlidhar and others, A.I.R. 1957 S.C. 133; Sri Radhakanta Deb and
another v.
• Commissioner of Hindu Religious Endowments, Orissa (1981) 2 S.C.C. 226
• NALSA V. Union of India (2014) 5S.C.C. 438
• Bhimsaya & Ors. V. Janabi (smt) Alias Janawwa7 (2006) 13 S.C.C, 627
• Navtej Singh v Union of India and Ors 2018) 8 SCALE 72
• N Adithyan v. Travancore Jagadishwarananda Avadhuta (2004) 12 SCC 106
• Azeez Basha v. Union of India16 A AIR 1968 S.C. 662
• Acharya Jagdishwaranand ... vs Commissioner of Police citations: 1984 AIR 512
• A S Narayana v. state of Andhra Pradesh, AIR 1996 SC 1765)
• Sri Venkatramana Devaru & Ors. V. State of Mysore & Ors. 1958 AIR 255
• State of West Bengal v. Anwar Ali Sarkar AIR 1952 Cal 150
• Ratilal Panachand Gandhi v. State of Bombay 1954 AIR 388
• S.R. Bommai v. Union of India 1994 AIR 1918
• Sardar Syedna Taher Saifuddin Saheb v. State of Bombay31, A 1962
Supp. (2) SCR 496

STATUTES
• The Constitution of India, 1950
• Protection of Civil Rights Act, 1955
• Kerala Hindu Places of Public Worship Act, 1965

BOOKS

• M.P. Jain, Indian Constitutional Law, 6th Edition 2010, LexisNexis Butterworth Wadhwa
Nagpur
• Narender Kumar, Constitutional Law of India, 9th Edition 2015, Allahabad Law Agency
• J.N. Pandey Dr., The Constitutional Law of India, 48th Edition 2011, Central Law Agency

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• D.D. Basu Dr., Introduction to the Constitution of India, 21stt Edition 2013, LexisNexis
• G.P. Tripathi Dr., Constitutional Law New Challenges,2nd edition 2018, Central Law
Publication

LEGAL DATABASES

• Manupatra
• SCC Online

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STATEMENT OF JURISDICTION

The Respondent, hereby submits this Memorandum before the Hon’ble Supreme Court of
India, invoking the writ jurisdiction under Article 32 of the Constitution.

Article 32-

“Remedies for enforcement of rights conferred by this Part-

(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 clause (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.”

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STATEMENT OF FACTS

HISTORY OF THE TEMPLE

The deity in Lord Devan temple is in the form of a Yogi or a Brahmachari according to the
Thanthri (Priest) of the temple. The temple was built in 1912 by a priest family of the Uttar
Rayan. After independence the temple was shifted under a trust board - Uttar Rayan Lord
Devan Board, a statutory body under the Uttar Rayan Hindu Places of Public Worship
(Authorisation of Entry) Act, 1965 which looks into the administrationon of the temple. A
new building was made and deity was shifted to new temple in 20 March, 1960. The Uttar
Rayan Lord Devan Board restricted the entry of women between the ages of 10 to 50 years as
a custom and practice integral to the sanctity of the Temple. This practice of restricting the
entry of women is admied to have been prevalent since the past several centuries and
considered as essential practice.

THE UTTAR RAYAN HINDU PLACES OF PUBLIC WORSHIP ACT, 1965

These practices are protected by the proviso to Secon 3 of the 1965 Act which is given effect
to by Rule 3(b) of the Uttar Rayan Hindu Places of Public Worship (Authorization of Entry)
Rules, 1965. Secon 3(b) 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 secon 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 secon or class may enter,
worship, pray or perform. The proviso to Secon 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. The
proviso to Secon 3 makes an exception in cases of religious denominations, or sects thereof to
manage their affairs in matters of religion.

PROHIBITION OF WOMEN'S ENTRY IN LORD DEVAN TEMPLE OF UTTAR RAYAN

People of Uttar Rayan have blind faith in Lord Devan and there is a belief that all the
adversaries of people are vanished by visiting the temple. However, the women from the age
group of 10-50 years were barred from entering the premises of core temple on the basis of
custom and ritual followed since 1912. The prohibition is placed on the ground of

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maintaining the purity and sanctity of the premises. This custom has been followed without
any opposition till 2001 in the State.

‘HERSELF’ NGO RAISES ISSUE OF WOMEN'S ENTRY IN LORD DEVAN TEMPLE

In 2002 an NGO named HERSELF, working for women rights raised the issue of prohibiting
women entry in the Lord Devan temple before the temple trust. The trust denied any change
or modification in customs as it would be an interference with the faith of people. According
to trust, since the establishment of temple, no woman has ever raised such kind of issue
before the trust, showing the affirmation by women to the prevailing custom.

PUBLIC DIVIDE ON WOMEN'S ENTRY IN LORD DEVAN TEMPLE

The issue was also raised in public with the help of mass media. The newspapers and news
channels got new burning issue of gender justice. The public was divided into two sections,
one progressive who wanted to break the stereotype prevailing in society on the grounds of
equality and secularism. The other being conservative, wanting to continue with old
customs and practices. However, the most interesting part is that even the view of women is
not unanimous on this.

LORD DEVAN TEMPLES IN KAHLER WITHOUT ENTRY RESTRICTIONS FOR

WOMEN

There are two more temples of Lord Devan in Kahler- one has been situated in Amrit Hara
state and another in North Stone State. Lord Devan temple of Amrit Hara was built in around
17th century whereas Lord Devan temple of North Sone was built in late 18th century. Both
the temple does not follow any such custom of prohibiting the entry of women in the
temple premise.

WRIT PETITION FILED FOR WOMEN'S ENTRY IN LORD DEVAN TEMPLE

The instant writ petition preferred under Article 32 of the Constitution by HERSELF, a non-
government organization seeking the issuance of directions against the Government of Uttar
Rayan, Trust Board and Chief Thanthri of Devan Temple to ensure entry of female devotees
between the age group of 10 to 50 years to the Lord Devan Temple at Uttar Rayan which has
been denied to them on the basis of certain custom and usage; to declare Rule 3(b) of the
Uttar Rayan Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965 (for short,
"the 1965 Rules") framed in exercise of the powers conferred by Section 4 of the Uttar Rayan

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Hindu Places of Public Worship (Authorisation of Entry) Act, 1965 (for brevity, "the 1965
Act") as unconstitutional being violative of Articles 14, 15, 25 and 51A(e) of the Constitution
of Kahler and further to pass directions for the safety of women pilgrims.

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STATEMENT OF ISSUE

ISSUE 1
WHTHER THE EXCLUSIONARY PRACTICE WHICH IS BASED UPON A
BIOLOGICAL FACTOR EXCLUSIVE TO THE FEMALE GENDER AMOUNTS TO
‘‘DISCRIMINATION’’ AND THEREBY VIOLATES THE VERY CORE OF ARTICLES 14,
15 AND 17 AND ARE NOT PROTECTED BY ‘‘MORALITY’’ AS USED IN ARTICLES 25
AND 26 OF THE CONSTITUTION?

ISSUE 2
WHETHER THE CUSTOM OF EXCLUDING SUCH WOMEN CONSTITUTES AN
‘‘ESSENTIAL RELIGIOUS PRACTICE’’ UNDER ARTICLE 25 AND WHETHER A
RELIGIOUS INSTITUION CAN ASSERT A CLAIM IN THAT REGARD UNDER THE
UMBRELLA OF RIGHT TO MANAGE ITS OWN AFFARIS IN THE MATTERS OF
RELIGION?

ISSUE 3
WHTHER RULE 3 OF THE UTTAR RAYAN HINDU PLACES OF WORSHIP
(AUTHORIZATION OF ENTRY) RULES PERMITS ‘‘RELIGIOUS DENOMINATION’’
TO BAN ENTRY OF WOMEN BETWEEN THE AGE OF 10 TO 50 YEARS? AND IF SO,
WOULD IT NOT PLAY FOUL OF ARTICLE 14 AND 15(3) OF THE CONSTITUTION BY
RESTRICTING ENTRY OF WOMEN ON THE GROUND OF SEX?

ISSUE 4

WHETHER RULE 3(B) OF UTTAR RAYAN HINDU PLACES OF WORSHIP

(AUTHORIZATION OF ENTRY) RULES, 1965 IS ULTRA VIRES THE UTTAR RAYAN
HINDU PLACES OF WORSHIP (AUTHORIZATION OF ENTRY) ACT, 1965 AND, IF
TREATED TO BE INTRA VIRES, WHETHER IT WILL BE VIOLATIVE OF THE
PROVISIONS OF THE PART-III OF THE CONSTITUTION?

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SUMMARY OF ARGUMENTS

1. WHTHER THE EXCLUSIONARY PRACTICE WHICH IS BASED UPON A

BIOLOGICAL FACTOR EXCLUSIVE TO THE FEMALE GENDER AMOUNTS
TO ‘‘DISCRIMINATION’’ AND THEREBY VIOLATES THE VERY CORE OF
ARTICLES 14, 15 AND 17 AND ARE NOT PROTECTED BY ‘‘MORALITY’’ AS
USED IN ARTICLES 25 AND 26 OF THE CONSTITUTION?
It is humbly submitted before this Hon’ble Supreme Court of Kahler that the impugned
practise which is exclusionary in nature as it prevents the entry of women between the
ages of 11 to 51 years is based on physiological factors alone and does not have a
constitutional object. The said exclusionary practise has an impact of casting a stigma on
women of menstruating age in that it considers them polluted, akin to leaps and beggars
and has a huge psychological impact on their ability to have a normal social day-to-day
interaction with the rest of society. Its discriminatory nature violates the very ethos and
core of constitutional morality and tends to vitiate it to its core. It is argued that this
practise, due to the aforementioned reasons, violates Art. 14, 15 and 17 of the
Constitution.

2. WHETHER THE CUSTOM OF EXCLUDING SUCH WOMEN CONSTITUTES

AN ‘‘ESSENTIAL RELIGIOUS PRACTICE’’ UNDER ARTICLE 25 AND
WHETHER A RELIGIOUS INSTITUION CAN ASSERT A CLAIM IN THAT
REGARD UNDER THE UMBRELLA OF RIGHT TO MANAGE ITS OWN
AFFARIS IN THE MATTERS OF RELIGION?
It is humbly submitted before the Hon’ble court that excluding women of a certain age
group does not amount to “essential religious practice” and that the Court has the right to
step in when the rights of a particular group in society are being violated, in order to
uphold their status as equal citizens of the country.

3. WHTHER RULE 3 OF THE UTTAR RAYAN HINDU PLACES OF WORSHIP

(AUTHORIZATION OF ENTRY) RULES PERMITS ‘‘RELIGIOUS
DENOMINATION’’ TO BAN ENTRY OF WOMEN BETWEEN THE AGE OF 10
TO 50 YEARS? AND IF SO, WOULD IT NOT PLAY FOUL OF ARTICLE 14 AND

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15(3) OF THE CONSTITUTION BY RESTRICTING ENTRY OF WOMEN ON

THE GROUND OF SEX?
When a rule-making power is conferred under any statute on an authority, the said power
has to be exercised within the confines of the statute and no transgression of the same is
permissible. The rule 3 of the Kerala Hindu places of Public Worship (Authorization of
Entry) rules derive it power from the Kerala Hindu places of Public Worship
(Authorization of Entry) Act, 1965 and that should be struck down.

4. WHETHER RULE 3(B) OF UTTAR RAYAN HINDU PLACES OF WORSHIP

(AUTHORIZATION OF ENTRY) RULES, 1965 IS ULTRA VIRES THE UTTAR
RAYAN HINDU PLACES OF WORSHIP (AUTHORIZATION OF ENTRY) ACT,
1965 AND, IF TREATED TO BE INTRA VIRES, WHETHER IT WILL BE
VIOLATIVE OF THE PROVISIONS OF THE PART-III OF THE
CONSTITUTION?
It is submitted before this Hon’ble Court that the rule 3(b) of Uttar Rayan Hindu Places of
Worship (Authorization of Entry) Rules, 1965 is ultra vires the Uttar Rayan Hindu Places
of worship (Authorization of Entry) Act, 1965 and also is violative of the provisions of
the Part-III of the constitution.

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ARGUMENTS ADVANCED

ISSUE NO. I WHETHER THE EXCLUSIONARY PRACTICE WHICH IS BASED

UPON A BIOLOGICAL FACTOR EXCLUSIVE TO THE FEMALE GENDER
AMOUNTS TO ‘‘DISCRIMINATION’’ AND THEREBY VIOLATES THE VERY
CORE OF ARTICLES 14, 15 AND 17 AND ARE NOT PROTECTED BY
‘‘MORALITY’’ AS USED IN ARTICLES 25 AND 26 OF THE CONSTITUTION?
It is humbly submitted before the Hon’ble Court that the impugned practise of preventing
women from entering the premises of the temple discriminatory in nature and is violative of
the Fundamental rights enshrined in Part - III of the Constitution.

Women of all ages should be allowed into the temple as there are various ground on which
theirs’ arguments stand valid. Starting from the religious grounds it should be allowed as it is
also mentioned in the Manusmriti, which is the bedrock of Sanatana Dharma, says women
deserve equal respect and it appeases the deities too.

Manu’s saying is -

“Yatra naryastu pujyante ramante tatra devta, yatraitastu na pujyante sarvaastatrafalaah

kriyaah”

- which translated read as: “whenever women are given their due respect, even the deities like
to reside there and where they are not respected, all action remains unfruitful.

It is humbly submitted that definition of “law” under Article 13 includes “custom and usage”
- hence the court can invalidate any religious custom which violates fundamental rights. Even
if the said practice is considered to be a custom, it has to still pass the test of constitutional
morality and constitutional legitimacy1. Supreme Court has the power to decide whether any
practice is an integral part of the religion or not, on the basis of evidence2. Merely because a
practice has continued for long that by itself cannot make it valid if it has been expressly
declared to be impermissible3.

1 Adi Saiva Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and others, (2016) 2 S.C.C.
725
2 Tilkayat Shri Govindalji Maharaj v. State of Rajasthan, 1964 (1) S.C.R. 561
3 Shayara Bano v. Union of India (2017) 6 M.L.J. 378

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The public character of the temple gives birth to the right of the devotees to enter it for the
purpose of darshan or worship and this universal right to entry is not a permissive right
dependent upon the temple authorities but a legal right in the true sense of the expression4.

Provisions like Articles 15(2) and 25(2)(b) are the results of movements that were expressly
framed in the language of civil rights for individuals against their communities, even at the
cost of the “integrity" of the community, understood as the continuation of strongly held
beliefs and practices.

India is a party to ICCPR and Article 18(1) of the ICCPR affirms that the right to freedom of
thought, conscience or religion includes a person’s “freedom to have or to adopt a religion or
belief of his choice, and freedom, either individually or in community with others and in
public or private, to manifest his religion or belief in worship, observance, practice and
teaching”.

Counsel further submits:

[1.1] THERE IS A VIOLATION OF FUNDAMENTAL RIGHT MENTIONED IN

ARTICLE 14.

It is humbly submitted before the Hon’ble court that Article 14 guarantees to every person,
including non-citizens and transgender5, the right to equality before law the law or the equal
protection of laws. In the present case, the selective ban on women aged between 10 and 50
years, that is those who are in menstruating age is direct violation of the aforesaid
fundamental right. The act of exclusion results in a forced involuntary disclosure by a woman
of her menstruating status which violates her privacy.

In the present case, the temple should be considered within the ambit of “other authorities”
under Article 12 which defines State. Thus, the temple is susceptible to claims of Article 14.

The exclusionary practice is based on physiological factors exclusive to the female gender
and this violates Articles 14 of the Constitution. Menstruation is not impure, and that women
have equal right to enter the temple and by denying, the Uttar Rayan Lord Devan Board,
which maintains the temple is violating the fundamental rights of women which has been

4 Deoki Nandan v. Murlidhar and others, A.I.R. 1957 S.C. 133; Sri Radhakanta Deb and another v.
Commissioner of Hindu Religious Endowments, Orissa (1981) 2 S.C.C. 226"
5
NALSA V. Union of India (2014) 5S.C.C. 438

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mentioned in the aforesaid Article. The illogical belief and superstition that women are
impure, based on the physiological process of menstruation, is gender discrimination.

One side we pray to goddesses; on the other, women of a certain age are considered 'impure'.
This dualistic approach is nothing but patriarchy practised in religion.

[1.2] THE BAN ALSO VIOLATES THE FUNDAMENTAL RIGHT MENTIONED IN

ARTICLE 15.

It is humbly submitted before the Hon’ble Court that the selective ban on women entering
into Lord Devan temple directly violates the very basic purpose of Article 15(1) and 15(2).
Section 3(b)6 is consistent with the parent Act, the larger question of constitutionality arises.

The 1965 Act – and the Rules – are pieces of primary and subordinate legislation
respectively, and are therefore subject to the provisions of the Constitution. Insofar as the Act
and the Rules are invoked to justify the exclusion of women from the Lord Devan Temple,
therefore, there is a clear violation of Articles 14 and 15(1) of the Constitution.

The pleaded custom violates Article 15 and is unreasonable. This Hon’ble Court in Bhimsaya
& Ors. V. Janabi (smt) Alias Janawwa7 while adjucating the share of a person claiming to be
an adopted son to be deceased by custom in ancestral property held that ancestral property
held that custom must be ancient, certain and reasonable and cannot be opposed to public
policy.

In the case of Navtej Singh v Union of India and Ors.8, Supreme Court held that
‘discriminatory act will be tested against constitutional values. A discrimination will not
survive constitutional scrutiny when it is grounded in and perpetuates stereotypes about a
class constituted by the grounds prohibited in Article 15(1). If any ground of discrimination,
whether direct or indirect is founded on a stereotypical understanding of the role of the sex, it
would not be distinguishable from the discrimination which is prohibited by Article 15 on the
grounds only of sex’.

6
The Kerala Hindu Places of Worship (Authorization of Entry Act), 1965
7
(2006) 13 S.C.C, 627
8
(2018) 8 SCALE 72

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[1.3] THE IMPUGNED RULE VIOLATES ARTICLES 17:

Article 17 abolishes untouchability in any form. Article 17 applies to both State and non-State
actors and has been made operative through a Central legislation in the form of Protection of
Civil Rights Act, 1955. The Protection of Civil Rights Act penalizes for preventing a person
from entering a place of worship.9 Sec.7 (c) of the Civil Rights Act, 1955, criminalizes the
encouragement and incitement to practice untouchability in ‘any form whatsoever.29’
Explanation II appended to sec.7 makes it clear that a person shall be deemed to incite
practice of “untouchability” if he justifies it on religious or historical grounds.30 In the case
Sardar Syedna Taher Saifuddin Saheb v. State Of Bombay31, A 1962 Supp. (2) SCR 496
Court rejected the contention that excommunication was a purely religious matter and held
that excommunication is a form of untouchability under Article 17.

It is, therefore, submitted that practice of excluding women based on menstruation constitutes
a form of untouchability and is prohibited under Article 17 of the Constitution.

[1.4] THE BAN VIOLATES THE FUNDAMENTAL RIGHT MENTIONED IN

ARTICLE 25.

It is humbly submitted before the Hon’ble Court that the fundamental right of women
between the ages of 10 and 50 to enter the Lord Devan temple is undoubtedly recognized by
Article 25(1).

The exclusion of (a class of) women from the Lord Devan Temple should not be justified on
the basis of ancient custom, which was sanctioned by Rule 3(b), framed by the Government
under the authority of the Uttar Rayan Hindu Places of Worship (Authorisation of Entry Act),
1965.

Section 3 of the Act requires that places of public worship should be open to all sections and
classes of Hindus, subject to special rules for religious denominations. Rule 3(b), however,
provided for the exclusion of “women at such time during which they are not by custom and
usage allowed to enter a place of public worship.” These pieces of legislation, in turn, were
9
Protection

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juxtaposed against constitutional provisions such as Article 25(1) (freedom of worship),

Article 26 (freedom of religious denominations to regulate their own practices), and above-
mentioned Articles.

There is no need to go into all the case laws in respect of Articles 25 and 26 because by now
it is well settled that Article 25(2)(a) and Article 26(b) guaranteeing the right to every
religious denomination to manage its own affairs in matters of religion are subject to and can
be controlled by a law contemplated under Article 25(2)(b) as both the Articles are required
to be read harmoniously. It is also well established that social reforms or the need for
regulations contemplated by Article 25(2) cannot obliterate essential religious practices or
their performances and what would constitute the essential part of a religion can be
ascertained with reference to the doctrine of that religion itself10.

Temple is a public place of worship of the Hindus, the right of entrance into the temple for
purposes of ‘darshan’ or worship is a right which flows from the nature of the institution
itself, and for the acquisition of such rights, and no custom or immemorial usage need be
asserted or proved11.

10
Riju Prasad Sarma and Ors. V. State of Assam and Ors., (2015) 9 S.C.C. 461
11
Nar Hari Sastri and Ors. V. Shri Badrinath Temple Committee, 1952 S.C.R. 849

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ISSUE – II WHETHER THE CUSTOM OF EXCLUDING SUCH WOMEN

CONSTITUTES AN ‘‘ESSENTIAL RELIGIOUS PRACTICE’’ UNDER ARTICLE 25
AND WHETHER A RELIGIOUS INSTITUION CAN ASSERT A CLAIM IN THAT
REGARD UNDER THE UMBRELLA OF RIGHT TO MANAGE ITS OWN AFFARIS
IN THE MATTERS OF RELIGION?

It is humbly submitted before the Hon’ble Court that the custom of excluding the women of
age between 10 to 50 years from entering the Lord Devan temple is not an essential practice.
It has been held in multiple judgements that only integral and essential parts of a religious
practices are protected under Art. 26 of the Constitution.12

[2.1] THE LORD DEVAN TEMPLE DOES NOT FULFIL THE CHARACTERISTIC
OF DENOMINATIONAL CHARACTER.

1. The counsel humbly submits that one of the key factors is a sense of ‘exclusive
belongingness’, as the first abiding principle for a religious denomination to exist.

2. The religious ceremonies at Lord Devan Temple are not distinct from any other Hindu
temples.

3. There is no separate administration, Lord Devan Temple is regulated by the statutory board
constituted under the Uttar Rayan Hindu Places of Public Worship (Authorization of Entry)
Act, 1965 and gets state funding under Article 290-A of the Constitution. So, if the temple
gets funding from state, then the government should make sure that temple should not
discriminate on the basis of sex.

It is humbly submitted before the Hon’ble Court that for the aforesaid reasons the Lord
Devan’s devotees do not constitute a separate religious denomination. Hindu faith has only
pre-established denominations with zero scope to have developed new denominations over a
period of time religious entity cannot claim to have a ‘denomination’ simply on account of
differences from the mainstream practice. For a religious denomination to maintain the
religious institution, it has to be first established by the denomination claiming such right. As
in the case of Azeez Basha v. Union of India16 13 the court refused to grant Aligarh Muslim
University protection under Article 26(a). Since it was constituted under a statute and not by

12
N Adithyan v. Travancore Jagadishwarananda Avadhuta (2004) 12 SCC 106
13
AIR 1968 S.C. 662

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Muslims, the community does not have the exclusive right to administer it.

[2.2] THAT THE IMPUGNED RULE VIOLATES ARTICLES 25:

Article 25 gives freedom to profess, practice, and propagate religion subject to public order,
morality and health. Exclusionary practice violates the rights of Hindu women under article
25 of the Constitution as they have a right to enter Hindu temples dedicated to public. In Haji
Ali’s14 case, Bombay High Court allowed entry of women to Haji Ali dargah and held that the
practice of restricting women from entry to dargah is violation of their fundamental rights.
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.

In the case of Acharya Jagadishwarananda Avadhuta15, Court observed that the full concept
and scope of religious freedom is that there are no restraints upon the free exercise of religion
according to the dictates of one's conscience or upon the right freely to profess, practice and
propagate religion save those imposed under the police power of the State and the other
provisions of Part II of the Constitution. This means the right to worship God according to the
dictates of one's conscience.

Article 25(1), by employing the expression “all persons”, demonstrates that the freedom of
conscience and the right to freely profess, practice and propagate religion is available, though
subject to the restrictions delineated in Article 25(1) itself, to every person including women.
Women of any age group have as much a right as men to visit and enter a temple in order to
freely practice a religion as guaranteed under Article 25(1). Therefore, such an exclusionary
practice violates the right of women to visit and enter a temple to freely practise Hindu
religion and to exhibit their devotion towards Lord Devan.

[2.3] THAT PRACTICE OF RESTRICTING ENTRY OF WOMEN IS NOT AN

ESSENTIAL PRACTICE;

It is submitted that the practice of excluding women is not an essential practice under the

14
Dr. Noorjehan Safia Niaz And 1 Anr vs State Of Maharashtra.
15
(2004) 12 SCC 106

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Hindu religion. Article 25 only protects those practices which are an integral part of a
religion.16 The guarantee is extended to rituals and observances, ceremonies and modes of
worship which are integral parts of religion.17 Unless a practice is found to constitute an
essential and integral part of a religion, the claim for protection as essential practices may
have to be carefully scrutinised.18

What constitutes an essential part of a religion is determined with reference to the tenets and
doctrines of religion itself.19 Merely establishing a usage will not afford it constitutional
protection as an essential religious practice. It must be proved that the practice is ‘essential’ to
religion and inextricably connected with its fundamental character. Although what constitutes
essential religious practice must be decided with reference to what the religious community
itself yet, the ultimate constitutional arbiter of what constitutes essential religious practice
must be the Court, which is a matter of constitutional necessity.20

Essential part of a religion means the core beliefs upon which a religion is founded. Essential
practice means those practices that are fundamental to follow a religious belief.21 Test to
determine whether a part or practice is essential to the religion is - to find out whether the
nature of 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.22 There has to be an
unhindered continuity in a practice for it to attain the status of essential practice. In the given
case, women used to visit the temple unless their entry was banned. Hence, there is no
continuity in practice.

It is, therefore, submitted that the practice of exclusion of women cannot be regarded as an
essential or integral part of Hindu religion.

16
John Vallamattom and another v. Union of India, (2003) 6 SCC 61
17
N. Adithayan v. Travancore Devaswom Board and Others, (2002) 8 SCC 10
18
Durgah Committee, Ajmer and others v. Syed Hussain Ali and others, AIR 1961 SC 1402."
19
State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.
20
Adi Saiva Sivachariyargal Nala Sangam and Ors. v. Government of Tamil Nadu and Anr, (2016) 2 SCC 725
21
A S Narayana v. state of Andhra Pradesh, AIR (1996) SC 1765
22
Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others, (2004) 12 SCC 770

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[2.4] EVEN IF THE LORD DEVAN’S DEVOTEES FORM A SEPARATE

DENOMINATION, IT CANNOT EXCLUDE WOMEN.
The Counsel humbly submits that even if it is assumed that Sabarimala is a religious
denomination, the exclusion of women is not an essential practice as it does not satisfy the
test of essential practice as has been laid down by this Court in Commissioner of Police v.
Acharya Jagadishwarananda Avadhuta.23

Even if assuming so, the exclusion of women’s entry violates the rights conferred under
Article 26 of the Constitution of India. The denomination’s right to manage its affairs in
matters of religion are subject to Article 25(2)(b).

23
(2004) 12 S.C.C. 770

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ISSUE- III WHTHER RULE 3 OF THE UTTAR RAYAN HINDU PLACES OF

PUBLIC WORSHIP (AUTHORIZATION OF ENTRY) RULES PERMITS
‘‘RELIGIOUS DENOMINATION’’ TO BAN ENTRY OF WOMEN BETWEEN THE
AGE OF 10 TO 50 YEARS? AND IF SO, WOULD IT NOT PLAY FOUL OF ARTICLE
14 AND 15(3) OF THE CONSTITUTION BY RESTRICTING ENTRY OF WOMEN
ON THE GROUND OF SEX?

The Uttar Rayan Hindu Places of Public Worship (Authorization of Entry) Rules, 1965, were
enacted to regulate the entry of persons into Hindu temples and other places of worship. Rule
3 of these rules provides that the temple management committee may regulate the entry of
persons into the temple based on traditional religious practices, customs, and usages. The rule
further states that such regulations should not discriminate against any class or section of the
Hindu community.

[3.1] RULE 3 OF THE UTTAR RAYAN HINDU PLACES OF PUBLIC WORSHIP

(AUTHORIZATION OF ENTRY) RULES DOES NOT PERMITS ‘‘RELIGIOUS
DENOMINATION’’ TO BAN ENTRY OF WOMEN

The Counsel submits humbly submits before the Hon’ble Court that the issue in hand is
whether Rule 3 of the Uttar Rayan Hindu Places of Public Worship (Authorization of Entry)
Rules permits a religious denomination to ban the entry of women between the age of 10 to
50 years into a temple. The answer to this question depends on how one interprets the term
"traditional religious practices, customs, and usages" in Rule 3.

One view is that the term "traditional religious practices, customs, and usages" includes the
practice of restricting the entry of women of a certain age group into a temple. This view is
based on the argument that such a practice has been followed for a long time and is an
integral part of the religious beliefs and practices of the concerned religious denomination.
Therefore, the temple management committee should have the right to regulate entry based
on such traditional practices.

However, this view is problematic as it runs counter to the principles of equality and non-
discrimination enshrined in the Indian Constitution. Article 14 of the Constitution guarantees
the right to equality before the law and prohibits discrimination on the grounds of sex, among
other things. Article 15(3) of the Constitution permits the state to make special provisions for
women and children. Thus, any rule or practice that discriminates against women on the basis

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of their sex is likely to be challenged on the grounds of violating these constitutional

provisions.

In the absence of any explicit provision in Rule 3 permitting the exclusion of women between
the age of 10 to 50 years from a temple, any such practice would be in violation of the
Constitution. The temple management committee cannot rely on vague notions of "traditional
religious practices, customs, and usages" to justify discrimination against women.

Further the Counsel submits that;

[3.2] THE LORD DEVAN TEMPLE DOES NOT FULFIL THE ESSENTIAL
CONDITIONS OF RELIGIOUS DENOMINATION.

1. The counsel humbly submits that one of the key factors is a sense of ‘exclusive
belongingness’, as the first abiding principle for a religious denomination to exist.

2. The religious ceremonies at Lord Devan Temple are not distinct from any other Hindu
temples.

3. There is no separate administration, Lord Devan Temple is regulated by the statutory board
constituted under the Uttar Rayan Hindu Places of Public Worship (Authorization of Entry)
Act, 1965 and gets state funding under Article 290-A of the Constitution. So, if the temple
gets funding from state, then the government should make sure that temple should not
discriminate on the basis of sex.

It is humbly submitted before the Hon’ble Court that for the aforesaid reasons the Lord
Devan’s devotees do not constitute a separate religious denomination

Moreover, if the Lord Devan temple is considered as a religious denomination even then it
can not ban the entry of the women devotees in the temple.

In Sri Venkatramana Devaru & Ors. V. State of Mysore & Ors.24 the petitioners had claimed
that the Madras Temple Entry Authorisation Act which allowed the entry of Harijans into the
temple, was against the Article 26 of the Constitution and the temple was a denominational
one having been founded exclusively for the Gowda Saraswath Brahmins. However, the
Supreme Court held that not merely temples dedicated to the public as a whole but also those
founded for the benefit of some sections are contemplated in Article 25 (2) which provides

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for social welfare and reform or the throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus.

24
(1958) A.I.R. 255

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ISSUE – IV WHETHER RULE 3(B) OF UTTAR RAYAN HINDU PLACES OF

PUBLIC WORSHIP (AUTHORIZATION OF ENTRY) RULES, 1965 IS ULTRA
VIRES THE UTTAR RAYAN HINDU PLACES OF PUBLIC WORSHIP
(AUTHORIZATION OF ENTRY) ACT, 1965 AND, IF TREATED TO BE INTRA
VIRES, WHETHER IT WILL BE VIOLATIVE OF THE PROVISIONS OF THE
PART-III OF THE CONSTITUTION?

The Counsel for the respondent humbly submits before the Hon’ble Court that the rule 3(b) is
ultra vires of the Act and is violative of the provisions of the Part – III of the Constitution.
The counsel challenges the validity of Rule 3(b) on the following grounds:

[4.1] VIOLATION OF THE OBJECTIVES AND PROVISIONS OF THE UTTAR

RAYAN HINDU PLACES OF PUBLIC WORSHIP (AUTHORIZATION OF ENTRY)
ACT, 1965:

The Counsel submits that the Rule 3(b) is ultra vires the Uttar Rayan Hindu Places of Public
Worship (Authorization of Entry) Act, 1965, as it goes against the Act's spirit and purpose,
which seeks to ensure equal access to all sections of Hindus to certain Hindu religious places
of worship. But Rule 3(b) achieves the opposite - it allows public Hindu places of worship to
exclude women on the basis of custom.

The Rule 3(b) of the Uttar Rayan Hindu Places of Public Worship (Authorization of Entry)
Rules, 1965 provide:

“Women at such time during which they are not by custom and usage allowed to enter a
place of worship”.

Sec 3 of the Uttar Rayan Hindu Places of Public Worship (Authorization of Entry), 1965 Act
states that:

3. Places of public worship to be open to all sections and classes of Hindu –

‘‘Notwithstanding anything to the contrary contained in any other law for the time being in'
force or any custom; or usage or any instrument having effect by virtue of any such law or
any decree or order of court, every place of public worship which is open to Hindus generally
or to any section or class thereof, shall be open to all sections and classes of Hindus ; and no
Hindu of whatsoever section or class shall, in any manner, be prevented, obstructed or
discouraged from entering such place of public worship, or from worshipping or offering
prayers thereat, or performing, any religious service therein, in the like manner and to the

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like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or
perform.

Provided that in the case of a place of public worship which is a temple founded for the
benefit of any religious denomination or section thereof, the provisions of this section shall
be- subject to the right of that religious denomination or section, as the case may be, to
manage its own affairs in matters of religion.’’

Sec. 4 of the Act states that:

4. Power to make regulations for the maintenance of order and decorum and the due
performance of rites and ceremonies in places of public worship-

‘‘(I) The trustee or any other person in charge of any place of public worship shall have
power, subject to the control of the competent authority and any rules which may be made by
that authority, to make regulations for the maintenance of order and decorum in the place of
public worship and the due observance of the religious rites and ceremonies performed
therein:

Provided that no regulation made under this sub-section shall discriminate in any manner
whatsoever, against any Hindu on the ground that he belongs to a particular section or class.

The competent authority referred to in sub-section (I) shall be-

(i) in relation to a place of public worship situated in any area to which Part I of the
Travancore-Cochin Hindu Religious Institutions Act, 1950 (Travancore-Cochin Act XV of
1950), extends, the Travancore Devaswom Board;

(ii) in relation to a place of public worship situated in any area to which Part 11 of the said
Act extends, the Cochin Devaswom Board; and

(iii) in relation to a place of public worship situated in any other area in the State of Uttar
Rayan, the Government.’’

Rule 3(b) of the Uttar Rayan Hindu Places of Public Worship (Authorization of Entry) Rules,
1965 (hereinafter ‘Temple Entry Rules’) is ultra-vires Sections 3 and 4 of the Temple Entry
Act because it protects “custom and usage” which prohibit entry of women when Section 3 of
the Act expressly overrides custom and usage. It discriminates against women when Section 4
makes it clear that the Rules made under it cannot be discriminatory against any section or
class. It is important to emphasize that the power entrusted under the Temple Entry Act to

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make Rules, inter alia, for due observance of religious rites and ceremonies, is in furtherance
of a devotee’s right to worship under Article 25 and the “inclusionary” provision in Section 3.
Rule 3(b) by saving “custom and usage” militates against and is at cross purposes with the
raison de etre of the Act which is to protect the right to worship under Article 25. The
justification for Rule 3(b) cannot flow from the proviso to Section 3, because, as already
submitted hereinabove, the said proviso can only be interpreted in the Devaru sense. Rule 9
of the very same Temple Entry Rules prohibits any change in timing, place or mode of
worship which prejudicially affects rights of the worshipper prior to the Act.

[4.2] VIOLATION OF THE FUNDAMENTAL RIGHT TO EQUALITY:

The petitioner submits that Rule 3(b) of the Uttar Rayan Hindu Places of Public Worship
(Authorization of Entry) Rules, 1965, violates the fundamental right to equality enshrined in
Article 14 of the Constitution. In the case of State of West Bengal v. Anwar Ali Sarkar25, the
Supreme Court held that any law that creates discrimination or confers arbitrary powers
violates the fundamental right to equality. Thus, the impugned Rule 3(b) is discriminatory and
arbitrary, as it restricts women's access to certain places of worship solely on the basis of their
gender.

[4.3] VIOLATION OF THE FUNDAMENTAL RIGHT TO FREEDOM OF

RELIGION:

The petitioner may argue that Rule 3(b) of the Uttar Rayan Hindu Places of Public Worship
(Authorization of Entry) Rules, 1965, violates the fundamental right to freedom of religion
enshrined in Article 25 of the Constitution. In the case of Ratilal Panachand Gandhi v. State
of Bombay26, the Supreme Court held that any law that imposes unreasonable restrictions on
the freedom of religion violates the fundamental right to freedom of religion. The impugned
Rule 3(b) restricts women's access to certain places of worship, which is an unreasonable
restriction on their right to practice and propagate their religion freely.

[4.4] VIOLATION OF THE PRINCIPLE OF SECULARISM:

It is submitted that Rule 3(b) of the Uttar Rayan Hindu Places of Public Worship
(Authorization of Entry) Rules, 1965, violates the principle of secularism enshrined in the
Preamble to the Constitution. In the case of S.R. Bommai v. Union of India (1994)27, the
25
State of West Bengal v. Anwar Ali Sarkar AIR 1952 Cal 150
26
Ratilal Panachand Gandhi v. State of Bombay 1954 AIR 388

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Supreme Court held that secularism is a basic feature of the Constitution and any law that
violates this principle is unconstitutional. The impugned Rule 3(b) discriminates against
women on the basis of religion and, therefore, is incompatible with the
principle of secularism.

27
S.R. Bommai v. Union of India 1994 AIR 1918

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PRAYER

Wherefore, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully prayed that this Hon'ble Court may be
pleased to adjudge and declare that:

1. The exclusionary practice pertaining to the entry of women violates the Fundamental
right to equality and thus ordered to be continued.
2. The practise followed in the Lord Devan Temple is not an “essential religious practise”
and is not protected by the “right to manage religious affairs
3. Rule 3(b) excluding the entry of women in menstruating age does violate the fundamental
rights enshrined under Article 14 and 15(3) of the Constitution, thus, void and
unconstitutional.
4. 3(b) of Uttar Rayan Hindu places of worship (authorization of entry) Rules, 1965 is ultra
vires the Uttar Rayan Hindu places of worship (authorization of entry) Act, 1965 and is
violative of any provisions of the Part-III of the Constitution.

The Court may also be pleased to pass any other order, which this Hon'ble Court may deem
fit in the interest of justice, equity and good conscience.

All of which has been respectfully submitted,

COUNSEL FOR THE PETITIONER

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