BEFORE THE HON’BLE SUPREME COURT

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

Indian Young Lawyers Association & Ors…………………Appellant

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

MEMORANDUM ON BEHALF OF THE APPELLANT

[Type here]
 TABLE OF INDEX

TABLE OF CONTENTS

INDEX OF AUTHORITIES

INDEX OF ABBREVIATION

STATEMENT OF JURISDICTION

STATEMENT OF FACTS

STATEMENT OF ISSUES

SUMMARY OF ARGUMENTS

ARGUMENTS ADVANCED

PRAYER

[Type here]
 INDEX OF AUTHORITIES

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

BOOKS And COMMENTARIES

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

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

[Type here]
 TABLE OF ABBREVIATON

AIR All India Reporter

Art Article

& And

Anr Another

Ed Edition

Govt. Government

Ors Others

Sec Section

SC Supreme Court

SCC Supreme Court Cases

Vol Volume

v. Versus

p. Page number

[Type here]
 STATEMENT OF JURISDICTION

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

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the right conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition,
quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the right conferred by this part.

(3) Without prejudice to the powers conferred on the Supreme Court by

clauses (1) and (2), Parliament may by law empower any other court to
exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause (2).

(4) The right guaranteed by this article shall not be suspended except as
otherwise provided for by this Constitution.

[Type here]
 STATEMENT OF FACTS
The Sabarimala Temple, located in the Periyar Tiger Reserve in the Western Ghat
mountain ranges of Pathanamthitta District of Kerala, is renowned for lakhs of
pilgrims thronging it all through the year. Pilgrims trek the Neelimala to reach the
shrine, which has 18 sacred steps, to worship Lord Ayyapa after undergoing strict
religious vows for 48 days.
The temple is also prominent for another reason — the selective ban on women
entering it. Women aged between 10 and 50, that is those who are in menstruating
age, are barred from entering the temple. While there is no restriction on women to
worship Lord Ayyapa in any other temple, their entry is prohibited in this temple
alone.
The Indian Young Lawyers Association and five women lawyers approached the
Supreme Court seeking a direction to allow entry of women into the temple without
age restrictions. Another group of women, part of the "Happy to Bleed" campaign,
has also sought the court's direction on whether society should continue to bear
with “menstrual discrimination."
Their petition contended that discrimination in matters of entry into temples was
neither a ritual nor a ceremony associated with Hindu religion. Such discrimination
was totally anti-Hindu. The religious denomination could only restrict entry into the
sanctum sanctorum and could not ban entry into the temple, making discrimination
on the basis of sex.

The Travancore Devasom Board, which maintains the temple, had replied that the
ban was in accordance with centuries-old tradition. Lord Ayyapa, being a Naishtika
Brahmmachari (one who has vowed to remain celibate). Another argument put
forth by the temple authorities is that it is not possible for women to put up with the
physical hardship, austerity and days of celibacy like men.

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

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

[Type here]
 STATEMENT OF ISSUES

I. Whether the writ petition filed under Article 32 the Constitution of India is
maintainable?
II. Whether the practice or custom of prohibiting women entry really the essence of
Hindu religion?
III. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization of
Entry) Act violates the Fundamental rights and is it unconstitutional?

[Type here]
 SUMMARY OF ARGUMENTS

1. Whether the writ petition filed under Article 32 The Constitution

of India is maintainable?
The petition have Locus standi as the Supreme Court has now considerably
liberalized the rule of Locus Standi. The Court now permits the public-spirited
persons to file a writ petition for the enforcement of constitutional and statutory
rights of any other person or class, form if that person or class is unable to invoke
the jurisdiction of the High Court due to poverty or any social economic disability.
And the Fundamental rights of women are being violated.

2. Whether the practice or custom of prohibiting women entry really the

essence of Hindu religion?
Custom, in simple terms, means an established pattern of behavior and a uniform
conduct observed by the people living in a society or a particular area for a long
period of time. The said custom or practice of hindering the women from entering
the sabarimala temple is not a reasonable custom as it violate the fundamental right
of the women and the claim of this custom being time immemorial is false as there
are records of women who have entered the sacred temple of Ayyappa.

3. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization

of Entry) Act violates the Fundamental rights and is it unconstitutional?
Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorization of Entry)
Rules, 1965: “Women who are not by custom and usage allowed to enter a place of
public worship shall not be entitled to enter or offer worship in any place of public
worship.” This rule clearly violates the fundamental rights of women. It violates
Article 14, 15, 17, 21, 25.

[Type here]
 ARGUMENTS ADVANCED
1. Whether the writ petition filed under Article 32 of the constitution
maintainable
1.1 Petitioners have locus standi
The traditional rule is that a person whose constitutional or legal right is
infringed can apply for relief under Article 226 of the Indian
Constitution.
But the Supreme Court has now considerably liberalized the above
rule of Locus Standi. The Court now permits the public-spirited persons
to file a writ petition for the enforcement of constitutional and statutory
rights of any other person or class, form if that person or class is unable
to invoke the jurisdiction of the High Court due to poverty or any social
economic disability.
Now, a public-spirited person can avail this provision on behalf of
socially or economically disadvantaged persons, if such persons are
unable to defend themselves.
In case of public interest litigation, the strict rule of Locus Standi
applicable to private litigation in relaxed and a broad rule is evolved by
the Courts in Modern Times. The right of Locus Standi can be given to
any member of the public acting bonafide and having sufficient interest
in instituting an action for redressal of public wrong or public injury, but
who is not mere busybody or a meddlesome interloper: Since the
dominant object of Interest Litigation is to ensure all observance of the
provisions of the Constitution or the law which can be best achieved to
advance cause of community or disadvantaged groups and individuals or
Public Interest by permitting any person, having no personal gain or
private motivation or any other oblique consideration but acting bonafide
and having any sufficient interest in maintaining an action or judicial
redress for public injury to put the judicial machinery in motion like
actio popularis of Roman law whereby any citizen could bring such an
action in respect of public delict.
In the case of Sabarimala, the fundamental right of the women

[Type here]
 coming the age group are violated. And the Indian Young Lawyers
Association only helped these women to claim their violated rights.
Bandhu Mukti Morcha Vs Union of India1 , In this case, the Court held
that the Public Interest Litigation is not adversary litigation but a challenge and
opportunity to the Government and its officers to make basic Human Rights
meaningful to the deprived and vulnerable sections of the society. The court is thus
assistant them in the realization of the constitutional objectives. The court has the
power under article 32 to appoint a Commission for making inquiry concerning the
violation of human rights.

1.2 Violation of Fundamental Rights

The Ayyappa temple in Sabarimala, Kerala, prohibits women of
menstruating age (between ten and 50 years of age) from entering it – a
prohibition enforced under Rule 3(b) of the Kerala Hindu Places of Public
Worship (Authorisation of Entry) Rules, 1965: “Women who are not by
custom and usage allowed to enter a place of public worship shall not be
entitled to enter or offer worship in any place of public worship.” The
Young Lawyers’ Association filed a petition in the Supreme Court
challenging this rule in 2006.
Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of
Entry) Rules, 1965 violates the Fundamental rights of women coming under
the age group 10 to 50.

1 Bandhu Mukti Morcha Vs Union of India AIR 1984 SC 802, Justice P.N. Bhagwati.

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

2.2 Essentials of Custom

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

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

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

2.2.2 Custom must be reasonable: A custom derives its validity from being
reasonable at inception and present exercise. The Indian decisions are in
harmony with the English authorities. Menoor v. Denne2 and Tyson v. Smith,
which elaborate on the reasonableness of customs. A customary right, namely
the right to take earth for making pots, was claimed by the kumbhar community
of a village and upheld in the Nagpur case of Bhiku v. Shooram3, though it was
a case of profits. In State of Bihar v. Subodh Gopal4 (AIR 1968), the Supreme
Court held that a customary right in the exercise of which the residents of a
locality were entitled to excavate stones for purposes of trade (and not for
domestic or agricultural purposes) would ex facie be unreasonable, because the
exercise of such a right ordinarily tends to the complete destruction of the
subject matter of the right. The custom was therefore unreasonable.

2.2.3 Custom must be certain and invariable: The court will not recognize a
custom as valid unless it is certain in its extent and mode of operation. The

2
129 Ind Cas 630, (1930) 59 MLJ 844
3
ILR 1992 KAR 2466, 1991 (4) KarLJ 249
4
1968 AIR 281, 1968 SCR (1) 313

[Type here]
 requirement that a custom should be certain is also expressed by saying that it
should be definite, or that it should be invariable.

2.2.4 Other features: (i) Customary rights are not public rights. Public rights are
in favour of the general public at large, but a customary right is in favour of a
limited section of the public, like the inhabitants of a village or members of a
community. The way in which a public right arises is known as ‘dedication’.
(ii) Customary rights are rights partaking of some of the characteristics of an
easement, but are not easements in the proper sense; customary rights are not
appurtenant to a tenement but exist in gross, i.e., they are not for the beneficial
enjoyment of a dominant heritage but exist for a personal benefit. Easements
are private rights belonging to a particular person while customary rights are
public in nature annexed to the place in general. Customary right are
specifically excluded from the purview of the Indian Easement Act, 1882.

Even though they claim that the age old custom is time immemorial, there are
instances where there is valid proof that women have entered Sabarimala
temple. Entry of women to the shrine was banned by law only as late as 1972.
Reason: some male worshippers took offence. Before that women used to go
there for worship, more so, after roads were built for a Rashtrapathi visit.”
That is the first of NS Madhavan’s tweets. He then goes on to talk about a
Tamil film song shot at the temple – as recently as 1986 – and said that women
featured on the famous ‘18 steps’ leading to the deity in the temple. The song
comes in a film called Nambinal Keduvathillai, featuring actor Jayashree at the
temple.
The 18 sacred steps constitute the main stairway to the temple and following
custom, only those pilgrims with ‘irumudikettu’ (double headed baggage with
possessions and offerings for the deity) can climb them and reach
the Sannidhanam (where the deity is).
Madhavan also writes about the visit of the Queen of Travancore in 1939,
of choroonu ceremonies (first meal eating ceremony for children) where women
were present.
There was an informal ban, but it was not enforced until 1972, Madhavan tells
TNM. “It was an unenforced custom which was often not followed. But did the
custom have the force of law? Not until 1972,” he argues.
In 1991, the Kerala High Court upheld the ban on entry of women between the
ages of 10 and 50, following a Public Interest Litigation, he adds. This is

[Type here]
 mentioned in the writ petition filed by the Indian Young Lawyers Association
in the Supreme Court against the Travancore Devaswom Board in 2006.
In the 1991 case of S. Mahendran v. The Secretary
Travancore Devaswom Board, Thiruvananthapuram and others, the High Court
of Kerala had concluded among other things that, “the restriction imposed on
women aged above 10 and below 50 from trekking the holy hills of Sabarimala
and offering worship at Sabarimala Shrine is in accordance with the usage
prevalent from time immemorial."
However, some of the instances that Madhavan posted about are also recorded
in the writ petition that finally brought on the SC verdict on September
28. “We have included some of those incidents of women visiting the temple in
the old days, before it was legally banned. There has, however been no clarity
on the subject. We spoke to historians too, some of them would say yes, it has
always been so, and some said no,” says Bhakti Pasrija, general secretary of the
Indian Young Lawyers Association.
The petition says: “It is submitted that the religious practices and customs had
changed during the last 55 years particularly after 1950, the year in which the
renovation of the temple took place after the ‘fire disaster’. Even while the old
customs prevailed, women used to visit the temple. The Maharaja of
Travancore accompanied by Maharani and Divan had visited the temple in
1115 M.E. There was thus no prohibition for women to enter the temple in
olden days. Many female worshippers had gone to the temple within the age
group of 10 to 50 for the first rice-feeding ceremony of their children
(Chottonu). A change in the old custom and practice was brought about by
installing a flag staff (Dhwajam) in 1969.”
TKA Nair, former advisor to Prime Minister Manmohan Singh, recently said
that his Choroonu ceremony was done at the Sabarimala temple when he was
on his mother’s lap and faced the deity. This was in 1939.
So we can’t fixate on the fact the custom followed in Sabarimala Temple is
time immemorial as there are evidence that women who come under the age
category between 10 to 50 have entered the Sabarimala pilgrim.

[Type here]
3. Whether Rule 3(b) of Kerala Hindu Places of Public Worship (Authorization
of Entry) Act violates the Fundamental rights and is it unconstitutional?

The Ayyappa temple in Sabarimala, Kerala, prohibits women of menstruating

age (between ten and 50 years of age) from entering it – a prohibition enforced
under Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of
Entry) Rules, 1965: “Women who are not by custom and usage allowed to enter
a place of public worship shall not be entitled to enter or offer worship in any
place of public worship.”
Rule 3(b) of the Kerala Hindu Places of Public Worship (Authorisation of
Entry) Rules, 1965 violates article 25(2)(b) which states,” providing for social
welfare and reform or the throwing open of Hindu religious institutions of a public
character to all classes and sections of Hindus Explanation I The wearing and
carrying of kirpans shall be deemed to be included in the profession of the Sikh
religion Explanation II In sub clause (b) of clause reference to Hindus shall be
construed as including a reference to persons professing the Sikh, Jaina or
Buddhist religion, and the reference to Hindu religious institutions shall be
construed accordingly .”
3.1 The impugned Act violates Article 14 and Article 15
14. “Equality before law The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India Prohibition
of discrimination on grounds of religion, race, caste, sex or place of birth”
15. “Prohibition of discrimination on grounds of religion, race, caste, sex or place
of birth
(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 restaurants, hotels and palaces 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 the
general public

[Type here]
(3) Nothing in this article shall prevent the State from making any special
provision for women and children
(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State
from making any special provision for the advancement of any socially and
educationally backward classes of citizens or for the Scheduled Castes and the
Scheduled Tribes”
Article 15 of the constitution only prohibits the state from discriminating against
any citizen on the grounds of religion, race, caste, sex and place of birth. When
reminded of this provision, the Kerala high court said,
“Women who are not by custom and usage allowed to enter a place of public
worship shall not be entitled to enter or offer worship in any place of public
worship. That amounts to a reasonable restriction and the entry in Sabarimala
temple is prohibited only in respect of women of a particular age group and not
women as a class.”
It is clear the discrimination between menstruating and non-menstruating women
to be “reasonable classification” without engaging with the legitimacy of the
classification. Why classify between those menstruating and those not in the first
place? The discrimination is based on two levels – it targets women as a group at
first instance and then employs an age filter to exclude menstruating women. If the
classification was not based on sex, it should not have excluded women only. But
the obvious fact is that classifying on the basis of menstruation will end up being a
default classification on the basis of sex. Additionally, the objective of
differentiation itself is constitutionally suspect and illegitimate. The objective of
menstruating women is disallowed because they are seen as “incapable of being
celibate” or “impure”. This is a refined way of saying they are impure because they
can menstruate and they can reproduce. Purity is not and cannot be a constitutional
ideal, especially since the measures of purity are defined by and sculpted from
vicious structures and wellsprings of casteism and patriarchy.
Thus, discrimination on the basis of menstruating age on women can be taken as
discrimination on the basis of sex as we know only women are capable of
menstruating. To conclude rule 3(b) violates Art 14 and 15

3.2 The impugned Act violates Article 17

17. “Abolition of Untouchability. 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.”

[Type here]
Menstruating women between the age of 10 to 50 are not allowed to enter
sabarimala, that they are likely to disturb the “celibacy” of the deity. This ban on
women from entering the pilgrimage temple is an untouchability with the specific
age group of women. And it is not only a violation of women's fundamental rights
but also it is a crime under the protection of civil rights Act 1955.

3.3 The impugned Act violates Article 21

21. “Protection of life and personal liberty No person shall be deprived of his life
or personal liberty except according to procedure established by law.”
Disclosing the identity of menstruation women is a violation of right to privacy
under the Article 21 of Indian Constitution and In Puttaswamy v. Union of
India5 case supreme Court held that Right to Right to privacy is a fundamental
right.
Drawing support from the decisions of this Court in National Legal Services
Authority v. Unionof India6 and Justice K.S. Puttaswamy and another v. Union of
India7, the applicant/intervenor has averred that the exclusionary practice
pertaining to women is violative of Article 21 of the Constitution as it impacts the
ovulating and menstruating women to have a normal social day to day rendezvous
with the society including their family members and, thus, undermines their dignity
by violating Article 21 of the Constitution.

3.4 The impugned Act violates Article 25(2)(b)

25. “Freedom of conscience and free profession, practice and propagation of
religion
(1) Subject to public order, morality and health and to the other provisions of this
Part, all persons are equally entitled to freedom of conscience and the right freely
to profess, practice and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent
the State from making any law
(a) Regulating or restricting any economic, financial, political or other secular
activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of Hindus
Explanation I The wearing and carrying of kirpans shall be deemed to be included

5
Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1
6
National Legal Services Authority v. Union of India(2008) 3 SCC 1 (2015) 1 SCC 192
7
Justice K.S. Puttaswamy and another v. Union of India

[Type here]
in the profession of the Sikh religion Explanation II In sub clause (b) of clause
reference to Hindus shall be construed as including a reference to persons
professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious
institutions shall be construed accordingly.”
Even though in Art 25(2)(b) of the constitution it is clearly stated that the Hindu
institutions are thrown open to all Hindus regardless of their class or section ,Rule
3(b) of the Kerala Hindu Public of Place Worship Act,1965 violates this Art as the
entry of women aging between 10 to 50 are restricted from entering the sabarimala
temple.

[Type here]
 PRAYER

In the light of Argument advanced, Authorities cited and facts enlightened, we the
counsel on behalf of petitioners humbly submit this Hon’ble Court that:
• The writ petition filed under Art 32 of the Constitution is maintainable.
• The practice or custom of prohibiting women entry really not the essence of
Hindu religion
• The Rule 3(b) of the Kerala Hindu Public Place Of Worship Act,1965
violates the fundamental rights of women and it is unconstitutional
And whatever this Hon’ble Court deems fit and proper with its virtue an visa
of justice, equity and good conscience.

All of which is respectfully submitted on behalf of

The Petitioner
Sd/

[Type here]
[Type here]