BHARATA MATA SCHOOL OF LEGAL STUDIES –

MOOT COURT 2019

BEFORE THE HON’BLE SUPREME COURT

(UNDER ARTICLE 32 OF THE CONSTITUTION OF

INDIA)

Indian Young Lawyers Association & Ors. …..........................Petitioners

VERSUS.
The state of Kerala & Ors. ……..……………………………. Respondent

MEMORANDUM ON BEHALF OF THE

RESPONDENT

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 TABLE OF INDEX

TABLE OF CONTENTS
INDEX OF AUTHORITIES
INDEX OF ABBREVIATION
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
STATEMENT OF ISSUES
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
PRAYER

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 INDEX OF AUTHORITIES

STATUES INCORPORATED
1. Constitution of India, 1950
2. The Hindu Place of Public Worship (Authorisaton of Entry) Act, 2018

BOOKS And COMMENTARIES

1. M. P Jain, Indian Constitutional law, 8th edition
2. V N Shukla, Constitution of India, 12th edition

WEBDISTES VISITED
1. www.indiankanoon.com
2. www.legalserviceindia.com
3. www.livelaw.com
4. www.indconlawphil.wordpress.com
5. www.legalcrystal.com
6. www.india-seminar.com

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 TABLE OF ABBREVIATON

AIR All India Reporter

Art Article

& And

Anr Another

Ed Edition

Govt. Government

Ors Others

Sec Section

SC Supreme Court

SCC Supreme Court Cases

Vol Volume

v. Versus

p. Page number

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 STATEMENT OF JURISDICTION

The Petitioner humbly submit this memorial before the Hon’ble Court. The
Petition invokes writ jurisdiction under Art 32 of the Constitution of India. It sets
forth the facts and the law on which the claim are based.
 Article 32

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the right 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 right 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.

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 STATEMENT OF FACTS

The Sabarimala Temple, located in the Periyar Tiger Reserve in the Western Ghat
mountain ranges of Pathanamthitta District of Kerala, is renowned for lakhs of
pilgrims thronging it all through the year. Pilgrims trek the Neelimala to reach the
shrine, which has 18 sacred steps, to worship Lord Ayyapa after undergoing strict
religious vows for 48 days.
The temple is also prominent for another reason — the selective ban on women
entering it. Women aged between 10 and 50, that is those who are in menstruating
age, are barred from entering the temple. While there is no restriction on women to
worship Lord Ayyapa in any other temple, their entry is prohibited in this temple
alone.
The Indian Young Lawyers Association and five women lawyers approached the
Supreme Court seeking a direction to allow entry of women into the temple
without age restrictions. Another group of women, part of the "Happy to Bleed"
campaign, has also sought the court's direction on whether society should continue
to bear with “menstrual discrimination."
Their petition contended that discrimination in matters of entry into temples was
neither a ritual nor a ceremony associated with Hindu religion. Such discrimination
was totally anti-Hindu. The religious denomination could only restrict entry into
the sanctum sanctorum and could not ban entry into the temple, making
discrimination on the basis of sex.
The Travancore Devasom Board, which maintains the temple, had replied that the
ban was in accordance with centuries-old tradition. Lord Ayyapa, being a
Naishtika Brahmmachari (one who has vowed to remain celibate). Another
argument put forth by the temple authorities is that it is not possible for women to
put up with the physical hardship, austerity and days of celibacy like men.

The on-going trial in the Supreme Court has also put the spotlight on a 1991 Kerala
High Court judgment, which held that the restriction was in accordance with a
usage from time immemorial and not discriminatory under the Constitution.
Upholding the restrictions, the High Court, in its judgment, said: “According to
‘The Sabarimala Thanthri’, these customs and usages had to be followed for the
welfare of the temple. He said only persons who had observed penance and

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followed the customs are eligible to enter the temple and it is not proper for young
women to do so."

Twenty-five years after this judgment, the Supreme Court has questioned the
“logic” behind the restriction, even wondering whether there was any proof that
women did not enter the sanctum sanctorum 1,500 years ago.
There are some earlier instances when the Sabarimala Temple tantri would perform
a "purification ceremony" at the 18-sacred steps that lead to the sanctum
sanctorum, whenever the rules are violated. The last ceremony took place in
December 2011, after a 35-year-old woman managed to climb the "pathinettam
padi".
In 2006, astrologer P. Unnikrishna Panicker conducted a "devaprasnam" at the
temple and 'found' that there were signs of a woman having entered the sanctum
sanctorum. Soon after this, yesteryear Kannada actor Jayamala said she had
entered the temple and even touched the idol in 1987, when she was shooting for a
movie.
Amidst outrage, the Kerala police filed a report, stating that the entire episode was
"orchestrated to gain publicity." The case is pending in the Kerala High Court.
Though, courts have generally not interfered in the traditions and practices
followed in religious place, it has never failed to uphold equality whenever
discrimination was reported. In this conflict of worshipping rights versus customs,
all eyes are now on the Supreme Court.

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 STATEMENT OF ISSUES

I. Whether the writ petition filed under Article 32 The Constitution of

India is maintainable?
II. Whether the practice or custom of prohibiting women entry really the
essence of Hindu religion?
III. Whether Rule 3(b) of Kerala Hindu Places of Public Worship
(Authorization of Entry) Act violates the Fundamental rights and is it
unconstitutional?

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 SUMMARY OF ARGUMENT

1. Whether the writ petition filed under Article 32 The Constitution of India is
maintainable?
The right to move the Supreme Court under Article 32 for violation of
Fundamental Rights, must be based on a pleading that the Petitioners’ personal
rights to worship in this Temple have been violated. The Petitioners do not claim to
be devotees of the Sabarimala Temple where Lord Ayyappa is believed to have
manifested himself as a ‘Naishtik Brahmachari’. To determine the validity of long-
standing religious customs and usages of a sect, at the instance of an
association/Intervenors who are “involved in social developmental activities
especially activities related to upliftment of women and helping them become
aware of their rights”, would require this Court to decide religious questions at the
behest of persons who do not subscribe to this faith.
2. Whether the practice or custom of prohibiting women entry really the essence of
Hindu religion?
Custom, in simple terms, means an established pattern of behaviour and a uniform
conduct observed by the people living in a society or a particular area for a long
period of time.When such practice is accepted by law or given legal
recognition, it becomes a codified legislation known as customary law. The said
custom is the essence of hindu religion, as the custom of banning women from
entering the pilgrimage temple of Ayyappa in sabarimala is time immemorial.
Even though there are claims that women have entered the temple, they haven’t
entered the temple through the sacred 18 steps with the offerings (irrumudikettu).
And the said custom is reasonable because the restriction for women is only
imposed only in sabarimala. Whereas the doors of other Ayyappa temples in kerala
is wide open for the women of all ages.
3. . Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization
of Entry) Act violates the Fundamental rights and is it unconstitutional?
Rule 3(b) of Kerala Hindu Place of Public Worship Act,1965 do not violate the
fundamental right and it is constitutional since it is being followed from time
immemorial.

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 ARGUMENTS ADVANCED

1. Whether the writ petition filed under Article 32 of the constitution maintainable
1.1 Petitioner do not have Locus Standi
The traditional rule is that a person whose constitutional or legal right is
infringed can apply for relief under Article 226 of the Indian Constitution.
But the Supreme Court has now considerably liberalized the above rule
of Locus Standi. The Court now permits the public-spirited persons to file a
writ petition for the enforcement of constitutional and statutory rights of any
other person or class, form if that person or class is unable to invoke the
jurisdiction of the High Court due to poverty or any social economic
disability.
Now, a public-spirited person can avail this provision on behalf of socially or
economically disadvantaged persons, if such persons are unable to defend
themselves.
The right to move the Supreme Court under Article 32 for violation of
Fundamental Rights, must be based on a pleading that the Petitioners’
personal rights to worship in this Temple have been violated. The Petitioners
do not claim to be devotees of the Sabarimala Temple where Lord Ayyappa is
believed to have manifested himself as a ‘Naishtik Brahmachari’. To
determine the validity of long-standing religious customs and usages of a sect,
at the instance of an association/Intervenors who are “involved in social
developmental activities especially activities related to upliftment of women
and helping them become aware of their rights”, would require this Court to
decide religious questions at the behest of persons who do not subscribe to
this faith.
Suraz India Trust v. Union of India and Another1:This was a writ petition
filed under Article 32 by a trust registered under the Rajasthan Public Trusts
Act, 1959, whose aim was to challenge those provisions of law which
were ultra vires and unconstitutional. By way of the writ petition, it sought a
review of certain decisions of the Supreme Court pertaining to the issue of
appointment of judges to the Supreme Court. The Attorney General appearing
on behalf of the Union raised a specific issue regarding the maintainability of
the petition at the behest of a trust, as it could not claim violation of any of its

1
(2011)4 SCALE 252:

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 fundamental rights. Although the Court did not answer the question of
maintainability (due to the reason that the case was placed before the Chief
Justice of India for further directions), the Court did refer to B.P. Singhal and
observed that in that case, the writ petition had been decided in spite of the
fact that the petitioner did not have the necessary locus.

1.2 There is no violation of Fundamental rights

For centuries, women were not allowed to enter the Sabarimala temple based on
the biological ground of menstruation. The Rule 3(b) of the Kerala Hindu Places of
Public Worship (Authorization of Entry Rules, 1965 (Rules 1965) which states that
“Women at such time during which they are not by custom and usage allowed to
enter a place of worship” was the basis of the practice of excluding women of the
age group of 10 through to 50 years to enter the temple. These Rules were framed
under Section 4 of the Kerala Hindu Places of Public Worship (Authorization of
Entry) Act,1965 (1965 Act). In 1993, a division Bench of the Kerala High Court
(KHC) had upheld the entry ban saying it is usage prevalent from time
immemorial. The KHC had further held that only the chief priest was empowered
to decide on traditions.

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1. Whether the practice or custom of prohibiting women entry really the essence of
Hindu religion
2.1 Custom
Custom, in simple terms, means an established pattern of behaviour and a
uniform conduct observed by the people living in a society or a particular area
for a long period of time.
When such practice is accepted by law or given legal recognition, it
becomes a codified legislation known as customary law. The customary laws
provide a wealth of information about the customs and usages observed in a
particular community or society.
It is not a single body of law but is an adaptive, flexible, evolving body of
norms and rules governing the behaviour of communities over long periods of
time. Customs are usually characterised as ancient, certain, reasonable and
invariable. Prudentially, there emerge two distinct frameworks namely – law
and custom.
The codification and legal recognition of these customs is important. The co-
existence of customary practices and formal law is not peaceful but subject to
conflicts and contradictions with adverse impact not only on the societal
relations but also the working of the legislature in the effective implementation
of the laws.
This is because law in action may be quite different from law in books.
Customs are not clearly defined and are not universally applicable and in their
actual operation adapt themselves to the socio-political contours of society.
Moreover customs and practices followed in one particular community may
differ from those followed in another leading to conflicts with regard to the
statutory laws.
Thus customary laws being area specific may lead to overlapping of multiple
laws and continuous amendments may be required to restore their place in the
legal structure.

2.2 Essentials of Custom

Custom, if the law is to uphold it as right, should be immemorial in origin,
certain, reasonable in nature and continuous in use. Both national and
international courts play an important role in the application of custom. The
court by its imprimatur will attest the ‘jural quality’ of the custom. When a

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 customary right is upheld by the court it becomes customary law. But to obtain
that legal status, the custom must be ancient, certain and reasonable and, in
derogation of the general rules of law, be construed strictly.

2.2.1 A custom must be ancient, immemorial: The court of law recognizes only
those customs that are prevalent from ancient times. A custom, in order to be
binding must derive its force from the fact that by long usage it has obtained the
force of law. But the rigid standard of the English common law are not strictly
applied to Indian conditions. All that is necessary to prove is that the usage has
been in practice for a long period and with such invariability that it has by
common consent been submitted to as the established governing rule of a
particular locality. The right must be proved by clear evidence showing a
continuous user as of right, nec ni nec clam nec procario. It should not have
been exercised under a permission. In a Madras case, the right to catch fish in a
tidal river at a certain place by putting stakenets across the river was claimed on
the basis of a custom and was held established as customary right of the locality
on proof of thirty years use.

2.2.2 Custom must be reasonable: A custom derives its validity from being
reasonable at inception and present exercise. The Indian decisions are in
harmony with the English authorities. Menoor v. Denne and Tyson v. Smith,
which elaborate on the reasonableness of customs. A customary right, namely
the right to take earth for making pots, was claimed by the kumbhar community
of a village and upheld in the Nagpur case of Bhiku v. Shooram, though it was a
case of profits. In State of Bihar v. Subodh Gopal (AIR 1968), the Supreme
Court held that a customary right in the exercise of which the residents of a
locality were entitled to excavate stones for purposes of trade (and not for
domestic or agricultural purposes) would ex facie be unreasonable, because the
exercise of such a right ordinarily tends to the complete destruction of the
subject matter of the right. The custom was therefore unreasonable.

2.2.3 Custom must be certain and invariable: The court will not recognise a
custom as valid unless it is certain in its extent and mode of operation. The
requirement that a custom should be certain is also expressed by saying that it
should be definite, or that it should be invariable.

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 2.2.4 Other features: (i) Customary rights are not public rights. Public rights are
in favour of the general public at large, but a customary right is in favour of a
limited section of the public, like the inhabitants of a village or members of a
community. The way in which a public right arises is known as ‘dedication’.
(ii) Customary rights are rights partaking of some of the characteristics of an
easement, but are not easements in the proper sense; customary rights are not
appurtenant to a tenement but exist in gross, i.e., they are not for the beneficial
enjoyment of a dominant heritage but exist for a personal benefit. Easements
are private rights belonging to a particular person while customary rights are
public in nature annexed to the place in general. Customary right are
specifically excluded from the purview of the Indian Easement Act, 1882.
The said custom is the essence of hindu religion, as the custom of banning women
from entering the pilgrimage temple of Ayyappa in sabarimala is time immemorial.
Even though there are claims that women have entered the temple, they haven’t
entered the temple through the sacred 18 steps with the offerings (irrumudikettu).
And the said custom is reasonable because the restriction for women is only
imposed only in sabarimala. Whereas the doors of other Ayyappa temples in kerala
is wide open for the women of all ages.

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2. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of
Entry) Act violates the Fundamental rights and is it unconstitutional?
The Ayyappa temple in Sabarimala, Kerala, prohibits women of menstruating
age (between ten and 50 years of age) from entering it – a prohibition enforced
under Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of
Entry) Rules, 1965: “Women who are not by custom and usage allowed to enter
a place of public worship shall not be entitled to enter or offer worship in any
place of public worship.”
The question of whether, in view of Section 3 of the 1965 Act (guaranteeing non-
discriminatory access to “all” classes), whether Rule 3(b) (that allows for
excluding women if custom demands it) is ultra vires. on the ground that the
worshippers of Lord Ayappa at Sabarimala constitute a separate “religious
denomination”, and is therefore exempted from the operation of Section 3 as per
the Act itself (through a specific proviso). Unfortunately this part is
disappointingly sketchy. On the basis of a Government notification, the
worshippers of Lord Ayappa at Sabarimala “follow a common faith, and have
common beliefs and practice” , on the basis of precedent, that: If there are clear
attributes that there exists a sect, which is identifiable as being distinct by its
beliefs and practises, and having a collection of followers who follow the same
faith, it would be identified as a ‘religious denomination’.
However, that this is a considerably more relaxed threshold than that articulated by
previous judgments, and followed by the Majority. She tries to get around this by
once again implicitly invoking the group autonomy principle, and arguing that a
“liberal” interpretation should be accorded to the question of what constitutes a
“religious denomination.” But this will not do: unlike the question of essential
religious practices, which are required for threshold protection under the
Constitution’s religious freedom clause, religious denominations are entitled to
special and differentiated rights under Article 26: maintenance of institutions,
acquisition and administration of property, and (textually) a greater autonomy in
determining internal religious matters. For this reason, the critique of the essential
religious practices standards cannot be uncritically applies to the definition of
religious denominations: there are good reasons for a higher threshold, adjudicated
by Courts. To depart from that principle would require a detailed and persuasive
argument. And indeed, she appears to recognise this herself, when she notes at
paragraph 12.10: The proper forum to ascertain whether a certain sect constitutes a
religious denomination or not, would be more appropriately determined by a civil

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court, where both parties are given the opportunity of leading evidence to establish
their case. Miscellaneous makes two further findings. She rejects the argument –
advanced by Amicus Curae – that Article 15(2) includes temples under the
definition of “places of public resort.” And she also rejects the argument –
advanced by the Interveners – that exclusion of women on grounds of menstruation
amounts to “untouchability” under Article 17 of the Constitution. Both these
arguments are based on the structure and the drafting history of the Constitution.
With respect to Article 15(2).

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 PRAYER

In the light of Argument advanced, Authorities cited and facts enlightened, we the
counsel on behalf of Respondents humbly submit this Hon’ble Court that:
 The writ petition filed under Art 32 of the Constitution is not maintainable.
 The practice or custom of prohibiting women entry really the essence of
Hindu religion
 The Rule 3(b) of the Kerala Hindu Public Place Of Worship Act,1965 does
not violates the fundamental rights of women and it is not unconstitutional

And whatever this Hon’ble Court deems fit and proper with its virtue and visa of
justice, equity and good conscience.

All of which is respectfully submitted on behalf of

The respondents
Sd/

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