Memorial Final

DR. V.
KESAVANKUTTY MEMORIAL
ALL INDIA MOOT COURT COMPETITION - 2019
Team code: OC 29
BEFORE THE HON’BLE SUPREME COURT OF DHARMA RAJYA
UNDER ARTILCE 32 OF THE CONSTITUTION OF DHARMA RAJYA
DHARMARAJYA ASSOCIATION FOR TRANS EQUALITY (DATE) ---------- PETITIONER
UNION OF INDIA ----------------------------------------------------------------------- RESPONDENT
1
MEMORIAL ON BEHALF OF THE RESPONDENT
DR. V. KESAVANKUTTY MEMORIAL
TABLE OF CONTENTS
LIST OF ABBREVATIONS ……………………………………………………………4
INDEX OF AUTHORITIES…………………………………………………………….5
 LIST OF CASES
 STATUTES
 BOOKS
 LEGAL DATABASES
STATEMENT OF JURISDICTION…………………………………………………… 8
STATEMENT OF FACTS……………………………………………………………… 9
STATEMENT OF ISSUES…………………………………………………………….. 11
SUMMARY OF ARGUMENTS………………………………………………………. 12
ARGUMENTS ADVANCED………………………………………………………….. 13
WHETHER THE RULE MADE BY THE CHIEF PRIEST COMES UNDER “ESSENTIAL
RELIGIOUS PRACTICE”?
1.1 ESSENTIAL RELIGIOUS PRACTICE…………………………………... 13
1.2 ROLE OF COURTS IN MATTERS CONCERNING RELIGION………. 15
1.3 Conclusion For The First Issue……………………………………………… 16
WHETHER AZYAN WHO IS A TRANSGENDER CAN BE CONSIDERED AS A FEMALE?
2.1 CONCLUSION FOR THE SECOND ISSUE................................................ 19
WHETHER THE NOTIFICATION DATED 21-10-1955 IS VIOLATIVE OF

FUNDAMENTAL RIGHTS?
2
3.1 ARTICLE 14 IS NOT VIOLATED …………………………………………. 19
3.2 THE NOTIFICATION IS NOT VIOLATIVE OF ARTICLE 17…………… 21
3.3 THE NOTIFICATION IS NOT VIOLATIVE OF ARTICLE 19…………… 21
3.4 ARTICLE 25 AND 26………………………………………………………... 23
3.4.1 RELIGIOUS DENIOMINATION ………………………………..……….. 23
3.5 CONCLUSION FOR THE THIRD ISSUE…………………………………. 25
PRAYER………………………………………………………………………………….. 27
3
LIST OF ABBREVATIONS
$ Section
A.I.R All India Reporter
Edn Edition
Mad Madras
PIL Public Interest Litigation
S.C Supreme Court
S.C.C Supreme Court Cases
Sec Section
US United States
V. Versus
Ors Others
S.C.R Supreme Court Reporter
DTAC Dharmagiri Temple Administration Temple
DATE Dharma Rajya Association for Trans Equality
NGO Non Government organization
CJI Chief Justice of India
AIS Androgen Insensitivity Syndrome
RTI Right To Information
WB West Bengal
4
INDEX OF AUTHORITIES
LIST OF CASES
1. ACHARYA MAHARAJSHRI NARENDRA PRASADJIANADPRASADJI MAHARAJ V. THE STATE OF

GUJARAT, AIR (1974) 2098.
2. BIJOE EMMANUEL V. STATE OF KERELA, (1986) 3 SCC 61
3. CARLOS FRANK V. STATE OF ALASKA, 604 P.2d 1068 (1979)
4. COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS , MADRAS V. SRI LAKSHMI THIRTHA SWAMIAR

OF SRI SHIRURU MUTT,(2004) 12 SCC 770
5. HUR PRASAD V. SHEO DAYAL
6. INDIAN YOUNG LAWYERS ASSOCIATION & ORS V. THE STATE OF KERALA & ORS., (2018) INDLAW SC
905
7. JAMSHED JI V. SOONABAI, 9 33 Bom. 122 (1909)
8. JOHN VALLAMTTAON AND ANOTHER V. UNION OF INDIA (2003) 6 SCC 61

9. LOCHNER V. NEW YORK, 198 U.S. 45 (1905)
10. N.ADITHAYAN V. TRAVANCORE DEVASWOM BOARD AND ORS (2002) 8SCC 10
11. N. NOORJEHAN SAFIA NIAZ AND ORS. V. STATE OF MAHARASHTRA AND ORS. (2016) (5) ABR 660
12.NATIONAL LEGAL SERVICES AUTHORITY V. UNION OF INDIA AIR(2014) SC1863
13. P.M.A.METROPOLITAN V. MORAN MAR MARTHOM, AIR(1995) SC 2001
14.RAMESH PRASAD V. STATE OF BIHAR, AIR (1978) SC 327

15. RATILAL PANACHAND GANDHI V. THE STATE OF BOMBAY & ORS, AIR (1954) SC 388
16.REGINA V. SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENT, UKHL 15 [2005] 2 A.C. 246,
17.RE SPECIAL COURTS BILL, AIR (1979) SC 478,
18. S.P.MITTAL V. UNION OF INDIA & ORS, (1983)SCR 1 729

19. SHAYARA BANO V. UNION OF INDIA, (2017) 9 SCC 1
20. STATE OF MADRAS V. V.G. ROW.UNION OF INDIA, (1952) SCR 59

21. STATE OF W.B. V. ANWAR ALI SARKAR, AIR (1952) SC 75
5
22. SUBRAMANIAN CHETTIAR V. KUMARAPPA CHETTIAR, 13 AIR(1955) MAD 144.
23. SUBRAMANIAM SWAMY V. UNION OF INDIA, MINISTRY OF LAW, AIR (2016)SC 2728
24. TILAKAYAT SHRI GOVINDALJI MAHARAJ V. STATE OF RAJASTHAN, AIR (1963) SC 1638
25. VENKATARAMANA DEVARU & ORS. V. STATE OF MYSORE & ORS., (1958) SCR 895
6
STATUTES
1. The Constitution of India
2. The Transgender Persons ( Protection of Rights) Bill, 2016.
BOOKS:
1. M.P Jain –Indian Constitution Law, Lexis Nexis ; (7th edition re 2016)
2. Constituent Assembly Debates. Volume. No. 7
3. C.K.Takwani- Administrative Law, Eastern Book Company; (6th edition 2017)
4. J.N.Pandey –Constitutional law of India, Central law Agency; (54th edition 2017)
5. H.M. Seervai, Constitutional law of India, 4th Edition 2002, Volume 2, Universal Book
Traders
LEGAL DATABASES
1. Manuptra
2. Lexis Nexis
3. SCC Online
ONLINE WEBSITES
1. https://www.legallyindia.com/views/entry/courts-setting-hindu-religious-norms-is-unconstitutional
2. Medline plus.gov
3. https://www.dailyo.in/politics/transgender-nalsa-judgment-aadhar-card-gender-rights-self-
identification/story/1/15462.html
4. http://14.139.60.114:8080/jspui/bitstream/123456789/966/7/Fundamental%20Rights% 20%285-12%29.pdf
7
STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of India has the jurisdiction in this matter under Article 32 of the
Constitution of India which 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 the enforcement of the
rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.”
8
STATEMENT OF FACTS
Background of the Temple
1. State of Malistan is a state in the Union of Dharmarajya which is surrounded by

mountains on all sides. It is also famous for its temples some of which have a history of
over 2000 years. One such famous temple is Dharmagiri Temple which is also known as
the temple of the Dharmamurthi, situated in the middle of a dense forest at a hill top at an
altitude of about 900 meters above sea level on the eastern mountain ranges of Malistan.
The management of the Temple was vested in the Dharmagiri Temple Administration
Committee (DTAC) which is an autonomous body incorporated as per Section 4 of the
Malistan Hindu Religious Institutions Act, 1950. Section 15 of the Act confers all powers
of direction, control and supervision over the Temple on the DTAC. It is the duty of
DTAC under Section 31 of the Act to administer the temple in accordance with the
custom and usage of the Temple. However, it is the privilege of the family of the Chief
Priest to decide on matters relating to rituals and other ‘essential religious practices.’
Notification by the temple administration
2. Women according the customs of the temple are not allowed to enter the temple. It is
argued that the practice of prohibition for women on this ground started in hoary
antiquity, and continued since time immemorial without interruption and thus became a
usage and custom. The second reason suggested for excluding females is that it is in their
own interest and for their own safety. Being physically weak in comparison to men,
women need protective discrimination in their favor. That was not because of any
prohibition imposed by Hindu Religion but because of other non-religious factors like the
strenuous uphill task involved in the pilgrimage and the risk of drowning in the course of
ritual immersion.
3. There are at least five reported incidents of tragic death of women due to drowning
during the early years of the 20th century in the course of the process of ritual bath. After
9
assuming the charge of management of the Temple, the DTAC, which is under a statutory
obligation to administer the temple in accordance with the custom and usage of the
Temple, issued the following Notification dated 21-10- 1955: “In accordance with the
fundamental principles underlying the rituals, traditions and customs related to
pilgrimage to the venerable, holy and ancient Temple of Dharmagiri, Dharma margis who
had not observed the usual vows as well as women and girl children were not in the habit
of entering the Temple for offering prayers by ascending the holy steps after performing
ritual bath.” The customary practice along with the Notification issued by the Dharmagiri
Temple Administration Committee dated October 21, 1955 form the present legal basis
for the ban on entry of women into Dharmagiri Temple. The constitutional validity of the
above Notification had been upheld by the High Court of Malistan in the year 1991.
The present issue
4. Azyan, a transgender person who is born as a female with predominantly male

orientation. The purpose of his visit was to perform ritual bath in the holy water of
‘Dharma Sarovar’ and to offer prayers in the Sri Dharmamurthi temple at Dharmagiri.
Azyan is a genetic male whose visible sexual parts are those of a woman. He has female
external genitalia, but lacks such internal organs as ovaries and fallopian tubes. Instead,
he has certain male internal organs, like seminal vesicles, as well as testes hidden up in
the body. It has been medically certified that he will have no menstruation and has no
procreative capability.
5. On 18-10-2018, he reached Dharmagiri along with two of his Indian male friends for
ritual bathing but was blocked by police on security duty. Even though, he told them that
his gender identity is that of a man, that he had observed the required vow of self-
discipline for 28 days. For the above facts the Dharmarajya Association for Trans
Equality (DATE), an NGO working for the cause of LGBT community, filed the instant
PIL before the Supreme Court of Dharma Rajya challenging the constitutional validity of
the Notification dated 21-10- 1955 issued by DTAC.
10
STATEMENT OF ISSUES
ISSUE 1
WHETHER THE RULE MADE BY THE CHIEF PRIEST COMES UNDER

“ESSENTIAL RELIGIOUS PRACTICE”?
ISSUE 2
WHETHER AZYAN WHO IS A TRANSGENDER CAN BE CONSIDERED AS A

FEMALE?
ISSUE 3

FUNDAMENTAL RIGHTS?
11
SUMMARY OF ARGUMENTS
Issue 1
WHETHER THE RULE MADE BY THE CHIEF PRIEST COMES UNDER “ESSENTIAL
RELIGIOUS PRACTICE”?
The issue as to what falls under the ambit of Essential Religious Practices have to be determined
by the tenets of religion itself. The issue whether the practices were an integral part of the
religion or not cannot be decided by the judges based on their personal views as the decision
could be a result of biasness.
Issue 2
WHETHER AZYAN WHO IS A TRANSGENDER CAN BE CONSIDERED AS A FEMALE?
The person in contention suffers with a disorder where he was born as a female but with
predominantly male orientation. The people having such a disorder are rare and the few who are
suffering with this disorder have a female like appearance but with male internal organs. There
metabolism would be completely like that of a female and there body would respond as that of a
female. This disorder occurs for every 1 in 20000 and Azyan is suffering with such a disorder.
Issue 3

FUNDAMENTAL RIGHTS?
It is humbly submitted before the Hon’ble Court that the Notification made by the DTAC is for
protecting the customs. Therefore the same is not violative of Fundamental rights of the
constitution. It comes under the ambit of protective discrimination. It is not discriminatory as
Article 15 talks about ‘Places of public resort’ and Temple is not a Public resort.
12
ARGUMENTS ADVANCED
ISSUE 1
WHETHER THE RULE MADE BY THE CHIEF PRIEST COMES UNDER

“ESSENTIAL RELIGIOUS PRACTICE”?
1.1 ESSENTIAL RELIGIOUS PRACTICE:
WHAT IS RELIGION?
1. The term ‘religion’ has not been defined in the constitution, and it is the term which is not
susceptible of any precise definition.1 Religion is a matter of faith. A religion, Has its
basis in a system of belief and doctrines which are regarded by those who profess that
religion has conducive to their spiritual well-being, but it is also something more than
merely doctrine or belief. A religion may not only lay down a code of ethical rules for its
followers to accept, but may also prescribe rituals and observances, ceremonies and
modes of worship which are regarded as integral part of that religion. Therefore, the
Constitutional guarantee regarding freedom of religion contained in Article 25(1) extends
even to rites and ceremonies associated with a religion.2
2. The ‘Essential religious practices test was formulated in COMMISSIONER, HINDU

RELIGIOUS ENDOWMENTS, MADRAS V. SRI LAKSHMI THIRTHA SWAMIAR
OF SRI SHIRURU MUTT - Before articulating the test, this court drew on the words
“practice of religion” in Article 25(1) to hold that the constitution protects not only the
freedom of religious belief , but also acts done in pursuance of a religion.
3. The essential practices test in its application would have to be determined by the tenets of
the religion itself. The practices and beliefs which are considered to be integral by the
religious community are to be regarded as ‘essential’ and afforded protection under
1
M.P.Jain, Indian constitutuional law 1318(2nd edition)
2
P.M.A.Metropolitan V. Moran mar marthoma, AIR(1995) SC 2001
13
Article 25. The only way to determine the essential practices test would be with reference
to the practices followed since time immemorial. Which may have been scripted in the
religious texts of the temple. If any practice in a particular temple can be traced to
antiquity, and is integral to the temple, it must be taken to be an essential religious
practice of that temple.3
4. The court held that the issue whether the practices were an integral part of the religion or
not had to be decided on the basis of evidence. The High court relied on the decision of
this court in TILAKAYAT SHRI GOVINDALJI MAHARAJ V. STATE OF
RAJASTHAN4 wherein it was held that the question whether the practice is religious in
character and whether it can be regarded as an integral or an essential part of the religion,
will depend upon the evidence adduced before court, with respect to the tenets of the
religion.
5. It would also be instructive to refer the decision of the Supreme Court of Alaska in
CARLOS FRANK V. STATE OF ALASKA5 where in the use of moose meat at a funeral
potlatch, a religious ceremony, was held to be a practice deeply rooted in religion, based
on the evidence adduced before the District Court. The Court had noted that the State of
Alaska had failed to illustrate any compelling interest which would justify its curtailment,
with the result that the case was remanded with instructions to dismiss the complaint
against Frank for unlawful transportation of moose meat. The Court had underscored the
importance of the sincerity of Frank’s religious belief, and held that it would be sufficient
that a practice be deeply rooted in religious belief for it to receive the protection of the
free exercise clause under the U.S Constitution.
6. All prominent Hindu temples in India, there had been some religious practices based on
religious beliefs, which are essential part of the Hindu religion as considered by people
for a long time. It has been submitted that the devotees could also be brought within the
ambit of religious denomination who have been following the religious practice which
has been essential part of religion. The constitutional necessity of balancing various
3
Indian Young Lawyers Association & Ors v. The State of Kerala & Ors., (2018) Indlaw SC 905
4
AIR (1963) SC 1638.
5
604 P.2d 1068 (1979)
14
Fundamental Rights has also been emphasized in the decision of this court in
SUBRAMANIAM SWAMY V. UNION OF INDIA, MINISTRY OF LAW.6
1.2 ROLE OF COURTS IN MATTERS CONCERNING RELIGION:
7. The role of courts in matters concerning religion and religious practices under our secular
constitution set up is to afford protection under Article 25(1) to those practices which
regarded a ‘essential’ or ‘integral’ by the devotees , or the religious community itself. In
BIJOE EMMANUEL V. STATE OF KERELA7 this court noted that the personal views
of judges are irrelevant in ascertaining whether a particular religious belief or practice
must receive the protection guaranteed under Article 25(1).
8. In RATILAL’S8 case Mukherjea,J. quoted as appropriate Davar,J.’s following

observations in JAMSHED JI V. SOONABAI9: If this is the belief of the Zoroastrian
community, - a secular Judge is bound to accept that belief — it is not for him to sit in
judgment on that belief, he has no right to interfere with the conscience of a donor who
makes a gift in favor of what he believes to be the advancement of his religion and the
welfare of his community or mankind.
9. The House of Lords in REGINA V. SECRETARY OF STATE FOR EDUCATION

AND EMPLOYMENT10, held that the court ought not to embark upon an enquiry into
the validity or legitimacy of asserted beliefs on the basis of objective standards or
rationality. The relevant extract from the decision of the House of Lords is reproduced
herein below: “It is necessary first to clarify the court's role in identifying a religious
belief calling for protection under article 9. When the genuineness of a claimant's
professed belief is an issue in the proceedings the court will enquire into and decide this
issue as a question of fact. This is a limited inquiry. The Court is concerned to ensure an
6
AIR (2016)SC 2728
7
(1986) 3 SCC 61
8
AIR (1954) SC 388
9
33 Bom. 122 (1909)
10
UKHL 15 [2005] 2 A.C. 246,
15
assertion of religious belief is made in good faith: neither fictitious, nor capricious, and
that it is not an artifice.
10. So this Article 14 states that the state shall ensure equality to everyone within the
territory of India. But this is when the state itself is running an institution like temple or a
trust. In case of a temple that is run by independent trusts that are in turn driven by
religious customs and sentiments how can any court or state have jurisdiction to set any
rule? More over, when they are not experts of religious custom or norms. They are
merely legal experts. Courts can at the most advise the trust to consider implementing
better norms but it is left up to the trust to implement them based on Hindu tradition.11
11. A reference to the following extracts from the judgment of Khehar, C.J.I in SHAYARA
BANO V. UNION OF INDIA12 is also instructive with respect to the role of courts in
matters concerning religious faiths and beliefs: while examining the issues falling in the
realm of religious practices or personal law, it is not for a court to make a choice of
something which it considers as forward-looking or non-fundamentalist. It is not for a
court to determine whether religious practices were prudent or progressive or regressive.
Religion and Personal law must be perceived, as it is accepted by the followers of the
faith.
12. In SUBRAMANIAN CHETTIAR V. KUMARAPPA CHETTIAR13 custom has been

defined as, “A particular rule which has existed from time immemorial and has obtained
the force of law in a particular locality.” In HUR PRASAD V. SHEO DAYAL14, custom
has been defined as “Rule which in a particular family or in a particular district or in a
particular sect, class or tribe, has from long usage obtained the force of law.”
1.3 Conclusion for the first issue :
13. As stated above rites and rituals decided by the chief priest come under the ambit of
essential religious practices. Any interference with the mode and manner of worship of
11
https://www.legallyindia.com/views/entry/courts-setting-hindu-religious-norms-is-unconstitutional
12
(2017) 9 SCC 1
13
AIR(1955) MAD 144.
14
Tondon, M. P., “Jurisprudence (Legal Theory)”, (2010), Allahabad Law Agency, Faridabad, at p 167
16
this religious denomination would impact the character of the temple and effect the
beliefs and practices of the worshippers.
ISSUE 2
2. WHETHER AZYAN WHO IS A TRANSGENDER CAN BE CONSIDERED AS A

FEMALE?
14. Azyan is a genetic male whose visible sexual parts are those of a woman. He has female
external genitalia, but lacks such internal organs as ovaries and fallopian tubes. Instead,
he has certain male internal organs, like seminal vesicles, as well as testes hidden up in
the body. It has been medically certified that he will have no menstruation and has no
procreative capability. This in fact is a syndrome called the Androgen insensitivity
syndrome (AIS). It is when a person who is genetically male (who has one X and one Y
chromosome) is resistant to male hormones (called androgens). As a result, the person
has some or all of the physical traits of a woman, but the genetic makeup of a man. AIS is
caused by genetic defects on the X chromosome. These defects make the body unable to
respond to the hormones that produce a male appearance. In complete AIS, the penis and
other male body parts fail to develop. At birth, the child looks like a girl. The complete
form of the syndrome occurs in as many as 1 in 20,000 live births.15
15. On April 15, 2014, the Supreme Court passed a landmark judgment recognizing the
fundamental and civil rights of transgender persons. This judgment laid to the foundation
for recognition of such persons as a ‘third gender’ and stated that these persons are also
entitled for fundamental rights under part 3 of the constitution.16 This has been followed
in India but there is no concept of self-identification in India. Not only in India but a
majority of transgender laws around the world are, in fact, not based upon the principle of
self-identification, that is, when the individual chooses their gender identity and the law
15
medline plus.gov
16
National legal services authority V. union of India AIR(2014) SC1863
17
recognizes them by their own declaration and without demanding a third party
intervention to affirm the same. This intervention can be an insistence on surgery, a
medical diagnosis or any other such practice.
16. In the United Kingdom, for example, the Gender Recognition Act forces individuals to
remain within the binary of male and female with a further bizarre requirement that the
person ought to prove that that they are living in their “acquired gender” for at least two
years before being legally recognized. In Australia, individuals’ gender change is only
legally recognized after the age of 18 and must undergo gender affirmation surgery or
medical treatment of some kind before the State acknowledges them. They must also be
unmarried. In the Indian context, the community has already has a history of being
marginalized because of the perilous construct of post-colonial norms and legislations.
17. The Transgender Persons (Protection of Rights) Bill, 2016, can be cited as the latest
addition to the list of disappointments. Though it is claimed to be a principled follow-up
to the NALSA judgment, it fails miserably to protect the right of self-identification. From
its initial definition - “transgender person means a person who is neither wholly female
nor wholly male” - the Draft Bill undermines the spirit of the NALSA judgment. And if
that were not enough, it then goes on to set up a screening committee that will determine
the genuinity of an individual’s identity.
18. In a recent response to an RTI application filed by the human rights collective Alternative
Law Forum, the regional passport office in Bangalore stated that the following
documents needed to be furnished for issuing a passport to a transgender person: “A
sworn affidavit regarding the change in sex along with a certificate from either a surgeon
or government hospital where the person has undergone medical treatment or a medical
examination from a chief medical officer in a government hospital. Include two identity
documents bearing new name and gender and a fulfillment of change of name procedure
as prescribed by the passport office." The requirements laid down by the ministry of
external affairs are skewed as well as unreasonable, thus making this process more
difficult for transgender persons. The insistence on a "certificate from a surgeon" does
18
not acknowledge individuals who are pre-operative or have chosen to not have surgery. It
does not recognize the principle of self-identification or self-declaration that is
fundamental to the principle laid down in NALSA.17
2.1 Conclusion for the second issue

19. This shows that he can’t be treated as a third gender as he has satisfied none of the
conditions which is followed in the country to classify him as a third gender. He neither
has evidence in the form of a medical report nor did he undergo any gender changing
operation to show that he is a transgender. In contrary there are enough evidences to
prove that he has characteristics that of a female and thus he comes under the category of
a woman who are expressly barred from entering the temple.
ISSUE 3
3. WHETHER THE NOTIFICATION DATED 21-10-1955 IS VIOLATIVE OF

FUNDAMENTAL RIGHTS?
3.1 ARTICLE 14 IS NOT VIOLATED :
20. Religious customs and practices cannot be solely tested on the touchstone of article 14
and the principles of rationality embedded therein. Article 25 specifically provides the
equal entitlement of every individual to freely practice their religion. Equality in matters
of religion must be viewed in the context of the worshippers of the same faith.18
21. Article 14 of the constitution provides for equality before law and equal protection of
law. However, it does not guaranatee an equal treatment of all persons. It only guarantees
equality among equals. This means that similarly placed individuals shall be treated
equally. Its aim is to prevent discriminatory treatment of similarly placed people. Article
14 is attracted only when equals are treated as unequals or where unequals are as equals.
17
https://www.dailyo.in/politics/transgender-nalsa-judgment-aadhar-card-gender-rights-self-
identification/story/1/15462.html
18
Indian Young Lawyers Association & Ors v. The State of Kerala & Ors., (2018) Indlaw SC 905
19
The guarantee of equality does not imply that the same rules should be made applicable in spite
of differences in their circumstances and conditions.19
22. It is said to be valid if satisfies the twin test as held in ANWAR ALI SARKAR’S case.20
The two tests are:
 The classification must be founded on an intelligible differentia which distinguishes those

that are grouped together from others left out of the group, and
 The differentia must have a rational relation of objects sought to be achieved by the Act.
The differentia which is the basis of the classification and the object of the Act are
distinct and what is necessary is that there must be nexus between them.
23. It is submitted that in the given case, the object of classification is to authorize the entry
of Hindus into the places of public worship which is protected under article 25(2)(b). The
classification made is also constitutionally valid since it has a nexus with the object
sought and this is the only practical way to protect the religious customs. It also
submitted that it is the duty of the DTAC under the $31 of the Act to administer the
temple in accordance with the custom and usage of the temple.21
24. The Right to equality under Article 14 conflicts with the rights of the worshippers of this
shrine which is also a fundamental right guaranteed by Articles 25, and 26 of the
constitution. It would compel the court to undertake judicial review under Article 14 to
delineate the rationality of the religious beliefs or practices, which would be outside the
ken of the courts. It is not for the court to 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.22
25. In RE SPECIAL COURTS BILL23 case, Chandrachud, J; stated: A law may be

constitutional even though it relates to a single person if on account of special
circumstances or reasons applicable to him and not anyone else, he can be treated as a
class itself.
19
Ramesh Prasad v. State of Bihar, AIR (1978) SC 327
20
State of W.B. v. Anwar Ali Sarkar, AIR (1952) SC 75
21
Moot proposition, Sec 31 of the Malistan Hindu Religious Instituitions Act, 1950
22
Supra 18
23
AIR (1979) SC 478,
20
26. Article 15 of the constitution prohibits differential treatment of persons on the ground of
sex alone and they shall not be restricted from entering places of public resort. Article 15
was proposed as draft Article 9.24 Professor KT Shah proposed the Amendment no.293
for including “temples” into places of public resort. This proposal was rejected by the
Constituent Assembly.25 Constituent Assembly considered it fit not to include “places of
worship” or “temples” within the ambit of Draft Article 9 of the Constitution. Thus, there
is no question of discrimination on grounds of sex since temple is not a place of public
resort.
3.2 THE NOTIFICATION IS NOT VIOLATIVE OF ARTICLE 17:
27. The object and core of Article 17 is to prohibit untouchability based of “caste”. The
customs practiced in temples do not flow from any practices associated with
untouchability under Article 17.26 All forms of exclusion would not tantamount to
untouchability. Article 17 pertains to untouchability based caste prejudice.
Untouchability was never understood to apply to women as a class.27
28. Present Article 17 was proposed as draft 11 of the Constitution.28 It referred to caste
based discrimination faced by Harijans, and not women. During the debate, Mr.
V.I.Muniswamy Pillai had stated that adoption of article 11 would give relief to a
Harijan, who has been suffering the tyranny from ages.29
29. Mr. Seervai states that Article 17 must be read with the Untouchability (offences) Act,
1955, which punishes offences committed in relation to a member of a scheduled caste.30
Professor M.P.Jain states that, “Therefore, treating of persons as untouchables either
24
Draft Constitution of India, Drafting Committee of the Constituent Assembly of India (Manager Government of
India Press, New Delhi, )(1948) available at
http://14.139.60.114:8080/jspui/bitstream/123456789/966/7/Fundamental%20Rights%20%285-12%29.pdf
25
Statement of Professor K.T. Shah, Constituent Assembly Debates November 29, (1948)
26
Supra 18
27
Ibid.
28
11. “Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability
arising out of “Untouchability" shall be an offence punishable in accordance with law.” Draft Constitution of India,
Drafting Committee of the Constituent Assembly of India (Manager Government of India Press, New Delhi, 1948)
available at http://14.139.60.114:8080/jspui/bitstream/123456789/966/7/Fundamental%20Rights% 20%285-
12%29.pdf
29
Statement of Shri V.I. Muniswamy Pillai, Constituent Assembly Debates November 29, (1948)
30
H.M. Seervai, Constitutional Law of India: A Critical Commentary, p. 691th Ed., Reprint (1999).
21
temporarily or otherwise for various reasons, e.g; suffering from an epidemic or
contagious disease, or social observances with birth or death , or social boycott resulting
from caste or other disputes do not come within the purview of Article 17.
30. Article 17 is concerned with those regarded untouchables in the course of historic
developments.31
31. In VENKATARAMANA DEVARU32 case court observed that the object of enacting
Article 17 was to abolish Untouchability based on customs which denied access to large
sections of Hindus who were classed as untouchables. Therefore, it is submitted that
Article 17 refers to the practice of Untouchability as committed in the Hindu community
against Harijans or people from depressed classes, and not women.
3.3 THE NOTIFICATION IS NOT VIOLATIVE OF ARTICLE 19:
32. Article 19(1)(d) of the constitution gives right to move freely throughout the territory of
India. However, this right is not absolute and is subject to reasonable restrictions under
mentioned in the Article 19(5). The restriction placed on the freedom must strike a proper
balance between the freedom granted and between the social control. The restriction
placed must be reasonable. For adjudging reasonableness of a restriction, the courts
consider such factors as the nature of right alleged to have been infringed, the underlying
purpose of the restrictions imposed, the extent and urgency of the evil sought to be
remedied thereby, the disproportion of the imposition and the prevailing conditions at the
time.33
33. In LOCHNER VS NEW YORK 34 it was observed that what is reasonable is to be

determined by the facts of the case. It has to be looked into from the perspective of a
reasonable man and from the judge’s perspective. It is submitted that the Notification is
only a restriction on the right of a citizen to enter the temple if is in accordance with
31
M.P. Jain, Indian Constitutional Law, p. 1067 6th Ed,( 2010)
32
Venkataramana Devaru & Ors. v. State of Mysore & Ors., (1958) SCR 895
33
State Of Madras V. V.G. Row.Union Of India, (1952) SCR 59
34
198 U.S. 45 (1905)
22
already existing customs. The definition of the term “Law” includes custom or usage
having the force of law in the territory of India under the Article 13(3)(a).35
3.4 ARTICLE 25 AND 26:
34. Article 26 of the Constitution guarantees the freedom to every religious denomination, or
sect thereof, the right to establish and maintain institutions for religious or charitable
purposes, and to manage their own affairs in matters of religion. The right conferred
under Article 26 is subject to public order, morality and health and not to any other
provisions in part III of the constitution. A religious denomination or organization enjoys
complete autonomy in matters of deciding what rites and ceremonies are essential
according to the tenets of that religion. The only restriction imposed is on the exercise of
the right being subject to public order, morality and health under Article 26.36
3.4.1 RELIGIOUS DENOMINATION:
35. The right guaranteed under Article 25 is an individual right while right guaranteed by
Article 26 is the right of an “organized body’ like the religious denomination or any
section thereof. In Webster’s Dictionary, the word denomination has been defined as a
“collection of individuals, classed together under the same name” generally a religious
sect or body having a common faith and organization and designated by a distinctive
value.37
36. In the case of ACHARYA JAGADISHWARANANDA AVADHUTA,38 Court observed

that the full concept and scope of religious freedom is that there are no restrains upon the
free exercise of religion according to the dictates of one’s conscience or upon the right
freely to profess, practice and propagate religion save those imposed under the police
power of the state and the other provisions of part 3 of the Constitution. This means that
one has a right to worship God according to the dictates of his conscience.
35
N Noorjehan Safia Niaz and Ors. v. State of Maharashtra and Ors. (2016) (5) ABR 660
36
Supra 3
37
Constitution of India, J.N.Pandey. pg.no.376 ;fifty third edition.
38
Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and another, (2004) 12 SCC 770
23
37. In BIJOE EMMANUEL & Ors V. STATE OF KERELA & Ors.39 In this case Court
noted that the personal views of judges are irrelevant in ascertaining whether a particular
religious belief or practice must receive the protection guaranteed under Article 25(1). In
38. JAMSHED JI V. SOONABAI,40 Court observed that the role of a judge in religious
matters. The Court observed that “If this is the belief of the Zoroastrian community, a
secular judge is bound to accept that belief it is or not for him to sit in judgment on that
belief, he has no right to interfere with the conscience of a donor who makes a gift in
favor of what he believes to be the advancement of his religion and the welfare of his
community or mankind.
39. This view was affirmed by the Supreme Court in RATILAL PANACHAND GANDHI V.
THE STATE OF BOMBAY & Ors.41 and BIJOE EMMANUEL & Ors V. STATE OF
KERELA &Ors.42
It is submitted that right under articles 25 and 26 is not absolute. In instances where the
temple has restricted the access to the inner sanctuary of the temple to the public and
certain particularly sacred parts of the temple in order to ensure good order and decency
of worship the same was held to be a valid regulation. The court has also observed that
where the matter pertains to pollution or defilement of the deity then certain regulations
can also be held to be void on that aspect.
40. Religious denomination has been defined in SHIRUR MUTT case43 as “A collection of
individuals classed together under the same name: a religious sect or body having a
common faith and organization and designated by a distinctive name.” In S.P.MITTAL V.
UNION OF INDIA & Ors.44 , the Court held that a religious denomination must satisfy
three conditions:
39
(1986) 3 SCC 61
40
33 Bom. 122 (1909)
41
AIR (1954) SC 388
42
(1986) 3 SCC 61
43
(1954)Scr 100
44
(1983)Scr 1 729
24
 It must be a collection of individuals who have a system of beliefs or doctrines which
they regard as conducive to their spiritual well-being, that is, a common faith;
 Common organization; and
 Designation by a distinctive name
41. However, this is not a strait-jacket formula, but a working formula. It provides guidance to
ascertain whether a group would fall within a religious denomination or not.45
42. Article 25 only protects those practices, which are an integral part of a religion. 46 The
guarantee is extended to rituals and observances, ceremonies and modes of worship which
are integral parts of religion.47 In SHIRUR MUTT case48 , Court observed that “what
constitutes the essential part of a religion is primarily to be ascertained with reference to the
doctrine of that religion itself.” In addition to this court observed that under Article 26(b)
therefore a religious denomination or organization enjoys complete autonomy in the matter
of deciding as to what rites and ceremonies are essential according to tenets of the religion
they hold and no outside authority has any jurisdiction to interfere with their decision in
such matters.
43. In ACHARYA MAHARAJSHRI NARENDRA PRASADJIANADPRASADJI MAHARAJ

V. THE STATE OF GUJARAT49 a constitution bench, in the context of Article 26 noted
that it is a duty of this Court to strike a balance and ensure that fundamental rights of one
person co-exist in harmony with the exercise of fundamental Rights of others. It is the
Constitutional duty of the court to harmonize the rights of all persons, religious
denominations or sects thereof, to practice their religion according to their beliefs and
practices.
3.5 Conclusion for issue 3
44. In the present case, the character of the temple is unique on the basis of centuries old
religious practices followed to preserve the manifestation of the deity, and the worship
45
Supra 3
46
John vallamttaon and another V. union of India (2003) 6 SCC 61
47
N.Adithayan V. Travancore Devaswom Board and ors (2002) 8SCC 10
48
Supra 44
49
AIR (1974) 2098.
25
associated with it. Any interference with the mode and manner of worship this religious
denomination would impact the character of the temple, and effect the beliefs and practices
of the worshippers of this temple. So the Constitutional provisions are not violated.
26
PRAYER
In the light of the issues raised, arguments advanced and authorities cited may this Hon’ble court
be pleased to:
1. To declare the custom laid down by the chief priest as an Essential Religious practice.
2. To declare the Notification by DTAC, Non violative of fundamental rights and hence declare
the notification as valid.
And / or pass such other order in light of justice, equity and good Conscience which this Hon’ble
court may feel fit and proper in the circumstances of the case.
The entire above contentions are most humbly & respectfully submitted to the bench.
ON BEHALF OF RESPONDENTS
27

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DR. V.

BEFORE THE HON’BLE SUPREME COURT OF DHARMA RAJYA

UNDER ARTILCE 32 OF THE CONSTITUTION OF DHARMA RAJYA

DHARMARAJYA ASSOCIATION FOR TRANS EQUALITY (DATE) ---------- PETITIONER

UNION OF INDIA ----------------------------------------------------------------------- RESPONDENT

LIST OF ABBREVATIONS ……………………………………………………………4

1.1 ESSENTIAL RELIGIOUS PRACTICE…………………………………... 13

1.2 ROLE OF COURTS IN MATTERS CONCERNING RELIGION………. 15

1.3 Conclusion For The First Issue……………………………………………… 16

WHETHER AZYAN WHO IS A TRANSGENDER CAN BE CONSIDERED AS A FEMALE?

2.1 CONCLUSION FOR THE SECOND ISSUE................................................ 19

WHETHER THE NOTIFICATION DATED 21-10-1955 IS VIOLATIVE OF

3.1 ARTICLE 14 IS NOT VIOLATED …………………………………………. 19

3.2 THE NOTIFICATION IS NOT VIOLATIVE OF ARTICLE 17…………… 21

3.3 THE NOTIFICATION IS NOT VIOLATIVE OF ARTICLE 19…………… 21

3.4 ARTICLE 25 AND 26………………………………………………………... 23

3.4.1 RELIGIOUS DENIOMINATION ………………………………..……….. 23

3.5 CONCLUSION FOR THE THIRD ISSUE…………………………………. 25

1. ACHARYA MAHARAJSHRI NARENDRA PRASADJIANADPRASADJI MAHARAJ V. THE STATE OF

2. BIJOE EMMANUEL V. STATE OF KERELA, (1986) 3 SCC 61

3. CARLOS FRANK V. STATE OF ALASKA, 604 P.2d 1068 (1979)

4. COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS , MADRAS V. SRI LAKSHMI THIRTHA SWAMIAR

5. HUR PRASAD V. SHEO DAYAL

7. JAMSHED JI V. SOONABAI, 9 33 Bom. 122 (1909)

8. JOHN VALLAMTTAON AND ANOTHER V. UNION OF INDIA (2003) 6 SCC 61

13. P.M.A.METROPOLITAN V. MORAN MAR MARTHOM, AIR(1995) SC 2001

14.RAMESH PRASAD V. STATE OF BIHAR, AIR (1978) SC 327

17.RE SPECIAL COURTS BILL, AIR (1979) SC 478,

18. S.P.MITTAL V. UNION OF INDIA & ORS, (1983)SCR 1 729

20. STATE OF MADRAS V. V.G. ROW.UNION OF INDIA, (1952) SCR 59

22. SUBRAMANIAN CHETTIAR V. KUMARAPPA CHETTIAR, 13 AIR(1955) MAD 144.

1. The Constitution of India

2. The Transgender Persons ( Protection of Rights) Bill, 2016.

2. Constituent Assembly Debates. Volume. No. 7

3. C.K.Takwani- Administrative Law, Eastern Book Company; (6th edition 2017)

“Article 32. Remedies for enforcement of rights conferred by this Part

Background of the Temple

1. State of Malistan is a state in the Union of Dharmarajya which is surrounded by

Notification by the temple administration

The present issue

4. Azyan, a transgender person who is born as a female with predominantly male

WHETHER THE RULE MADE BY THE CHIEF PRIEST COMES UNDER

WHETHER AZYAN WHO IS A TRANSGENDER CAN BE CONSIDERED AS A

WHETHER THE NOTIFICATION DATED 21-10-1955 IS VIOLATIVE OF

WHETHER AZYAN WHO IS A TRANSGENDER CAN BE CONSIDERED AS A FEMALE?

WHETHER THE NOTIFICATION DATED 21-10-1955 IS VIOLATIVE OF

WHETHER THE RULE MADE BY THE CHIEF PRIEST COMES UNDER

1.1 ESSENTIAL RELIGIOUS PRACTICE:

2. The ‘Essential religious practices test was formulated in COMMISSIONER, HINDU

1.2 ROLE OF COURTS IN MATTERS CONCERNING RELIGION:

8. In RATILAL’S8 case Mukherjea,J. quoted as appropriate Davar,J.’s following

9. The House of Lords in REGINA V. SECRETARY OF STATE FOR EDUCATION

12. In SUBRAMANIAN CHETTIAR V. KUMARAPPA CHETTIAR13 custom has been

1.3 Conclusion for the first issue :

2. WHETHER AZYAN WHO IS A TRANSGENDER CAN BE CONSIDERED AS A

2.1 Conclusion for the second issue

3. WHETHER THE NOTIFICATION DATED 21-10-1955 IS VIOLATIVE OF

3.1 ARTICLE 14 IS NOT VIOLATED :

 The classification must be founded on an intelligible differentia which distinguishes those

25. In RE SPECIAL COURTS BILL23 case, Chandrachud, J; stated: A law may be

3.2 THE NOTIFICATION IS NOT VIOLATIVE OF ARTICLE 17:

3.3 THE NOTIFICATION IS NOT VIOLATIVE OF ARTICLE 19:

33. In LOCHNER VS NEW YORK 34 it was observed that what is reasonable is to be