2.

Whether provisions of the West Java Act, 1965 permits “religious denomination” to
ban entry of women between the ages of 10 to 50 years?

[¶32] It is humbly contended before the Hon’ble Court that Section 4 of the West Java
(Authorization of Entry) Act, 19651 and Rule 3(b) made under the said Section which
disentitles certain categories of people from entering any place of public worship and this
includes women, by custom or usage, are not allowed to enter a place of public worship. 2 To
that effect, the Petitioner seeks to establish that; (A) Restrictions imposed on the basis of
selective Age amounts to discrimination, (B) Provisions under the West Java Act, 1965 is
limited to management and maintenance of Order, (C) Constitutional Morality in Matters of
Religion in a Secular Polity, (D) Restrictions on basis of Age doesn’t constitute to an
Essential Religion Practice.

(A) Restrictions imposed on the basis of selective Age amounts to discrimination

[¶33] The practice of excluding such women doesn’t constitute an “essential religious
practice” and is humbly argued that a religious institution can’t exclude women as part of its
right to manage its own affairs in matters of religion.3

[¶34] It is further submitted that the power entrusted under the Act of 1965 to make rules,
inter alia, for due observance of religious rights and ceremonies is for the furtherance of a
devotee's right to worship under Article 25,whereas to the contrary, Rule 3(b), by saving
'custom and usage', militates against the very purpose of the 1965 Act which is to protect the
right to worship guaranteed under Article 25.4 Article 26 being subject to the constitutional
standard of morality, exclusion of women from entry would violate this standard of morality
for a denomination's right to manage its affairs under Art. 26(b) is subject to Art. 25(2)(b).5

[¶35] BesakihTemple is a public temple and members of the general public are allowed
inside the temple6 no matter which denomination of Hinduism they might belong to. As
entry to a public temple is a legal right, the temple authorities have no right to curtail it. The
right of a woman to enter into the Temple is a crucial part of her right 7 and denying her entry
inside the temple would amount to infringing the very right under Article 25 of the
1
Hereinafter referred as West Java Act, 1965 or Java Act 1965.
2
Moot Proposition, Para 5
3
Indian Young Lawyers Association and Ors v. The State of Kerala, AIR 2018 SC 1960.
4
Sri Radhakanta Deb and Anr. v. Commissioner of Hindu Religious Endowments, (1981) 2 SCC 226.
5
Sri VenkataramanaDevaruand v. The State Of Mysore, AIR 1958 SC 255.
6
Moot Proposition, Para 1 & Commissioner of Police and Ors.v. AcharyaJagadishwaranandaAvadhuta and
Anr., (2004) 12 SCC 770.
Constitution. It is pertinent that our laws remain relevant and protect the rights of the people
that have been disenfranchised for far too long. The issue of denial of entry of women
between the age group of 10 to 50 needs to be put to rest once and for all because it’s not
just about the religious freedom of women but it’s about the broader topic of gender
justiceand human’s perspective as how menstruation is still seen as something “impure” and
“profane”.8

[¶36] Further continuance of such a custom in modern world would certainly blame women
for sexually provoking men (and deities) by their mere presence and are believed to be
incapable of performing the same tasks as their male counter parts, like observing a fast for
41 days. It’s about how women are still seen as less than men which amounts to
discrimination. The stigmatism of religion is seen as on one hand we consider the land and
nature as goddess and on the other hand we bring discrimination on the basis of biological
phenomenon on the name of cultural barriers pertains so-called “shame” to the mind on
humans. The sacred spirit of the Temple is nothing to do with such ancient superstition
which has been debunked over and over again. 9Discrimination of women’s on the basis of
such a natural phenomenon is wrong and should not be backed by the laws of the State.

(B) Provisions under the West Java Act, 1965 is limited to management and
maintenance of Order

[¶37] The Counsel submits that the provisions under the West Java Act, 1965 provides
limited power to the religious denomination to make any law that to have only done with the
management and maintenance of order into the temple. The Act doesn’t grants any power to
make any class discrimination as the same act also prohibits forming any class legislation.

[¶38]Law is the manifestation of principles of justice, equity and good conscience. Rule of
law should establish a uniform pattern for harmonious existence in a society where every
individual would exercise his rights to his best advantage to achieve excellence, subject to
protective discrimination.10 In Sheikriyammada Nalla Koya v. Administrator, Union
Territory of Laccadives, Minicoy and Amindivi Islands,11K.K. Mathew, J., as he then was,

7
Gautama, Baudhayana, and Vasistha, Dharmasutras-The Law Codes Of Apastamba, 264 (Translation by
Patrick Olivelle, Oxford University Press, 1999).
8
National Campaign for Dalit Human Rights v. Union of India, (2017) 2 SCC 432.
9
Gautam Bhatia, Freedom from community: Individual rights, group life, state authority and religious freedom
under the Indian Constitution, Global Constitutionalism, Cambridge University Press (2016).
10
MadhuKishwar v. State of Bihar, (1996) 5 SCC 125.
11
Sheikriyammada Nalla Koya v. Administrator, Union Territory of Laccadives, Minicoy and Amindivi
Islands, AIR 1967 Ker 259.
held that customs which are immoral and are opposed to public policy can neither be
recognised nor be enforced.The established custom, even if from time immemorial, has to
pass judicial scrutiny as has been established.

[¶39] In Shayara Bano v. Union of India,12a codified custom could be deemed

unconstitutional on the ground of manifest arbitrariness. The Impugned provision
prohibiting entry of women is ultra vires of Section 3 that seeks to protect ‘all’ classes and
sections of Hindus from any discrimination to entering places of public worship
“notwithstanding” any law, custom or usage to the contrary and are in direct violation of
Section 4 of the Act that restricts the Respondents from making any rule that discriminates
against any Hindu on the grounds that he belongs to a section or class.

(C) Constitutional Morality in Matters of Religion in a Secular Polity.

[¶40]In the conflict13 between the rights of a denomination and the rights of an individual,

the rights of the individual should take precedence. The rights of women need to be
considered as more important; practise of restricting women of particular age group runs
counter to the underlying theme of equality and non-discrimination, which is contrary to
Constitutional Morality. In Sri AdiVisheshwara of KashiVishwanath Temple, Varanasi v.
State of U.P,14 it was held that, “The denomination sect is also bound by the constitutional
goals and they too are required to abide by law; they are not above law. Law aims at
removal of the social ills and evils for social peace, order, stability and progress in an
egalitarian society.”

[¶41] Constitutional Morality in a secular polity comprehends the freedom of every

individual, group, sect, or denomination to practise their religion in accordance with their
beliefs, and practises.15The Preamble secures to all citizens, liberty of thought, expression,
belief, faith and worship. The concept of Morality refers to the moral values underpinning
the text of the Constitution, which are instructive in ascertaining the true meaning of the
Constitution, and achieve the objects contemplated therein.16

12
ShayaraBano v. Union of India, (2017) 9 SCC 1.
13
The Sabarimala Case Has the Potential to Be a Constitutional Watershed. Accessed at:
https://thewire.in/law/sabrimala-temple-case-constitutional-watershed
14
Sri AdiVisheshwara of KashiVishwanath Temple, Varanasi v. State of UP (1997) 4 SCC 606.
15
H.M. Seervai, Constitutional Law of India: A Critical Commentary, Vol. II (4th Ed., Reprint 1999), at Pg.
1274, ¶12.35.
16
Id
[¶42]Equality and Non-discrimination are certainly one facet of Constitutional Morality.
However, the concept of equality and non-discrimination in matters of religion cannot be
viewed in isolation. Under Constitutional scheme, a balance is required to be struck between
the principles of equality and non-discrimination 17 on one hand, and protection of the
cherished liberties of faith, belief, and worship guaranteed by Art(s) 2518&26 to persons
belonging to all religions in a secular polity. Constitutional morality requires harmonisation
or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or
undermined.19It is the duty of Court to harmonise the rights of all persons, religious
denominations or sects thereof, to practise their religion according to beliefs and practises.20

(D) Restrictions on basis of Age doesn’t constitute to an Essential Religion Practice.

[¶43] Assuming without admitting, that they do constitute a religious denomination, it is

submitted that the denial of entry of women into the BesakihTemple is not an essential
practice.21 It has been held in multitude of cases that only integral and essential parts of a
religious practice are protected under Article 26 of the Constitution. It is submitted that the
stated practice of prohibiting menstruating women between the ages of 10 to 50 from
entering the Temple is not the core or the foundation on which the religion rests. Moreover,
this practice does not constitute an unalterable part of the religion as it is admitted that
women of this age group were permitted to enter all other Ayappa temples in all the months.

[¶44] Essential religious practice test is a contentious doctrine evolved by the court to
protect only such religious practices which were essential and integral to the religion. The
essential practises test was formulated in Commissioner, Hindu Religious Endowments,
Madras v. Sri LakshmindraThirthaSwamiar of Sri Shirur Mutt,22where the court held that
the term “religion” will cover all rituals and practices “integral” to a religion, and took
upon itself the responsibility of determining the essential and non-essential practices of a
religion.

[¶45] The words practise of religion in Art. 25(1) holds that the Constitution protects not
only the freedom of religious belief, but also acts done in pursuance of a religion. In doing
17
SubramaniamSwamyv. Union of India, Ministry of Law and Ors. (2016) 7 SCC 221.
18
AcharyaMaharajshriNarendraPrasadjiAnandprasadjiMaharaj and Ors.v. The State of Gujarat and Ors. (1975)
1 SCC 11.
19
Sahara India Real Estate Corporation Limited and Ors.v. Securities and Exchange Board of India and Anr.
(2012)10 SCC 603.
20
B.K. Mukherjea "The Hindu Law of Religious and Charitable Trust", at pages 257, 264
21
Moot Proposition, Para 2
22
Commissioner, Hindu Religious Endowments, Madras v. Sri LakshmindraThirthaSwamiar of Sri Shirur Mutt,
1954 AIR SC 282.
so, it relied on an extract from the decision of Latham, C.J. of the High Court of Australia in
Adelaide Co. of Jehovah's Witnesses Incorporated v. The Commonwealth,23 as “the exercise
of religion, and therefore it is intended to protect from the operation of any Commonwealth
laws acts which are done in the exercise of religion. Thus the Section goes far beyond
protecting liberty of opinion. It protects also acts done in pursuance of religious belief as
part of religion.”

[¶46] Under Article 26(b), a religious denomination or organization enjoys complete

autonomy in the matter of deciding as to what rites and ceremonies are essential 24 according
to the tenets of the religion they hold and no outside authority has any jurisdiction to
interfere with their decision in such matters. In Shri A.S. Narayana Deekshitulu v. State Of
Andhra Pradesh,25 this Hon’ble Court highlighted the personal nature of religion and stated
that Religion is that which binds a man with his Cosmos, his Creator or super force. It is
difficult and rather impossible to define or delimit the expressions ‘religion’ or “matters of
religion” used in Art(s) 25 & 26. Essentially, religion is matter of personal faith and belief
of personal relations of an individual with what he regards as Cosmos, his Maker or his
Creator which, he believes, regulates the existence of insentient beings and the forces of
universe.

[¶47] The test for determining whether a practice is essential to a religion is to find out
whether the nature of the religion 26 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. 27
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 which are protected by the Constitution.

[¶48] Therefore, this practice cannot be termed as an essential religious practice, even if the
BesakihTemple is considered to be a religious denomination of its own the exclusion of
women on the basis of age can never be justified and is contrary to the essence of
constitutional morality and dignity of women. Hence, it is submitted that discrimination

23
Adelaide Co. of Jehovah's Witnesses Incorporated v. The Commonwealth, 67 CLR 116.
24
Gautam Bhatia, Freedom from community: Individual rights, group life, state authority and religious freedom
under the Indian Constitution, Global Constitutionalism, Cambridge University Press (2016) at page 374.
25
Shri A.S. NarayanaDeekshitulu v. State of Andhra Pradesh, AIR 1996 SC 1765.
26
Jaclyn L. Neo, Definitional imbroglios: A critique of the definition of religion and essential practice tests in
religious freedom adjudication, International Journal of Constitutional Law, Vol. 16 (2018), at pages 574-595.
27
Supra 24; Page 382.
against women of age 10 to 50 is based on astrological predictions cannot be protected under
Article 25 as it is irrational, a misunderstanding of the biological concept of menstruation
and does not pass the test of constitutional legitimacy.

Hence it is humbly submitted that West Java Act, 1965 permits “religious denomination” to
ban entry of women between the ages of 10 to 50 years is unconstitutional in nature.

5. Whether Rules of the West Java Rules, 1965 is ultra vires the West Java Act, 1965
and, if treated intra vires, whether it will be violative of provisions of the
Constitution?”

[¶49] It the applicant contention that the Rule 3(b) framed under section 3 of authorization
of entry Act violates the fundamental rights of the women on three grounds. To that effect,
the Petitioner seeks to establish that; (A) These practices not based on the doctrine of
intelligible differentia, (B)Rule 3(b) is ultra vires the section 3 of the authorization of entry
Act, (C) The exclusionary practice is opposed to morality.

(A) These practices not based on the doctrine of intelligible differentia

[¶50] Article 14 prescribes equality before law. Right to equality has been recognized as a
basic feature of the Constitution. 28 But the fact remains that all persons are not equal by
nature, attainment or circumstances, and, therefore, a mechanical equality before the law
may result in injustice. Thus, the guarantee against the denial of equal protection of the law
doesn’t mean that identically the same rules of law should be made applicable to all persons
in spite of difference in circumstances or conditions.29

[¶51] Article 15(1) specifically bars the State from discriminating against any citizen in
India on grounds only of religion, race, caste, sex, place of birth or any of them. The scope
of this Article is wide and is levelled against any State action relating to the citizens 30
whether political, civil or otherwise.31 The fundamental right conferred by this clause of is
conferred on a citizen as an individual and is a guarantee against his being subjected to
discrimination in the manner of his rights, privileges and immunities pertaining to him as a

28
M. Nagaraj v. Union of India, AIR 2007 SC 1.
29
Chiranjeet Lal v. Union of India, AIR 1951 SC 41.
30
Dasaratha Rama Rao, Gazula v. State of A.P., AIR 1961 SC 564, 569; General Manager, Southern Railway
v. Rangachari, AIR 1962 SC 36.
31
Nain Sukh Das v. State of U.P., 1953 SCR 1184.
citizen generally.32 The right conferred by Art. 15 is personal, 33 and one single citizen is
discriminated against on the ground of caste, religion, sex, etc. it is no answer to his
application that other person of the same caste or religion have been given the opportunity or
privilege which has been denied to him.34 The petitioner humbly submits that the age old
practice of considering women as impure while they are menstruating amounts to
untouchability and stigmatizes them as lesser human beings and is, therefore, violative of
Articles 14, 15, 17, 21 and 25 of the Constitution. Further the court has to test the violation
of the fundamental rights not on the basis of intention but the impact of the impugned action.

[¶52] The phrase “equally entitled to” in Article 25(1) finds resonance in Section 3(a) of the
Civil Rights Act, 1955 which criminalizes exclusion of people to those places which are
“open to other persons professing the same religion or any section thereof, as such person”
and prevention of worship “in the same manner and to the same extent as is permissible to
other persons professing the same religion or any section thereof, as such persons”. The
petitioner contends that Section 2(d) of the 1955 Act which defines “place of public
worship” to mean, inter alia, “by whatever name belonging to any religious denomination or
any section thereof, for the performance of any religious service” and, therefore, it is humbly
submitted that a temple is a public temple and irrespective of its denominational character, it
cannot prevent the entry of any devotee aspiring to enter and worship.

[¶53] The counsel contend that Article 25(2)(b) is not a mere enabling provision but is a
substantive right as it creates an exception for laws providing for social reform or throwing
open of Hindu religious institutions of a public character to all classes and sections of
Hindus and thereby embodies the constitutional intent of abhorring exclusionary practices.
Further, referring to the judgment of this Court in Sri venkatrmana Devaru35 (supra), the
counsel humbly submits that Article 25(2)(b) does not merely seek to prevent exclusionary
practices on the basis of caste only, for the rights under Part III of the Constitution must be
given a broad meaning and any exception must be given a narrow construction.

[¶54] In Durgah Committee, Ajmer v. Syed Hussain Ali 36, this Court had held that since
persons of all religious faiths visit the Durgah as a place of pilgrimage, it may not be easy to
hold that they constitute a religious denomination or a section thereof. The counsel humbly

32
Nain Sukh Das v. State of U.P., 1953 SCR 1184.
33
Chitralekha R. v. State of Mysore, AIR 1964 SC 1823 (1833): 1964(6) SCR 368; State of Bombay v.
Bombay Education Society, AIR 1954 SC 561 (566): 1955(1) SCR 568.
34
Champakam Dorairajan v. State of Madras, AIR 1951 Mad. 120; 1950 (2) MLJ 404.
35
Sri Venkatramana Devaru v. State of Mysore and others (1958) SCR 895 : 1958 AIR SC 55.
36
Durgah Committee, Ajmer v. Syed Hussain Ali (1962) 1 SCR 383.
submit that if all the persons related to Hindu religion is visiting the temple of Besakih , then
the temple authorities cannot restrict women by saying that this temple has a denominational
character and such exclusion of women age between 10 to 50 years is reasonable. Further, In
Justice K.S. Puttaswamy and another v. Union of India and others 37, the court observed that,
exclusionary practice in its implementation results in involuntary disclosure by women of
both their menstrual status and age which amounts to forced disclosure that consequently
violates the right to dignity and privacy embedded in Article 21 of the Constitution of India.

[¶55] All persons in similar circumstances shall be treated alike both in privileges and
liabilities imposed.38 Likes should be treated alike.39 It is pledge of protection of equal rights,
that is, laws that operate alike on all persons under like circumstances. 40 Therefore, by
allowing women below 10 years of age and above 50 years is a clear breach of equality
before law, since unequal treatment is meted out to them and is thus, a denial of their right to
equality while allowing women below 10 years of age and above 50 years is making them a
separate sub-class within a class which is not permissible as it will lead to unequal treatment
among equals. The content of the fundamental right is the fleshing out of what is stated in
the Preamble to the Constitution as ―liberty of thought, belief, faith and worship. Thus, all
persons are entitled to freedom of conscience and the right to freely profess, practice, and
propagate religion. The right to profess, practice, and propagate religion will include all acts
done in furtherance of thought, belief, faith, and worship.41

(B) Rule 3(b) is ultra vires the section 3 of the authorization of entry Act

[¶56] The exclusionary practice, which has been given the backing of a subordinate
legislation in the form of Rule 3(b) framed by the virtue of section 3 of the Authorization of
entry Act, is neither an essential nor an integral part of the religion. Section 3 of the Act
required that places of public worship be open to all sections and classes of people, subject
to special rules for religious denomination. Rule 3(b), however, provided for the exclusion
of “women at such time during which they are not by the custom and usage allowed to enter
a place of public worship.”Here the interpretation of “at such time” means women of age of
10 to 50 years, that is those who are in menstruating age, are barred from entering the
temple.42

37
Justice K.S. Puttaswamy and another v. Union of India and others (2017) 10 SCC 1.
38
John Vallamattom v. Union of India, AIR 2003 SC 2902: (2003) 6 SCC 611.
39
Gauri Shankar v. Union of India, (1994) 6 SCC 349.
40
Subramanian Swamy v. CBI, (2014) 8 SCC 682.
41
Indian Young Lawyers Association and Ors v. The State of Kerala, AIR 2018 SC 1960.
42
Moot Proposition, Para 5
[¶57] In Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and
others43 (supra), being the second Ananda Marga case, the Court has elaborately discussed
the true nature of an essential practice and has further laid down the test for determining
whether a certain practice can be characterized as essential to a particular religion in order to
guarantee protection under the Constitution. The Court has opined: "The protection
guaranteed under Articles 25 and 26 of the Constitution is not confined to matters of
doctrine or belief but extends to acts done in pursuance of religion and, therefore, contains a
guarantee for rituals, observances, ceremonies and modes of worship which are essential or
integral part of religion. What constitutes an integral or essential part of religion has to be
determined with reference to its doctrines, practices, tenets, historical background etc. of the
given religion.44

[¶58] The law is well-settled on the point that when a rule-making power is conferred under
any statute on an authority, the said power has to be exercised within the confines of the
statute and no transgression of the same is permissible. In this context, we may refer to the
decision in UOI and others v. S. Srinivasan45 wherein it has been ruled:"At this stage, it is
apposite to state about the rule making powers of a delegating authority. If a rule goes
beyond the rule making power conferred by the statute, the same has to be declared ultra
vires. If a rule supplants any provision for which power has not been conferred, it becomes
ultra vires. The basic test is to determine and consider the source of power which is relatable
to the rule. Similarly, a rule must be in accord with the parent statute as it cannot travel
beyond it."

[¶59] In the present case rule 3(b) is not in accord with the parent statute i.e Section 3 of the
Act, as it restricts women of a particular age group whereby in other temple of lord “A”
there is no such restriction on entry into temple regarding women. The counsel humbly
submits that, the exclusionary practice being followed at the temple of Besakih by virtue of
Rule 3(b) violates the right of Hindu women to freely practise their religion and exhibit their
devotion towards Lord “Ayyappan”. This denial denudes them of their right to worship. The
right to practise religion under Article 25(1) is equally available to both men and women of
all age groups professing the same religion. 46 The counsel contend that, A careful reading of
Rule 3(b) makes it clear that it is ultra vires Section 3 of the impugned Act, for the simple
pure reason that Section 3 clearly stipulates that every place of public worship shall be open
43
Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others ( 2004) 12 SCC 770.
44
Bhimashya&Ors. v. Janabi (Smt) Alia Janawwa, (2006) 13 SCC 627.
45
UOI and others v. S. Srinivasan, (2012) 7 SCC 683
46
Indian Young Lawyers Association and Ors v. The State of Kerala, AIR 2018 SC 1960.
to all classes and sections of Hindus, women being one of them, irrespective of any custom
or usage to the contrary.

(C) The exclusionary practice is opposed to morality

[¶60] It has been submitted that the exclusionary practice in the present case cannot be
justified either on the grounds of health, public order or morality for the term “morality”
used in Art. 25 or 26 is not an individualized or sectionalized sense of morality subject to
varying practices and ideals of every religion but it is the morality informed by the
constitutional vision. The judgments of this Court in Adi Saiva Sivachariyargal Nala
Sangam, Manoj Narula v. Union of India 47 and National Legal Services Authority v. UOI
and others48 have been pressed into service by the petitioner to accentuate that any
subjective reading of the term “morality” in the context of Art. 25 would make the liberty of
faith and worship and the exclusion of women as in the present case is a matter of
institutional practice.

[¶61] Among the fundamental duties of every citizen recognized by the Constitution is “to
renounce practices derogatory to the dignity of women”.49 Discrimination against a man or a
woman, only on the ground of sex would be violative of Art.15(1). 50 The exclusionary
practice per se violates Article 15(1) of the Constitution which amounts to discrimination on
the basis of sex as the physiological feature of menstruation is exclusive to females alone.
Gender bias in any form is opposed to constitutional norms. 51 Holding that stereotypical
understandings of sex hold no legitimate claim under our Constitution. 52 The judgments of
this Court in Commissioner of Police and others v Acharya Jagadishwarananda Avadhuta
and another53 to submit that in order to claim protection of the doctrine of essential religious
practices, the practice to exclude women from entry to the temple must be shown by the
respondents to be so fundamental to the religious belief without which the religion will not
survive. Further, no scriptural evidence to demonstrate that the exclusion of women is an
essential part of Hindu religion.

47
Adi Saiva Sivachariyargal Nala Sangam, Manoj Narula v. Union of India, (2014) 9 SCC 1.
48
National Legal Services Authority v. UOI and others, (2014) 4 SCC 538.
49
Article 51A(e), The Constitution of India.
50
Air India v. NageshMeerza, AIR 1981 SC 1829; Miss C.B. Muthamma v. Union of India, AIR 1979 SC
1868: (1979) 4 SCC 260; Pritam Kaur v. State of Pepsu, AIR 1963 Punj.9(FB); Miss C.B. Muthamma v. Union
of India, AIR 1979 SC 1868: (1979) 4 SCC 260; Sonabai Yashwant Jadhav v. Bala Govinda Yadav, AIR 1983
Bom 156.
51
Anuj Garg and others v. Hotel Association of India, (2008) 3 SCC 1; Charu Khurana and others v. Union of
India and others, (2015) 1 SCC 192.
52
Navtej Singh v Union of India Writ Petition (Criminal) No. 76 of 2016
53
Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others ( 2004) 12 SCC 770.
[¶62] Even if we are to assume that the devotees of Lord “Ayyappan” constitute a separate
denomination, the rights conferred under Article 26 being subject to the constitutional
standard of morality, exclusion of women from entry would violate this standard of morality
for a denomination’s right to manage its affairs in matters of religion under Article 26(b) is
subject to Article 25(2)(b) as has been succinctly explained by this Court in Sri
Venkatramana Devaru v. State of Mysore and others.54

[¶63] It is further submitted that when the Rule-making power is conferred by legislation on
a delegate, the latter cannot make a rule contrary to the provisions of the parent legislation,
the rule-making authority does not have the power to make a rule beyond the scope of the
enabling law or inconsistent with the law.55 Whether the delegated legislation is in excess of
the powers conferred on the delegate is determined with reference to the specific provisions
of the statute conferring the power and the object of the Act as gathered from its
provisions.56By placing reliance on the aforesaid case, it can be concluded that even if a
temple is dedicated to a Lord “Ayyappan” where he is manifested himself in a Naishtika
Brahmmchari ( one who has vowed to remain celibate) ,the religious denomination can only
restrict entry into sanctum sanctorum and could not ban entry into temple , making
discrimination on the basis of sex.

Hence it is submitted that Rule 3(b) framed under section 3 of the Authorisation of Entry Act
violates the fundamental rights of the women and it is ultra vires the West Java Act, 1965.

54
Sri Venkatramana Devaru v. State of Mysore and others (1958) SCR 895 : 1958 AIR 55.
55
Additional District Magistrate v. Siri Ram, (2000) 5 SCC 451.
56
Maharashtra State Board of Secondary and Higher Education v. Paritosh Bhupeshkumar Sheth, (1984) 4
SCC 27.