Xii Amity National Moot Court Competition, 2019: HE HON BLE Supreme Court OF Ndia

XII AMITY NATIONAL MOOT COURT COMPETITION, 2019
TEAM CODE- ALS-37
TEAM CODE- ALS-37

BEFORE
THE HON’BLEMOOT
XII AMITY NATIONAL SUPREME COURT OF INDIA
COURT COMPETITION, 2019
BEFORE
IN THE CASE CONCERNING HIMAYA TEMPLE

THE HON’BLE SUPREME COURT OF INDIANA
The Indiana Young Lawyers Association & Ors.
VS.
IN THE CASE CONCERNING HIMAYA TEMPLE
State of Tenjiku & Ors.

The Indiana Young Lawyers Association & Ors.
VS.
MEMORIAL ON BEHALF OF RESPONDENT

State of Tenjiku & Ors.
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TABLE OF CONTENT
LIST OF ABBREVIATIONS……………………………………………………………4
INDEX OF AUTHORITIES…………………………………………………………..…5
LISTS OF CASES...……………………………………………………………………….5
BOOKS & TREATIES……………………………………………………… ..........6
STATUTES………………………………………………………………….…….….6
STATEMENT OF JURISDICTION………………………………………………..8
STATEMENT OF FACTS….……………………………………………….….… 9
STATEMENT OF ISSUES ……………………….
…..............................................11
SUMMARY OF ARGUMENTS…………………………………………………12
ARGUMENTS ADVANCED.................................................................................14
[1] WHETHER THERE IS LOCUS TO FILE THE PRESENT WRIT PETITION …14
[2] WHETHER THE HON’BLE SUPREME COURT HAS THE JURISDICTION IN

DEFINING THE BOUNDARIES OF RELIGION IN PUBLIC SPACES 16
[3] WHETHER THERE HAS BEEN VIOLATION OF ARTICLE 14, 15(3) & 17 OF
THE CONSTITUTION OF INDIA, 1950, IN LIGHT OF RULE 3(B) OF TENJIKU
HINDU PLACES OF PUBLIC WORSHIP (AUTHORIZATION OF ENTRY)
RULES..18
(3.1) APPLICABILITY OF ARTICLE 14 IN MATTERS OF RELIGION AND

RELIGIOUS PRACTISE……………………………………………………………21
(3.1.1) EQUALITY BEFORE LAW………………………………………………..21
(3.1.2) EQUAL PROTECTION OF LAW…………………………………………22
(3.2) APPLICABILITY OF ARTICLE 15 OF THE CONSTTUTION …………23
(3.2.1) ARTICLE 15(3) IS NOT VIOLATED ………………………………………25
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(3.3) APPLICABILITY OFARTICLE 17 OF THE CONSTITUTION ……27
(3.3.1) ARTICLE 17 UNTOUCHBILITY IS NOT VIOLATED………….28
(3.4) RULE 3(B) OF TENJIKU HINDU PLACES OF PUBLIC WORSHIP

(AUTHORIZATION OF ENTRY) RULE IS CONSTITUTIONAL. .. ………28
[4] WHETHER THE PRACTICE OF EXCLUDING SUCH WOMEN CONSTITUTES

AN “ESSENTIAL RELIGIOUS PRACTICE” UNDER ARTICLE 25 AND WHETHER
A RELIGIOUS INSTITUTES CAN ASSERT A CLAIM IN THAT REGARD UNDER
THE UMBRELLA OF RIGHT TO MANAGE ITS OWN AFFAIRS IN THE
MATTERS OF RELIGION? ………………………………………..31
PRAYER………...……..……………………………….......……………………..
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LIST OF ABBREVIATIONS
M
.
P
& And . Madhya Pradesh
M
a
d
§ Section . Madras
N
A. O
P. Andhra Pradesh C Notes Of Citations
O
r
AI i
R All India Report . Orissa
O
r
An s
r Another . Others
P
Art &
. Article H Punjab and Haryana
P
Co .
rpr M
n. Corporation . Post Meridian
P
.
Cri W
. Criminal . Prime Witness
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P
a
Cr. t
R Criminal Ruling . Patna
P
u
Cri n
.L j
R Criminal Law Report . Punjab
S
.
L
Cr .
LJ Criminal Law Journal T Supreme Law Times
Cu
r S
LJ Current Law Journal C Supreme Court
Cu S
t C
LT Cuttak Law times C Supreme Court Cases
S
Ed d
n. Edition . Signed
S
i
F.I. m
R. First Information . Shimla
Report
Ga Guwahati S Shimla Law Times
u. i
m
.
L
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S
u
p
Go p
vt. Government . Supplement
U
Gu .
j. Gujrat P Uttar Pradesh
u
H. /
P. Himachal Pradesh s Under Section
Ho U
n’b I Unnati Industrial
le Honorable C Corporation
J.C v
.C Journal of Criminal . Versus
Cases
V
o
La l
h. Lahore . Volume
W
.
LJ B
ex Law Journal . West Bengal
Exchequer
INDEX OF AUTHORITIES
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LIST OF CASES
1. A.S. Narayana Deekshitulu v. State of A.P. and Ors,
2. A.S. Narayana Deekshitulu v. State of A.P. and Ors, Bhuri Nath and Ors. v. The State
of Jammu & Kashmir and Ors (1996) 3 SCR 543: (1997) 1 SCR 138.
3. Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj & Ors. v. The State
of Gujarat & Ors 1975) 1 SCC 11.
4. Adi Saiva Sivachariyargal Nala Sangam and Ors. Vs. The Government of Tamil Nadu
and Ors. AIR 2016 SC 20.
1. Adi Saiva Sivachariyargal Nala Sangam and Ors. Vs. The Government of Tamil Nadu and Ors.
AIR 2016 SC 20.
5. Bhuri Nath and Ors. v. The State of Jammu & Kashmir and Ors.
1. Bijoe Emmanuel & Ors. v. State of Kerala & Ors 1 SCC 11.
1. Chiranjeet lal v Union Of India AIR 1951 SC 41.
2. Indian Young Lawyers Association and ors. V. The State of Kerala and ors. (2018) SC 1094.
6. Jamshed ji v. Soonabai
7. Jamshed ji v. Soonabai 1954) SCR 1055: AIR 1954 SC 388.
2. Khajamian Wakf Estates etc. v. State of Madras AIR 1971 SC 161.

8. Khajamian Wakf Estates etc. v. State of Madras.
9. Maharajshri Narendra Prasadji Anandprasadji Maharaj & Ors. v. The State of
Gujarat & Ors.
1. Moti das v sahi, AIR 1959 SC 942: 1959 supp (2) SCR 563
2. Moti das v sahi,AIR 1959 SC 942 : 1959 supp (2) SCR 563.
10. Raja Birakishore v. The State of Orissa
11. Raja Birakishore v. The State of Orissa (1964)7SCR32.
12. Ratilal Panachand Gandhi v. The State of Bombay & Ors.,
3. Riju Prasad sarma v state of assam,(2015) 9 SCC 461 : 2015 (8) SCJ 69.
1. S.P. Mittal v. Union of India AIR 1983 SC
3. Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors. 1958 AIR 255, 1958 SCR 895.
4. Subramaniam Swamy v. Union of India, Ministry of Law & Ors2015 (8) SCJ 69.
5. Subramanian swamy v CBI(2014) 8 SCC 682.
6. Subramanian Swamy Vs. State of Tamil Nadu and ors2015 (8) SCJ 69.
13. Union Of India V. International trading corporation,(2003) 5 SCC 437 : AIR 2003
SC 3983.
14. UOI V International trading corporation,(2003) 5 SCC 437
15. Venkataramana Devaru & Ors. v. State of Mysore & Ors
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16. The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar

Thirtha Swamiyar of Shri Shirur Mutt[1954 AIR 282, 1954 SCR 1005]
17. Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and
others (2004) 12 SCC 770
18. The Durgah Committee Ajmer v. Syed Hussain Ali [(1962) 1 SCR 383, 411]
19. The Commissioner v. L T Swamiar of Srirur Mutt 1954 SCR 1005,
20. SSTS Saheb v. State of Bombay 1962 (Supp) 2 SCR 496, and 77 Seshammal v. State
of Tamilnadu : [1972]3SCR815.
TREATISES AND BOOKS REFERED
1. Draft Constitution of India, Drafting Committee of the Constituent Assembly of India

(Manager Government of India Press, New Delhi, 1948).
2. Statement of Professor K.T. Shah, Constituent Assembly Debates
3. M.P. Jain, Indian Constitutional Law, (6th Ed., Revised by Justice Ruma Pal and
Samaraditya Pal; 2010)
4. H.M. Seervai, Constitutional Law of India: A Critical Commentary, Vol. I (4th Ed.,
Reprint 1999)
5. Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford
University Press (1999)
LEXICONS
1. P. Ramanatha Aiyar’s, The Law Lexicon, 2nd EDN., Lexis Nexis Butterworth’s
Wadhwa, 2009.
2. Black, Henry Campbell, Black’s Law Dictionary, 6th Ed., Centennial Ed. (1891-
1991)
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STATEMENT OF JURISDICTION
The Respondent, hereby submits this Memorandum before the Hon’ble Supreme Court of
India, invoking the writ jurisdiction under Article 32 of the Constitution.
Article 32--
“Remedies for enforcement of rights conferred by this Part-
(1) The right to move the Supreme Court by appropriate proceedings
for the enforcement of the rights conferred by this Part is
guaranteed.
(2) The Supreme Court shall have power to issue directions or orders
or writs, including writs in the nature of habeas corpus,
mandamus, prohibition, quo warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights
conferred by this Part.”
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STATEMENT OF FACTS
(1) The Himaya temple is located in Tenjiku(a city in the Union of Indiana).The temple is
a renowned religious spot for the people of Tenjiku, several pilgrims visit the place
every year through a mountainous trek. This temple unlike many welcomes devotees
of every caste who dress in black, which signifies renunciation of all world’s ties and
equality before Tenji.
(2) The temple is prominent for the selective ban on women entering it. Women between
10-50 years, that is those who are in the menstruating age are restricted from entering
the temple. The reason is that the Himaya Temple depicts the Lord Tenji as a
‘Naistika Brahmcharaya’, that is his powers are derived specifically from abstention
from sexual activities.
(3) The pilgrims have adopted the practice of Celibacy before and during pilgrimage in
which they have to follow a strict vow over a period of forty one days in which there
are a set of practices laid down which include maintaining hygiene and also taking
one meal a day. This is done as Lord Tenji derives his power from his being a
celibate.
(4) Lord Tenji, as the religious text states, was born of Shiva and Vishnu to destroy a
female demon, who was said to be vanquished by only him. When his destiny got
fulfilled, a beautiful women emerged from the body as her curse got lifted by the Lord
on killing the demon, who asked him to marry her but due to his mission to go and
answer prayers of his devotees in Tenjiku he refused by assured to marry her when
Kanni-swamis stop coming to Himaya and since then she awaits his return in a
neighbouring shrine near the main temple as Masma.
(5) The Indiana Young Lawyers Association and five women lawyers and also a group of
women “Happy Mensuration” campaign have approached the Supreme Court of
Indiana seeking direction to allow such entry of women into the temple and to prevent
such “menstrual discrimination”.
(6) The Tenji Board, which maintains the temple, had replied to the filed petition the
restriction is in accordance with a centuries-old-tradition. Lord Ayappa, who is the
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deity inside the temple is in the form of “Naistika Brahmcharya”, due to which
celibacy is practiced in which 41 days of penance is observed and women due to
physiological reasons cannot observe such practice.
(7) The Supreme Court in on-going matter threw a light on a 1991 Tenjiku High Court
judgement where it was observed 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 Himaya
Thanthri’, these customs and usages had to be followed for the welfare of the temple.
He said only persons who had observed penance and followed the customs are
eligible to enter the temple and it is not proper for young women to do so."
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STATEMENT OF ISSUES
ISSUE 1:
WHETHER THE PETITIONER AND THE SUBSEQUENT INTERVENERS HAVE

THE LOCUS TO FILE THE WRIT PETITION.
ISSUE II:
WHETHER HON’BLE SUPREME COURT HAS THE JURISDICTION IN

DEFINING THE BOUNDARIES OF RELIGION IN PUBLIC SPACES.
ISSUE III:
WHETHER THERE HAS BEEN VIOLATION OF ARTICLE 14, 15(3) & 17 OF THE
CONSTITUTION OF INDIA, 1950, IN LIGHT OF RULE 3(B) OF TENJIKU HINDU
PLACES OF PUBLIC WORSHIP (AUTHORIZATION OF ENTRY) RULES.
ISSUE IV:
WHETHER THE PRACTICE OF EXCLUDING SUCH WOMEN CONSTITUTES AN

“ESSENTIAL RELIGIOUS PRACTICE” UNDER ARTICLE 25 AND WHETHER A
RELIGIOUS INSTITUTION CAN ASSERT A CLAIM IN THAT REGARD UNDER
MATTERS OF RELIGION.
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SUMMARY OF ARGUMENTS
ISSUE: I
WHETHER THE PETITIONER AND THE SUBSEQUENT INTERVENERS HAVE
THE LOCUS TO FILE THE WRIT PETITION
It is humbly submitted before this hon'ble court that the Tenji temple in the Tenjiku district in
Indiana, does not come within the purview of the state. The Fundamental rights are always
claimed against and for the State actions. It is submitted that when the temple authority is not
an agency or an instrumentality to the State, then there would be no infringement of the
Fundamental rights, thus establishing no locus for the petitioner and the local interveners.
ISSUE: II
WHETHER HON’BLE SUPREME COURT HAS THE JURISDICTION IN
DEFINING THE BOUNDARIES OF RELIGION IN PUBLIC SPACES
It is submitted before the Hon’ble Court, that the Supreme Court has no jurisdiction in
defining the boundaries of religion in public spaces. The Constitution of India gives
individuals the right to practice their own faith and beliefs. Therefore, it is not under the
purview of judicial courts to impose their versions of morality or religious aspects unless
such religious practices are considered to be pernicious and oppressive like Sati which is a
great social evil. As has been stated by Supreme Court , Article 25 and 26 of the
Constitution extends a guarantee for rituals and observances , ceremonies and modes of
worship which are integral part of religion and as to what really constitutes an essential part
of religion
ISSUE: III
WHETHER THERE HAS BEEN VIOLATION OF ARTICLE 14, 15(3) & 17 OF THE
CONSTITUTION OF INDIA, 1950, IN LIGHT OF RULE 3(B) OF TENJIKU HINDU
PLACES OF PUBLIC WORSHIP (AUTHORIZATION OF ENTRY) RULES.
The respondent humbly submits that there has been no violation of article 14, 15(3) & 17 of
the Constitution of India, 1950, in light of Rule 3(b) of Tenjiku Hindu Places of Public
Worship (Authorization of Entry) Rules & Rule 3(b) of Tenjiku Hindu Places of Public
Worship (Authorization of Entry) Rules is constitutional.
ISSUE: IV
WHETHER THE PRACTICE OF EXCLUDING SUCH WOMEN CONSTITUTES AN
“ESSENTIAL RELIGIOUS PRACTICE” UNDER ARTICLE 25 AND WHETHER A
RELIGIOUS INSTITUTION CAN ASSERT A CLAIM IN THAT REGARD UNDER
MATTERS OF RELIGION
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The respondent humbly submits that the practice of excluding women between 10-50 years
of age into the temple does constitutes an “essential religious practice” and will
conclusively assert such claim. The Himaya temple can assert, in that regard, protection of
being under the umbrella of right to manage its own affairs in matters of religion.
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ARGUMENTS ADVANCED
ISSUE 1: WHETHER THE PETITIONER AND THE SUBSEQUENT

INTERVENERS HAVE THE LOCUS TO FILE THE WRIT PETITION.
It is humbly submitted before this hon’ble court of Indiana that the petitioner and the
subsequent interveners have no locus to file the present writ petition.
That, whether the constitution says it or not, it is generally assumed that the fundamental
rights given in it are available only against the State i.e. against the actions of the State and
its officials.1 “In P.D. Shamdasani Vs Central Bank of India” Ltd., the apex court held that “
The language and structure of Article 19 and its setting in Part III of the Constitution clearly
show that Article was intended to protect those freedoms against the State actions…
Violation of rights of property by individuals is not within the purview of the Article.”2 The
whole object of the Part III of the Constitution is to provide protection of the freedoms and
rights mentioned therein against arbitrary invasion by the State. 3
That the Himaya temple, located in tenjinku in the Union of Indiana , does not fall under the
ambit of Article 12 of the Constitution of Indiana , where the term “state” has been defined.
Article 12 in The Constitution Of India:-
Definition In this part, unless the context otherwise requires, the State includes the
Government and Parliament of India and the Government and the Legislature of each of the
States and all local or other authorities within the territory of India or under the control of the
Government of India.
That the cumulative effect of the given factors is to be seen , in order to determine whether an
authority is a state or not.
1. If the entire share capital of the corporation is held by government, it would go a long
way towards indicating that the corporation is an instrumentality or agency of
government.
2. The existence of “deep and persuasive State Control” may afford an indication that
the corporation is the state instrumentality or agency.
3. Whether the corporation enjoys monopoly status which is ‘State conferred ‘or ‘State
protected’.
4. Specifically, if the department of government is transferred to a corporation, it would
be a strong factor supportive if this inference of the corporation being an
instrumentality or agency of government.
It is submitted before this hon’ble court that the entire share capital of the Tenji
temple is not under the state control but under the control of the temple authorities
and the Tenjinku Board. That, there is no persuasive control over the Tenjinku Board
and the temple authorities by the state. It is evident from the fact sheet that all the
matters of the temple have been managed by the temple authorities and the Tenjinku
1
Constitution of India, V.N Shukla, 13th edition 25.
2
AIR 1952 SC 59: 1953 SCR 391.
3
Vishakha v State of Rajasthan, (1997) 6 SCC 241: AIR 1997 SC 3011.
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Board owing to non- interference of the state and the enjoyment of the monopoly
status by the temple. Thus, it is submitted that, the Tenji temple is not an
Instrumentality or the agency of the State. Thus, the petitioners have no locus to file
the present writ petition.
The right to move to the apex court under Article 32 of the Constitution for the
violation of Fundamental rights must be based on the pleading that the petitioner’s
rights to worship in the “Tenji Temple” have been violated. A writ petition could be
filed by a person who suffered infraction of the rights and is an aggrieved person 4.
The petitioners do not claim to be the devotees of the Tenji temple where lord Ayappa
is believed to have manifested himself as a “Naishtik Brahmachari”. To determine the
validity of the longstanding religious customs and usages of a sect, at the instance of
an association, who are involved in social development activities, would require the
court to decide the religious question at the behest of the person who do not subscribe
to this faith.
It is submitted that in the matter of religion and religious practices, Article 14 can be
invoked only by a person only by a reason that are similarly situated that is person
belonging to the same faith, caste, creed or sect. The petitioners do not say that they
are the devotees of lord Ayyappa, who are aggrieved by the practices followed at
Tenji temple. The Right to equality, under Article 14 of the Constituion, in matters of
religion and religious beliefs has to be viewed differently. It has to be adjudged
amongst worshippers of a particular religion or shrine, who are aggreieved by certain
practices which are found to be oppressive and pernicious.
Article 14 (Right to equality) of the Constitution says: -

The state shall not deny to any person the equality before law or equal protection of
laws within the territory of India.
Under the later aspect of the right, which is the essence and core of the ‘Right to
Equality5, the State is under an obligation to take necessary steps so that every
individual receives equal respect and concern which he is entitled to as a human
being. That, state must ensure equality to everyone within the territory of India but
this is when the state itself is running an institution. In case of the Tenji Temple that is
run by the Independent trusts that is the Tenjinku Board, having no persuasive State
control, that are in turn driven by religious customs and sentiments how can any court
or state have the jurisdiction to set any rule. More so, when they are not experts of
religious customs and norms. They are merely the legal experts. Courts can at the
most advice the trust or the board to consider implementing better norms but it is left
up to the trust to implement them based on the Hindu Tradition.
That the religion is based on pure faith and myth. It is not based on maths and science.
Hindu religion is most ancient one and it is possible that the custom may not match
modern outlook.
This means that people cannot challenge laws just on the principle of the matter or
because they think that those laws might harm other people. These individuals must
also be able to show that when the case is filed their interest is also affected by the
law which is commonly known as locus standi6.
Article 15 (Prohibition on grounds of religion, race, caste, sex or place of birth): -

4
Bokaro and Ramgur Ltd. v. State of Bihar, AIR 1963 SC 516,518.
5
R. Dworkin,Sovereignity Virtue( Harvard University Press 2002)
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15(1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any
of them, be subject to any disability, liability, restriction or condition with regard to-
(a) access to shops, public restraints, hotels and places of public entertainment; or
(b) The use of wells, tanks, bathing ghats, roads and places of public resort
maintained wholly or partly out of state funds or dedicated to the use of general
public.
(3) Nothing in this article shall prevent the State from making any special provision
for women and children.
If we look at the Article closely. 15(2)(b) states that the provisions for general public
that “are maintained wholly or partly out of state funds or dedicated to the use of
general public. If we assume the Tenji temple is considered as a ‘public resort
dedicated to public use’, as stated in Article 15, state has no business of in interfering
in their affairs unless these public facilities are maintained by the state funds (either
partly or wholly). Thus, there is no locus established by the interveners as the temple
is not an agency of the state and is not maintained by the state funds.
ISSUE 2: WHETHER HON’BLE SUPREME COURT HAS THE JURISDICTION IN

DEFINING THE BOUNDARIES OF RELIGION IN PUBLIC SPACES.
It is submitted before the Hon’ble Court, that the Supreme Court has no jurisdiction in
defining the boundaries of religion in public spaces.
The Constitution of India gives individuals the right to practice their own faith and beliefs.
Therefore, it is not under the purview of judicial courts to impose their versions of morality
or religious aspects unless such religious practices are considered to be pernicious and
oppressive like Sati which is a great social evil.
The Supreme Court has observed in Lakshmindra 7 “Religion is certainly a matter of faith
with individuals or community and it is not always theistic. There are many religions in India
like Buddhism and Jainism which do not believe in God or in any Intelligent first cause”. In
“Dara Singh VS Union of India8, the apex court held that” the State shall not interfere in the
matters of religion and any other incidental matter which is direct and substantial. In this
way state was prevented from doing unnecessary interference in religion and belief of a
particular community.”
As has been stated by Supreme Court, Article 25 and 26 of the Constitution extends a
guarantee for rituals and observances, ceremonies and modes of worship which are integral
part of religion and as to what really constitutes an essential part of religion. In Gulam Abbas
6
Understanding the principle of Locus Standi, Lawyers Chronicle, The magazine for the African
Lawyer, in, http://www.thelawyerschronicle.com/ Accessed on Novomber 12, 2014.
7
AIR 1954 SC 282: 1954 SCR 1005.
8
AIR 1952 P H 214
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Vs Stae of U. P9 , in a writ petition under Article 32, the Supreme Court enforced the
customary religious rights of the Shia Community on a piece of land.
It is submitted before this honorable court that, opinion of the court always keeps on
changing with time. It is very evident in the past few decades that the society has evolved and
the perception of the people has changed dynamically in every aspect. Similarly, there seems
a transition in their religious beliefs and acceptance to different aspects prevalent I the society
as well. In” Bijoe Emmanuel &ors Vs State of Kerala & Ors 10”, the 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 Ratilal’11s case, we also notice that justice Mukherjee, quoted as appropriate Justice
Dava’s following observation in “Jamshed ji Vs Soonabai”: -
“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 the judgement on that belief, he has no right to interfere with
the conscience of a donor who makes a gift in favour of what he believes to be the
advancement of his religion and the welfare of his community and mankind.”
“We do endorse the view suggested by Justice Dovar’s observation that the question is not
whether the particular religious belief is genuinely and conscientiously held as a part of a
profession or practice of religion. Our personal views and reactions are irrelevant. If the
belief is genuinely and conscientiously held it attracts the protection of Article 25 but subject,
of course, to the inhibitions contained in therein.12”
This view given in Ratilal’s case, clearly portrays the expression that the personal view of the
learned judges or the bench over the religious issues is of trivial importance to the case in
issue. The person should be neutral before building up a opinion over the subject matter in
issue.
That what falls under the purview of being religious and moral to a particular sect or
community or to a particular individual might not appear the same to another community or
sect or to another individual. In “Tikayat Shri Govindlalji Maharaj Vs State of Rajasthan &
ors 13” an argument was made by senior advocate GS Pathak relying on the Statement of CJ
Latham in “Adelaide Company of Jehovah’s witnesses Incorporated Vs The
Commonwealth14” that, “what is religion to one is superstitious to another.” In the judgement
by Justice Chinappa Reddy in “S.P. Mittal Vs UOI15”, it is held that “What is religion to
some is pure dogma to others and what is religion to others is pure superstitious to some
others…..But my views about religion, my prejudices and my predilections, if they be such,
are entirely irrelevant. So are the views of the credulous, the fanatic, the bigot and the zealot.
So also, the views of the faithful, the devote, the acharya, the maulvi, the padre and the
bhikshu each of whom may claim him as the only true and the revealed religion.”
9
JT 1988 (1) SC 502, 1988 Supp (1) SCC 426
10
(1986) 3 SCC 615: AIR 1987 SC 748
11
AIR 1954 SC 388: 1954 SCR 1055
12
AIR 1954 SC 388: 1954 SCR 1055
13
1963 AIR 1638, 1964 SCR (1) 561
14
1943 ALR 193: 1943 WL 27496; 17 ALJ 134
15
1983(1) SCC 51: AIR 1983 SC 1
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In “Shayara Bano Vs UOI & ors”, CJI Khehar, made reference to the role of Courts in
matters concerning religious beliefs and faith as “….while falling the issues falling in the
realm of religious practices or Personal laws, 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 the court
to determine whether the religious practices were prudent or progressive or regressive.
Religion and personal laws must be perceived, as it is accepted by the followers of the
faith…” In “Krishna Singh Vs Mathura Ahir16”, The Supreme Court of India denied to
interfere in the religious customs denying the lower caste hindus to take the sanyas.
In “Eddie C Thomas Vs Review Board of Indiana Employment Security Division 17”, The US
Supreme Court was dealing with the case where the petitioner, who has terminated his job in
account of his religious beliefs which forbade him from partaking in the production of
armaments, was denied unemployment compensation benefits by the State. The court noted
that the Determination of what constituted to be a religious belief or a practice is a very
‘difficult and delicate task’ and noted as follows about the role of constitutional Courts: -
“….. in this sensitive area, it is not within the judicial function and the judicial competence to
inquire whether the petitioner and his fellow worker more correctly perceived the commands
of their common faith. Courts are not arbiters of spiritual interpretation.”
In “United States Vs Edwin D. Lee”, it was held as “ … it is not within the judicial functions
and judicial competence, to determine whether the appellant or the Government has the
proper interpretation of the Amish Faith; Courts are not arbiters of spiritual
interpretation…” Similarly, in “Robert L. Hernandez Vs Commissioner of Internal
Revenue18”, the court noted that, “ …..it is not within the judicial ken to question the
centrality of a particular beliefs or practices to the faith or validity of particular litigant
interpretation of those creeds…” . In “Employment Division, Department of Human
Resources Oregon Vs Alfred L Smith19”, it was noted that “What principle of law and logic
can be brought to bear to contradict a believer’s assertion that a particular act is central to
his personal faith? Judging the centrality of different religious practices akin to the
unacceptable business of evaluating the relative merits of differing religious claims…”
As United States Supreme Court Justice Black rightly held in” Engel v. Vitale20”, “Religion
is too personal, too sacred, too holy to permit its ‘unhallowed perversion’ by a civil
magistrate.”.
Thus, the apex court has no jurisdiction in the given case scenario.
ISSUE 3: WHETHER THERE HAS BEEN VIOLATION OF ARTICLE 14, 15(3) & 17
OF THE CONSTITUTION OF INDIA, 1950, IN LIGHT OF RULE 3(B) OF TENJIKU
HINDU PLACES OF PUBLIC WORSHIP (AUTHORIZATION OF ENTRY) RULES.
16
1980 AIR 707, 1980 SCR (2) 660
17
450 U.S. 707 (1981)
18
United States v. lee, 455 U.S. 252(1982)
19
494 U.S. 872, 110 S. Ct. 1595,108 L. Ed. 2d 876, 1990 U.S.
20
370 U.S. 421 (1962)
19 | Page
It is humbly submitted before the Hon’ble Supreme Court that the characteristics and
elements of a valid custom are that it must be of immemorial existence, it must be reasonable,
certain and continuous. The customs and usages, religious beliefs and practices as mentioned
above are peculiar to the Himaya Temple and have admittedly been followed since centuries.
The limited restriction on the entry of women from 10 to 50 years, in Himaya Temple is a
matter of ‘religion’ and ‘religious faith and practice’, and the fundamental principles
underlying the ‘prathishtha’ (installation) of the Himaya Temple, as well as the custom and
usage of worship of the deity. The classification of women between the ages of 10 to 50
years, and men of the same age group, has a reasonable nexus with the object sought to be
achieved, which is to preserve the identity and manifestation of the Lord as a ‘Naishtik
Brahmachari’.
It is being averred that as per Article 14 any law that is discriminatory in nature has to have
the existence of an intelligible differentia and the same must bear a rational nexus with the
object sought to be achieved which in the instant case is to protect and respect the celibate
nature of the deity and the practices of the pilgrimsThe twin-test for determining the validity
of a classification under Article 14 is: The classification must be founded on an intelligible
differentia; and It must have a rational nexus with the object sought to be achieved by the
impugned law. The difficulty lies in applying the tests under Article 14 to religious practices
which are also protected as Fundamental Rights under our Constitution. The right to equality
claimed here 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 courts 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.
Unlike Article 25, which is subject to the other provisions of Pat III of the Constitution,
Article 26 is subject only to public order, morality, and health, and not to the other provisions
of the Constitution. As a result, the Fundamental Rights of the denomination is not subject to
Articles 14 or 15 of the Constitution. The right of the devotees under Article 25(1) cannot be
made subject to the claim of the Petitioners to enter the temple under Articles 14 and 15 of
20 | Page
the Constitution, since they do not profess faith in the deity of this Temple, but claim merely
to be social activists.
. The object and core of Article 17 was to prohibit untouchability based on ‘caste’ in the
Hindu religion. No such caste-based or religion-based untouchability is practiced at the
Himaya Temple. The customs practiced by the devotees at the Himaya Temple do not flow
from any practice associated with untouchability under Article 17. The custom is not based
on any alleged impurity or disability. Hence, the contention is liable to be rejected.
The High Court recorded that a vital reason for imposing this restriction on young women as
deposed by the Thanthri of the Temple, as well as other witnesses, was that the deity at the
Himaya Temple was in the form of a ‘Naishtik Brahmachari’ which means a student who has
to live in the house of his preceptor, and studies the Vedas, living the life of utmost austerity
and discipline. The deity is in the form of a ‘Yogi’ or ‘Naishtik Brahmachari’. The High
Court noted that this practice of restricting the entry of women is admitted to have been
prevalent since the past several centuries. The High Court concluded by holding: “Our
conclusions are as follows:
(1) The restriction imposed on women aged above 10 and below 50 from trekking the holy
hills of Himaya and offering worship at Himaya Shrine is in accordance with the usage
prevalent from time immemorial.
(2) The restriction imposed by the Tenji Board Board is not violative of Articles 15, 25 and
26 of the Constitution of India.
(3) The restriction is also not violative of the provisions of Hindu Place of Public Worship
(Authorization of Entry) Act, 1965 since there is no restriction between one section and
another section or between one class and another class among the Hindus in the matter of
entry to a Temple whereas the prohibition is only in respect of women of a particular age
group and not women as a class.
(3.1) APPLICABILITY OF ARTICLE 14 IN MATTERS OF RELIGION AND

RELIGIOUS PRACTISES
(3.1.1) EQUALITY BEFORE LAW
It is humbly submitted before the Hon’ble Supreme Court that it has been firmly established
that article 14 strikes at arbitrary state action, both administrative and legislative. There has
21 | Page
been a significant shift towards equating arbitrary or unreasonable as the yardstick by which
administrative as well as legislative actions are to be judged. A basic and obvious test to be
applied in cases where administrative action is attacked as arbitrary is to see whether there is
any discernible principle emerging from impugned action and if so, does it really satisfy test
of reasonableness21 . 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.
Equal treatment under Article 25 is conditioned by the essential beliefs and practices of any
religion. Equality in matters of religion must be viewed in the context of the worshippers of
the same faith. It is humbly submitted that in our case also there was no discrimination as it
was old belief and custom which were being carried away from long time back.
It is submitted that in the case of Raja Birakishore v. The State of Orissa, where the
management of the temple by its predecessors was in Question. The court held that the
predecessors had certain rights and privileges. These rights had not been touched by the Act.
They had also a right of management of the temple. It is humbly submitted that in the 22
present case also the state should also have the right and privilege over the Management of
the Temple.
(3.1.2) EQUAL PROTECTION OF LAW
It is humbly submitted before the Hon’ble Supreme Court that equal protection to all persons
in enjoyment of their rights and liberties without discrimination or favoritism is pledge of
protection of laws i.e., laws that operate alike on all persons under like circumstances 23 It
does not mean that identically the same rules of law should be made applicable to all person
in spite of difference in circumstances and differences24.
In Bihar Hindu religious trusts act excludes the siks from its purview and provides for
separate trust boards for Hindus and Jains. This is valid because there are some differences
between Hindus, Sikhs and Jains in essential details of their faiths, religious practices and
organization of their trust; it cannot be said that Sikh, Hindus and Jains are situated alike in
the matter of religious trusts in Bihar25.
21
UOI V International trading corporation,(2003) 5 SCC 437 : AIR 2003 SC 3983.
22
[1964]7SCR32.
23
Subramanian swamy v CBI(2014) 8 SCC 682.
24
Chiranjeet lal v UOI ,AIR 1951 SC 41.
25
Moti Das V Sahi, AIR 1959 SC 942: 1959 supp (2) SCR 563.
22 | Page
The right to gender equality to offer worship is protected by permitting women of all ages, to
visit temples where he has not manifested himself in the form of a ‘Naishtik Brahamachari’,
and there is no similar restriction in those temples. The issue of what constitutes an essential
religious practice is for the religious community to decide.
The statutory rules incorporating classification enshrined in religious practice and saved by
articles 25 and 26 were held to be not violative of article 14 of the Constitution.26
(3.2) APPLICABILITY OF ARTICLE 15 OF THE CONSTTUTION
It is humbly submitted before the Hon’ble Supreme Court that limited restriction on the entry
of women during the notified age-group but in the deep-rooted belief of the worshippers that
the deity in the Himaya Temple has manifested in the form of a ‘Naishtik Brahmachari’.
With respect to the right under Article 15, Mr. Raju Ramachandran, Amicus Curiae had
submitted that the Sabarimala Temple would be included in the phrase “places of public
resort”, as it occurs in Article 15(2)(b).
In this regard, reference may be made to the debates of the Constituent Assembly on this
issue. Draft Article 9 which corresponds to Article 15 of the Constitution, is extracted for
ready reference: Prohibition of discrimination on grounds of religion, race, caste or sex – The
State shall not discriminate against any citizen on grounds only of religion, race, caste, sex or
any of them (1) In particular, no citizen shall, on grounds only of religion, race, caste, sex or
any of them, be subject to 31 any disability, liability, restriction or condition with regard to—
a. access to shops, public restaurants, hotels and places of public entertainments, or b. the use
of wells, tanks, roads and places of public resort maintained wholly or partly out of the
revenues of the State or dedicated to the use of the general public. (2) Nothing in this article
shall prevent the State from making any special provision for women and children.” 27
Professor K.T. Shah proposed Amendment No. 293 for substitution of sub-clauses (a) & (b)
as follows: “any place of public use or resort, maintained wholly or partly out of the revenues
of the State, or in any way aided, recognized, encouraged or protected by the State, or place
dedicated to the use of general public like schools, colleges, libraries, temples, hospitals,
hotels and restaurants, places of public entertainment, recreation or amusement, like theatres
26
Riju Prasad Sharma v state of Assam, (2015) 9 SCC 461: 2015 (8) SCJ 69.
27
Draft Constitution of India, Drafting Committee of the Constituent Assembly of India (Manager
Government of India Press, New Delhi, 1948).
23 | Page
and cinema-houses or concert-halls; public parks, gardens or museums; roads, wells, tanks or
canals; bridges, posts and telegraphs, railways, tramways and bus services; and the like.” 28
The conscious deletion of “temples” and “places of worship” from the Draft Article 9(1) has
to be given due consideration. The contention of the learned Amicus Curiae that the Himaya
Temple would be included within the ambit of ‘places of public resort’ under Article 15(2)
cannot be accepted.
In Bijoe Emmanuel & Ors. v. State of Kerala & Ors 29., the 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). The following observations of
Chinnappa Reddy, J. are instructive in understanding the true role of this Court in matters of
religion.
In the present case, the 2018 Act is a legislation framed in pursuance of Article 25(2)(b)
which provides for the throwing open of Hindu places of public worship. The proviso to
Section 4 of the 2018 Act carves out an exception to the applicability of the general rule
contained in Section 3, with respect to religious denominations, or sect(s) thereof, so as to
protect their right to manage their religious affairs without outside interference. Rule 4(b)
gives effect to the proviso of Section 3 insofar as it makes a provision for restricting the entry
of women at such times when they are not by custom or usage allowed to enter of place of
public worship.
The people claim the right to worship in the Himaya Temple under Article 25(1) in
accordance with their beliefs and practices as per the tenets of their religion. These practices
are considered to be essential or integral to that Temple. Any interference with the same
would conflict with their right guaranteed by Article 25(1) to worship in the form of a
‘Naishtik Brahmachari’.
In other jurisdictions also, where State made laws were challenged on grounds of public
morality, the Courts have refrained from striking down the same on the ground that it is
beyond the ken of the Courts. The Constitutional necessity of balancing various Fundamental
Rights has also been emphasized in the decision of this Court in Subramaniam Swamy v.
Union of India, Ministry of Law & Ors.30 In Acharya Maharajshri Narendra Prasadji
28
Statement of Professor K.T. Shah, Constituent Assembly Debates.
29
1987 AIR 748, 1986 SCR (3) 518.
30
(2016) 7 SCC 221.
24 | Page
Anandprasadji Maharaj & Ors. v. The State of Gujarat & Ors.31, 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.
The ‘essential practices test’ was reiterated in Ratilal Panachand Gandhi v. The State of
Bombay & Ors.32, where the narrow definition of “religion” given by the Bombay High Court
was discarded. It was held that all religious practices or performances of acts in pursuance of
religious beliefs were as much a part of religion, as faith or belief in particular doctrines. This
Court re-iterated the ‘essential practices test’ in the following words: “…Thus if the tenets of
the Jain or the Parsi religion lay down that certain rites and ceremonies are to be performed at
certain times and in a particular manner, it cannot be said that these are secular activities
partaking of commercial or economic character simply because they involve expenditure of
money or employment of priests or the use of marketable commodities. No outside authority
has any right to say that these are not essential parts of religion and it is not open to the
secular authority of the State to restrict or prohibit them in any manner they like under the
guise of administering the trust estate. We may refer in this connection to the observation of
Davar, J. in the case of Jamshed ji v. Soonabai and although they were made in a case where
the question was whether the bequest of property by a Parsi testator for the purpose of
perpetual celebration of ceremonies like Muktad bag, Vyezashni, etc., which are sanctioned
by the Zoroastrian religion were valid and charitable gifts, the observations, we think, are
quite appropriate for our present purpose. If this is the belief of the community thus observed
the learned judge, and it is proved undoubtedly to be 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 favour
of what he believes to be the advancement of the religion and the welfare of his community
or mankind. These observations do in our opinion afford an indication of the measure of
protection that is given by Article 26(b) of our Constitution.”
(3.2.1) ARTICLE 15(3) IS NOT VIOLATED
It is humbly submitted that there is no violation of 15(3) which states special laws for women
and children. As in our case the laws made are not for some women but for certain age group
and for certain time.
31
(1975) 1 SCC 11.
32
(1954) SCR 1055: AIR 1954 SC 388
25 | Page
In S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram and

others it was observed that Article 15 of the Constitution says that the State shall not
discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or
any of them. Article 25 confers freedom of conscience and freedom to profess, practice and
propagate religion subject to public order, morality and health and all other provisions of Part
III. But every religious denomination or any section thereof shall have the right to manage
their religious affairs subject to public order, morality and health. Every religious
denomination is conferred such freedom under Article 26 of the Constitution and they shall
have the right.
(a) to establish and maintain institutions for religious and charitable purposes,
(b) to manage its own affairs in matters of religion,
(c) to own and acquire movable or immovable property, and
(d) to administer such property in accordance with law.
(3.3) APPLICABILITY OFARTICLE 17 OF THE CONSTITUTION.
It is humbly submitted that the restriction imposed on the entry of women during the notified
age group, tantamount to a form of ‘Untouchability’ under Article 17 of the Constitution, the
reasons stated hereinafter.
1) All forms of exclusion would not tantamount to untouchability. Article 17 pertains to

untouchability based on caste prejudice. Literally or historically, untouchability was
never understood to apply to women as a class. The right asserted here is different
from the right asserted by Depressed castes in the temple entry movement. The
restriction on women within a certain age-band, is based upon the historical origin and
the beliefs and practices of the Himaya Temple.
2) In the present case, women of the notified age group were allowed entry into all other
temples. The restriction on the entry of women during the notified age group in this
Temple is based on the unique characteristic of the deity, and not founded on any
social exclusion. The analogy sought to be drawn by comparing the rights of
Depressed castes with reference to entry to temples and women is wholly
misconceived and unsustainable. The right asserted by Depressed castes was in
pursuance of right against systematic social exclusion and for social acceptance per
se. In the case of temple entry, social reform preceded the statutory reform, and not
26 | Page
the other way about.33 The reforms were based upon societal morality, much before
Constitutional Morality came into place.
3) It is clear 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,
Explaining the background to Article 17, this Court in Sri Venkataramana Devaru &
Ors. v. State of Mysore & Ors. observed:
“One of the problems which had been exercising the minds of the Hindu social
reformers during the period preceding the Constitution was the existence in their
midst of communities which were classed as untouchables. A custom which denied to
large sections of Hindus the right to use public roads and institutions to which all the
other Hindus had a right of access, purely on grounds of birth could not be
considered reasonable and defended on any sound democratic principle, and efforts
were being made to secure its abolition by legislation. This culminated in the
enactment of Article 17, which is as follows: “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.”34
(3.3.1) ARTICLE 17 UNTOUCHBILITY IS NOT VIOLATED
Article 17, among other provisions of the Constitution, envisaged bringing into “the
mainstream of society, individuals and groups that would otherwise have remained at
society’s bottom or at its edges.35 Article 17, along with other constitutional provisions36,
must be seen as the recognition and endorsement of a hope for a better future for
marginalized communities and individuals, who have had their destinies crushed by a feudal
and caste-based social order. The object and core of Article 17 was to prohibit untouchability
based on ‘caste’ in the Hindu religion. The customs practiced by the devotees at the
Sabarimala Temple do not flow from any practice associated with untouchability under
Article 17. The custom is not based on any alleged impurity or disability.
33
M.P. Jain, Indian Constitutional Law, (6th Ed., Revised by Justice Ruma Pal and Samaraditya Pal;
2010), at p. 1067.
34
1958 AIR 255, 1958 SCR 895.
35
Granville Austin, The Indian Constitution: Cornerstone of a Nation, Oxford University Press
(1999), at pages xii, xiii.
36
Articles 15(2) and 23, The Constitution of India.
27 | Page
Hence, the contention was liable to be rejected. Hence it is humbly Submitted 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.37
(3.4) RULE 3(B) OF TENJIKU HINDU PLACES OF PUBLIC WORSHIP

(AUTHORIZATION OF ENTRY) RULE IS CONSTITUTIONAL.
It is humbly submitted that Rule 3(b) of Tenjiku Hindu Places of Public Worship
(Authorization of Entry) Rule is constitutional. Rule 3 states that: The class of persons
mentioned here under shall not be entitled to offer worship in any place of public worship or
bath in or use the water of any sacred tank, well, spring or water course appurtenant to a
place of public worship whether situate within or outside precincts thereof, or any sacred
place including a hill lock, or a road, street or pathways which is requisite for obtaining
access to the place of public worship:
· Persons who are not Hindus.

· Women at such time during which they are not by custom and usage allowed to
enter a place of public worship.
· Persons under pollution arising out of birth or death in their families.
· Drunken or disorderly persons.
· Persons suffering from any loathsome or contagious disease.
· Persons of unsound mind except when taken for worship under proper control and
with the permission of the executive authority of the place of public worship
concerned.
· Professional beggars when their entry is solely for the purpose of begging
(b) Women at such time during which they are not by custom and usage allowed to enter a
place of public worship.
The rule is empowered of the making of regulations for the maintenance of orders and
decorum in the place of public worship and the due observance of the religious rites and
ceremonies performed therein. The declaration that places of public worship shall be open to
Hindus of all sections and classes is not absolute, but subject to the right of a religious
37
H.M. Seervai, Constitutional Law of India: A Critical Commentary, Vol. I (4th Ed., Reprint 1999),
paragraph 9.418 at p. 691.
28 | Page
denomination to “manage its own affairs in matters of religion”. Rule 3 must be viewed in the
Constitutional context where the legislature has framed an enabling legislation under Article
25(2)(b) which has been made expressly subject to religious practices peculiar to a
denomination under Article 26(b). Rule 3(b) is a statutory recognition of a pre-existing
custom and usage being followed by this Temple. Rule 3(b) is within the ambit of the Tenjiku
Hindu Places of Public Worship (Authorization of Entry) Rule, as it recognizes pre-existing
customs and usages including past traditions which have been practiced since time
immemorial qua the Temple. The Tenji Board submits that these practices are integral and
essential to the Temple.
It is submitted in the case of A.S. Narayana Deekshitulu v. State of A.P. and Ors, Bhuri Nath
and Ors. v. The State of Jammu & Kashmir and Ors 38, that State cannot interfere with
freedom of a person to profess, practice and propagate his religion. If any law is passed for
taking over the management of a temple it cannot be struck down as violative of Article 25 or
Article 26 of the Constitution. The management of the temple is a secular act. The Temple
Committee can decide the quantum. It is Humbly submitted that the management authority of
Temple in present case, i.e. the Tenji Board should also have quantum to decide the rules.
The Court while taking at Article 25 and 26 held that, While Article 25 makes the freedom of
conscience and the right to profess, practice and propagate the religion to which a person may
subscribe, a fundamental right, the exercise of such right has been made subject to public
order, morality and health and also to the other provisions of Part III. Article 25(2)(b) makes
it clear that main part of the provisions contained in Article 25 will not come in the way of
the operation of any existing law or prevent the State from making any law which provides
for social welfare and reform or for throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus. Similarly, Article 26 while conferring the right
on every religious denomination to manage its own affairs makes it clear that the right to
manage the affairs of any religious denomination is restricted to matters of religion only. The
provisions of Part III, as therefore makes it amply clear that while the right to freedom of
religion and to manage the religious affairs of any denomination is undoubtedly a
fundamental right, the same is subject to public order, morality and health and further that the
inclusion of such rights in Part III of the Constitution will not prevent the State from acting in
an appropriate manner, in the larger public interest, as mandated by the main part of both
Articles 25 and 26. Besides, the freedom of religion being subject to the other provisions of
38
(1996) 3 SCR 543: (1997) 1 SCR 138.
29 | Page
Part III, undoubtedly, Articles 25 and 26 of the Constitution has to be harmoniously

construed with the other provisions contained in Part III.39
ISSUE 4: WHETHER THE PRACTICE OF EXCLUDING SUCH WOMEN

CONSTITUTES AN “ESSENTIAL RELIGIOUS PRACTICE” UNDER ARTICLE 25
AND WHETHER A RELIGIOUS INSTITUTES CAN ASSERT A CLAIM IN THAT
REGARD UNDER THE UMBRELLA OF RIGHT TO MANAGE ITS OWN AFFAIRS
IN THE MATTERS OF RELIGION?
The respondent humbly submits that the the practice of excluding such women constitutes an
“essential religious practice” under Article 25 and a religious institution can assert a claim in
that regard under Article 26(a).
Article 25(1)of the Constitution envisages a right to freely profess, practice and propagate
religion. The word “Practice” under Article 25 means an “essential religious practice” 40,
which can be ascertained from the doctrines of the faith itself 41 and such a practice should be
an essential and integral part of the faith.42 The practice to be an “essential religious practice”
needs to be founded upon which the core beliefs of a faith are founded 43 and without which
a religion will be no religion.44
The test to determine whether a practice is an “essential religious practice” is to-find out
whether the nature of religion will be changed without that part or practice.If the taking away
of that part or practice could result in a fundamental change in the character of that religion or
in its belief, then such part could be treated as an essential or integral part. There cannot be
additions or subtractions to such part. Because it is the very essence of that religion and
alterations will change its fundamental character. It is such permanent essential parts is what
is protected by the Constitution.45 In the light of the aforementioned test and authorities stated
it can be determined that the practice followed in the Himaya temple of the restricting the
entry of women, between the age of 10-50 years, entering the temple is an “essential religious
practice” as per the Tenji Board, which maintains the temple, have asserted that the practice
39
Adi Saiva Sivachariyargal Nala Sangam and Ors. Vs. The Government of Tamil Nadu and Ors.
AIR 2016 SC 20.
40
The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar Thirtha Swamiyar
of Shri Shirur Mutt[1954 AIR 282, 1954 SCR 1005]
41
Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others (2004) 12
SCC 770
42
The Durgah Committee Ajmer v. Syed Hussain Ali [(1962) 1 SCR 383, 411]
43
supra, note 2
44
supra, note 2
45
The Commissioner v. L T Swamiar of Srirur Mutt 1954 SCR 1005, SSTS Saheb v. State of Bombay
1962 (Supp) 2 SCR 496, and 77 Seshammal v. State of Tamilnadu : [1972]3SCR815
30 | Page
of restricting women of age 10-50 is a century-old tradition 46. Lord Tenji, which is depicted
by the Himaya Temple, is a ‘Naistika Brahmcharya’, that is, his powers are derived from
abstention from sexual activities.47 Celibacy is a practice adopted by the pilgrims before and
during the pilgrimage. The pilgrims have to follow a strict vow over a period of forty-one
days, which lays down a set of practice. The said set of practice also includes maintaining
hygiene including taking bath twice a day and also taking one meal a day. 48 By analyzing
these facts it can be clearly brought forward that the practice of barring women of the
particular age groups is an integral part of the faith, wherein the pilgrims preach Lord Tenji,
as he derives his powers from the sexual abstention. It is submitted that there is no violation
of Article 25.
As regards. The word "denomination" has been defined in the Black law dictionary to mean '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. As Article 26
contemplates not merely a religious denomination but also a Section thereof, the Math or the
spiritual fraternity represented by it can legitimately come within the purview of this
article.49It is Humbly submitted that in the case of Subramanian Swamy Vs. State of Tamil
Nadu and ors. It was held that rights of ‘denominal religious Institutions’ were to be
preserved and protected from any invasion by State as guaranteed under Article 26 of the
Constitution. Moreover, in the case of In Khajamian Wakf Estates etc. v. State of Madras, the
Constitution Bench of this Court held that the religious denomination can own, acquire
properties and administer them in accordance with law.50
In S.P. Mittal case51 the challenge was with regard to the validity of the Auroville
(Emergency) Provisions Act, 1980 as being violative of Articles 25 and 26 of the
Constitution. It is Humbly Submitted that in the present Case also the Government taking
over the matter and passing the Act doesn’t infringe the rights of the devotees especially
women.
46
para 7, compromis
47
para 2, compromis
48
para 3, compromis
49
50
AIR 1971 SC 161.
51
1983 AIR, 1 1983 SCR (1) 729.
31 | Page
PRAYER
In the light of facts stated, issues raised, authorities cited and arguments advanced,
it is most humbly prayed before the Hon’ble Apex Court that it may be pleased.
1) Declare that restriction imposed on women aged above 10 and below 50 entering
the temple of Tenjiku and offering worship at Himaya Temple is in accordance with the
usage prevalent from time immemorial.
2) Declare the restriction imposed by the Tenji Board is not violative of Articles14, 15,
17,25 and 26 of the Constitution of India.
3) Declare and hold that the restriction is not violative of the provisions of Tenjiku
Hindu Place of Public Worship (Authorization of Entry) Rules, & thus not
unconstitutional.
AND/OR
Pass any other writ, order, or direction which the court may deem fit in the ends of equity,
justice, expediency and good conscience in favor of the Respondents.
All of which is respectfully submitted.
32 | Page

Xii Amity National Moot Court Competition, 2019: HE HON BLE Supreme Court OF Ndia

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Xii Amity National Moot Court Competition, 2019: HE HON BLE Supreme Court OF Ndia

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XII AMITY NATIONAL MOOT COURT COMPETITION, 2019

TEAM CODE- ALS-37

XII AMITY NATIONAL MOOT COURT COMPETITION, 2019

TEAM CODE- ALS-37

IN THE CASE CONCERNING HIMAYA TEMPLE

The Indiana Young Lawyers Association & Ors.

State of Tenjiku & Ors.

MEMORIAL ON BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

BOOKS & TREATIES……………………………………………………… ..........6

STATEMENT OF ISSUES ……………………….

[2] WHETHER THE HON’BLE SUPREME COURT HAS THE JURISDICTION IN

(3.1) APPLICABILITY OF ARTICLE 14 IN MATTERS OF RELIGION AND

(3.1.1) EQUALITY BEFORE LAW………………………………………………..21

(3.1.2) EQUAL PROTECTION OF LAW…………………………………………22

(3.2) APPLICABILITY OF ARTICLE 15 OF THE CONSTTUTION …………23

(3.2.1) ARTICLE 15(3) IS NOT VIOLATED ………………………………………25

(3.3) APPLICABILITY OFARTICLE 17 OF THE CONSTITUTION ……27

(3.3.1) ARTICLE 17 UNTOUCHBILITY IS NOT VIOLATED………….28

(3.4) RULE 3(B) OF TENJIKU HINDU PLACES OF PUBLIC WORSHIP

[4] WHETHER THE PRACTICE OF EXCLUDING SUCH WOMEN CONSTITUTES

2. Khajamian Wakf Estates etc. v. State of Madras AIR 1971 SC 161.

16. The Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindar

TREATISES AND BOOKS REFERED

1. Draft Constitution of India, Drafting Committee of the Constituent Assembly of India

“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

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.”

WHETHER THE PETITIONER AND THE SUBSEQUENT INTERVENERS HAVE

WHETHER HON’BLE SUPREME COURT HAS THE JURISDICTION IN

WHETHER THE PRACTICE OF EXCLUDING SUCH WOMEN CONSTITUTES AN

ISSUE 1: WHETHER THE PETITIONER AND THE SUBSEQUENT

Article 14 (Right to equality) of the Constitution says: -

Article 15 (Prohibition on grounds of religion, race, caste, sex or place of birth): -

ISSUE 2: WHETHER HON’BLE SUPREME COURT HAS THE JURISDICTION IN

(3.1) APPLICABILITY OF ARTICLE 14 IN MATTERS OF RELIGION AND

(3.1.1) EQUALITY BEFORE LAW

(3.1.2) EQUAL PROTECTION OF LAW

(3.2) APPLICABILITY OF ARTICLE 15 OF THE CONSTTUTION

(3.2.1) ARTICLE 15(3) IS NOT VIOLATED

In S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthapuram and

(b) to manage its own affairs in matters of religion,

(c) to own and acquire movable or immovable property, and

(d) to administer such property in accordance with law.

(3.3) APPLICABILITY OFARTICLE 17 OF THE CONSTITUTION.

1) All forms of exclusion would not tantamount to untouchability. Article 17 pertains to

(3.3.1) ARTICLE 17 UNTOUCHBILITY IS NOT VIOLATED

(3.4) RULE 3(B) OF TENJIKU HINDU PLACES OF PUBLIC WORSHIP

· Persons who are not Hindus.

Part III, undoubtedly, Articles 25 and 26 of the Constitution has to be harmoniously

ISSUE 4: WHETHER THE PRACTICE OF EXCLUDING SUCH WOMEN

All of which is respectfully submitted.

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