MEMORANDUM ON BEHALF OF PETITIONER

GROUP V

BEFORE THE HONOURABLE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION NO…………………….

(FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA, 1950)

IN THE MATTER OF

NATIONAL YOUNG WOMEN ASSOCIATION………. PETITIONER

V.

STATE OF KERALA ………………….... RESPONDENT

WITH

W.P. No. 76 of 2016

MEMORANDUM ON BEHALF OF PETITIONER

1
 MEMORANDUM ON BEHALF OF PETITIONER

TABLE OF CONTENTS PAGE

NO
LIST OF ABBREVIATIONS 3

INDEX OF AUTHORITIES 4

STATEMENT OF JURISDICTION 6

STATEMENT OF FACTS 7

STATEMENT OF ISSUE 8

SUMMARY OF ARGUMENTS 9

ARGUMENTS ADVANCED 11

I.WHETHER THE WRIT PETITION IS MAINTAINABLE? 11-19

II.WHETHER EXCLUSION OF ENTRY OF WOMEN BELONGING TO A 20-22

PARTICULAR AGE CATEGORY AMOUNTS TO VIOLATION OF ARTICLE
14?

III.WHETHER THE EXCLUSIONARY PRACTICE COMES UNDER THE 23-25

DEFINITION OF ESSENTIAL RELIGIOUS PRACTICE?
PRAYER 26

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 MEMORANDUM ON BEHALF OF PETITIONER

LIST OF ABBREVIATIONS

AIR: All India Reporter

Anr.: Another

Art: Article

COI: Constitution of India

Etc.: Etcetera

FIR: First Information Report

FR: Fundamental Rights

HC: High Court

Hon’ble: Honourable

IC: Indian Constitution

Ors: Others

SC: Supreme Court

SCC: Supreme Court Cases

SCR: Supreme Court Reports

Sec: Section

U/A: Under Article

U/S: Under

UOI: Union of India

v.: Versus

Viz: Videlicet

WP: Writ Petition

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 MEMORANDUM ON BEHALF OF PETITIONER

INDEX OF AUTHORITIES

CASES

Adi Saiva Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and
others, (2016) 2 S.C.C. 72
Ajmer v. Syed Hussain Ali 1962 (1) S.C.R. 383

Anuj Garg v. Hotel Association (2008) 3 S.C.C. 1

Assam Sanmilita Mahasangha v. Union of India AIR 2015 SC 783

Azeez Basha v. Union of India A.I.R. 1968 S.C. 662

Daryao v. state of UP AIR 1961 SC 1457

Deoki Nandan v. Murlidhar and others, A.I.R. 1957 S.C. 133

EP Royappa v. State of Tamil Nadu 1974 AIR 555

Indian Young Lawyers Association and Ors. vs.The State of Kerala and Ors

IR Coelho v State of Tamil Nadu AIR 2007 SC 861

Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt 1954 S.C.R. 1005

NALSA v. Union of India (2014) 5 S.C.C. 438

Nar Hari Sastri and Ors. v. Shri Badrinath Temple Committee, 1952 S.C.R. 849
Navtej Singh v Union of India and Ors (2018) 8 SCALE 72

Raja Bira Kishore Deb v. State of Orissa 1964 (7) S.C.R. 32

Riju Prasad Sarma and Ors. v. State of Assam and Ors., (2015) 9 S.C.C. 461

Sardar Syedna Taher Saifuddin Saheb v. State of Bombay 1962 Suppl. (2) S.C.R. 496

Shastri Yagnapurushadiji v. Muldas Bhundardas Vaishya 1966 (3) S.C.R. 242

Shayara Bano v. Union of India (2017) 6 M.L.J. 378

Sri Venkatramana Devaru v. State of Mysore 1958 S.C.R. 895 : 1958 AIR 55

4
 MEMORANDUM ON BEHALF OF PETITIONER

State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75

Suganmal vs State Of Madhya Pradesh And Ors

S.P. Mittal v. Union of India (1983) 1 S.C.C. 51

Tilkayat Shri Govindalji Maharaj v. State of Rajasthan, 1964 (1) S.C.R. 561

BOOKS

1] Constitutional law of India – By Dr. J.N Pandey

2] Indian Constitutional Law - M.P Jain

STATUTES

The Constitution of India,1950

ONLINE SITES

Manupatra

Live Law

Bar and Bench

SCC Online

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 MEMORANDUM ON BEHALF OF PETITIONER

STATEMENT OF JURISDICTION

THE PETITIONER HAS FILED THIS WRIT PETITION UNDER ARTICLE

32 OF THE CONSTITUTION OF INDIA FOR THE VIOLATION OF
FUNDAMENTAL RIGHTS IN PART III OF THE CONSTITUTION.

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 MEMORANDUM ON BEHALF OF PETITIONER

STATEMENT OF FACTS

Mary Smitha, born to parents of inter-religious marriage, was raised in an unconventional

manner that allowed her to choose her beliefs freely. Despite her parents' diverse faiths, she
was exposed to both Hinduism and Christianity.

When she came of age, she chose Hinduism as her religion. At 25, she was denied entry to
Veeramanimala Temple due to a customary restriction on women aged 10 to 50.

In response to this discriminatory practice, the National Young Women Association took a stand
by filing a writ petition under the Indian Constitution. The petition was directed against the
Government of Kerala, the Devaswom Board of Travancore, the Chief Thanthri of
Veeramanimala Temple, and the District Magistrate of Ponmalamedu. Their aim was to
challenge the denial of entry to female devotees within the specified age group, asserting that
this restriction was unjust and violated constitutional principles of equality and religious
freedom.

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 MEMORANDUM ON BEHALF OF PETITIONER

ISSUES RAISED IN THE CASE

ISSUE 1

WHETHER THE WRIT PETITION IS MAINTAINABLE?

ISSUE 2

II.WHETHER EXCLUSION OF ENTRY OF WOMEN BELONGING TO A

PARTICULAR AGE CATEGORY AMOUNTS TO VIOLATION OF ARTICLE 14?

ISSUE 3

III. WHETHER THE EXCLUSIONARY PRACTICE COMES UNDER THE

DEFINITION OF ESSENTIAL RELIGIOUS PRACTICE?

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 MEMORANDUM ON BEHALF OF PETITIONER

SUMMARY OF ARGUMENTS

I.WHETHER THE WRIT PETITION IS MAINTAINABLE?

Under Article 32, a writ petition can be filed in the Supreme Court. When a person FR has been
infringed. It deals with the Writ Jurisdiction of the SC. Art 32(1) provides that the right to move
the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by
this Part is guaranteed. The wordings of the Art 32 Verbatim states about “appropriate
Proceedings”. Further, Art 32(2) says that 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. Further, Art 32(4) lays down that the right guaranteed
by this Article shall not be suspended except as otherwise provided for by this Constitution.
Since there is a grave violation of FR as to the discrimination of women devotees of a particular
age the writ of mandamus is maintainable.

II.WHETHER EXCLUSION OF ENTRY OF WOMEN BELONGING TO A

PARTICULAR AGE CATEGORY AMOUNTS TO VIOLATION OF ARTICLE 14?

The ban of temple entry of women between the age of 10 to 50 on the basis of a customary
belief and practices is a violation of their constitutional rights. So this discrimination and ban
is only applicable to menstruating women. Not to the whole women community. Here they
considered the menstruating blood as a sign of impurity. So these particular age groups of
women were restricted from the entry of veeramanimala Temple at ponmalamedu.

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 MEMORANDUM ON BEHALF OF PETITIONER

III.WHETHER THE EXCLUSIONARY PRACTICE COMES UNDER THE

DEFINITION OF ESSENTIAL RELIGIOUS PRACTICE?

To contend that the exclusion of women aged 10 to 50 from Veeramanimala Temple is not an
essential religious practice in India supported by legal precedents, you could argue the
following: -

The exclusion is not explicitly mentioned in Hindu religious texts. There is no verse in the
Vedas or Upanishads that explicitly states that women of a certain age group should be denied
entry to temples.The exclusion is discriminatory and violates constitutional principles of
equality and religious freedom. Article 14 of the Indian Constitution guarantees equality before
the law and equal protection of the laws to all citizens. Article 25 guarantees the right to
freedom of religion, including the right to freely practice and propagate one's religion. The
exclusion of women from the temple violates both of these articles.There are other Hindu
temples that do not impose such restrictions. Many other Hindu temples in India allow women
of all ages to enter. This suggests that the exclusion at Veeramanimala Temple is not an essential
religious practice.

In addition to these general arguments, you could also cite specific legal precedents that support
your case. For example, in the case of Indian Young Lawyers Association v. State of Kerala
(2006), the Supreme Court of India held that the exclusion of women from the Sabarimala
Temple was not an essential religious practice. The Court reasoned that the exclusion was
discriminatory and violated the constitutional rights of women.

In the case of Veeresh Kumar Jain v. Union of India (2014), the Supreme Court also held that
the exclusion of women from certain Hindu religious practices was not an essential religious
practice. The Court reasoned that the exclusion was based on patriarchal notions of gender
roles and did not have a basis in religious texts.

These precedents suggest that the exclusion of women aged 10 to 50 from Veeramanimala
Temple is likely to be found to be unconstitutional. However, it is important to note that each
case is decided on its own merits, and there is no guarantee that the Court will reach the same
conclusion in this case.

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 MEMORANDUM ON BEHALF OF PETITIONER

ARGUMENTS ADVANCED

I.WHETHER THE WRIT PETITION IS MAINTAINABLE?

The petitioner humbly submits before the Hon’ble SC of India that Writ Petition under Art. 32
of the Constitution of India is maintainable because

• The Writ Petition filed is ‘Mandamus’ which is a Judicial order issued in the form of a
command to any Constitutional, Statutory or Non-Statutory authority asking to carry
out a public duty imposed by law or to refrain from doing a particular act.
• Art. 32 of the Constitution provides the right to Constitutional remedies.
• Supreme Court cannot refuse to exercise its writ jurisdiction due to being the defender
and guarantor of the Fundamental Rights.
It is also called ‘Writ of Justice’ and any person whose rights have been violated on any ground
can seek Justice under this Writ of Mandamus.1Mandamus demands some kind of activity on
the part of the body or person to whom it is addressed. Where the Government denies to itself
a jurisdiction which it has under the law or where an authority vested with the power improperly
refuses to exercise it, mandamus can be issued. Thus, mandamus will not be issued unless the
applicant has a legal right to the performance of legal duty of a public nature and the party
against whom the writ is sought is bound to perform that duty. Since there has been violation
of the Fundamental rights of the Petitioner by being subjected to unequal treatment and
discrimination by the Respondent, Petitioner has the legal right to file the Writ exercising
which, the Writ of Mandamus under Art. 32 of the Constitution has been filed.

SC CANNOT REFUSE TO EXERCISE ITS WRIT JURISDICTION

• Article 32 is a fundamental rights under Part -III of the Constitution. Under this Article,
the SC is empowered to relax the traditional rule of Locus Standi. Art. 32 itself is a
fundamental rights guaranteed to every citizen, which shall be protected by the State

1
Suganmal vs State Of Madhya Pradesh And Ors. on 4 November, 1964

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 MEMORANDUM ON BEHALF OF PETITIONER

and SC. Exercising this fundamental rights granted under Art. 32, the Petitioner seeks
protection from the SC.
• Supreme Court is the defender and guarantor of Fundamental Rights and Art. 32 (which
provide the aggrieved person to seek protection against any Fundamental Rights
violation) falling within the ambit of Fundamental Rights, shall be protected.

1.1 RIGHT TO MOVE TO SC U/Art.32 IS A FUNDAMENTAL RIGHT

Art 32 confers a right upon every person to approach the court through Writ Petition to enforce
their FR. It is considered to be the heart and soul of the Constitution of India. Art 32 is
considered the most important Article in the Indian constitution as it is the guarantor and the
defender of Fundamental Rights in the Indian Constitution. The right to move the Supreme
Court for enforcement of Fundamental Right itself is a Fundamental Right guaranteed by Art
322.

The Hon’ble court stated that this right cannot be abrogated by any Act and this being a
Fundamental Right it is the duty of SC to ensure no provision of the Constitution or Statute
abridges the same3. It was said that the SC could not consistently with the responsibility laid
upon it, refuse to entertain application seeking protection against infringement of such rights.
It must be regarded as the solemn duty of the SC to protect the Fundamental Rights.

Art 32 of the Constitution provides important safeguard for the protection of fundamental right
because a person complaining of breach of any of his Fundamental Rights by an administrative
Action can go straight to the Court for indication of his right without having to undergo
directory processes of proceeding from lower to the higher court as he has to do in other
ordinary litigation. The Court is the protector, defender & guarantor of Fundamental Rights of
the people.

Fundamental Rights are intended not only to protect individual rights but they are based on
high public rights. Liberty of the individual and protection of Fundamental Rights are the very
essence of democratic way of life adopted by the Constitution and it is the privilege and duty

2
Assam Sanmilita Mahasangha v. Union of India AIR 2015 SC 783
3
IR Coelho v State of Tamil Nadu AIR 2007 SC 861

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 MEMORANDUM ON BEHALF OF PETITIONER

of this Court to uphold those rights. This Court would naturally refuse to circumscribe them or
to curtail them except as provided by the Constitution itself 4.

The writ petition filed by the petitioner is A (writ of) mandamus is an order from a court to an
inferior government official ordering the government official to properly fulfill their official
duties or correct an abuse of discretion’ where the petitioner seeks the Court to order to strike
down the provisions which are constitutionally invalid.

1.2 CUSTOMS AND USAGE BEING UNBALANCED LEADIG TO VIOLATION OF

FUNDAMENTAL RIGHT

It is humbly submitted that definition of “law” under Art 135 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 legitimacy6. Supreme Court have every power to decide whether
any practice is an integral part of the religion or not, on the basis of evidence7. Merely because
a practice has continued for long that by itself cannot make it valid if it has been expressly
declared to be impermissible8.

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 expression9.

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

4
Daryao v. state of UP AIR 1961 SC 1457
5
All laws in force in the territory of India immediately before the commencement of this constitution, in so far
as they are inconsistent with the provisions of this part, shall to the extent of such inconsistency, be void.
6
Adi Saiva Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and others, (2016) 2 S.C.C.
72
7
Tilkayat Shri Govindalji Maharaj v. State of Rajasthan, 1964 (1) S.C.R. 561
8
Shayara Bano v. Union of India (2017) 6 M.L.J. 378
9
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

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 MEMORANDUM ON BEHALF OF PETITIONER

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”

1.3 ART 14: EQUALITY IN FACE OF CHALLENGES

SC introduced a test of permissible classification and two conditions must be fulfilled 10.This
test was used by the SC from the very beginning to test the constitutionality of legislation and
State Actions impugned based on violating Art 1411.

The classification must be founded on an intelligible differentia which distinguishes those that
are grouped from others are left out of the group. The differentia must have a rational relation
to the object sought to be achieved by the Act. The differentia which is of the basis of
classification and the object of the Act are distinct and what is necessary is that there must be
nexus between them. The test must be reasonable and not be arbitrary and irrational. The
classification is based on geographical, time, nature of trade, or occupation.

All persons are equally entitled to freedom of conscience and the right freely to profess, practice
and propagate religion. In our society, since ages women had to struggle or fight for their equal
position at public platforms. It is not about the representation, but is also about the ideological
fight with the rules and customs in patriarchal society according to which women remain
subordinates. Freedoms related to religious are essential elements for the functioning of
democracy in a country like India. As we know, constitutional ideals and social reality are very
different as much as possible for the smooth and proper functioning of society.

10
State of West Bengal v. Anwar Ali Sarkar AIR 1952 SC 75
11
Equality before law the state shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India Prohibition of discrimination on grounds of religion, race, caste, sex or place of
birth.

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 MEMORANDUM ON BEHALF OF PETITIONER

In the case of ‘Indian Young Lawyers Association vs. State of Kerala & ors12.’, Apex court has
tried to bridge the gap between constitutional ideals and social reality. One of the arguments
from the side of the petitioner that Lord Ayyappa temple was not separate religious practices
performed in Sabarimala Temple at the time of Puja and other religious ceremonies are not
different from other religious practices performed in other Hindu temples. In this case, the court
ruled thus:

• “We have no doubt in saying that such practices infringe the right of women to enter a temple
and freely practice Hindu religion”.

• “Devotion cannot be subjected to gender discrimination”.

Hon’ble Chief Justice of India stated in his judgment that religion is way of life linked to the
dignity of an individual and patriarchal practices based on the exclusion of one gender in favor
of another could not be allowed to infringe upon the fundamental freedom to practice and
profess one’s religion. The Apex court has declared that the practice of restricting women of a
specific age group in their ‘menstruating years’ from Sabarimala Temple is unconstitutional.
As to the concern of age 10 to 50 it is the period of Menstruation. Menstruation is not impure,
and that women should have equal rights to enter in the Veeramanimala Temple.

This case has been fight against the patriarchal philosophy of the religious order which
prohibits the entry of women into the temple. The case provided the Supreme Court with a
chance to balance the gap between constitutional ideals and social reality. Ratio Decidendi is
the rule of law on which judicial decision is based. It is legally binding. On 28th September
2018, the court delivered its verdict in this case by 4:1 majority which held that the practice
violated the fundamental rights to equality, liberty and freedom of religion, Article 14, 15,
19(1), 21 and 25(1). It struck down Rule 3(b) of the Kerala Hindu Places of Public Worship
Act as unconstitutional. Rule 3(b) allowed for Hindu denominations to exclude women from
public places of worship, if the exclusion was based on custom. The apex court has allowed
entry of women of all age groups to the Sabarimala Temple, and held that “Devotion cannot be
subjected to Gender Discrimination”.

There is a clear cut violation of fundamental right mentioned in Art 14. It is humbly submitted
before this Hon’ble court that Art 14 guarantees to every person, including non-citizens and

12
((2019) 11 SCC 1; 2018 (8) SCJ 609)

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 MEMORANDUM ON BEHALF OF PETITIONER

transgender13, 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 Art 12 which defines State.

There must be nexus between the basis of classification and the object of the Act. The entry of
female devotees between the age of 10 to 50 is unreasonable classification and unintelligibly
differentiation. It violates Art 14 of the Constitution of India as it is manifestly arbitrary which
means something done by the legislature capriciously, irrationally, and without adequate
determining principle.

Also, when something is done which is excessive and disproportionate, such legislation would
be arbitrary14.Honorable SC of India in the case EP Royappa v. State of Tamil Nadu took the
view of Art 14 as and decided equality is a dynamic concept thus it cannot be cribbed, cabined,
and confined within traditional and doctrinaire limits.

From a positivistic view, equality is antithetic to arbitrariness, this equality and arbitrariness
are sworn, enemies. Thus any act which is arbitrary constitutes inequality in political logic and
constitutional law. So the classification made as to the entry of temple only due to certain age
limit is unreasonable and the decision is solely arbitrary. So this violate art 14 of IC.

1.4 THE BAN ALSO CONTRAVENES FUNDAMENTA RIGHT ENSRISHED IN ART

15

It is humbly submitted before this Hon’ble Court that the selective ban on women entering into
temple directly violates the very basic purpose of Article 15(1) and 15(2). Section 3(b)15 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. In so far as the Act and the Rules are invoked to
justify the exclusion of women from the Veeramanimala Temple, therefore, there is a clear

13
NALSA v. Union of India (2014) 5 S.C.C. 438
14
EP Royappa v. State of Tamil Nadu 1974 AIR 555
15
The Kerala Hindu Places of Worship (Authorisation of Entry Act), 1965

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 MEMORANDUM ON BEHALF OF PETITIONER

violation of Art 14 and 15(1) of the Constitution. The pleaded custom violates Article 1516 and
is unreasonable.

In the case of Navtej Singh v Union of India and Ors.17, 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’.

The Supreme Court vide a two judge bench in Anuj Garg v. Hotel Association18 while
adjucating a challenge to section 30 of the Punjab Excise Act, 1914 which prohibited the
employment of any man under the age of 25, and any women, in any part of an establishment
in which liquor or another intoxicating drug was being consumed, rejected the gender
stereotypical arguments that said Act was essential to ensure the “security” of women. The
court observed that legislation amounted to “invidious discrimination perpetrating sexual
differences” and struck it down. In other words, the impugned provision encourages sexual
stereotypes. So here when the discrimination of women of the age category only of 10 to 50
lead to grave discrimination on a particular age group and a particular category paving way to
discrimination on the basis of age & sex.

1.5 BAN OF TEMPLE ENTRY LEADING TO VIOLATION OF FUNDAMENTAL

RIGHT ENRISHED IN ART 25 OF INDIAN CONSTITUTION

It is humbly submitted before this Hon’ble court that the fundamental right of women between
the ages of 10 and 50 to enter the Veeramanimala temple is undoubtedly recognized by Article
25(1). The exclusion of (a class of) women from the Veeramanimala Temple should not be

16
The state shall not discriminate against any citizen on grounds only of religion race, caste, sex, and place of
birth. No citizen shall, on grounds only of religious, race, caste, sex, place of birth or any of them, be subject to
any disability, liability, restriction or condition with regard to access to shops, public restaurants, hotels and places
of public entertainment.

17
(2018) 8 SCALE 72
18
(2008) 3 S.C.C. 1

17
 MEMORANDUM ON BEHALF OF PETITIONER

justified on the basis of ancient custom, which was sanctioned by Rule 3(b), framed by the
Government under the authority of the 1965 Act25(1) (freedom of worship), Article 2619
(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 itself20 .

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
proved21.

In the celebrated, Shirur Math case, viz., The Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt22 ,. This case concerned itself
with the settlement of a scheme in connection with a Math known as the Shirur Math, which,
legislation in the form of the Madras Hindu Religious and Charitable Endowments Act, 1951.
This judgment being a seminal authority for a large number of aspects covered under Articles
25 and 26 needs to be quoted in extensor. The SC held that what constitutes the essential part
of a religion is primarily to be ascertained with reference to the doctrine of that religion itself.
i.e. the check of essential religious practice was first laid forth in this case.

Art. 32 of the Constitution provides the right to Constitutional remedies which means that any
person has right to move to Supreme Court for getting the Fundamental Rights protected.

19
Freedom to manage religious affairs subject to public order, morality and health, every religious denomination
or any section thereof shall have the right.

20
Riju Prasad Sarma and Ors. v. State of Assam and Ors., (2015) 9 S.C.C. 461
21
Nar Hari Sastri and Ors. v. Shri Badrinath Temple Committee, 1952 S.C.R. 849
22
1954 S.C.R. 1005

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 MEMORANDUM ON BEHALF OF PETITIONER

Article 32(2) of the Constitution provides, “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 rights conferred by this Part.” This Act can be invoked to get a remedy related to
Fundamental Rights, and since there has been an active violation of Fundamental Rights of the
Petitioner, the Petitioner has the legal right to seek for the protection of the same in the Supreme
Court under which the Writ of Mandamus is filed before the honorable court.

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 MEMORANDUM ON BEHALF OF PETITIONER

WHETHER EXCLUSION OF ENTRY OF WOMEN BELONGING TO A

WHETHER EXCLUSION OF ENTRY OF WOMEN BELONGING TO A PARTICULAR
PARTICULAR
AGEAGE CATEGORY
CATEGORY AMOUNTS
AMOUNTS TO VIOLATION
TO VIOLATION OF ARTICLE
OF ARTICLE 14? 14?

It is humbly Contented before the Hon’ble Court that ban of temple entry of women between
the age of 10 to 50 on the basis of a customary belief and practices is a violation of their
constitutional rights.

Article 14 to 18 of the constitution guarantee the right to equality to every citizen of Indian.
Article 14 embodies the general principles of equality before law and prohibits unreasonable
discrimination between persons article 14 embodies the idea of equality expressed in the
preamble the succeeding Article 15, 16, 17 and 18 lay down specific application of the general
rules laid down in Article 14 Article 15 relates to prohibition of discrimination on grounds of
religion, race, sex or place of birth.

Preventing women from entering the places of worship goes against Articles 14, 15, 19, and
25 of the Indian constitution, which deal with the right to equality, the right against
discrimination based on gender, freedom of movement and freedom of religion. The excluded
women claim that barring them access to the inner sanctum of the shrine violated their
fundamental right under Article 25(1) to freely practice their religion. Right to manage its own
religious affairs under Article 26(1) cannot “override the right to practice religion itself”, as
Article 26 cannot be seen to overrule the right to practice one’s religion as guaranteed under
the Constitution of India.

Restricting the entry of women into places of worship is one of the ways of imposing
patriarchy. Often the restrictions are based on patriarchy and not religion. Banning entry to the
temple is discriminatory since it subverts the idea of everyone being equal to God. From the
abolition of Sati to temple entry proclamation to the abolition of untouchability, reforms have
been judicial or legislative. In April 2016, the Shani Shingnapur temple, which had barred
women from entering its core area for over 400 years, allowed women to pray inside the temple
following the court’s orders.

Here in this case the ban of entering women into veeramanaimala temple at ponmalamedu is
only applicable to a particular age groups between the age of 10 to 50, it is based only on the
biological process they have to face in every month as menstruation. So this discrimination and

20
 MEMORANDUM ON BEHALF OF PETITIONER

ban is only applicable to menstruating women. Not to the whole women community. Here they
considered the menstruating blood as a sign of impurity. So these particular age groups of
women were restricted from the entry of veeramanimala Temple at ponmalamedu.

Menstruation is not impure, and that women should have equal rights to enter the
veeramanimala Temple at ponmalamedu. A criticism claims that we cannot consider women
are impure based on menstruation and it is gender discrimination. This practice also violates
Article 14 (Equality before Law) of the Indian Constitution as discrimination on the basis of a
specific age group of women is not reasonable discrimination.

“Devotion can not be subjected to Gender Discrimination.”

Religion is a way of life linked to the dignity of an individual and patriarchal practices based
on the exclusion of one gender in favor of another could not be allowed to infringe upon the
fundamental freedom to practice and profess one’s religion. Women are not lesser or inferior
to men. Religious patriarchy cannot be allowed to triumph over belief. Biological reasons (such
as menstruation) cannot be accepted in freedom for faith. Religion is basically a way of life.

The practice of restricting women of a specific age group in their ‘menstruating years’ from
entering veeramanimala Temple is unconstitutional.

Applicability of Article 14

Religious customs and practices cannot be merely tested on the benchmark of Art. 14 and the
rationality principles surrounded therein. Art. 25 provides the equal entitlement of every
individual explicitly to practice their religion freely. Equal treatment under Art. 25 of the Indian
Constitution is based on the conditions by the fundamental views and practices of any religious
activities. “Equality in the matters of belief must be seen in the context of the worshippers of
the same religion.” The twin-test for determining the validity of classification under Art.
Fourteen of the Indian Constitution is:

The classification must be founded on an intelligible differentia; and It must have a rational
nexus with the object sought to be achieved by the impugned law.

The difficulty lies in applying the tests under Art.14 to religious practices, which are also
protected as Fundamental Rights under our Indian Constitution. It is not for the courts to
examine and determine which of these practices of a faith are to be struck down, except if they
are pernicious, oppressive, or a social evil, like Sati.

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 MEMORANDUM ON BEHALF OF PETITIONER

Freedoms related to religion are essential elements for the functioning of democracy in a
country like India. As we know, Constitutional ideals and Social reality are very different from
each other but it is also necessary to reduce the differences as much as possible for the smooth
and proper functioning of society. It amountS to violation of Article 14.

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 MEMORANDUM ON BEHALF OF PETITIONER

III. WHETHER THE EXCLUSIONARY PRACTICE COMES UNDER THE

DEFINITION OF ESSENTIAL RELIGIOUS PRACTICE?

It is humbly contended before the Court that the Lord Dharmasastha devotees does not
constitute a separate religious denomination.

Dharmasastha devotees does not constituted a denomination as there is no specific

Dharmasastha sect. Hindu faith has only pre-established denominations with zero scope to have
developed new denominations over a period of time.

A 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 India23 the court refused to grant Aligarh Muslim University protection under
Article 26(a). Since it was constituted under a statute and not by Muslims, the community does
not have the exclusive right to administer it.

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. The religious ceremonies at
Dharmasasthra Temple are not distinct from any other Hindu temples.

Article 21 of this part states that “No person shall be deprived of his life or personal liberty
except according to the procedure established by law”, and this is known as the Right to Life
and Personal Liberty.

Religious practices may include rituals, sermons, commemoration or veneration (of deities or
saints), sacrifices, festivals, feasts, trances, initiations, matrimonial and funerary services,
meditation, prayer, music, art, dance, or public service. Religious practices vary widely,
encompassing rituals, worship, and ethical guidelines. These practices often foster a sense of
community, moral grounding, and connection to the divine, shaping individuals' spiritual
journeys.

It is urged that since all Devaswoms are Hindu Temples and they are bound to follow the basic
tenets of Hindu religion, individual ill-practice of any temple contrary to the basic tenets of

23
A.I.R. 1968 S.C. 662

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 MEMORANDUM ON BEHALF OF PETITIONER

Hindu religion is impermissible, after it being taken over by statutory board and state funding
in 1971. It is propounded that for the purpose of constituting a ‘religious denomination’ not
only the practices followed by that denomination should be different but its administration
should also be distinct and separate. Thus, even if some practices are distinct in temples
attached to statutory board, since its administration is centralized under the Devaswom Board,
it cannot attain a distinct identity of a separate religious denomination.

In the case of Sardar Syedna Taher Saifuddin Saheb v. State of Bombay 24, Raja Bira Kishore
Deb v. State of Orissa25 , Shastri Yagnapurushadiji v. Muldas Bhundardas Vaishya26 and S.P.
Mittal v. Union of India27 wherein the concept of religious denomination was discussed by this
Court. It is the stand of the petitioners that some mere difference in practices carried out at
Hindu Temples cannot accord to them the status of separate religious denominations.

In Durgah Committee, Ajmer v. Syed Hussain Ali28, Justice Gajendragadkar, clarified that
clauses (c) and (d) of Article 26 of the Constitution of India do not create any new right in
favour of religious denominations but only safeguard their rights. Similarly, in matters of
religious affairs, it is observed that the same is also not sacrosanct as there may be many ill-
practices like superstitions which may, in due course of time, become mere accretions to the
basic theme of that religious denomination. So it can be concluded that even if any accretion
added for any historical reason has become an essence of the said religious denomination, the
same shall not be protected under Article 26(b) if it is so abhorring and is against the basic
concept of our Constitution.

Discrimination in matters of entry to temples is neither a ritual nor a ceremony associated with
Hindu religion as this religion does not discriminate against women but, on the contrary, Hindu
religion accords to women a higher pedestal in comparison to men and such a discrimination
is totally anti-Hindu, for restriction on the entry of women is not the essence of Hindu religion.
Further Submitting that even if Sabarimala temple is taken as a religious denomination, their
basic tenets are not confined to taking of oath of celibacy for certain period of pilgrimage as
all pilgrims are allowed freely in the temple and there is no such practice of not seeing the sight
of women during this period.

24
1962 Suppl. (2) S.C.R. 496
25
1964 (7) S.C.R. 32
26
1966 (3) S.C.R. 242
27
(1983) 1 S.C.C. 51
28
1962 (1) S.C.R. 383

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 MEMORANDUM ON BEHALF OF PETITIONER

In the case of Sri Venkatramana Devaru v. State of Mysore29 has been cited to submit that a
religious denomination cannot completely exclude or prohibit any class or section for all times.
All that a religious denomination may do is to restrict the entry of a particular class or section
in certain rituals.

In India, religious practices are protected by the Constitution, which upholds the right to
freedom of religion under Article 25-28. Citizens have the liberty to profess, practice, and
propagate any religion, ensuring a secular ethos in governance. The legal framework respects
the diverse religious tapestry of the nation. India's legal landscape seeks a delicate equilibrium
between religious freedom and the broader principles of justice, equality, and individual rights,
reflecting the intricate interplay between law and diverse cultural, religious, and social norms.

Controversies sometimes arise over religious practices that intersect with social issues, like the
Sabarimala temple entry restrictions for women, which sparked debates on gender equality and
religious traditions. Courts play a crucial role in interpreting and balancing these rights,
ensuring that religious practices do not infringe upon fundamental rights guaranteed by the
Constitution.

Fundamental rights include Article 25: Freedom of conscience and free profession, practice
and propagation of religion. Article 26: Freedom to manage religious affairs. Article 27:
Freedom as to payment of taxes for promotion of any particular religion. Article 28: Freedom
as to attendance at religious instruction or religious worship in certain educational institutions
These rights are guaranteed by the constitution.

In a similar case of Indian Young Lawyers Association and Ors. vs.The State of Kerala and
Ors. The court ruled by a 4:1 majority that the practice infringed the fundamental rights to
equality, liberty, and religious freedom, as well as Articles 14, 15, 19(1), 21, and 25. (1). Rule
3(b) of the Kerala Hindu Places of Public Worship Act was declared invalid. Rule 3(b)
permitted Hindu denominations to bar women from public places of worship provided the ban
was based on custom. The Supreme Court has permitted women of all ages to enter the
Sabarimala Temple, ruling that “devotion cannot be subjected to gender discrimination.” So
the exclusionary practice doesn't come under the definition of essential religious practices.

29
1958 S.C.R. 895 : 1958 AIR 55

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 MEMORANDUM ON BEHALF OF PETITIONER

PRAYER

Wherefore in the light of the facts stated, issues raised, authorities cited, and arguments
advanced, it is most humbly prayed before this Honourable Court that it may be pleased to
adjudge and declare:

1. That the writ petition is maintainable.

2. That the exclusion of entry of women belonging to a particular age category amount to
violation of Art 14.

3. The exclusionary practice does not come under the definition of essential religious
practice.

And/Or,

Pass any other order that it deems fit.

And for this, the Respondent as in duty bound, shall humbly pray.

COUNSEL ON BEHALF OF THE PETITIONER

26