XII AMITY NATIONAL MOOT COURT COMPETITION, 2019 | TEAM CODE:

ALS-58
TEAM CODE: ALS-58

XII AMITY NATIONAL MOOT COURT COMPETITION, 2019

BEFORE THE HON’BLE

SUPREME COURT OF INDIANA

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIANA)

INDIANA YOUNG LAWYERS ASSOCIATION……………..PETITIONER 1

"HAPPY MENSTRUATION" CAMPAIGN.………………...PETITIONER 2
V.
TENJI BOARD……………………………………………......RESPONDENT 1
UNION OF INDIANA………………………………………...RESPONDENT 2

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM FOR THE PETITIONERS

 XII AMITY NATIONAL MOOT COURT COMPETITION, 2019 | TEAM CODE: ALS-58

TABLE OF CONTENTS:

LIST OF ABBREVIATIONS .................................................................................................. III

INDEX OF AUTHORITIES..................................................................................................... V

STATUTES & CONSTITUTION: ........................................................................................... V

BOOKS: .................................................................................................................................... V

ARTICLES & JOURNALS: ..................................................................................................... V

CASE LAWS: ......................................................................................................................... VI

STATEMENT OF JURISDICTION: ................................................................................... VIII

STATEMENT OF FACTS: .................................................................................................... IX

STATEMENT OF ISSUES: ................................................................................................... XI

SUMMARY OF ARGUMENTS: ......................................................................................... XIII

ARGUMENTS ADVANCED: ............................................................................................. - 1 -

I. THE PRESENT & THE SUBSEQUENT INTERVENTIONS ARE NOT

MAINTAINABLE: ............................................................................................................... - 1 -

II. THE HON’BLE SC HAS AN EXTENSIVE JURISDICTION IN DEFINING THE

BOUNDARIES OF RELIGION IN PUBLIC SPACES IN SO FAR AS RELIGIOUS
PRACTICES VIOLATE FUNDAMENTAL RIGHTS: ....................................................... - 5 -
A. Jurisdiction of the court to define boundaries of religion in public spaces .............. - 5 -
B. Art. 15(2)(b) is applicable qua religious places/institutions of a public character &
hence is applicable to Himaya temple .............................................................................. - 8 -
C. Interpretation of Art.25: ............................................................................................ - 9 -

III. THE RESTRICTION IMPOSED ON WOMEN AND CHILDREN DOESN’T

AMOUNT TO VIOLATION OF THEIR FUNDAMENTAL RIGHTS: ........................... - 11 -

MEMORANDUM FOR THE PETITIONERS I

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A. Rule 3(b) of Tenjiku Hindu Places of Public Worship (Authorization of entry rules) is
not “law” within the meaning of Art.13(3) of the Constitution: ..................................... - 11 -
B. The custom or tradition followed at Himaya temple is ‘law’ within the meaning of art.
13(3)(a) of the constitution but the practice of excluding women from the temple does not
violate part III of the Constitution: ................................................................................. - 12 -
C. Tenji Board is an Instrumentality of State & hence is “State” within the meaning of
Article 12 of the Constitution: ........................................................................................ - 13 -
D. The Entry-Ban violates the right to privacy of women: ......................................... - 14 -
E. The Entry Ban is discrimination on the basis of sex & hence violates Art. 15(1) of the
Constitution:.................................................................................................................... - 15 -
F. The Entry-ban is “Untouchability” qua Art.17 of the Constitution: ....................... - 15 -

IV. THE PRACTICE OF EXCLUDING WOMEN B/W THE AGE OF 10-50 IS AN

ESSENTIAL RELIGIOUS PRACTICE & HENCE WOULD BE ENTITLED TO
PROTECTION U/A 25(1) & ART. 26(b) .......................................................................... - 16 -
A. Whether the said practice is essential religious practice:........................................ - 16 -
B. Devotees of Lord Tenji do not constitute a religious denomination:...................... - 19 -

PRAYER ............................................................................................................................. - 21 -

MEMORANDUM FOR THE PETITIONERS II

XII AMITY NATIONAL MOOT COURT COMPETITION, 2019 | TEAM CODE: ALS-58

LIST OF ABBREVIATIONS

S.No ABBREVIATION MEANING

1. @ At
2. & AND
3. 2nd Second
4. AIR ALL INDIA REPORTER
5. Annex. Annexure
6. Anr. Another
7. Art. Article
8. B/w Between
9. Bom. Bombay
10. Cl. Clause
11. Cri Criminal
12. Govt. Government
13. HC High Court
14. Hon’ble Honorable
15. i.e. That is
a. Imp Important
16. Impugned Practice/ the The practice of restricting women b/w the age of 10-
practice 50 from entering the Himaya Temple.
17. IST Indian Standard Time
18. J. Justice
19. LJ Law Journal
20. No. Number
21. Ors. Others
22. PCRA,1955 or PCRA The Protection of Civil
Rights Act, 1955
23. Pg. Page
24. PIL Public Interest Litigation
25. PTI Press Trust of India
26. Pvt. Private

MEMORANDUM FOR THE PETITIONERS III

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27. r/w Read with

28. Rev. Reverend
29. SC Supreme Court
30. SCC Supreme Court Cases
31. SCR Supreme Court Reporter
32. SCR,2013 Supreme Court Rules, 2013
33. Supp. Supplementary
34. Tenjiku Hindu Places of “the entry rules” or “the rules”
Public Worship
(Authorization of Entry)
rules
35. TNN Times News Network
36. U.S. United States
37. U/S Under Section
38. UOI Union of India
39. V./Vs. Versus
40. Viz. Namely
41. Vol Volume
42. w.r.t. With respect to

MEMORANDUM FOR THE PETITIONERS IV

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INDEX OF AUTHORITIES

STATUTES & CONSTITUTION:

 Black’s Law Dictionary, Centennial Edition, 6th Edition @ Pgs5, 8, 9, 11 of
the Arguments Advanced.
 Constitution Assembly Debates of India, 1950 @Pgs16, 17.
 Constitution of Indiana, 1950 (Pari Materia to the Constitution of
India,1950) @ every page of the Arguments Advanced.
 Convention on the Elimination of All forms of Discrimination against
Women, 1979 @Pgs19, 20.
 Supreme Court Rules, 2013 @ Pgs3 of the Arguments Advanced.
 The Protection of Civil Rights Act, 1955 @ Pg15 of the Arguments
Advanced.

BOOKS:
 1 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 46-625
(Hon’ble Dr. Justice AR Lakshmanan, VR Manohar & Hon’ble Justice
Bhagabati Prosad Banerjee, Lexis Nexis 14th Edition 2015) (1958) @Pgs1,
3 of the Arguments Advanced.

ARTICLES & JOURNALS:

 ANTONIN SCALIA, “Opening Statements on American Exceptionalism to a Senate

Judiciary Committee”, AmericanRhetoric.com, (5 October, 2011, Washington D.C.),
https://www.americanrhetoric.com/speeches/antoninscaliaamericanexceptionalism.ht
m @Pg2 of the Arguments Advanced.
 C.VASANTHA KUMARI, “The Madras Nambudri Act (XXI Of 1933) - A Study Of
The Nambudri Customs Of Malabar In Light Of The Judicial Findings Antecedent To
The Act”, PROCEEDINGS OF THE INDIAN HISTORY CONGRESS, Vol. 60,
Diamond Jubilee (1999), Pg. 752-764 @Pg2 of the Arguments Advanced.
 GAUTAM BHATIA, “Freedom from community: individual rights, group life, state
authority, and religious freedom under the Indian constitution”, 73 YALE LJ. 733,
737-38 (2015) @Pgs7, 8, 16 of the Arguments Advanced.

MEMORANDUM FOR THE PETITIONERS V

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 GAUTAM BHATIA, “Horizontality Under The Indian Constitution: A Schema”,

Indian Con Law Philosophy, ( May 24, 2015),
https://indconlawphil.wordpress.com/2015/05/24/horizontality-under-the-indian-
constitution-a-schema/ @Pg13,14,16 of the Arguments Advanced.
 GAUTAM BHATIA, “Essential Religious Practices” and the Rajasthan High Court’s
Santhara Judgement: Tracking the History of a Phrase., Indian Con Law Philosophy,
(August 19, 2015), https://indconlawphil.wordpress.com/2015/08/19/essential-
religious-practices-and-the-rajasthan-high-courts-santhara-judgment-tracking-the-
history-of-a-phrase/ @Pg18 of the Argument Advanced.
 H JEFFERSON POWELL, “The Original Understanding of Original Intent”,
HARVARD LAW REVIEW, Vol. 98, No. 5 (March 1985), Pgs885-948, @Pg9 of the
Arguments Advanced.
 KATHLEEN O’ GRADY, “Review: Don’t mention it- The Curse: Confronting the last
Unmentionable Taboo by Karen Houppert”, THE WOMEN'S REVIEW OF BOOKS,
Vol. 16, No. 12 (Sep., 1999), Pg. 17-18, @Pg4,14 of the Arguments Advanced.
 MADHAVI SUNDER, “Cultural Dissent”, U.C. DAVIS LEGAL STUDIES
RESEARCH PAPER SERIES, RESEARCH PAPER NO.113, School of Law,
University of California, Davis (2002), Pg.495-567, @Pg3 of the Arguments
Advanced.
 UPENDRA BAXI, “Jurisprudence of inverted commas”, The Hindu, (October 13th ,
2018, 07:39 IST), https://www.thehindu.com/opinion/op-ed/jurisprudence-of-inverted-
commas/article24849389.ece @Pg16 of the Arguments Advanced.
 VIVIENNE C. CASS, “Homosexual Identity Formation: Testing a Theoretical
Model”, THE JOURNAL OF SEX RESEARCH, Vol.20, No.2 (May,1984), Pgs143-
167, @Pg9 of the Arguments Advanced.

CASE LAWS:

1. Adi Saiva Sivachariyargal Nala Sangam and Ors. v. Government of Tamil Nadu and
Anr., (2016) 2 SCC 725………………………………………………………………1,2
2. Ajay Hasia v. Khalid Mujib, 1981 SCC (1) 722………………………………………23
3. Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802…………………………4
4. BCCI v. Cricket Association of Bihar, (2015) 3 SCC 251…………………………13,14

MEMORANDUM FOR THE PETITIONERS VI

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5. Commissioner of police v. Acharya Jagdishwarananda Avadhuta, (2004) 12 SCC

770……………………………………………………………………………………..6
6. Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors., 1962 SCR (1)
383………………………………………………………………………………...16,17
7. Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors.,(2018) SCC
Online SC 1690………………………………………………….....................1,2,7,9,10
8. Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1……………………4,9,14
9. Madhu Kishwar v. State of Bihar, (1996) 5 SCC 125………………………………..12
10. Maneka Gandhi v. Union of India, 1978 SCC (1) 248…………………………………9
11. Medha Kotwal Lele & Ors. v. Union of India & Ors., (2013) 1 SCC 311……………15
12. Navtej Singh Johar v. Union of India, 2018 10 SCC 1…………………………………7
13. People’s Union for democratic rights v. Union of India, AIR 1982 SC 1473………3,4
14. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, Appeal(civil) 992 of
2002……………………………………………………………………………….….13
15. R.D. Shetty v. International Airport Authority, 1979 SCC (3) 489………………..13,14
16. Rajasthan State Electricity Board v. Mohan Lal, 1967 SCR (3) 377………………13,14
17. Ratilal Panachand Gandhi v. State of Bombay, (1954) SCR 1055…………………....1
18. S.P. Gupta v. President of India, AIR 1982 SC 149…………………………………3,4
19. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853…10,11,18
20. Seshammal & Ors. v. State of Tamil Nadu, (1972) 2 SCC 11……………………..17,18
21. Shayara Bano v. Union of India, (2017) 9 SCC 1…………………………………..6,14
22. Shrimati Vidya Verma v. Dr Shiv Narain Verma, 1955 SCR (2) 983…………………13
23. SP Mittal v. Union of India & Ors., (1983) 1 SCC 51………………………………5,18
24. Sri Venkatraman Devaru v. State of Mysore, 1958 SCR 895………………………..18
25. Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331……………………………….13,14
26. The Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thritha
Swaminar of Shirur Muth, [1954] SCR 1005……………………………………5,17,18
27. The State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84……………………...12
28. Vishaka v. State of Rajasthan, (1997) 6 SCC 241…………………………………15,20
29. Zee Telefilms supra, WP(Civil) 541 of 2004…………………………………………23

MEMORANDUM FOR THE PETITIONERS VII

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STATEMENT OF JURISDICTION:

This Hon'ble court has the jurisdiction to entertain, adjudicate & dispose of this matter under
article 32(1) of the Constitution of Indiana. Article 32(1) reads as follows:

“Article 32: Remedies for enforcement of rights conferred by this part

1. The right to move the supreme court by appropriate proceedings for enforcement
of the rights conferred by this part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of any
of the rights conferred by this Part.
3. Without prejudice to the powers conferred on the Supreme Court by clauses (1) and
(2), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause (2).
4. The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.”

MEMORANDUM FOR THE PETITIONERS VIII

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STATEMENT OF FACTS:

THE CORE DISPUTE:

1. The core dispute in this matter is relating to the ban of entry of women between the ages of
10-50 in Himaya Temple, Tenjiku, Indiana.1The claim of the petitioners (Indiana Young
Lawyers Association-Petitioner 1 & “Happy Menstruation” campaign- Petitioner 2) is that
the ban on the entry of women is not based on any religious text or practice, & therefore is
anti-Hindu. Moreover, according to the petitioners the discrimination against women
between the age 10-50 is on the basis of sex & hence they have prayed before the Hon’ble
SC of Indiana to pass a direction to allow entry of woman without any age restrictions.2
2. The Tenji Board which maintains the temple has claimed that the ban on women (b/w the
ages of 10-50) is in accordance with centuries-old tradition. Lord Tenji- the deity
worshipped at Himaya temple is a Naishtika Brahmachari (one who has vowed to remain
celibate).3 The 2nd argument given by the board is that every pilgrim has to observe a strict
vow of penance for 41 days4 & women of the banned age bracket owing to their
physiological characteristics will not be able to observe the vow of penance.5

NATURE OF THE DEITY, IT’S BELIEVERS & THE HISTORICITY OF

THE HIMAYA TEMPLE:
3. The Himaya Temple is the seat of Lord Tenji in his “Nashtika Brahmachari” form. The
belief of the devotees is that Lord Tenji derives his powers from being a celibate.6
4. Devotees of Tenji dress uniformly in black as they believe that the colour signifies a
renunciation of all worldly pleasures, but it also means that everyone is equal before Tenji.7
5. The pilgrims before and during their pilgrimage practice celibacy. The pilgrims have to
follow a strict vow over a period of 41 days. The said practice also includes maintaining
hygiene including taking bath twice a day & also taking 1 meal a day.8

1
Para 1 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019.
2
Para 5 & Para 6 of The Moot Proposition. XII AMITY NATIONAL MOOT COURT COMPETITION, 2019.
3
Para 7 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019.
4
Para 3 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019.
5
Para 7 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019.
6
Para 2 & Para 3 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019.
7
Para 1 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019.
8
Para 3 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019.

MEMORANDUM FOR THE PETITIONERS IX

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6. It is also stated that women devotees of Tenji (at Himaya temple) do not go to Himaya
temple partly out of their empathy for Masma and her eternal wait (to marry Tenji) & it’s
also out of respect for Tenji’s commitment to answer the prayers of his devotees.9

THE MATTER BEFORE THE HON’BLE SC OF INDIANA:

7. The matter before the Hon’ble SC has brought before the judgement of the Tenjiku High
Court, which held that the restriction is in accordance with the usage from time immemorial
& not discriminatory under the constitution. The High Court relied on the statement of ‘the
Himaya Thanthri’, & held that the said restriction against women between the age bracket
of 10-50 is usage from time immemorial & forms a custom.10
8. This issue which involves religious rights & tradition on one side & equality on the other,
is pending before a 7-judge bench of the SC of Indiana, & arguments have to be made
namely on the following issues:
a. Locus of the petitioners and maintainability of the petition
b. The Jurisdiction of the Hon’ble SC of Indiana to define the boundaries of religion
in public spaces
c. Whether the restrictions imposed on the women & children of certain age amounts
to a violation of their FRs u/a 14, 15(3) & 17 of the constitution in the light of rule
3(b) of Tenjiku Hindu Places of Public Worship (Authorization of Entry) Rules?
d. Whether the practice of excluding women of a certain age is an “essential religious
practice” u/a 25 of the constitution?

POINT OF FACT:
9. The laws of Union of Indiana are pari materia to that of Union of India.11

9
Para 4 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION.
10
Para 8 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION.
11
NOTE of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION.

MEMORANDUM FOR THE PETITIONERS X

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STATEMENT OF ISSUES:

ISSUE I12:

1. Whether the petitioner & the subsequent interveners have the locus to file the
present petition? In other words, is the present petition & subsequent interventions
maintainable u/A 32 of the Constitution?
2. Do the petitioners & intervenors have rights u/a 25 of the Constitution w.r.t. entry
into the Himaya temple? In other words, can a non-believer of a particular deity
claim rights u/a 25 of the Constitution in order to obtain entry into the shrine of that
particular deity & therefore have locus to approach this hon’ble court?
3. If the answer to the previous 2 questions is in the negative, then in the alternative is
the present plea maintainable as public interest litigation?

ISSUE II13:

1. Does the Himaya Temple constitute a ‘public space’ or in the alternative is it ‘a

place of public resort maintained wholly or partly out of state funds or dedicated to
the use of general public’ within the meaning of Art. 15(2)(b) so as to there being a
constitutional bar [as stated in Art. 15(2)] on placing any restriction on women
between the age of 10-50 in so far as such restriction is ‘only on the grounds of
sex’? In other words, does the restriction on women within a specific age bracket
violate Art. 15(2) of the Constitution & is therefore unconstitutional?
2. Does the temple entry restriction put by the Himaya temple directly flow from the
rights of the believers (of the temple tradition) u/a 25(1) of the Constitution? If the
answer to the previous question is in the affirmative, is the right of a believer u/a
25(1) restricted in any way by the phrase ‘Subject to public order, morality and
health and to the other provisions of this part….’? In other words, are there any
restrictions placed by the constitution, to the exercise of the right freely to profess,
practice and propagate religion?

12
Para 8 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION.
13
Ibid footnote 12.

MEMORANDUM FOR THE PETITIONERS XI

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3. In light of the above 2 questions, to what extent can this Hon’ble court define the
boundaries of religion in public spaces?

ISSUE III14:

1. Can Rule 3(b) of Tenjiku Hindu Places of Public Worship (Authorization of Entry)
[in short, “the entry rules”] be termed as “law” within the meaning of Art. 13(3)(a)
of the constitution?
2. If the answer to the previous question is in the affirmative, then is rule 3(b)
specifically violative of art. 14,15(3) & 17 of the constitution? Or is rule 3(b)
generally violative of part III or any other part of the constitution?
3. If the answer to the previous two questions is in the affirmative, then is there an
independent right of the temple to restrict the entry of women in a particular age
bracket?
4. Is the practice of restricting women of a particular age bracket so far as it is followed
from time immemorial be termed as a custom? If yes, then does the custom qualify
as “law” within the meaning of art. 13(3)(a) of the Constitution?
5. Assuming that the custom to restrict women is “law” qua art.13(3)(a) of the
constitution, does the custom violate any of the rights guaranteed by part III of the
constitution & is hence void, as stated in art.13(2) of the constitution?

ISSUE IV15:

1. Do the followers of Tenjiku at Himaya Temple constitute a religious denomination

within the meaning of art. 26 of the constitution?
2. Is the practice of excluding women constitute an “essential religious practice”? If
yes, can a religious denomination avail protection u/a 26(b) of the constitution for
such a practice?

14
Para 8 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019.
15
Para 8 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETION, 2019.

MEMORANDUM FOR THE PETITIONERS XII

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SUMMARY OF ARGUMENTS:

I. THE PRESENT PETITION AND THE SUBSEQUENT INTERVENTIONS ARE

MAINTAINABLE U/A 32 AS THE PETITIONERS HAVE THE LOCUS TO FILE
THE PRESENT PLEA:
A petition u/a 3216 of the constitution is maintainable only if there is a prima facie violation
of the fundamental rights of the petitioner. It is humbly submitted before this Hon'ble court
that the fundamental rights of the petitioners have been violated qua the entry restriction
into the Himaya temple.17 The fundamental right of the petitioners u/a 25, 15(1), 14 & 21
have been violated. Moreover, the impugned practice is “untouchability”18 within the
meaning of art. 17 of the constitution. It is also contended that non-followers of a religion
have the locus to file this petition.

II. HIMAYA TEMPLE DOES QUALIFY AS A “PUBLIC SPACE”, THEREFORE THE

QUESTION OF DEFINING THE BOUNDARIES OF RELIGION DOESN’T ARISE.
MOREOVER, THIS HON’BLE COURT CANNOT REVIEW RELIGIOUS
PRACTICES ON GROUNDS OTHER THAN “PUBLIC ORDER, HEALTH,
MORALITY & OTHER PROVISIONS OF PART III”.IN OTHER WORDS, THIS
HON’BLE COURT CANNOT RESTRICT THE RIGHT OF THE TEMPLE TO
HAVE AN ENTRY RESTRICTION.
The Himaya Temple is a “public space” or a “place of public resort dedicated to the use of
general public” within the meaning of art.15(2)(b) of the Constitution. Even otherwise, the
temple has a “public character” so as to attract art.25(2)(b) of the constitution. Moreover,
this Hon'ble court can strike down any custom which has the force of law qua art. 13(3)(a)
of the constitution. In other words, any custom which violates the fundamental rights of a
citizen is void according to art. 13(2) of the constitution. Therefore, this Hon'ble court has
the jurisdiction of defining the boundaries of religion in public spaces to the limited extent
that the religious practices violate any provisions of part III of the constitution. Moreover,
this court can also interfere if there is a law made by the state u/a 25(2)(b) of the constitution
in so far it issues a mandamus to the authorities to enforce that law.

16
Article 32 of the Part III of the Constitution of Indiana, 1950.
17
Para 5 & 6 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019
18
Article 17 of the Part III of the Constitution of Indiana, 1950.

MEMORANDUM FOR THE PETITIONERS XIII

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III. RULE 3(b) OF THE ENTRY RULES IS UNCONSTITUTIONAL & VOID QUA
ART.13(2). THE PRACTICE OF BARRING WOMEN B/W THE AGE OF 10-50
FROM ENTERING THE TEMPLE CANNOT HAVE THE FORCE OF AN
INDEPENDENT RIGHT U/A 25 OF THE CONSTITUTION. MOREOVER, THE
IMPUGNED PRACTICE IS NOT A CUSTOM WITHIN THE MEANING OF ART.
13(3)(a) OF THE CONSTITUTION.
Rule 3(b) of the entry rules is law within the meaning of art.13(3)(a) and hence art.13(2) of
the constitution is applicable to the rule in so far as it violates any of the fundamental rights
& hence the rule must be declared void by this Hon'ble court. The impugned custom of
restricting women of a particular age group is not law qua art. 13 & the practice is also not
protected by art. 25 or even 26, therefore the practice is discriminatory & hence
unconstitutional. Moreover, assuming that the custom at Himaya Temple is “Law” qua
art.13(3)(a) in so far it is a “custom” which is being followed from time immemorial &
hence has obtained “within the territory of Indiana the force of law”, then also this Hon'ble
court can strike down u/a 13(2) as it violates the rights guaranteed by part III of the
constitution.

IV. THE FOLLOWERS OF TENJIKU AT THE HIMAYA TEMPLE DO NOT

CONSTITUTE A RELIGIOUS DENOMINATION QUA ART.26 OF THE
CONSTITUTION & HENCE THE PRACTICE OF RESTRICTICTING WOMEN IN
A PARTICULAR AGE BRACKET DOESN’T ENJOY CONSTITUTIONAL
PROTECTION U/A 26(b) OF THE CONSTITUTION.
The followers of Tenjiku at the Himaya temple do not constitute a religious denomination
qua art.26 because they do not have a common set of practices & believes, nor do they have
a common name. Therefore, no constitutional protection can be claimed u/a 26(b) of the
constitution. In other words, the act of restricting women b/w the age of 10-50 is not
constitutionally protected under art. 26(b), i.e., as a right to manage one’s own religious
affairs.

MEMORANDUM FOR THE PETITIONERS XIV

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ARGUMENTS ADVANCED:

I. THE PRESENT & THE SUBSEQUENT INTERVENTIONS ARE NOT

MAINTAINABLE:

1. It is humbly submitted before this Hon'ble court that the present petition is maintainable
u/a 32 of the Constitution. The reasons for this are as follows:

Firstly. A petition under article 3219 is maintainable only if the fundamental

rights of the petitioner have been prima facie violated20. In the present petition,
various fundamental rights of the petitioners & subsequent intervenors have been
violated. Some of the Fundamental rights that have been violated are Art. 14, Art
15, Art 17, Art 21 & Art 25.21
Secondly. It is submitted that the petitioners & the intervenors can claim the right
to freely profess, practice & propagate religion 22 in so far as it applies in this case
to them, as non-believers/non-followers worshipping Lord Tenji in his Naishtik
Brahmachari23 form at Himaya Temple.24
Thirdly. From the previous point, it follows that a claim made of violation of the
“right freely to profess, practice & propagate religion” under Art.25(1) can be made
by any person (even a non-believer).25 This assertion is connoted from the language
of the constitutional text u/a 25. It would be pertinent to point out some of the
essential features of Art. 25 of the Constitution, viz.:
i. Unlike many other, Part III rights, Art. 25 is a universal right/guarantee to
all citizens & non-citizens, this is connoted by the word “all persons”26.

19
Article 32 of Part III of the Constitution of Indiana, 1950.
20
Star Sugar Mills v. State of U.P., (1983) 4 SCC 299
21
Part III of The Constitution of Indiana, 1950.
22
Article 25, Cl 1 of Part III of The Constitution of Indiana, 1950.
23
Para 2 & 3 of the Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019.
24
Adi Saiva Sivachariyargal Nala Sangam & Ors. v. Govt. of Tamil Nadu & Anr., (2016) 2 SCC 725
25
Ibid
26
1 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 46-625 (Hon’ble Dr. Justice AR
Lakshmanan, VR Manohar & Hon’ble Justice Bhagabati Prosad Banerjee, Lexis Nexis 14 th Edition 2015) (1958)
@ Pg.471
Ratilal Panachand Gandhi v. State of Bombay, (1954) SCR 1055.
Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 2018 SCC Online SC 1690

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ii. Every person is “equally entitled” to the right to “freedom of conscience &
free profession, practice & propagation of religion”27. The words “equally
entitled” are extremely significant in the context that they connote that the
right to freely profess, practice & propagate religion is equally guaranteed
to each person. The right of any particular individual u/a 25 is not superior
to any other individual.28 In other words, the right of the believer u/a 25 is
not superior to the right of a non-believer to freely profess, practice &
propagate religion. Therefore, Art. 25 guarantees that the right to freely
profess, practice & propagate religion of a non-believer cannot be inferior
to the right of the believer.29 If hypothetically, this court agrees to the
contention of the respondents that the right to freely profess, practice &
propagate religion is only given to believers of a particular religion then the
right u/a 25 would be just a parchment guarantee30. The framers of the
Constitution were fully aware of the possibility that if a particular section of
a religion is given superior rights to another section then it would augment
the danger of one particular group dominating the religion & hence,
dictating terms or excluding or discriminating against another group (which
is in a minority31), in accordance with the majority groups whims & fancies.
For example, if Nambudiri Brahmins32 control a religion then they would
completely exclude Dalits as according to them Dalits are impure & even
their mere presence pollutes the environment of a Nambudiri Brahmin.33 It
is humbly submitted that Himaya temple is a textbook example of the
majority community of religion acting on its whims & fancies, thereby,
putting unreasonable conditions on the minority community which excludes
them from exercising their right to freely profess, practice & propagate
religion. Such exclusion is the antithesis of religious freedom as guaranteed

27
Article 25 Cl. 1 of Part III of The Constitution of Indiana, 1950.
28
Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 2018 SCC Online SC 1690, Nariman
J. Opinion, Para 29.
29
Infra Note 24
30
Antonin Scalia, “Opening Statements on American Exceptionalism to a Senate Judiciary Committee”,
AmericanRhetoric.com, (5 October, 2011, Washington D.C.),
https://www.americanrhetoric.com/speeches/antoninscaliaamericanexceptionalism.htm
31
Article 29 & Article 30 of the Constitution of Indiana, 1950.
32
C.VASANTHA KUMARI, “The Madras Nambudri Act (XXI Of 1933) - A Study Of The Nambudri Customs Of
Malabar In Light Of The Judicial Findings Antecedent To The Act”, PROCEEDINGS OF THE INDIAN
HISTORY CONGRESS, Vol. 60, Diamond Jubilee (1999), Pg. 752-764
33
Ibid

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by Art. 25(1) of the Constitution34 & the Petitioners have exercised cultural
dissent35 in the form of the current petition.
iii. Moreover, any religious practice of the majority community would be
subject to public order, health & morality & other provisions of part III as
laid down in art. 25(1).36 Since the practice of barring women b/w the age
of 10-50 is against morality & violates provisions of part III of the
constitution, it is humbly submitted that it won’t enjoy constitutional
protection. Whereas, the right of women b/w the age of 10-50 to enter &
pray at Himaya temple is guaranteed by art. 25(1). In such an instance, the
right of the barred women to enter Himaya temple would be superior to the
right of the priests or believers in the impugned custom to impose that
custom.37 This is because the right of women is entitled to constitutional
protection, whereas the right of the priests/believers won’t be entitled to any
such protection as it violates morality & other provisions of part III.
Fourthly. The judgement of the Tenjiku HC doesn’t constitute res judicata since
both the matters have risen consequent to separate cause of actions. And it is a
settled principle of law that if the same set of facts give rise to separate cause of
action then both cause of action would be maintainable in a court of law.38

2. It is also submitted before this Hon'ble court that the current petition is maintainable as a
PIL.39 The rationale behind the PIL jurisdiction of the SC is to increase the access to justice
for those who cannot approach courts or for whom it is not feasible to approach courts.40
In order to increase the access to justice for those who cannot approach the court of law,
the SC developed its PIL jurisdiction. Under the PIL jurisdiction, anyone can approach the
court without a locus as a representative of the public at large by filing a petition u/a 32 of
the constitution or addressing a letter to the Chief Justice of India.

34
Article 25 of the Constitution of Indiana,1950.
35
MADHAVI SUNDER, “Cultural Dissent”, U.C. DAVIS LEGAL STUDIES RESEARCH PAPER SERIES,
RESEARCH PAPER NO.113, School of Law, University of Calafornia, Davis (2002), Pg.495-567
36
Infra Note 27
37
Infra Note 28
38
1 DURGA DAS BASU, SHORTER CONSTITUTION OF INDIA 46-625 (Hon’ble Dr. Justice AR
Lakshmanan, VR Manohar & Hon’ble Justice Bhagabati Prosad Banerjee, Lexis Nexis 14 th Edition 2015)
(1958) @ Pg.619
39
Order XXXVIII, Rule 12 of the Supreme Court Rules,2013
40
People’s Union for democratic rights v. Union of India, AIR 1982 SC 1973
S.P. Gupta v. President of India, AIR 1982 SC 149

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3. It is humbly submitted before this Hon'ble court that the essentials for the maintainability
of public interest litigation41 are as follows:
Firstly. There must be an injury caused or likely to be caused to the public at
large or any significant section or class of public. In other words, there must be a
public interest associated with the cause of action.
Secondly. The section of public or class of public which is likely to suffer must
generally be a vulnerable section.42

4. It is contended by the counsel for the petitioners that both these essentials are satisfied, as
follows:
Firstly. It is contended that as a consequence to the entry restriction 43 the
fundamental rights of women b/w the age of 10-50 would be abrogated, other than
this, the entry restriction has led to a stigma against menstruating women in so far
as society will consider them impure.44 Moreover, the fundamental right to privacy
of all women(as a class) would be violated in so far as they would be coerced into
disclosing their menstruating status.45
Secondly. It is humbly submitted that women are a vulnerable section of the society
& this point is ratified by the constitutional text.46 Art. 15(3) empowers the state to
make special provisions for women & children. Various provisions of art. 39 entail
the state to treat both men & women equally47. Moreover, Art. 51A(e) casts a duty
on every citizen to renounce practices derogatory of women.48 This leads to the
conclusion that the constitution envisions the protection of women & to treat men
& women equally.

5. The Supreme Court Rules, 2013 that came into force by a gazette notification dated 19th
August 2014, in pursuance of powers conferred by art.145 of the Constitution49. Order

41
Infra Note 40.
42
Bandhua Mukti Morcha v. Union of India, AIR 1984 SC 802
43
Para 1 of the Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION,2019
44
KATHLEEN O’ GRADY, “Review: Don’t mention it- The Curse: Confronting the last Unmentionable Taboo
by Karen Houppert”, THE WOMEN'S REVIEW OF BOOKS, Vol. 16, No. 12 (Sep., 1999), Pg. 17-18
45
Justice KS Puttaswamy v. UOI, (2017) 10 SCC 1
46
Article 15 Cl. 3 of the Constitution of Indiana, 1950.
47
Directive Principles of State Policy, Part IV of the Constitution of Indiana,1950.
48
Fundamental Duties, Part V of the Constitution of India.
49
Part V- The Union, of the Constitution of Indiana,1950.

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XXXVIII, Rule 12 of the SCR, 2013 state as to how public interest litigation may
commence. It is respectfully submitted that the petitioners have abided by all the rules as
stated in rule 12, Order XXXVIII of the SCR, 2013 & hence this petition is maintainable.

6. Therefore, it is humbly contended by the counsel for the petitioners on the basis of the
above averments (from paras 1-5) that the petition of the petitioners is maintainable & mere
technical argument cannot come in the way of this Hon'ble court in deciding a matter
having huge ramifications on the fundamental rights of individuals.50

II. THE HON’BLE SC HAS AN EXTENSIVE JURISDICTION IN DEFINING THE

BOUNDARIES OF RELIGION IN PUBLIC SPACES IN SO FAR AS RELIGIOUS
PRACTICES VIOLATE FUNDAMENTAL RIGHTS:

A. Jurisdiction of the court to define boundaries of religion in public spaces

7. The religious rights guaranteed by the Constitution are enumerated u/a 25(1) & art. 2651.
While, 25(1) gives every person the right freely to profess, practice & propagate religion52.
Art. 26 gives certain rights to "religious denominations"53, out of these, the right given by
clause (b) of art.2654 is the most pivotal right for the purpose of the current factual matrix.
26(b)55 guarantees that every religious denomination, the right to manage its own religious
affairs in matters of religion. It is pertinent to mention that the rights u/a 25 & 26 are subject
to the following:
a. Public Order
b. Health56
c. Morality57

50
Infra Note 40
51
Article 25 & 26 of Part III of the Constitution of Indiana, 1950.
52
Infra Note 27
53
The Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thritha Swaminar of Shirur
Muth, [1954] SCR 1005
S.P. Mittal v. UOI, (1983) 1 SCC 51
54
The Right to manage religious affairs
55
Article 26 Cl. b of Part III of the Constitution of Indiana,1950- The Right to manage religious affairs.
56
BLACK’S LAW DICTIONARY, 6th EDITION, @ Pg721
57
BLACK’S LAW DICTIONARY, 6th EDITION, @ Pg1008

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d. Other provisions of part III58 (only art. 25 is subject to other provisions

of Part III & not Art. 26)

8. Therefore, whereas, it's the duty of the apex court to enforce the fundamental rights of
individuals as stated in Art. 32 of the Constitution, however, it is a set principle of
constitutional law that every right is subject to restrictions.59 In other words, it is the duty
of this Hon'ble court to enforce the religious freedom guaranteed to citizens u/a 25(1) & to
religious denominations u/a 26, however, these religious freedoms are subject to
restrictions on the parameters of "public order, health & morality (& for 25(1) even
provisions of part III)". This may give constitutional courts the liberty to limit the
boundaries of religion if a particular religious practice is violative of any other fundamental
right or if it in any way affects, "public order, health & morality".

9. However, it is humbly submitted by the counsel for the petitioners that this Hon'ble court
can intervene & define the boundaries of religion in three ways, viz.:

Firstly. If any religious group or any representative of a religious group approach this
Hon'ble court with a prayer to enforce a religious practice which according to it is
constitutionally protected u/a 25(1) of the constitution, then this Hon'ble court can
deny constitutional protection to such a religious practice if the impugned religious
practice is against "public order, health & morality"60. In other words, religious
practice is not constitutionally protected u/a 25(1) if it is against the notions of public
order, health & morality. Therefore, this Hon'ble court can define the boundaries of
religion in public spaces by denying the said religious practice constitutional
protection u/a 25(1).
Secondly. If any religious practice violates other provisions of part III of the
constitution then constitutional courts can declare it as unconstitutional if the said
religious practice has the force of law qua art.13 of the constitution.61;
Thirdly. In the alternative even if the said religious practice doesn’t have the force of law
qua art. 13 of the constitution then other provisions of part III of the constitution
would trump the said religious practice & constitutional courts can pass a mandamus

58
Part III of The Constitution of Indiana,1950- Fundamental Rights
59
Ibid
60
Commissioner of police v. Acharya Jagdishwarananda Avadhuta, (2004) 12 SCC 770
61
Shayara Bano v. Union of India, (2017) 9 SCC 1, Para 57, Nariman J. Opinion.

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to enforce the fundamental rights of a petitioner even if it means abrogating or

discontinuing the said religious practice.62 (which according to its believers is
essential to their religion)

10. It is respectfully submitted that the word “morality” in 25(1) connotes “constitutional
morality” & not “public morality”.63 Constitutional morality is different from public
morality & is based on various constitutional notions.64 Some of these constitutional
notions are enlisted in the preamble to the constitution. Among the notions of constitutional
philosophy that constitute constitutional morality, equality is the most important.65 It is
humbly submitted that the constitution is committed to an anti-exclusion principle66 which
forms a part of constitutional morality.67 The inferential basis to plead that the constitution
is committed to an anti-exclusion principle is found in the constitutional text68 as follows:
Firstly. The preamble69 guarantees equality of status & opportunity to every citizen.
Secondly. In part III to the constitution, art.14-16 are centred around the theme of
equality70. Even 25(1) entitles all persons equally71 to exercise their right freely to
profess, practice & propagate religion.
Thirdly. Equality is enshrined as a directive to state policy in part IV of the constitution.
This is connoted by 38(2), 39(a), 39(d), 39A, etc.72

11. From the above discussion, we infer that the concept of equality is one of the basic values
that the constitution practices & propagates. Ipso facto, anti-exclusion is a part of
constitutional morality73, hence, exclusion (without any reasonable justification) is the
antithesis of constitutional morality.74 Since what is against constitutional morality can

62
Infra Note 61
63
Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 2018 SCC Online SC 1690.
64
Ibid
65
GAUTAM BHATIA, “Freedom from community: individual rights, group life, state authority, and religious
freedom under the Indian constitution”, 73 YALE LJ. 733, 737-38 (2015)
66
Ibid
67
Navtej Singh Johar v. Union of India, 2018 10 SCC 1;
Constituent Assembly Debates, 4th Nov 1948, Para 227-229;
Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 2018 SCC Online SC 1690
68
Infra Note 65
69
The Preamble of The Constitution of Indiana,1950.
70
Article 14-16 of Part III of The Constitution of Indiana, 1950.
71
Infra Note 28
72
Part IV of the Constitution of Indiana, 1950 – Directive Principles of State Policy.
73
Infra Note 65
74
Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 2018 SCC Online SC 1690, Para
56,Chandrachud J. Opinion.

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never withstand constitutional scrutiny & would, therefore, be unconstitutional. Therefore,

it is contended that the practice of barring women b/w the age of 10-50 is without any
reasonable basis, hence such an exclusion would be against constitutional morality75 &
hence unconstitutional.

B. Art. 15(2)(b) is applicable qua religious places/institutions of a public character &

hence is applicable to Himaya temple

12. Para 7-11 in generality answer the 3rd question of the 2nd issue. However, more specifically
the petitioners shall deal with the 1st question of the 2nd issue. It is humbly submitted before
this Hon'ble court that art. 15(2)(b)76 applies to the current dispute in so far as rule 3(b) bars
the use of wells, tanks, bathing ghats & roads which are dedicated to the use of general
public77. Any violation of art. 15(2)(b) would be unconstitutional, & this Hon'ble court can
intervene while exercising its writ jurisdiction u/a 3278 of the constitution. However, the
following essentials need to be met in order to constitute a violation of art. 15(2)(b), viz.:
Firstly. There must be a restriction or condition with regard to the use either of wells,
tanks, bathing ghats, roads, places of public resort79;
Secondly. It must be maintained wholly or partly by state funds or it must be
dedicated to the use of the general public.80

13. It is amply clear from the language of the impugned rule that it is over excessive to the
core. It is the petitioner's humble contention that such a rule is unconstitutional as it violates
art 15(2)(b) of the constitution & this Hon'ble court must strike it down. It is pertinent to
note that 15(2)(b) uses the term ‘the general public', the term would mean ‘public at large'.81
The use of this term, ‘the general public' is an imp interpretive tool for art. 25(2) 82. Art.
25(2) basically gives the state the power to ‘throw open Hindu religious institutions of a

75
Infra Note 65
76
Article 15 Cl. 2 of The Constitution of Indiana,1950- Prohibition of discrimination on use of wells.
77
Para 8 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019.
78
Article 32 of the Constitution of Indiana, 1950.
79
BLACK’S LAW DICTIONARY, 6th EDITION, @ Pg1230.
80
Infra Note 76
81
BLACK’S LAW DICTIONARY, 6th EDITION, @ Pg1230.
82
Ibid

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public character'.83 It is submitted that it was the original intent84 of the framers of the
constitution that entry to ‘Hindu religious institutions' was a guaranteed fundamental right
u/a 15(2) or 25(1).85

C. Interpretation of Art.25:

14. Having answered the 1st question of Issue 2 in the preceding 2 paragraphs, we come to the
2nd question of issue 2. It is the humble submission of the petitioners that Art 25(1) must
be divided into 2 parts:
Firstly. The 1st part denotes the right guaranteeing ‘freedom of conscience’. It is
important to note that this is the non-religious part of art.25(1). ‘Conscience’ mainly
means the ‘inner believe’ that an individual may have.86 For example, if the
conscience of an individual makes him believe in atheism then he has the freedom to
believe in atheism. To give another example so as to support our assertion, if suppose
my conscience tells me that I’m sexually attracted to the same sex then the ‘freedom
of conscience clause’ of 25(1) gives me the right to have homosexual inclination qua
to my conscience.87 It is important to highlight that this is an individualistic right &
is equally entitled to every person. The ‘freedom of conscience clause’ is closely
linked to the ‘right to privacy’ of an individual.88 Freedom of conscience is something
which is guaranteed in the Pvt. sphere & this right must be r/w ‘personal dignity' in
art.21.89 In point of fact, ‘the freedom of conscience clause’ u/a 25(1) is one of the
most sacred rights in the constitution as it cannot be abridged by the state in any way.
Secondly. The 2nd part of 25(1) guarantees, ‘the right freely to profess, practice &
propagate religion’.90 It is the humble submission of the petitioners that this is also an
individualistic right & is guaranteed to every person equally.91 It is our humble
submission that this right is given to the general public & has been provided in the

83
Article 25 Cl. 2 of Part III of The Constitution of Indiana,1950.
84
H JEFFERSON POWELL, “The Original Understanding of Original Intent”, HARVARD LAW REVIEW,
Vol. 98, No. 5 (March 1985), Pgs885-948.
85
Part III of The Constitution of Indiana, 1950.
86
BLACK’S LAW DICTIONARY, 6th EDITION, @ Pg303.
87
VIVIENNE C. CASS, “Homosexual Identity Formation: Testing a Theoretical Model”, THE JOURNAL OF
SEX RESEARCH, Vol.20, No.2 (May,1984), Pgs143-167.
88
Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, Para 37, Chelemeshwar J. Opinion.
89
Maneka Gandhi v. Union of India, 1978 SCC (1) 248
90
Article 25 Cl. 1 of Part III of the Constitution of Indiana,1950.
91
Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 2018 SCC Online SC 1690,
Nariman J. Opinion, Para 29.

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constitution to protect the religious expression of individuals at large & the words
“equally entitled”92 connote no person would be given superiority u/a 25(1) & that
the right to freely profess, practice & propagate religion would be equally guaranteed
for all persons.

15. Moreover, it would be pertinent to mention that art 25(1) & 26 only protect essential
religious practices.93 We shall deal with the question whether the impugned practice to
restrict women b/w the age of 10-50 constitutes an essential religious practice or not when
we address the 4th issue. But assuming the impugned practice is an essential religious
practice then the pujaris or acharakas or any other person who believes in the impugned
practice would be entitled to practice it as a matter of fundamental right u/a 25(1) of the
constitution. However, there would be certain limitations to this right, namely:
Firstly. The said right is subject to “public order, health & morality”94. This point has
already been enunciated in para 7-10. Moreover, since morality means constitutional
morality95 & the impugned practice is against that, therefore it’s unconstitutional.
Secondly. All persons are “equally entitled” to the right u/a 25(1). Therefore, any
contrary claim u/a 25(1) which would be against the practice of restricting women
b/w the age of 10-50 would trump the rights of the believers to restrict women.96
Thirdly. If the impugned practice violates other provisions of part III of the constitution,
then it is not constitutionally protected, moreover, a Constitutional Court can issue a
relevant writ, order or any suitable direction which has the effect of stopping the
practice which violates other provisions of part III.97 This power of the court emanates
from a collective reading of art. 13 & 32. In the present factual matrix, since the
practice of restricting women at Himaya temple violates their fundamental rights u/a
14,15,17 & 2198; therefore, the impugned practice won’t be constitutionally protected
& would be liable to be struck down.

92
Infra Note 91
93
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853
94
Article 25 Cl. 2 of the Constitution of Indiana, 1950.
95
Infra Note 63
96
Infra Note 91
97
Article 32 of The Constitution of Indiana, 1950.
98
Part III of The Constitution of Indiana, 1950.

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16. Therefore, as stated previously, if we assume that the impugned practice is an essential
religious act then it would be entitled to protection u/a 25(1) & 26(b) 99, but it would be
subject to various restrictions as stated in the preceding para which won’t be repeated for
the sake of brevity. Other than these restrictions, the Constitution places other restrictions
which are enunciated u/a 25(2) of the constitution100, viz.:
Firstly. Art.25(2)(a): The state can make a law restricting/regulating any economic,
financial, political or other secular activity which is associated with religious practice;
Secondly. Art.25(2)(b): The state can make a law providing for social welfare or
reform or the throwing open of Hindu religious institutions of a public character101 to
all classes and sections of Hindu.

17. Therefore, to conclude, this court is equipped by the constitution to define the boundaries
of religion in public spaces. Exercising those powers to limit the boundaries of religion in
public spaces, this court must strike down rule 3(b) of Tenjiku Hindu public places of
worship rules.102

III. THE RESTRICTION IMPOSED ON WOMEN AND CHILDREN DOESN’T AMOUNT

TO VIOLATION OF THEIR FUNDAMENTAL RIGHTS:

A. Rule 3(b) of Tenjiku Hindu Places of Public Worship (Authorization of entry rules) is
not “law” within the meaning of Art.13(3) of the Constitution:

18. The counsel for the petitioners submits that “the entry rules”103 by themselves are
extremely ambiguous. It hasn’t been mentioned that which authority has
promulgated/implemented or drafted the rule. In the opinion of the petitioners, the said rule
3 cannot be termed as law or law in force within the meaning of the term u/a 13104 because:
Firstly. In order for it to be law within the meaning of art. 13(3)(a) it shall satisfy 2
things:

99
Infra Note 93
100
Article 25 Cl. 2 of Part III of The Constitution of Indiana.
101
Infra Note 79.
102
Para 8 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019.
103
Ibid
104
Article 13 of Part III of The Constitution of Indiana

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 It should be an ordinance, order, bye-law, rule, regulation, notification, custom

or usage105;
 The said must have the force of law within the territory of India
Secondly. Laws in force are laws passed by legislatures, this point is enunciated in
art 13(3)(b).106
Thirdly. Since the essentials laid down in both the preceding points are not fulfilled (1.
It is not clear whether the rule is a law passed by the legislature; 2. Nor it is clear that
it is a custom which has the force of law.), hence art. 13 doesn’t apply to rule 3(b).

19. Therefore, since the "entry rules" are not law within the meaning of art. 13(3), hence
answering the question of whether they are ultra vires to the various provisions of part III
of the constitution becomes an exercise in futility. In other words, even if the “entry rules”
are violative of any provisions of part III of the constitution, they cannot be struck down
qua art. 13(2).

20. However, assuming that the said rules are law within the meaning of art.13 then they are
unconstitutional in so far as they violate art 14, 15, 17, 21 & 25 of the Constitution107.

B. The custom or tradition followed at Himaya temple is ‘law’ within the meaning of art.
13(3)(a) of the constitution but the practice of excluding women from the temple does
not violate part III of the Constitution:

21. It is humbly submitted before this Hon'ble court that the ‘custom’ followed at Himaya
temple is ‘law’ within the meaning of art. 13(3)(a) of the constitution in so far as it is a
custom or usage having the force of law within the territory of India. 108 For a custom to
have the force of law, the following essentials must be fulfilled: (i) the custom must be
from time immemorial; (ii) the custom must be followed by many individuals at large.109

105
The state of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84;
Madhu Kishwar v. State of Bihar, 1996 5 SCC 125
106
Ibid
107
Part III of The Constitution of Indiana, 1950.
108
The state of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84;
Madhu Kishwar v. State of Bihar, 1996 5 SCC 125
109
Ibid

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22. It is the submission on behalf of the petitioners that such a custom would not withstand
constitutional scrutiny. The Petitioners have contended that there are 2 arguments that the
custom is not violative of Art.14 of the constitution which basically point out the fact that
the temple or the temple controlling body is not “State”110 within the meaning of art.12:
Firstly. The rights guaranteed u/a 14 are vertical in nature, which means that they are
only enforceable against the state.;
Secondly. The rights guaranteed u/a 14 are negative in nature, that means they are
enforceable against some state action that violates art. 14 & are not enforceable
against state inaction or failure to enforce the rights of individuals.

C. Tenji Board is an Instrumentality of State & hence is “State” within the meaning of
Article 12 of the Constitution:

23. However, it is humbly submitted that such an argument as propounded in the previous para
is non-sequitur on the basis of the following facts, viz.:
Firstly. The constitution guarantees a slew of fundamental rights that are explicitly
horizontal in nature. These are namely: art 15(2), art. 17, art. 23, etc.111 It is humbly
submitted that these horizontal rights are violated while ascribing a bar on entry for
between the age of 10-50112.
Secondly. Various Judicial pronouncements have taken the view that various
persons or individuals can be termed as "State" within the meaning of the term u/a 12
if the persons or individuals perform such "public functions" as is generally
associated with the state.113 Or in the alternative, individuals can be categorized as
“State” if they correspond to the “legal framework” of the state. The counsel of the
petitioners leaves it up to this court’s wisdom as to whether the temple or the “Tenji

110
Shrimati Vidya Verma v. Dr. Shiv Narain Verma, 1955 SCR (2) 983;
Ajay Hasia v. Khalid Mujib, 1981 SCC (1) 722;
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, Appeal(civil) 992 of 2002;
Zee Telefilms supra, WP(Civil) 541 of 2004;
BCCI v. Cricket Association of Bihar, (2015) 3 SCC 251
111
Part III of The Constitution of Indiana, 1950.
112
GAUTAM BHATIA, “Horizontality Under the Indian Constitution: A Schema”, Indian Con Law Philosophy,
( May 24, 2015), https://indconlawphil.wordpress.com/2015/05/24/horizontality-under-the-indian-constitution-a-
schema/
113
Rajasthan State Electricity Board v. Mohan Lal, 1967 SCR (3) 377;
Sukhdev Singh v. Bhagat Ram, AIR 1975 SC 1331;
R.D. Shetty v. International Airport Authority, 1979 SCC (3) 489

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board” is state within the meaning of art.12 & the petitioners shall not categorically
assert anything in relation to this question.
Thirdly. Moreover, it is humbly submitted before this hon’ble court that the Tenji Board
is an instrumentality of the state & is “State” within the meaning of Art. 12114. This
is signified from the fact that since the laws of the Union of Indiana are pari materia
to the Union of India115. It is submitted that, by virtue of the previous statement,
Article 280A of the Constitution of India,1950 is applicable to the Tenji Board & by
virtue of this article , the Tenji Board is “State” within the meaning of Article 12.

24. It is humbly submitted that even if the Himaya temple or the Tenji board cannot be termed
as “State” within the meaning of art. 12 of the constitution & therefore the practice cannot
be tested on the cornerstone of art.14 of the constitution, then also this court can be
approached under public law remedy116. Public law remedy means that the practice can be
tested on the parameters of equity, rationality, non-arbitrariness, etc.117 It is submitted that
the practice is arbitrary in so far as it bars women b/w the age of 10-50 without any
justifiable basis.118

25. It is submitted that the basis of discriminating against women at Himaya temple is the fact
that they are not able to exercise penance for a period of 41 days. The reason women are
not able to exercise penance for 41 days is intrinsically linked to their physiological buildup
which ensures that they are subjected to the biological process of menstruation within a
period of roughly 28 days.119 In our humble opinion this violates the whole host of
horizontal rights guaranteed to persons/citizens under the Constitution:

D. The Entry-Ban violates the right to privacy of women:

Firstly. It violates the right to privacy of a female u/a 21 in so far as it violates the bodily
integrity & the autonomy of a woman.120 It is submitted that the menstrual status of a
woman is extremely personal & a woman has a right to keep it personal or private &

114
Infra Note 113.
115
Note of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019.
116
BCCI v. Cricket Association of Bihar, (2015) 3 SCC 251
117
Infra Note 112
118
Shayara Bano v. Union of India, (2017) 9 SCC 1, Para 57, Nariman J. Opinion.
119
Infra Note 44
120
Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1, Para 72, Chandrachud J. Opinion.

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not bring the factum of her menstrual status in the public domain.121 However, in the
current factual scenario, the bar on women b/w the age of 10-50 has effectively led
to a stigma being associated with them, this stigma publicly declares a Pvt. aspect of
a woman’s physiology that she menstruates & therefore she is impure & inferior to a
man because she is not able to follow a strict vow penance for 41 days.122 This not
only violates a woman’s privacy but also violates her dignity which is a guaranteed
right u/a 21 of the constitution.123

E. The Entry Ban is discrimination on the basis of sex & hence violates Art. 15(1) of the
Constitution:

Secondly. It is humbly submitted that the said practice violates the rights of a
citizen u/a 15(1) of the constitution in so far as it discriminates against an individual
on the basis of sex. It is submitted that though 15(1) is a vertical right against the
state, it casts a positive obligation124 on the state to ensure that no one is discriminated
against, on the basis of religion, race, caste, sex, place of birth or any of them. The
failure of respondent no. 2 to ensure the prohibition of discrimination on the count of
sex has led to the violation of the rights of the petitioners u/a 15(1)125.

F. The Entry-ban is “Untouchability” qua Art.17 of the Constitution:

Thirdly. The impugned practice is untouchability within the meaning of art.17 126 & the
PCRA,1955127. Since, the Constitution prohibits untouchability & declares it as an
offence which is punishable by the PCRA,1955, hence untouchability in any form is
prohibited. It is submitted that untouchability doesn’t restrict itself to only caste-based
untouchability. “Untouchability” in all forms is prohibited, this is further connoted
by the fact that the word “Untouchability” is in inverted commas & it is a settled point
of statutory interpretation that any term in inverted commas must be widely

121
Infra Note 44
122
Ibid
123
Article 21 of Part III of the Constitution of Indiana,1950
124
Vishaka v. State of Rajasthan, (1997) 6 SCC 241;
Medha Kotwal Lele & Ors. v. Union of India & Ors. , (2013) 1 SCC 311
125
Article 15 Cl. 1 of Part III of The Constitution of Indiana, 1950.
126
Article 17 of Part III of the Constitution of Indiana, 1950.
127
Section 3 of The Protection of Civil Rights Act, 1955.

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interpreted.128 The idea of “Untouchability” is linked to a stigma that due to a person’s

presence the environment of a particular place gets polluted.129 It is humbly submitted
that this is exactly what the temple authorities at Himaya temple believe, that if the
entry of women is allowed then the "brahmacharya" of the deity would be disturbed
thereby polluting the temples environment.130 It is submitted that such a practice even
if it is an essential religious practice must be struck down by this Hon'ble court
because it is "Untouchability" within the meaning of art. 17.

26. From the previous 5 paras we reach to the conclusion that the Constitution is committed to
protecting the rights of individuals & citizens, the constitution does that by giving vertical
protection against state actions & also horizontal protection against actions of
individuals131. Both these protections are positive as well as negative, that means they
create an obligation on the state as well as gives a right to an individual. Thus, it is humbly
submitted that the constitution is committed to an anti-exclusion principle132 & it is surely
a Constitutional objective that no class/section of people gets excluded, in the current
factual matrix women are excluded from entering Himaya temple, in our opinion this
exclusion does tantamount to discrimination. This Hon'ble court can intervene using its
powers u/a 32(2) of the Constitution133.

IV. THE PRACTICE OF EXCLUDING WOMEN B/W THE AGE OF 10-50 IS AN

ESSENTIAL RELIGIOUS PRACTICE & HENCE WOULD BE ENTITLED TO
PROTECTION U/A 25(1) & ART. 26(b)

A. Whether the said practice is essential religious practice:

27. The ‘essential religious practice’ doctrine began when the apex court in the initial years of
the republic134 adjudicated upon legal challenges to the acts of parliament made in
pursuance of art. 25(2)(a) of the constitution. Art. 25(2)(a) basically states that the right

128
UPENDRA BAXI, “Jurisprudence of inverted commas”, The Hindu, (October 13th , 2018, 07:39 IST),
https://www.thehindu.com/opinion/op-ed/jurisprudence-of-inverted-commas/article24849389.ece
129
Constitution Assembly Debates, Volume 7
130
Para 3 & Para 7 of The Moot Proposition, XII AMITY NATIONAL MOOT COURT COMPETITION, 2019
131
Infra Note 112
132
Infra Note 65
133
Article 32 Cl. 2 of the Constitution of Indiana.
134
Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors., 1962 SCR (1) 383.

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guaranteed u/a 25(1) won’t affect the operation of any law made u/a 25(2).135 Art. 25(2)(a)
states that any secular activity may be regulated or restricted by the state which may be
associated with the state.

28. Therefore, the arguments presented against the laws made under 25(2)(a) was that the state
is not competent to make laws to restrict or regulate the said practice as the said practice is
not predominantly secular in nature (or economic, financial & political) & is predominantly
religious in nature.136 Therefore, the initial cases laid down a test on the basis of the
language of the constitutional text & Ambedkar’s speech in the Constituent assembly.137
The test can be laid down as follows:

Firstly. Whether the said activity is essentially or predominantly religious, i.e., whether
the activity is purely religious in nature or is it an economic, financial, political or
other secular activity which is associated with religion138?
Secondly. The answer to the previous question would be dependent on the
religious text. If according to the religious text it is a purely religious activity then
25(2)(a) cannot apply.139 For example, if Hindu scriptures state that food must be
given to the deity at a particular time then it is a purely religious activity & simply
because an economic transaction is involved in purchasing food won't change the
nature of the activity from religious to economic or secular140.

29. Therefore, in other words, the essential religious practices test was initially conceived as
whether legislation regulated or restricted a secular activity which may be associated with
religious practice or whether it regulated a purely religious activity? If it regulated the
former then it would withstand constitutional scrutiny, however, if it legislated the latter
then it would be struck down by constitutional courts since it exceeded the power given to
the state via art. 25(2)(a).141

135
Article 25 of the Constitution of Indiana, 1950.
136
The Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thritha Swaminar of Shirur
Muth, (1954) SCR 1005
137
Constitution Assembly Debates of India, 2nd December 1948.
138
Infra Note 134
Infra Note 136
139
Ibid
140
Seshammal & Ors. v. State of Tamil Nadu, (1972) 2 SCC 11
141
Infra Note 138

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30. However, later in 1962142, this test was slightly modified & the central question on the basis
of which constitutional courts started adjudicating laws was: whether the practice was
essential to the religion?143 So, from the nature of the practice, the court began determining
whether the practice was important to the religion or not? This is our humble submission,
started a dangerous trend as it gave constitutional courts an ecclesiastical duty to interpret
religious texts which is not their constitutional duty nor are constitutional courts equipped
to deal with religious questions. It is our submission that what is essential to the religion is
basically for the religion itself to determine & constitutional courts cannot take that task.
Therefore, we humbly contend that this Hon'ble court must review or modify the "essential
religious practices" test to how it was originally conceived.144

31. Notwithstanding the submissions made in paras 27-30, it is the humble contention of the
counsel for the petitioners that the practice of barring women to enter the temple is not an
“essential religious practice” as there is no religious or textual basis for the practice & there
is no evidentiary support (other than the statement of the Thantri) that the practice is being
followed from time immemorial.145

32. The doctrine of “essential religious acts” obtains significance on another count, & i.e., to
ascertain whether a religious denomination has rights u/a 26(b) of the constitution to
manage its religious affairs.146 It is a settled principle of law that the rights u/a 26 are also
subject to 25(2) of the constitution.147 Therefore, a right given to the religious denomination
to manage its religious affairs is subject to 25(2) of the constitution. But the state enacting
a law u/a 25(2) is subject to the language of the constitutional text as enunciated in paras
27-30. It is humbly submitted that it is a settled point of law that only “essential religious
practices” are protected by art. 25(1) & 26 of the constitution.148 In other words, if a practice
is not an essential religious practice then it is not constitutionally protected.

142
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853
143
GAUTAM BHATIA, “Essential Religious Practices” and the Rajasthan High Court’s Santhara Judgement:
Tracking the History of a Phrase., Indian Con Law Philosophy, (August 19, 2015),
https://indconlawphil.wordpress.com/2015/08/19/essential-religious-practices-and-the-rajasthan-high-courts-
santhara-judgment-tracking-the-history-of-a-phrase/
144
Infra Note 138
145
SP Mittal v. Union of India & Ors., (1983) 1 SCC 51
Infra Note 142
146
The Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thritha Swaminar of Shirur
Muth, [1954] SCR 1005
147
Sri Venkatraman Devaru v. State of Mysore, 1958 SCR 895;
Seshammal & Ors. v. State of Tamil Nadu, (1972) 2 SCC 11
148
Infra Note 142

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33. As already stated in para 30 that the practice is not an essential religious practice, in the
alternative, even if the practice is a essential religious act then also it creates a social stigma
on women on the basis of a physiological factor that is unique to them is discriminatory &
violates their dignity to the core.149 Such a practice that creates a social stigma on women
in the public sphere, rather than the private/religious sphere, seizes to be purely religious
& is violative of various FRs of women in so far as it targets women on something which
is innate to them.

B. Devotees of Lord Tenji do not constitute a religious denomination:

34. The counsel for the petitioners humbly submits that the devotees of Lord Tenji do not
constitute a religious denomination in so far as art. 26 is concerned. The devotees do not
constitute a religious denomination150 because of the following reasons:
Firstly. The devotees do not have a common set of practices.
Secondly. They do not have a common set of beliefs.
Thirdly. The devotees do not have a common name.

35. Even in the alternative, if it is assumed that the devotees/pilgrims do constitute a religious
denomination, then also the restriction on women would only be limited to those religious
practices that are specifically & according to the religious texts meant only for the members
of the religious denomination.151 In other words, women can be restricted to enter only the
sanctum sanctorum & that too only when religious text or custom explicitly directs such a
restriction. However, there is no such direction by the religious texts/customs then the
temple authorities cannot claim rights u/a 26(b).

36. It is also submitted that the CEDAW convention152 emphasizes on state obligations to
eradicate all types of taboos against women. India is a signatory of the CEDAW
convention, but there is no domestic law in India which recognizes the principles laid down

149
Justice K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1
150
SP Mittal v. Union of India & Ors., (1983) 1 SCC 51;
Shirur Mutt supra, [1954] SCR 1005
151
Sri Venkatraman Devaru v. State of Mysore, 1958 SCR 895
152
Convention on the Elimination of All forms of Discrimination against Women, 1979

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in the CEDAW convention. It has been held in Vishaka v. State of Rajasthan153, that where
there is a void in the domestic law, then the international custom/treaty would form a part
of the domestic law or will fill the void created by a lack of domestic law.

37. We finally contend that generally, courts have not interfered with traditions & practices of
religion but when civil rights & fundamental rights of individuals have been violated, then
the courts have never shirked away from their constitutional responsibility to enforce the
FRs of various individuals. In lines with this practice of this court & past precedence, this
Hon'ble must entertain the current petition & grant the prayer of the petitioners.

153
Vishaka v. State of Rajasthan, (1997) 6 SCC 241

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PRAYER

In the light of the facts stated, issues raised, authorities cited and arguments advanced, it is
most humbly prayed before this Hon’ble Court that it may be pleased to adjudge & decree the
following:
 Entertain the current petition as maintainable u/a 32 of the constitution or in the SCR,
2013;

 Issue a writ, order or direction in the nature of mandamus or any other appropriate writ,
order or direction directing the Tenjiku board, Union of Indiana & other temple
authorities to allow the entry of women in the temple premises & the sanctum
sanctorum.;

 Issue a writ, order or direction in the nature of certiorari or other appropriate writ, order
or direction having the effect of quashing or striking down rule 3(b) of the Tenjiku
Hindu Places of Public Worship (Authorization of Entry) Rules as violative of art.14,
15(1), 15(2), 17, 21 & 25(1) of the Constitution of Indiana & thus being void in
accordance with art. 13(1) or 13(2) of the constitution.;

 Issue a writ, order or direction in the nature of certiorari or any other appropriate writ,
having the effect of striking down the custom, having the force of law prevalent at
Himaya temple, Tenjiku.

AND/OR

Pass any other order as it deems fit in the interest of equity, justice and good conscience.
And, for this, the Petitioners humbly pray.

COUNSEL FOR THE PETITIONERS

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