NAVJEEVAN LAW COLLEGE, NASHIK

BEFORE THE HONOURABLE SUPREME COURT OF INDIA

--------------------------------------------------------------------------------------
CIVIL INHERENT/ORIGINAL JURISDICTION
REVIEW PETITION
Article 137 of THE CONSTITUTION OF INDIA
(Review of judgments or orders by the Supreme Court)
-----------------------------------------------------------------------------
IN THE MATTER OF
KANTARU RAJEEVARU ………………………Petitioner
Versus
INDIAN YOUNG LAWYERS ASSOCIATION THR. ITS
GENERAL SECRETARY MS. BHAKTI PASRIJA AND
ORS. ……. Respondent(s)
REVIEW PETITION (CIVIL) NO. 3358/2018
IN
WRIT PETITION (CIVIL) NO. 373/2006

------------------------------------------------------------------------------
MEMORIAL ON BEHALF OF THE APPELLANT
KANTARU RAJEEVARU
Memorial on Behalf of Appellant/ 1
 NAVJEEVAN LAW COLLEGE, NASHIK

TABLE OF CONTENT

Sr. No. Table of Contents Page No

1 Index of Authorities  3-4
2 Statement of Jurisdiction  5
3 Statement of Facts  6-7
4 Statement of Issues  8
5 Summary of Arguments  9
6 Arguments Advanced  10-14
7 Prayer Clause  15

Memorial on Behalf of Appellant/ 2

 NAVJEEVAN LAW COLLEGE, NASHIK

1. INDEX OF AUTHORITIES
A. STATUTES –

 The Constitution of India, 1950

B. PROVISIONS-
 Article 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.
 Article 15 - Prohibition of discrimination on
grounds of religion, race, caste, sex or place of
birth. (3) Nothing in this article shall prevent the State from
making any special provision for women and children.
 Article 17- Abolition of Untouchability
The Untouchability (Offences) Act, 1955- Definition not provided in
Constitution or Any Act.
Section 7(1)(d) in The Protection Of Civil Rights Act, 1955- Clause 24
defining untouchability. It was omitted by the Joint Committee.
 Article 25- Freedom of conscience and free profession,
practice and propagation of religion (Individual F.R) -
Subject to Public order, Morality and Health.
 Article 26 - Freedom to manage religious affairs(Group
F.R)- Temple authority manages their religious
institution that they can create rules
 Article 137 and Rule made under Article 145 of
The Constitution of India. Order 47 SC Rules

Memorial on Behalf of Appellant/ 3

 NAVJEEVAN LAW COLLEGE, NASHIK

C.BOOKS-

 Constitution of India, M.P. Jain. Vol 5

 Shorter Constitution of India, D. D. Basu, Vol 1

D. WEBSITES:
i) www.india-laws.com
ii) www.indiankanoon.com
iii) www.supremecourtofindia-caselaw.com
iv) www.Navi.com
v) www.lexsite.com
vi) www.lawofindia.com
vii) www.indianlegal.com
viii) www.lawguru.com

Memorial on Behalf of Appellant/ 4

 NAVJEEVAN LAW COLLEGE, NASHIK

2. STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of India has to review this
matter under Article 137 of Indian Constitution.

 Article 137 in The Constitution of India

“137. Review of judgments or orders by the Supreme

Court Subject to the provisions of any law made by
Parliament or any rules made under Article 145, the
Supreme Court shall have power to review any judgment
pronounced or order made by it.”

Memorial on Behalf of Appellant/ 5

 NAVJEEVAN LAW COLLEGE, NASHIK

2. STATEMENT OF FACTS

1. The Shabarimala temple dedicated to the Lord Ayyappa who was

Niasthik Bramachari. The Travancore Devaswom Board manages
the temple. They made a rule that the women in menstruation
period i.e. Age 10-50 barred from entering the temple.
2. In 1990, a petition was filed in the Kerala High Court seeking a ban
on the entry of women inside the Sabarimala temple.
3. 1991- The Kerala High Court imposed a restriction on women aged
10 to 50.
4. 2006- The India Young Lawyers Association files a PIL with the
Supreme Court, challenging the rules issued by Travancore
Devaswom Board that prevented entry of women between the ages
of 10-50 years into the temple on the grounds that such rules and
notifications are violates the Right to practice religion (Article 25)
and the Right to Equality (Articles 14 and 15). The petition also
urges the court to declare Rule 3(b) of the Kerala Hindu Places of
Public Worship (Authorization of Entry) Rules, 1965, which
prohibits menstruating women from entering temples, as
unconstitutional.
5. 2016- The court questioned the ban, saying it couldn't be done
under the Constitution.
6. 2017- A three-judge bench of justices Dipak Mishra, Pinaki
Chandra Ghose and N V Rama begins hearing in the case. The
three-judge bench formed five "significant" questions to decide the
merits of the case and referred the matter to five-judge
Constitution Bench.
One--- whether the exclusionary practice which is based upon a
biological factor exclusive to the female gender amounts to
discrimination.
Two---- whether the practice of excluding such women constitutes
an "essential religious practice".

Memorial on Behalf of Appellant/ 6

 NAVJEEVAN LAW COLLEGE, NASHIK

Three---- whether Ayyappa Temple has a denominational

character.
Four---- whether Rule 3 of the Kerala Hindu Places of Public
Worship (Authorization of Entry) Rules permits 'religious
denomination' to ban entry of women between the age of 10 to 50
years?
Five----whether rule 3(b) of 1965 Rules contradict the 1965 Act.
7. September 2018- A five-judge bench of the Supreme Court struck
down the ban on entry of women of child-bearing age 10-50 into
Sabarimala by a 4-1 majority. It rules that Ayyappa devotees did
not constitute a separate denomination. Importantly, it strikes own
rule 3(b) of Kerala Hindu Places of Public Worship (Authorization
of Entry) Rules 1965, which prohibits the entry of menstruating
women into any temples in the state. The Supreme Court held that
the practice followed in the Sabarimala Temple violated the
fundamental right of freedom of religion under Article 25 of the
Indian Constitution including Article 14, 15, 26.

8. October 8, 2018 : Nair Service Society (NSS) files a review petition

against the September 28 verdict including Kantaru Rajveeru
arguing that the court should not have entertained the litigation
questioning the practices of Sabarimala temple, when women
worshippers themselves were not opposed to such practices.

Memorial on Behalf of Appellant/ 7

 NAVJEEVAN LAW COLLEGE, NASHIK

3. STATEMENT OF ISSUES

1. Whether the court has the power to refer the questions

arising from the decided cases to the larger bench? Order
47 of SC Rules
2. Whether a person not belonging to a religious
denomination or religious group can question a practice of
that religious denomination or religious group by filing a
PIL?
3. What is the scope and ambit of right to freedom of
religion under Article 25 of the Constitution of India?
4. Whether the rights of a religious denomination under
Article 26 of the Constitution of India are subject to other
provisions of Part III of the Constitution of India apart
from public order, morality and health?
5. What is the scope and extent of the word 'morality' under
Articles 25 and 26 of the Constitution of India and
whether it is meant to include Constitutional morality?

Memorial on Behalf of Appellant/ 8

 NAVJEEVAN LAW COLLEGE, NASHIK

5. SUMMARY OF ARGUMENTS on behalf of Appellant

1. A review petition that is filed under Article 137 of
the Constitution of India has to be within certain
parameters of a limited jurisdiction which is to be
exercised.
2. The Ayyappa temple at Sabarimala constituted a
religious denomination and could, therefore,
claim the protection of Article 26 of the
Constitution of India as well as the proviso to
Section 3 of the 1965 Act.
3. There have been mass protests against
implementation of this judgment, we ought to
have a re-look at the entire problem.

Memorial on Behalf of Appellant/ 9

 NAVJEEVAN LAW COLLEGE, NASHIK

6. ADVANCED ARGUMENTS on behalf

of Appellant
1. Mylord, Honabale SC decides the judgment on support of
Article 15 of IC which provides that the Prohibition of
discrimination on grounds of religion, race, caste, sex or place of
birth. But the customs of a temple cannot be struck down for
violating Article 15. Article 15(2) is applicable to secular public
institution, religious institutions are not within its purview.
Also the judgment's interpretation of Article 15 is not consistent
with previous Supreme Court judgments. In the case of Bijoe
Emmanuel vs State of Kerala decided on 11 August 1986, where
the Court established that religious beliefs held by persons
cannot be tested on the grounds of rationality. The Supreme
Court’s September judgment did not consider the crucial aspect
that Article 15 (2) does not cover religious places. The omission
to consider this aspect constitutes an error apparent on record.

2. Hon Supreme Court also expensively interpreted the Article 17

of the constitution which provides the prohibition of the
Untouchability. Honorable judges extended the meaning of the
Untouchability to include gender-based untouchability, was too
expansive and inconsistent with historical context. Actually,
Untouchability was not applicable in this case as it only applies
where a person is treated as "less than a human being". The
practice of excluding women from the Sabarimala temple is
based on the celibate character of Lord Ayyappa and it would be
erroneous to strike down such a practice. In Hinduism, gods are
worshipped in various forms and manifestations. In Sabarimala,
the deity is worshipped in this particular manner. Here, the
exclusion is not based on caste but purely based on nature of the

Memorial on Behalf of Appellant/ 10

 NAVJEEVAN LAW COLLEGE, NASHIK

deity. So Article 17 (untouchability) has no application in this

case.

3. I also submits that, Article 25 guarantees everyone the right to

worship, this worship must be in accordance with the nature of
the deity being worshipped. And deity in the present case is a
celibate deity. Deity's celibacy would be eroded if menstruating
women were allowed to worship inside the temple. The
exclusion of female worshippers at Sabarimala is justified by
the nature of the deity being worshipped. Also article 25
provides guaranteed the constitutional morality and its
applicability with regards to the rights. Constitutional morality
when applied in matters of religion must be done cautiously as
there are many irrational practices and all of them cannot be
tested on that standard. “Constitutional morality does not have a
textual backing. Constitutional Morality is a recent concept
which My Lords have evolved. None of the petitioners claimed
to be devotees of Lord Ayyappa at Sabarimala.

4. Also the Bench had incorrectly applied the test for essential
practices which were laid down in the Shirur Math Case- 1954
while ruling on whether the exclusion was an essential practice.
The controversy is an internal matter and the members of the
community must decide whether or not the custom is essential
to devotees of Lord Ayyappa. The effect of the judgment is a
direction given to a religious community that they should not
hold a belief. This is an internal affair of a religion. Unless there
is a criminal law which forbids a practice, Courts cannot
interfere” The judgement of the bench is not acceptable to the
community. The judgement directed a particular religious
community to not hold a belief that had been an intrinsic part of
their religion.

Memorial on Behalf of Appellant/ 11

 NAVJEEVAN LAW COLLEGE, NASHIK

5. The Hon Supreme Court did not rule on whether the custom
was an essential religious practice and that thus, the Kerala High
Court’s Sabarimala judgment which ruled that the exclusion
was an essential religious practice remains unchallenged and
final. Note that the Supreme Court ruled that devotees of Lord
Ayyappa do not constitute a religious denomination. The
essential religious practice test is applied at the unit of a
religious denomination. Hence, the Court was concerned with
the question of whether the practice is essential for Hinduism
writ large. Persons from other religions worshipped Ayyappa it
does not follow that the Devaswom Board does not constitute a
distinct denomination and on this particular ground, the verdict
of the Court needs to be reviewed by the Bench.

7. Prayer Clause
WHEREFORE, in the lights of facts stated, issues raised,
arguments advanced and authorities cited, it is humbly
and respectfully prayed that this Hon’ble court may be
pleased to adjudge and declare that –
1. The order passed by the Hon’ble bench must be set
aside because there have been mass protests against
implementation of this judgment, we ought to have a re-
look at the entire problem.
And/ Or

2. Pass any other order other than it deems fit in the

interest of justice, equity and good conscience. And for
this, the counsel on behalf of appellant as in duty bound
shall humbly pray.

Memorial on Behalf of Appellant/ 12

 NAVJEEVAN LAW COLLEGE, NASHIK

6. ARGUMENTS on behalf of Respondent

1. We are opposing the review as no grounds have been

made out for review. The majority judgment had
consensus on three points:
A. Devotees of Lord Ayyappa are not a religious
denomination by themselves,
B. When a person’s right to worship is violated, Article 25
gets violated, and,
C. Rule 3(b) is violative of the parent Act itself”

2. Also the non-consideration of arguments is not a ground

for review application filed. The review petitioners could
not present arguments not directly relevant to the findings
of the judgment and argue that the Court’s failure to
consider these arguments constitutes a ground for review.

3. Arguments made by colleague counsel on untouchability

and Article 17 do not affect the basis of judgment. Non-
consideration of arguments is not a ground for review. It is
for the Court to decide which all aspects should be
considered. Essential practice of religion and essential
practice of a temple cannot be confused. The Court found
that the practice was not an essential practice of Hinduism.
Exclusion of women is not essential to (the) Hindu
religion”.

Memorial on Behalf of Appellant/ 13

 NAVJEEVAN LAW COLLEGE, NASHIK

4. Every temple may be having its own practice. The court

cannot go into the essential practices of every temple. That
would mean each temple is a denominational temple. That
will lead to the destruction of essential religious practice
test”. He further added that “essential practice of an
individual temple will not amount to essential practice of
the religion for the purpose of (the) constitutional test.
Non-discrimination and non-exclusion are two values
found throughout the Constitution. Social peace has been
destroyed is not a ground for reviewing the judgment.
Constitutional invalidity cannot be permitted to go on.

5. I am reminded of the case where a bench was constituted

to review Kesavananda Bharati case and was disbanded
later. This looks like such a case”. Any practice that
disentitles equality will fall foul of Article 25. Also texts
and scriptures do not show anything regarding the practice
& equality is the dominant theme of Constitution. Women
cannot be excluded from any walk of life-based on
biological attributes.

6. Menstruating women are regarded as impure; this attracts

the concept of untouchability. Sabarimala is a public
temple; not a family temple. So Article 15 (2) is applicable
as the Article prohibits discrimination on grounds of
religion, race, caste, sex, place of birth, in access to “the use
of places of public resort maintained wholly or partly out
of State funds or dedicated to the use of general public.
The right to worship and freedom of conscience should
extend to everyone recognized as a person by the law.
Memorial on Behalf of Appellant/ 14
 NAVJEEVAN LAW COLLEGE, NASHIK

7. Preamble to be read with the title of Article 25, which

emphasizes on freedom of conscience and free profession,
practice and propagation of religion. Exclusion of women
denigrates their dignity. Purification after women’s entry
hurts a lot.

8. Constitutional morality is a sum and substance of

fundamental rights and directive principles. It is very
much part of the basic structure of the Constitution.

7. Prayer Clause OF Respondent

WHEREFORE, in the lights of facts stated, issues raised,
arguments advanced and authorities cited, it is humbly and
respectfully prayed that this Hon’ble court may be pleased to
adjudge and declare that –
1. The order passed by the Hon’ble bench in September must
be confirmed and not entertain the Review petition.
2. Court should give a direction that mobs should not prevent
women entry.

And/ Or

2. Pass any other order other than it deems fit in the interest of
justice, equity and good conscience. And for this, the counsel on
behalf of appellant as in duty bound shall humbly pray.

Memorial on Behalf of Appellant/ 15

NAVJEEVAN LAW COLLEGE, NASHIK

Counsel for the Appellant

Student Advocate
Shewale Sagar Raosaheb
LL.B. III
Navjeevan Law College,
Nashik.

Counsel for the Respondent

Student Advocate
Sameer Mahajan
LL.B. III
Navjeevan Law College,
Nashik.

Memorial on Behalf of Appellant/ 16