TEAM CODE: TC-96

RGNUL INTRA MOOT COURT COMPETITION, 2022

BEFORE THE HON’BLE SUPREME COURT OF MALAYALIPURAM

IN THE MATTER OF

REVIEW PETITION (CIVIL) NO.____/2022

UNDER ARTICLE 137 PF THE CONSTITUTION

IN

WRIT PETITION (CIVIL) NO._____/2022

THE INDIAN WOMEN LAWYERS ASSOCIATION…………………..……….PETITIONERS

VERSUS

SABRI MALE
MANDIR………………………………………………..…………………….R ESPONDENTS

AND

UNION OF
MALYALIPURAM……………………………….……………………………R ESPONDENTS

WITH

WRIT PETITION (CIVIL) NO.______/2022

MR. PALERMO AND MR. MANILA………………………………………..…P ETITIONERS

VERSUS

UNION OF
MALYALIPURAM…………………………………………………………….R ESPONDENTS

MEMORANDUM ON BEHALF OF THE RESPONDENT

MEMORANDUM for RESPONDENT [TABLE OF CONTENTS]

TABLE OF CONTENTS

TABLE OF CONTENTS ................................................................................................................ I

LIST OF ABBREVIATIONS .........................................................................................................IV

INDEX OF AUTHORITIES ..........................................................................................................VI

STATEMENT OF JURISDICTION ................................................................................................IX

STATEMENT OF FACTS ............................................................................................................. X

STATEMENT OF ISSUES .......................................................................................................... XII

ISSUE I ................................................................................................................................ XII

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? .................................... XII

ISSUE II .............................................................................................................................. XII

WHETHER THE BAN OF ENTRY OF WOMEN OF MENSTRUATING AGE

BETWEEN 10-50 YEARS OWING TO RELIGIOUS BELIEFS IS VIOLATIVE OF
ARTICLES 14, 15, 17 AND 25(1) OF THE INDIAN CONSTITUTION? ................... XII

ISSUE III ............................................................................................................................. XII

WHETHER THE ACTION OF THE TEMPLE AUTHORITIES IS VIOLATIVE OF

THE FUNDAMENTALRIGHTS OF MR. PALERMO AND MR. MANILA UNDER
ARTICLE 15(2) AND 21 OF THE CONSTITUTION?? .............................................. XII

ISSUE IV ............................................................................................................................. XII

WHETHER THE ABSENCE OF A STATE ENACTED LAW UNDER ARTICLE

25(2)(B) LEADS TO THE VIOLATION OF THE FUNDAMENTAL RIGHTS OF
PEOPLE? .......................................................................................................................... XII

SUMMARY OF ARGUMENTS ................................................................................................. XIII

ARGUMENTS ADVANCED ....................................................................................................... - 1 -

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? ....................................- 1 -

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MEMORANDUM for RESPONDENT [TABLE OF CONTENTS]

A. THE RIGHT TO PROFESS AND PRACTICE ANY RELIGION ........................... - 2 -

B. The Concept of ‘Essential Religious Practise” ...................................................... - 4 -

WHETHER THE BAN OF ENTRY OF WOMEN OF MENSTRUATING AGE

BETWEEN 10-50 YEARS OWING TO RELIGIOUS BELIEFS IS VIOLATIVE OF
ARTICLES 14, 15, 17 AND 25(1) OF THE INDIAN CONSTITUTION? ...................- 6 -

A. FUNDAMENTAL RIGHTS ARE NOT VIOLATED. .............................................. - 6 -

1. ARTICLE 14 IS NOT VIOLATED. .................................................................. - 6 -

2. Not Violative Of Article 15 ................................................................................ - 8 -

3. Not Violative of Article 17 ................................................................................. - 8 -

4. Not Violative Of Article 25(1) ........................................................................... - 9 -

a) The prohibition on entry of menstruating women constitutes an essential religious practice - 10

-

WHETHER THE ACTION OF THE TEMPLE AUTHORITIES IS VIOLATIVE OF

THE FUNDAMENTALRIGHTS OF MR. PALERMO AND MR. MANILA UNDER
ARTICLE 15(2) AND 21 OF THE CONSTITUTION? ..............................................- 11 -

A. That the action of the temple authorities is in Compliance with the Customary practice
of not allowing entry of Menstruating women into the temple .................................... - 11 -

B. That the ban on entry of Mr. Palermo and Mr. Manila is a matter of religious diversity
rather than of equality ................................................................................................. - 11 -

C. The Sabri Male Temple Is Not A Public Resort Under Article 15(2)(b) .............. - 12 -

D. THE ACTION OF TEMPLE AUTHORITIES IS NOT VIOLATIVE OF THE RIGHT

TO PRIVACY OF MR. PALERMO AND MR. MANILA UNDER ARTICLE 21. ........ - 12 -

1. No fundamental right is absolute ...................................................................... - 13 -

2. Privacy interest in autonomy must also be placed in the context of other rights and
values. ...................................................................................................................... - 13 -

WHETHER THE ABSENCE OF A STATE ENACTED LAW UNDER ARTICLE

25(2)(B) LEADS TO THE VIOLATION OF THE FUNDAMENTAL RIGHTS OF
PEOPLE? ........................................................................................................................- 14 -

A. The devotees of Bhimappa constitute a religious denomination .......................... - 14 -

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MEMORANDUM for RESPONDENT [TABLE OF CONTENTS]

1. The Devotees of Bhimappa have a common faith which they regard conducive to
their spiritual wellbeing. .......................................................................................... - 14 -

a) The devotees of Bhimappa have a common organization ..................................................... - 14 -

b) The devotees of Bhimappans have a distinct name ............................................................... - 14 -

B. THE RIGHT OF BHIMAPPANS TO MANAGE THEIR RELIGIOUS AFFAIRS DOES

NOT SUBSTANTIALLY REDUCE THE RIGHT CONFERRED UNDER ART. 25(2)(B) . -
15 -

PRAYER ............................................................................................................................... - 16 -

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MEMORANDUM for RESPONDENT [TABLE OF CONTENTS]

LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION

¶ Paragraph

§ Section

Admn. Administration

AIR All India Reporter

Anr. Another

A.P Andhra Pradesh

Art. Article

Assn. Association

Bom. Bombay

Cal. Calcutta

CEDAW Convention on Elimination of all forms of Discrimination Against

Women
Chh. Chhattisgarh

Corpn. Corporation

Dy. Deputy

HC High Court

Hon’ble Honourable

i.e., In Essence

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MEMORANDUM for RESPONDENT [TABLE OF CONTENTS]

Ker. Kerala

IPC Indian Penal Code

M.P Madhya Pradesh

NCT National Capital Territory

Ors. Others

P&H Punjab & Haryana

RTI Right To Information

SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter

Supl. Supplementary

Suptd. Superintendent

T.N Tamil Nadu

v. Versus

Vol. Volume

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MEMORANDUM for RESPONDENT [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

Cases
S.P. Mittal v. Union of India, 1 1983 SCR (1) 72............................................................... - 15 -
S.P. Sharma v. Satish Chandra, AIR 1954 SC 300 ............................................................. - 13 -
1) A.K. Gopalan v. State of Madras 1950 SCR 8 ......................................................... - 7 -
Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, (1983) 4 SCC 522 ......... - 8 -
Adelaide Company of Jehovah’s Witnesses Incorporated v. Commonwealth, (1943) 67 CLR
116. .................................................................................................................................. - 10 -
Adelaide Company of Jehovah’s Witnesses v. The Commonwealth, [1943] HCA 1 .......... - 3 -
Bhavesh Jayanti Lakhani v. State of Maharashtra, (2009) 9 SCC 551; .............................. - 13 -
Bijoe Emmanuel & Ors. v. State of Kerala & Ors, 1987 AIR 74 ......................................... - 3 -
Boyd v. United States, 1886 SCC OnLine US SC 5........................................................... - 13 -
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of
Sri Shirur Mutt 1954 SCR 1405 ...................................................................................... - 10 -
D.S, Nakara and Ors. v. Union of India and Ors, AIR 1983 SC 130. .................................. - 7 -
Griswold v. Connecticut, 1965 SCC OnLine US SC 124; ................................................. - 13 -
Indian Young Lawyers Association V. State of Kerala, (2019) 11 SCC 1........................... - 1 -
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217. ................................................ - 8 -
Jamshed Ji v. Soonabai, 1 Ind Cas 834 ................................................................................. - 3 -
Katz v. United States, 1967 SCC OnLine US SC 248;....................................................... - 13 -
Keshwananada Bharti v State of Kerala ............................................................................. - 13 -
M.P Ration Vikreta Sangh Society v. State Of M.P. (1981) 4 SCC 535 .............................. - 6 -
Modern Dental College and Research Centre and Ors. vs. State of Madhya Pradesh and Ors (
2016 ) 7 SCC 353 ............................................................................................................ - 12 -
Munn v. Illinois, 1876 SCC OnLine US SC ....................................................................... - 14 -
Muthukumar v. State of Tamil Nadu (2000) 7 SCC 618 ...................................................... - 7 -
Nain Sukh Das v. State of U.P., AIR 1953 SC 384 (385). ................................................... - 8 -
PUCL v. Union of India, (1997) 1 SCC 301; Ramlila Maidan Incident, In re, (2012) 5 SCC .. -
13 -
R. Rajagopal v. State of T.N., (1994) 6 SCC 63 ................................................................. - 13 -
Rajasthan vs. Union of India (UOI) and Ors( 2012 ) 6 SCC 1 ........................................... - 12 -
Ratilal Panachand Gandhi V State of Bombay , 1954 SCR 1055 ........................................ - 6 -
Ratilal Panachand Gandhi v. The State of Bombay & Ors., AIR 1954 SC 388. ................ - 10 -

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MEMORANDUM for RESPONDENT [INDEX OF AUTHORITIES]

Ratilal Panchand Gandhi v. State of Bombay, 1954 SCR 103 ............................................. - 3 -

Regina v. Secretary of State for Education and Employment & Ors, [2005] UKHL 15. ..... - 3 -
Robert L. Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680 (1989 .............. - 4 -
Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1..................................................... - 4 -
Sri Venkataramana Devaru v state of Mysore, 1958 AIR 25 ............................................... - 6 -
Sri Venkataramana Devaru v. State of Mysore, 1958 SCR 89 ........................................... - 15 -
Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 25........................................ - 2 -
Sri Venkataramana Devaru v. The State of Mysore, 1958 AIR 255 .................................. - 11 -
State of Jammu & Kashmir v. Triloki Nath Khosa, (1974) 1 SCC 19 ................................. - 6 -
State of Kerala v. N.M. Thomas, AIR 1976 SC 490 ............................................................ - 7 -
State of M.P. and Ors. vs. Rakesh Sethi and Ors AIR 2020 SC 415 .................................. - 12 -
State of Madhya Pradesh v. Puranchand, AIR 1958 MP 352 ............................................... - 9 -
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75 .............................................. - 6 -
Syndicat Northcrest v. Amselem ,(2004) 241 DLR .............................................................. - 4 -
Tilkayat Shri Govinda ji Maharaj ·v. State of Rajasthan, (1964) 1 SCR 561..................... - 10 -
Tilkayat Shri Govindlalji Maharaj etc v State of Rajasthan and others, (1964) 1 SCR 561. - 5 -
Union of India v. M. V. Valliappan , (1999) 6 SCC 259. ..................................................... - 7 -
United States v. Edwin D. Lee, 7 455 U.S. 252 (1982) ........................................................ - 4 -
V.N.Sharma v. Lt. Governor. 1996 1 LLJ 94 ....................................................................... - 7 -
Vijay Lakshmi v. Punjab University, (2003) 8 SCC 440 (4). ............................................... - 6 -
Western U.P. Electric Power & Supply Co. Ltd. v. State of Uttar Pradesh, (1969) 1 SCC 81- 6
Yogendranath Naskar v. Commissioner of Income Tax (1969) ......................................... - 13 -

Statutes
1) INDIA CONST. art 1 ...................................................................................................... - 6 -
2) INDIA CONST. art 19, §1, cl.a ...................................................................................... - 3 -
3) INDIA CONST. art 21 .................................................................................................... - 5 -
4) INDIA CONST. art 25 .................................................................................................... - 1 -
5) INDIA CONST. art 25, § 2, cl. (b) ............................................................................... - 15 -
6) INDIA CONST. art 26, §b .............................................................................................. - 1 -
7) INDIA CONST. art 26, cl.(b) ....................................................................................... - 15 -
8) INDIA CONST. art 26. ................................................................................................... - 1 -
9) INDIA CONST. art. 15 ................................................................................................... - 8 -
10) INDIA CONST. art. 15, cl. 2. ....................................................................................... - 12 -

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MEMORANDUM for RESPONDENT [INDEX OF AUTHORITIES]

11) INDIA CONST. art. 15, cl. b .......................................................................................... - 8 -

12) INDIA CONST. art. 17 ................................................................................................... - 9 -
13) INDIA CONST. art. 25, § 1 ............................................................................................ - 9 -

Other Authorities
1) A History of Greece,
https://archieve.org/details/ahistorygreecef11grotgoog/page/n105/mode/2up (last visited 7
August 2022) ................................................................................................................... - 1 -
2) Statement of Mr Mohd. Tahir, Constituent Assembly Debates (29-11-1948). ............ - 12 -
3) Statement of Shri V.I. Muniswamy Pillai, Constituent Assembly Debates (November 29,
1948). .............................................................................................................................. - 9 -

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MEMORANDUM for RESPONDENT [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The Petitioner approaches the Hon’ble Supreme Court of Malyalipuram under Article 137 and
Article 32 of the Constitution which allows the individuals to seek redress for the violation of
their fundamental rights.

The present memorial on behalf of the respondent sets forth the facts, contentions and
arguments in the present case.

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MEMORANDUM for RESPONDENT [STATEMENT OF FACTS]

STATEMENT OF FACTS

Background

The Sabari Male Mandir, located in the Periyar Tiger Reserve in the Western Ghat mountain
ranges of the Republic of Malayalipuram, is renowned for lakhs of pilgrims thronging it all
throughout the year. The main attraction of the temple is the Lord Bhimappa shrine and
pilgrims have to climb 18 sacred steps from the Entry Complex to reach the sanctum sanctorum
after undergoing strict religious vows for 48 days.

Ban on Mensurating Women

Women aged between 10 and 50, that is those who are of menstruating age, are barred from
entering the temple. While there is no restriction on women to worship Lord Bhimappa in any
other temple, their entry is prohibited in this temple due to the nature of the deity of this shrine.
The Board that maintains the temple holds that the ban was in accordance with a centuries-old
tradition.
It argues that these restrictions can’t be challenged as they are on the basis of the religion and
traditions of the deity of the temple. It was also argued that Lord Bhimappa is a celibate and
should be treated as a person. And as a person, Lord Bhimappa‘s Right to Privacy under Article
21 should be protected.

Dissent Against The Ban

It was argued that the restrictions went against Articles 14, 15 and 17 of the Constitution. She
also argued that the custom is discriminatory in nature and stigmatized women, and that women
should be allowed to pray at the place of their choice.

The Judgment

Finally, in 2018, in a 4:1 judgement of the Supreme Court, the majority held that though the
devotees of Bhimappa do constitute a separate religious sect., the Bhimappans’ custom of
debarring women, belonging to the age group of 10-50 years, from the temple was

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MEMORANDUM for RESPONDENT [STATEMENT OF FACTS]

unconstitutional. It was also held that such custom was contrary to Constitutional Morality and
that it undermined the ideals of autonomy, liberty, and dignity.

Protest by the LGBTQ+ members

Mr. Palermo and Mr. Manila, transgender women, were initially allowed entry into the shrine,
after having discovered that they were menstruating people, the authorities chucked them out
of the temple premises and banned their entry on subsequent occasions. Later, they were
allowed access to the shrine, but they were not granted the permission to worship the idol.

The Judgment

Special Court convicted Andy and Shelly. Court found that Andy’s blog was directly connected
with unlawful assembly and violence.
Both the accused preferred an appeal against their conviction before the High Court. However,
the High Court confirmed the conviction.

The Petition
Aggrieved by this, the agnostic duo filed a petition in the Supreme Court claiming the violation
of their Fundamental Right against discrimination under Article 15(2) and their Right to
Privacy under Article 21 of the Malayalipuram Constitution. They also argued that the temple
authorities had only banned women of menstruating age, and not transgenders, thus the action
of the temple authorities leads to a violation of their fundamental rights
A 5-judge bench headed by the Chief Justice, while reviewing the Sabari Male Mandir matter,
observed by a 3:2 majority that certain issues in the Sabari Male Mandir review were common
to the pending cases concerning LGBTQ+ entry into some temples and it was decided to keep
the review petition in the Sabari Male Mandir matter pending until a larger bench determined
the necessary questions of law.
The Chief Justice, in the review hearing itself, referred the matter to a larger bench and
constituted a bench of 11 judges to hear all matters. Thus, the instant petition.

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MEMORANDUM for RESPONDENT [STATEMENT OF ISSUES]

STATEMENT OF ISSUES

Issue I

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?

Issue II

WHETHER THE BAN OF ENTRY OF WOMEN OF MENSTRUATING AGE

BETWEEN 10-50 YEARS OWING TO RELIGIOUS BELIEFS IS VIOLATIVE OF
ARTICLES 14, 15, 17 AND 25(1) OF THE INDIAN CONSTITUTION?

Issue III

WHETHER THE ACTION OF THE TEMPLE AUTHORITIES IS VIOLATIVE OF

THE FUNDAMENTALRIGHTS OF MR. PALERMO AND MR. MANILA UNDER
ARTICLE 15(2) AND 21 OF THE CONSTITUTION??

Issue IV

WHETHER THE ABSENCE OF A STATE ENACTED LAW UNDER ARTICLE

25(2)(B) LEADS TO THE VIOLATION OF THE FUNDAMENTAL RIGHTS OF
PEOPLE?

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MEMORANDUM for RESPONDENT [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

ISSUE: 1 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?

It is humbly submitted that before the Hon’ble Court that care should be taken in applying
“morality” to religious practices as it ought not to be arising from Part III of the Constitution
or even the Court’s idea of morality. While talking of morality, the Courts generally consider
it to imply “constitutional morality” which itself holds within it the freedom to practice and
profess one’s religion and belief. In the present case, the public morality of the masses is not
affected by the restriction, nor is it against the morality of the devotees themselves who are
part of the religious denomination. The constitutional right of religious denomination is not to
be subjected to the morality of an individual, a section or even an organisation, as in the present
case and is hence protected under Article 26.

ISSUE: 2 WHETHER THE BAN OF ENTRY OF WOMEN OF MENSTRUATING

AGE BETWEEN 10-50 YEARS OWING TO RELIGIOUS BELIEFS IS VIOLATIVE OF
ARTICLES 14, 15, 17 AND 25(1) OF THE INDIAN CONSTITUTION?

It is humbly submitted before the Hon'ble Supreme Court of Malyalipuram that the ban on
entry of women of menstruating age between 10 to 50 years owing to religious beliefs is not
violative of articles 14, 15, 17 and 25 (1) of the Indian constitution. It is submitted that article
14 provides for a reasonable classification with the object sought to be achieved, and same is
the case here. Further, it is also submitted that the classification also doesn't contravene with
the provisions of article 15 and 17 as the instant case is not about discrimination and
untouchability

ISSUE: 3 WHETHER THE ACTION OF THE TEMPLE AUTHORITIES IS

VIOLATIVE OF THE FUNDAMENTALRIGHTS OF MR. PALERMO AND MR.
MANILA UNDER ARTICLE 15(2) AND 21 OF THE CONSTITUTION??

It is humbly submitted that the temple authorities did not violate the fundamental rights of the
transgender duo because it should be noted that no right is absolute and the matter of

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MEMORANDUM for RESPONDENT [SUMMARY OF ARGUMENTS]

discrimination was not on the basis of inequality but on the basis of religious respect for their
deity. Also, the temple shall not fall under the category of public resort hence cannot be taken
under the ambit of article 15.

ISSUE:4 WHETHER THE ABSENCE OF A STATE ENACTED LAW UNDER

ARTICLE 25(2)(B) LEADS TO THE VIOLATION OF THE FUNDAMENTAL RIGHTS
OF PEOPLE?

It is humbly submitted in this Hon’ble court that the absence of state enacted law under Article
25(2)(b) do not lead to violation of the fundamental rights of people because the devotees of
Bhimappa have a system of belief or a common faith which they regard conducive to their
spiritual wellbeing. The activities performed by the deities, such as undertaking pilgrimage and
undergoing strict religious vows for 48 days, indicate a common system of belief. Further, the
devotees also follow Bhimappan Dharma and believe in the celibacy of Lord Bhimappa.
Therefore, the devotees follow an identifiable set of beliefs, customs, and usages, and codes of
conduct which are being followed since time immemorial and hence fulfil the first prerequisite
of a ‘religious denomination.’

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MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

ARGUMENTS ADVANCED

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?

1) It is humbly submitted that Constitutional Morality would mean effective co-ordination

between conflicting interests of different people and the administrative cooperation to
resolve amicably without any confrontation amongst the various groups working for the
realization of their ends at any cost. According to Grote, constitutional morality was the
‘co-existence of freedom and self-imposed restraint’ and ‘of obedience to authority with
unmeasured censure of the persons exercising it’. He adds that the “diffusion of such
constitutional morality, not merely among the majority of any community, but throughout
the whole, is the indispensable condition of a government at once free and peaceable. 1
2) In Indian Young Lawyers Association V. State of Kerala 2, equality and non-discrimination
are certainly one facet of constitutional morality. Under our constitutional scheme, a
balance is required to be struck between the principles of equality and non-discrimination
on the one hand, and the protection of the cherished liberties of faith, belief and worship
guaranteed by Articles 253 and 264 to persons belonging to all religions in a secular polity,
on the other hand. It is a duty of the 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.
3) In Sahara India Real Estate Corpn. Ltd. v. SEBI,5 and Narendra Prasadji Anandprasadji
Maharaj v. State of Gujarat6 it is said that the right to practise one's religion is a
fundamental right guaranteed by Part III of the Constitution, without reference to whether
religion or the religious practices are rational or not. Religious practices are constitutionally
protected under 7Articles 25 and8 26(b). Courts normally do not delve into issues of

1
A History of Greece, https://archieve.org/details/ahistorygreecef11grotgoog/page/n105/mode/2up (last visited 7
August 2022)
2
Indian Young Lawyers Association V. State of Kerala, (2019) 11 SCC 1
3
INDIA CONST. art 25
4
INDIA CONST. art 26.
5
Indian Young Lawyers Association V. State of Kerala, (2012) 10 SCC 603
6
Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat, (1975) 1 SCC 11
7
Supra note 4
8
INDIA CONST. art 26, §b

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MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

religious practices, especially in the absence of an aggrieved person from that particular
religious faith, or sect.
4) In Indian Young Lawyers Association V. State of Kerala 9, it was contended that the word
“morality” in Article 26 be read as “constitutional morality”. If so read, it cannot be
forgotten that this would bring in, through the back door, the other provisions of Part III of
the Constitution, which Article 26 is not subject to, in contrast with Article 25(1). In any
case, the fundamental right under Article 26 will have to be balanced with the rights of
others contained in Part III as a matter of harmonious construction of these rights as was
held in Devaru,10but this would only be on a case-to-case basis, without necessarily
subjecting the fundamental right under Article 26 to other fundamental rights contained in
Part III.

A. THE RIGHT TO PROFESS AND PRACTICE ANY RELIGION

1) It is humbly submitted that in the case of Indian Young Lawyers Association V. State of
Kerala11, wherein the Supreme Court examined the question on the line required to be
drawn between what are the matters of religion and what are not? To which the court held
“What constitutes the essential part of religion is primarily to be ascertained with reference
to the doctrine of that religion itself.” Meaning thereby, that the views of the followers of
the religion were very crucial to determine what constituted the essential aspect of the
religion.
2) In the same judgment, the then Chief Justice of India, Deepak Misra and Justice Khanwilkar
iterated that “any relationship with the Creator is a transcendental, one crossing all socially
created artificial barriers and not a negotiated relationship bound by terms and conditions.”
Therefore, it is submitted that the very understanding of a pure practice in the assertions of
the petitioner is a matter solely to be discussed with the believers and followers of the
religion of Bhimappa. 12
3) However, religion is generally construed as a way of life where the choice lies on the
individual to follow a religion or not. Professing any religion means adopting a way of life
as per the directions of any religion. It is to the full liberty of individual whether to profess

9
Supra note 3
10
Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255
11
Supra note 3
12
Moot prop, pg. 1

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MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

a religion or not. Although, the constitution of India is mute on the definition of religion
yet the restriction and essentiality of religion is to be determined by others is mentioned.
4) Moreover, in Bijoe Emmanuel & Ors. v. State of Kerala & Ors.,13 three children belonging
to a sect of Christianity called Jehovah’s Witnesses had approached the Kerala High Court
by way of Writ Petitions to challenge the action of the Headmistress of their school, who
had expelled them for not singing the National Anthem during the morning assembly. The
children challenged the action of the authorities as being violative of their rights under
Articles 19(1)(a)14 and Article 25. This Court held that the refusal to sing the National
Anthem emanated from the genuine and conscientious religious belief of the children,
which was protected under Article 25(1).
5) In Adelaide Company of Jehovah’s Witnesses v. The Commonwealth 15, a decision of the
Australian High Court quoted by Mukherjea, J. in the Shirur Mutt case. Latham, C.J. had
said: “The Constitution protects religion within a community organised under a
constitution, so that the continuance of such protection necessarily assumes the continuance
of the community so organised. This view makes it possible to reconcile religious freedom
with ordered government.”
6) In Ratilal’s16 case Mukherjea, J. quoted as appropriate Davar, J.’s following observations
in 17Jamshed Ji v. 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 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 his religion and the welfare of his community or
mankind.
7) The House of Lords in Regina v. Secretary of State for Education and Employment &
Ors.,18 held that the court ought not to embark upon an enquiry into the validity or
legitimacy of asserted beliefs on the basis of objective standards or rationality. It was stated
that “It is necessary first to clarify the court’s role in identifying a religious belief calling
for protection under article. When the genuineness of a claimant’s professed belief is an
issue in the proceedings the court will enquire into and decide this issue as a question of

13
Bijoe Emmanuel & Ors. v. State of Kerala & Ors, 1987 AIR 748
14
INDIA CONST. art 19, §1, cl.a
15
Adelaide Company of Jehovah’s Witnesses v. The Commonwealth, [1943] HCA 12
16
Ratilal Panchand Gandhi v. State of Bombay, 1954 SCR 1035
17
Jamshed Ji v. Soonabai, 1 Ind Cas 834
18
Regina v. Secretary of State for Education and Employment & Ors, [2005] UKHL 15.

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fact. The Court is concerned to ensure an assertion of religious belief is made in good faith:
neither fictitious, nor capricious, and that it is not an artifice.”
8) Supreme Court of Canada in Syndicat Northcrest v. Amselem19 held that, emphatically, it
is not for the Court to embark on an inquiry into the asserted belief and judge its validity
by some objective standard such as the source material upon which the claimant founds his
belief or the orthodox teaching of the religion in question or the extent to which the
claimant’s belief conforms to or differs from the views of others professing the same
religion. In the case of United States v. Edwin D. Lee20, wherein it was held as follows:
“…It is not within the judicial function and judicial competence, however, to determine
whether appellee or the Government has the proper interpretation of the Amish faith; courts
are not arbiters of scriptural interpretation…”
9) In Robert L. Hernandez v. Commissioner of Internal Revenue21, wherein the Court noted:
“…It is not within the judicial ken to question the centrality of particular beliefs or practises
to a faith or the validity of particular litigants’ interpretations of those creeds...”
10) Furthermore, in the case of Shayara Bano v. Union of India & Ors.22 “While examining the
issues falling in the realm of religious practises or Personal Law, 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 a court to determine whether religious practises were prudent or progressive or
regressive. Religion and Personal Law, must be perceived, as it is accepted by the followers
of the faith…”

B. THE CONCEPT OF ‘ESSENTIAL RELIGIOUS PRACTISE”

1) Essential religious practice deals with such customary practices that are practiced for ages
and importance that holds in the religion which is determined by its invariable contribution
to such religion.
2) As J. D.Y. Chandrachud iterated in the case of Indian Young Lawyers Association v State
of Kerala23 “Judges lack both competence and legitimacy to pronounce on the importance
of specific doctrines or beliefs integral to religion.”
3) The practice of Selective banning of women is an “essential religious practice”, which is
being followed from a very long time as their custom and usages.

19
Syndicat Northcrest v. Amselem ,(2004) 241 DLR
20
United States v. Edwin D. Lee20, 7 455 U.S. 252 (1982)
21
Robert L. Hernandez v. Commissioner of Internal Revenue, 490 U.S. 680 (1989)
22
(Shayara Bano v. Union of India & Ors., (2017) 9 SCC 1.
23
Supra note 3

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4) Art. 25 contains both ‘essential’ and ‘non-essential’ religious practices and gives the state,
powers to reform the non - essential religious practices but does not provide the state with
the powers to reform the essential religious practices. Similarly, Bhimappan Dharma
followed by the devotees of it is their essential religious practice and thus cannot be
reformed by the State.
5) In the case of Tilkayat Shri Govindlalji Maharaj etc v State of Rajasthan and others 24 “A
religion may not only lay down a code of ethical rules for its followers to accept, it might
prescribe rituals and observances, ceremonies and modes of worship which are regarded as
integral parts of religion and these forms and observances might extend to matters of food
and dress”
6) The court in this case narrowed down the application of ERP by formulating a three-pong
test to determine the ambit within which State can regulate religious matters-
7) “First, whether the practice in question is religious in character;
8) Second, if the first answer is in the affirmative, whether it can be recognized as an integral
or essential part of religion;
9) And third, whether there is substantial evidence adduced before the Court as to the
conscience of the community and the tenets of the religion.”
10) To compare these three tests with the present case, it is clear to state the practice of
“Bhimappan Dharma to selectively ban women” is an essential religious practice. First, the
practice of “the selective ban on women” in the “Bhimappa Dharma” is substantially an
integral part of the religion. It is a peculiar religion as –Lord Bhimappa of this shrine is a
Naishtika Brahmmachari (one who has vowed to remain celibate). 25
11) Coming to the second question of the three-pong test is its recognition as an integral part
of the religion. This question is answered above for people opting for the practice of
selective ban on women are considered closest to God and the temple is maintained by
Sabari Male Mandir Board (also ― The Board) which is managed by a renowned religious
sect. It is said that these restrictions are on the basis of the religion and traditions of the
deity of the temple. It was said that Lord Bhimappa is a celibate and should be treated as a
person. And as a person, Lord Bhimappa’s Right to Privacy under Article 21 26 should be
protected.27

24
Tilkayat Shri Govindlalji Maharaj etc v State of Rajasthan and others, (1964) 1 SCR 561.
25
Moot prop, pg. 1
26
INDIA CONST. art 21
27
Supra note 3

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12) Therefore, all these questions of the three-pong tests answer and makes it an essential
religious practice.
13) In Sri Venkataramana Devaru v state of Mysore 28Venkatarama Aiyar J. observed “that the
29
matters of religion in Article 26(b) include even practices which are regarded by
community as part of its religion.” It would thus be clear that the religious practice to which
Article 25(1) refers and affairs in matters of religion to which Article 26(b) refers, include
practices which are integral part of religion itself and the protection guaranteed by article
25(1) and Article 26(b) extends.
14) In the case of Ratilal Panachand Gandhi V State of Bombay30 elucidated that no external
authority has the right to determine essential parts of a religion.

WHETHER THE BAN OF ENTRY OF WOMEN OF MENSTRUATING AGE

BETWEEN 10-50 YEARS OWING TO RELIGIOUS BELIEFS IS VIOLATIVE OF
ARTICLES 14, 15, 17 AND 25(1) OF THE INDIAN CONSTITUTION?

A. FUNDAMENTAL RIGHTS ARE NOT VIOLATED.

1. ARTICLE 14 IS NOT VIOLATED.

1. It is humbly submitted that Article 1431 requires equals to be treated equally. It is not an
absolute right, rather the legislature is authorised to create classification, such that unlike get
unlike treatment, and likes are treated equally.32 Such a classification is a systematic
arrangement of things into groups or classes in accordance with a definite scheme. 33 If the
classification is found to rest on a reasonable34 basis, it has to be upheld35.
2. It is important to note that Article 14 permits discrimination with reasons36. Discrimination
with reasons means rational classification for differential treatment having nexus to the

28
Sri Venkataramana Devaru v state of Mysore, 1958 AIR 255
29
INDIA CONST. art 26, cl.b
30
Ratilal Panachand Gandhi V State of Bombay , 1954 SCR 1055
31
INDIA CONST. art 14
32 M.P Ration Vikreta Sangh Society v. State Of M.P. (1981) 4 SCC 535
33
State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75
34
Western U.P. Electric Power & Supply Co. Ltd. v. State of Uttar Pradesh, (1969) 1 SCC 817
35
State of Jammu & Kashmir v. Triloki Nath Khosa, (1974) 1 SCC 19
36
Vijay Lakshmi v. Punjab University, (2003) 8 SCC 440 (4).

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constitutionally permissible object37. Thus, establishing the twin test wherein, the twin test of
classification38 requires that:-
(i) Classification must be based upon some real and substantial distinction bearing
reasonable relation to the object sought to be achieved by the impugned State action of
intelligible differentia.
(ii) There has to be impregnation of substantive and procedural reasonableness in the
impugned State action that the classification must help in achieving the final objective
of rational nexus39.

3. Intelligible differentia means a factor that distinguishes a class from another which is
capable of being understood.40 In the case of V.N Sharma v. Lt. Governor41 , the matter was
about fixation of different age of retirement for different classes of people were held to be
valid. The court held that when such classification on the basis of age and the nature of their
work is based on intelligible differentia, it is not unreasonable, arbitrary or unfair.
4. In the instant case, the classification doesn’t exist between man and women, that is women
are not in a class distinct, that is women in the instant case but between different age groups.
5. Further, the restriction only exists in the Sabri Male temple of lord Bhimappa, due to his
celibate form, other temples are open to all.
6. The age group of 10-50 years is rational, since the prescription of this age-band is the only
practical way of ensuring that the limited restriction on the entry of women is adhered to. It is
respectfully argued that there exists no gender discrimination, but is a matter of faith,
permitting all the other groups. It is a requirement of Naisthik Bhramacharya to not see the
sight of opposite gender42 of particularly young and sexually active stage, followed by both
men and women. In the instant case, there exists no object to discriminate men, and women,
or encroach upon right to worship, as women of certain age group are only barred only in the
particular temple concerned. The object remains to preserve the customs.
Hence, it is humbly submitted that is an equally well-settled point in the eyes of court 43 the
object must be constitutionally valid and in in the instant case it doesn't stand poor with respect
to article 14.

37
State of Kerala v. N.M. Thomas, AIR 1976 SC 490.
38
D.S, Nakara and Ors. v. Union of India and Ors, AIR 1983 SC 130.
39
Union of India v. M. V. Valliappan , (1999) 6 SCC 259.
40
Muthukumar v. State of Tamil Nadu (2000) 7 SCC 618
41
V.N.Sharma v. Lt. Governor. 1996 1 LLJ 94
42
Moot Prop, pg. 4
43
A.K. Gopalan v. State of Madras 1950 SCR 88

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2. NOT VIOLATIVE OF ARTICLE 15

Article 1544 is strand of constitution preaching equality. Clause (1) prohibits discrimination on
certain grounds such as religion, race, sex, caste, place of birth. Discrimination is defined as
unfavourable bias. The use of word ‘only’ connotes, that discrimination that is solely and
purely on account of the grounds mentioned is prohibited45. Discrimination on these grounds
with additional grounds will not be hit by article 15(1), though it might be hit by the genus,
article 14.46
10. In the case of Indra Sawhney v. Union of India47 Justice Thommen, dissenting with the
majority judgement held that the constitution prohibits discrimination on the grounds only of
religion, race, caste, sex, descent, place of birth, residence or any of them. Any discrimination
solely on any one or more of these prohibited grounds will results in invidious reverse
discrimination which is impermissible. So, what the constitution prohibits is exclusionary
discrimination solely on caste or any other criterion enumerated in 48Article 15(1). Any one or
all of such criterion along with any other relevant criterion may be legitimately used to separate
a class of people for reservation. It is therefore put forward, that article 15 restricts
discrimination on the ground of ‘sex’ alone. In the instant case, the fact in dispute is not hit by
15(1) as ‘sex’ is not the only factor.
11. The major factor in consideration is age. The limited restriction on entry of women in The
Sabri Male temple, is not due to discrimination against women, but is a deep-rooted faith of
worshipers that deity in the Sabri Male temple has manifested in form of ‘Naisthik
bharmacharya’. and thus, also permitting entry of all women, men in other temple of lord
Bhimappa.
12. In the instant case, The Sabri Male temple is a well-known place for worship of Lord
Bhimappa. The temple restricts entry of certain aged women according to faith, customs and
thus shall not be hit by article 15.

3. NOT VIOLATIVE OF ARTICLE 17

44
INDIA CONST. art. 15
45
Nain Sukh Das v. State of U.P., AIR 1953 SC 384 (385).
46
Acharya Jagdishwaranand Avadhuta v. Commissioner of Police, (1983) 4 SCC 522.
47
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.
48
INDIA CONST. art. 15, cl. b

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13. Article 1749 abolishes untouchability. The word untouchability is not defined in the
constitution; however, the meaning can be construed from constitutional assembly debates 50.93
It will be misread to read the meaning of untouchability as to discriminate women on the basis
of physiological factors, assuming there exists any such discrimination.
14. The word untouchability is not defined, and shall not be restricted to the literal meaning,
and must be understood as how it has developed over the course of history in the country.
15. In the case State of Madhya Pradesh v. Puranchand51, in which a non-Jain member of the
community was denied entry in the temple on the basis of him not belonging to Jain
community, and not on the basis of class hierarchy, the court held that this doesn't constitute
an offence under the act, and doesn't abhor article 17. It ruled that article 17 is concerned with
those regarded as untouchables in the course of historic development. Social boycott of a few
individuals, or exclusion from worship, religious services in not within the ambit of article 17.
16. In the present case, women of the mentioned age that is between 10 to 50 are permitted
entry into every single other temple of Lord Bhimappa around the country. The limitation on
the section of women in this Temple is based on the one-of-a-kind character of the divinity,
and not established on any social prohibition. The similarity tried to be drawn by looking at the
rights of Dalits with reference to entry to temples and women is entirely misinterpreted.

Therefore, it is humbly submitted that article 17 refers untouchability and abolishes practices
in the traditional hierarchical caste system. The rights asserted by Harijans against social
exclusion aren’t in parlance to the women aged between 10-50, as the practice is derived from
faith, and thus not violative of article 17.

4. NOT VIOLATIVE OF ARTICLE 25(1)

17. Article 25(1)52 mentions Freedom of conscience and free profession, practice and
propagation of religion it states that 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, practise and propagate religion.

49
INDIA CONST. art. 17
50
Statement of Shri V.I. Muniswamy Pillai, Constituent Assembly Debates (November 29, 1948).
51
State of Madhya Pradesh v. Puranchand, AIR 1958 MP 352.
52
INDIA CONST. art. 25, § 1

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a) The prohibition on entry of menstruating women constitutes an essential religious

practice

1) The Supreme Court has made it clear that in order to get protection under Article 25(1), the
practice in question must be essential or mandatory, easily distinguishable from what is
optional. This Court in Shirur Mutt53, while giving freedom under clauses (a) and (b) of
Article 26, made it clear that what is protected is only the “essential part” of religion or, in
other words, the essence of “practice” practiced by a religious denomination. 54
2) The ‘essential practises’ test was formulated in Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.55 It was held
that essential practices mean the core beliefs upon religion is founded, which are
fundamental to follow. In Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan &
Ors56, the court further held, that it is the community of the believers who can determine
what is essential to the religion, absence of which would alter the essence to the religion.
3) This Court has time and again drew on the words “practise of religion” in Article 25(1) to
hold that the Constitution protects not only the freedom of religious belief, but also acts
done in pursuance of a religion.57
4) In the instant case, the devotees follow an distinct set of beliefs, customs and usages, and
code of conduct which are in practise since time immemorial, and are founded in a common
faith. The religious practises being followed in the temple are founded on the belief that the
Lord has manifested himself in the form of a ‘Naishtika Brahmachari’. It is this belief that
women aged between 10-50 are not permitted in the temple, and hence following the
essential religious practice
5) The form of worship, rituals, practices, or in the instant case, vratham are specific to the
manifestation and temple. Any interference with the mode and manner of worship of this
religious denomination, or sect, would impact the character of the Temple, and affect the
beliefs and practises of the worshippers of this Temple.

53
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
1954 SCR 1405.
54
Ratilal Panachand Gandhi v. The State of Bombay & Ors., AIR 1954 SC 388.
55
Supra note 55.
56
Tilkayat Shri Govinda ji Maharaj ·v. State of Rajasthan, (1964) 1 SCR 561.
57
Adelaide Company of Jehovah’s Witnesses Incorporated v. Commonwealth, (1943) 67 CLR 116.

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Therefore, in light of arguments advanced, it is humbly submitted that the ban on entry of
women of menstruating age between 10 to 50 years owing to religious beliefs is not violative
of articles 14, 15, 17 and 25 (1) of the Indian constitution.

WHETHER THE ACTION OF THE TEMPLE AUTHORITIES IS VIOLATIVE OF

THE FUNDAMENTALRIGHTS OF MR. PALERMO AND MR. MANILA UNDER
ARTICLE 15(2) AND 21 OF THE CONSTITUTION?

A. THAT THE ACTION OF THE TEMPLE AUTHORITIES IS IN COMPLIANCE WITH THE

CUSTOMARY PRACTICE OF NOT ALLOWING ENTRY OF MENSTRUATING WOMEN INTO

THE TEMPLE

1) That the temple authorities have rectified their error in action of entirely banning the
entry of Mr. Palermo and Mr. Manila into the temple by allowing them access to the
shrine which is at par with access allowed to the menstruating women of age 10 – 50
years.58
2) That the action of the temple authorities is not discriminatory of the LGBTQ+ community
since the action was solely based on the factor that the petitioners were biological females
and were of a menstruating age.
3) That this Hon’ble Court in Sri Venkataramana Devaru v. The State of Mysore59 observed
that worshippers lay great, store by the rituals and whatever other people, not of the faith,
may think about these rituals and ceremonies, they are a part of the Hindu Religious faith
and cannot be dismissed as either irrational or superstitious.

B. THAT THE BAN ON ENTRY OF MR. PALERMO AND MR. MANILA IS A MATTER OF

RELIGIOUS DIVERSITY RATHER THAN OF EQUALITY

1) That Naishtika Brahmacharya requires the Brahmachari to observe the vow of celibacy
without any room for departure is a well-known and accepted fact since it has its basis in
Hindu texts such as Sridhara Swami’s commentary on Srimad Bhagavatam which forbids

58
Moot prop, para 8, pg. 3
59
Sri Venkataramana Devaru v. The State of Mysore, 1958 AIR 255

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Brahmacharis from thinking about, speaking about, playing with, looking at, personally
talking with, wishing for sex with, trying for sex with, engaging in sex with women 60
2) That even Hindu men who visit the Temple are required to observe a 41-day vow, which
among other things, mandates abstinence.
3) That The Savitri temple on the Ratnagiri hills in Rajasthan’s Pushkar, according to
believers, is a curious place of worship where men are barred entry as the temple marks the
rage of its deity, Goddess Savitri.
4) It is evident from the above examples that a one size-fits-all standardized approach to
gender equality does grave injustice to the sheer religious diversity of Hinduism and its
religious institutions and would, in fact come, at great and irreparable infraction of the
religious rights of various Hindu denominations

C. THE SABRI MALE TEMPLE IS NOT A PUBLIC RESORT UNDER ARTICLE 15(2)(B)

1) It is humbly adduced before the Hon’ble Court that article 15(2) 61 prohibits restriction with
regard to access to public places on the grounds of sex, caste, religion.62 However the places
of worship cannot be included in “public places” mentioned in article 15(2) of the
constitution.

2) Moreover, in constituent assembly debates, article 9 of the draft constitution which

corresponds to present date article 15, show that the assembly deliberately excluded the
word temples from clause 2.63 Therefore it was the intention of the constitution makers to
keep the temples outside the applicability of article 15. The rationale behind this was that
including temples in the ambit of “public resorts” will violate the religious rights under
article 25 and 26 of the constitution.64 Hence It will not apply to the Sabari male Temple in
the present case.

D. THE ACTION OF TEMPLE AUTHORITIES IS NOT VIOLATIVE OF THE

RIGHT TO PRIVACY OF MR. PALERMO AND MR. MANILA UNDER

60
Swami Vireswanda, Srimad Bhagavad Gita with the Commentary of Sridhara Swami, Sri Ramakrishan Math
2008
61
INDIA CONST. art. 15, cl. 2.
62
Rajasthan vs. Union of India (UOI) and Ors( 2012 ) 6 SCC 1; Bhawna Garg and Ors. vs. University of Delhi
and Ors ( 2015 ) 1 SCC 401; Modern Dental College and Research Centre and Ors. vs. State of Madhya Pradesh
and Ors ( 2016 ) 7 SCC 353; State of M.P. and Ors. vs. Rakesh Sethi and Ors AIR 2020 SC 4156
63
Statement of Mr Mohd. Tahir, Constituent Assembly Debates (29-11-1948).
64
Durga Das Basu, Constitution of India, (14th ed., 2014) LexisNexis, p.2735

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ARTICLE 21.

1. NO FUNDAMENTAL RIGHT IS ABSOLUTE

1. It is humbly submitted that it is an established principle and has been held by the Court
in catena of its judgements65 that no fundamental right is absolute66 and every
fundamental right is subject to some reasonable restrictions.67
2. Furthermore the court in R. Rajagopal v. State of T.N.68 held :

“the right to privacy is not absolute and is subject to action lawfully taken to prevent crime or
disorder or to protect the health, morals and the rights and freedoms of others.”

2. PRIVACY INTEREST IN AUTONOMY MUST ALSO BE PLACED IN THE CONTEXT OF OTHER

RIGHTS AND VALUES.

1. It is submitted that in a secular country like India, deities are also considered to be legal
person, hence they also have the constitutional rights.69 Therefore the entry of the couple
would violate the right to privacy of Lord Bhimappa enshrined under article 21 of the
constitution.70 Hence article 21 of the Constitution of India and with the extensive
interpretation of the phrase “personal liberty” this right has been read into Article 21 71, it
cannot be treated as an absolute right72 and have to be considered in context of the rights
and morals of others.73

It is therefore submitted that the action of temple is not violative of the fundamental right of
privacy of the transgender couple, as the entry would violate fundamental rights of the devotees
enshrined under article 2574, right to privacy of the deity75 and it is dangerous to the celibate

65
Keshwananada Bharti v State of Kerala; Indira Nehru Gandhi, Smt. v Rajnarain; I R Coelho v Union of India;
Dattaraya Mootiram v State of Bombay
66
Government of A.P. v P.B. Vijaykumar; Taguru Sudhakar Reddy v govt of A. P.; Preeti Shrivastava Dr. v State
of M.P.
67
Mohd. Hanif Quershi v State of Bihar; Romesh Thapar v State of Madras; Central Prison v Ram Manohar
Lohia; Maneka Gandhi v. Union of India
68
R. Rajagopal v. State of T.N., (1994) 6 SCC 632
69
Yogendranath Naskar v. Commissioner of Income Tax (1969)
70
PUCL v. Union of India, (1997) 1 SCC 301; Ramlila Maidan Incident, In re, (2012) 5 SCC 1
71
M.P. Sharma v. Satish Chandra, AIR 1954 SC 300; Katz v. United States, 1967 SCC OnLine US SC 248; Boyd
v. United States, 1886 SCC OnLine US SC 58
72
Bhavesh Jayanti Lakhani v. State of Maharashtra, (2009) 9 SCC 551;
73
Griswold v. Connecticut, 1965 SCC OnLine US SC 124;
74
H.M. Seervai, Constitutional Law of India: A Critical Commentary 1275, (4th Ed. 1999).
75
Moot prop, pg. 3

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nature of the deity so to preserve morals and rights and freedoms of others the restriction is
necessary.76

WHETHER THE ABSENCE OF A STATE ENACTED LAW UNDER ARTICLE

25(2)(B) LEADS TO THE VIOLATION OF THE FUNDAMENTAL RIGHTS OF
PEOPLE?

A. THE DEVOTEES OF BHIMAPPA CONSTITUTE A RELIGIOUS DENOMINATION

1. THE DEVOTEES OF BHIMAPPA HAVE A COMMON FAITH WHICH THEY REGARD CONDUCIVE TO
THEIR SPIRITUAL WELLBEING.

It is submitted that the devotees of Bhimappa have a system of belief or a common faith faith
which they regard conducive to their spiritual wellbeing. The activities performed by the
deities, such as undertaking pilgrimage and undergoing strict religious vows for 48 days, 77
indicate a common system of belief. Further, the devotees also follow Bhimappan Dharma and
believe in the celibacy of Lord Bhimappa.78 Therefore, the devotees follow an identifiable set
of beliefs, customs, and usages, and codes of conduct which are being followed since time
immemorial,79 and hence fulfil the first prerequisite of a ‘religious denomination.’

a) The devotees of Bhimappa have a common organization

It is submitted that the devotees of Bhimappa have a common organization in the form of
“renowned religious sect of Bhimappans who follow the Bhimappan Dharama.” This religious
sect also manages and maintains the temple through the Sabari Male Mandir Board. The
existence of a common organization fulfils the second prerequisite of a ‘religious denomination.’

b) The devotees of Bhimappans have a distinct name

It is submitted that the devotees of Bhimappa are designated by a distinctive name which is
Bhimappans who follow the Bhimappan Dharma. This fulfils the third prerequisite of ‘religious

76
Munn v. Illinois, 1876 SCC OnLine US SC 4
77
Moot prop, pg. 3
78
Moot Prop, pg. 3
79
Moot Prop, pg. 3

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denomination.’ Therefore, the devotees of Bhimappa fulfil the conditions laid down in S.P
Mittal 80case and hence form a ‘religious denomination.’

1) It is pertinent to mention that the definition of ‘religious denomination’ as laid down by the
courts is, unlike a statutory definition, is only an explanation. Since any right or freedom
involving the conscience must be given a wide interpretation, the term ‘religious
denomination’ should be interpreted in a liberal and expansive way. 81

B. THE RIGHT OF BHIMAPPANS TO MANAGE THEIR RELIGIOUS AFFAIRS DOES

NOT SUBSTANTIALLY REDUCE THE RIGHT CONFERRED UNDER ART. 25(2)(B)

1) It is submitted that the right of Bhimappans to manage their religious affairs as provided
under 82Art. 26(b) does not substantially diminish 83Art. 25(2)(b) and hence their rights are
safeguarded under Art. 26(b).84 The scope of Art. 25(2)(b) is not diminished due to the
practice of restriction on women of menstruating age into the temple because the ban is not
a complete one and does not completely restrict a class of people from entering the temple.
There is only a limited restriction on entry during the notified period of menstruation which
is based on faith and custom which are being followed since time immemorial.
2) Further, it is submitted that the restriction stems from old held beliefs and are not
discriminatory. This is apparent from the fact that only the women aged between 10 and 50
are barred only from accessing the sanctum sanctorum and can freely access the entry
complex and can even worship the same deity in other temples. Furthermore, it is also
pertinent to mention that the entry of Mr. Palermo and Mr. Manila was also allowed into
the shrine.
3) It is also submitted that Art. 25(2)(b) and more specifically “the throwing open of Hindu
religious institutions of a public character to all classes and sections of Hindus” clause was
intended to combat caste-based discrimination and prejudices prevalent in the society.
Therefore, it cannot be interpreted to override the customs and usages that form the
essential practices85 of religious denominations since time immemorial.

80
S.P. Mittal v. Union of India, 1 1983 SCR (1) 729
81
Supra note80
82
INDIA CONST. art 26, cl.(b)
83
INDIA CONST. art 25, § 2, cl. (b)
84
Sri Venkataramana Devaru v. State of Mysore, 1958 SCR 895
85
Ratilal Panachand Gandhi v. State of Bombay, 1954 SCR 1055

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MEMORANDUM for RESPONDENT [ARGUMENTS ADVANCED]

PRAYER

Wherefore, in the light of the issues raised, arguments advanced, reasons given and authorities
cited, it is most humbly prayed before this Hon’ble Court, that it may be pleased to:

A. That the scope and extent of the word Morality in Article 25 and 26 of the Constitution
of India does not include Constitutional Morality.
B. Hold that the ban of entry of women of menstruating age between 10-50 years owing
to religious beliefs is NOT violative of Articles 14, 15, 17 and 25(1) of the Indian
Constitution.
C. Hold that the action of the temple authorities is NOT violative of the fundamental rights
of Mr. Palermo and Mr. Manila under Article 15(2) and 21 of the Constitution.
D. Hold that the absence of a State enacted law under Article 25(2)(b) DOES NOT leads
to the violation of the fundamental rights of people.

In these circumstances, it is, therefore, most respectfully prayed that your Lordships may
graciously be pleased to:

1. Declare the ban on entry of women between the age group of 10 to 50 years as
constitutional.
2. Pass such other orders or directions as this Hon’ble Court may deem fit and proper in the
facts and circumstances of the present petition.

And for this act of kindness the respondents as are duty bound shall ever pray.

DATE: 07/07/2022 (S/d)

PLACE: The Hon’ble Supreme Court of Malayalipuram (Counsels for the Respondent)

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