Memorandum On Behalf of Petitioners

Memorandum on behalf of the Petitioner
P
CHRIST (DEEMED TO BE UNIVERSITY), DELHI NCR
3rd NATIONAL MOOT COURT COMPETITION- 2023
BEFORE THE HONOURABLE SUPREME COURT OF PERUCIA
SPECIAL LEAVE PETITION
ARTICLE 136 OF THE CONSTITUTION OF INDIA
SLP No: _______/20
Abram………………………Petitioner
versus
Shashwat................................Respondent
MEMORANDUM ON BEHALF OF THE PETITIONER
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Memorial on behalf of the Petitioner
TABLE OF CONTENTS
S.NO. TITLE PAGE NO.
1. LIST OF ABBREVIATIONS 4-6
2. INDEX OF AUTHORITIES 7
A. Cases Referred 7 - 11
B. Reports, Journals, Articles And Other Sources 11 - 12
C. Statutes Referred 12
D. International Conventions 13
3. STATEMENT OF JURISDICTION 14
4. STATEMENT OF FACTS 15 - 16
5. STATEMENT OF ISSUES 17
6. SUMMARY OF ARGUMENTS 18 - 19
7. ARGUMENTS ADVANCED 20
ISSUE I - THE WRIT PETITION IS MAINTAINABLE 20
A. The Matter in Question involves a public interest 20 - 22
B. The DTAC Can Be Subject To Writ Jurisdiction of the Court 22 - 24
ISSUE II - THE NOTIFICATION IS UNCONSTITUTIONAL 25
A. Violation of Article 14 25 - 27
B. Violation of Article 15(1) 27 - 28
C. Violation of Article 17 29 - 30
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D. Violation of Article 21 30 - 31
E. Violation of Article 25(1) 31 - 32
ISSUE III - THE EXCLUSIONARY PRACTICE IN THE TEMPLE 32

IS NOT PROTECTED UNDER ARTICLE 26
A. „Dharmamargis‟ Do Not Constitute A Denominational Sect 32 - 34
B. The Practice Is Not An Integral Part Of Faith Of The Sect 34 - 36
ISSUE IV - THE PROVISO TO SECTION 3 OF THE KERALA 36

HINDU PLACE OF PUBLIC WORSHIP ACT, 1965 IS
UNCONSTITUTIONAL
A. The Proviso Is Violative Of Article 14 37 - 38
B. The Proviso Violates Article 15(1) 38
ISSUE V – THE EXCLUSIONARY PRACTICE IS NOT 38

PROTECTED UNDER ARTICLE 25
A. Art.25(2)(a) 38 - 41
B. Articles 25(2)(b) 41 - 44
8. PRAYER 45
LIST OF ABBREVIATIONS
S.NO Abbreviation Expansion
1. & And
2. A.W.C. Allahabad Weekly Cases
3. AIR All India Reporter
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4. All. Allahabad
5. Anr. Another
6. Art. Article
7. Bom. Bombay
8. BomCR Bombay Cases Reporter
9. BomLJ Bombay Law Journal
10. BOMLR Bombay Law Report
11. Cal. Calcutta
12. Cir. Circuit
13. CJ. Chief Justice
14. CLR Commonwealth Law Report
15. Co. Company
16. CriLJ Criminal Law Journal
17. Del. Delhi
18. DPSP Directive Principles of State Policy
19. DTAC Dharmagiri Temple Administration Committee
20. Edn. Edition
21. Eng. England
22. ER English Report
23. Etc. Et cetera
24. GLH Gujarat Law Herald
25. GLR Gujarat Law Reporter
26. Govt. Government
27. Guj. Gujarat
28. H.P. Himachal Pradesh
29. HC High Court
30. Hon‟ble Honourable
31. i.e. that is
32. ICPS Institute of Constitutional and Parliamentary Studies
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33. ICR Industrial Cases Report
34. ILR Indian Law Report
35. ITR Income Tax Reports
36. J. Justice
37. Kant. Karnataka
38. KB King‟s Bench Division
39. Ker. Kerala
40. KJL Kerala Law Journal
41. LGBT Lesbian, Gay, Bisexual, Transgender
42. Ltd Limited
43. Mad. Madras
44. Mfg. Manufacturing
45. MhLJ Maharashtra Law Journal
46. MLJ Madras Law Journal
47. Mr. Mister
48. Ms. Miss
49. NCERT National Council of Educational Research and Training
50. Ori. Orissa.
51. Ors. Others
52. PIL Public Interest Litigation
53. QBD Queen‟s Bench Division
54. Raj. Rajasthan
55. RCR Recent Criminal Reports
56. RTI Right to Information
57. S. Section
58. S.C.R Supreme Court Reports
59. SC Supreme Court
60. SCALE Supreme Court Almanac
61. SCC Supreme Court Cases
62. Shim Shimla
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63. ShimLC Shimla Law Cases
64. T. N. Tamil Nadu
65. u.s. under section
66. UoI Union of India
67. Utr. Uttarakhand
68. v. Versus
69. Viz. Namely
70. Vol. Volume
71. W.P. Writ Petition
72. WLN (UC) Weekly Law Notes UC
INDEX OF AUTHORITIES
A. CASES REFERRED
1. A.S. Narayana Deekshitulu vs. State of Andhra Pradesh, AIR 1765, (SC: 1996).
2. Adelaide Company v . The Commonwealth, 67 C.L.R. 116, 129 (Australia).
3. Adi Saiva Sivachariyargal Nala Sangam and Ors. v. The Government of Tamil Nadu,
AIR 209, (SC: 2016).
4. Ajay Hasia v. Khalid Mujib., AIR 487, (SC: 1981);
5. Anadi Mukta Sadguru Shree Muktajee Vandas Swami Survarna Jayanti Mahotsav
Smarak Trust & Ors., v. V.R.Rudani & Ors., 2 SCC 691, (SC: 1989);
6. Anuj Garg and Ors. v. Hotel Association of India, AIR 663, (SC: 2008).
7. Atul Rana and Ors. v. Chief Secretary and Ors., AIR 44, (Utr.: 2017).
8. B. W. Devadas v. The Selection Committee for Admission of Students to the Karnatak
Engineering College, A.I.R 6, (Mysore: 1964).
9. B.S. Minhas v. Indian Statistical Institute, ILLJ 67, (SC: 1984).
10. Bachan Singh v. State of Punjab, 3 SCC 24, (SC: 1982);
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11. Balusami Reddiar v. Balakrishna Reddiar, AIR 97, (Mad.: 1957).

12. Bharatinath Namdeo Gavand v. Lakhsman Mali And Ors., 3 MhLJ 210, (Bom.: 2007).
13. Bhuri Nath and Ors. v. State of J&K and Ors., AIR 1711, (SC: 1997);
14. Budha Veerinaidu v. State of Andhra Pradesh and anr., 143 ITR 1021, (AP.: 1983).
15. Budhan Choudhry and Ors. v. The State of Bihar, AIR 191, (SC:1955);
16. Chander Mohan Khanna v. National Council of Educational Research and Training, 4
SCC 578, (SC: 1991).
17. Charu Khurana v. Union of India, AIR 839, (SC:2015).
18. Chemosyn (P) Ltd. v. Kerala Medical And Sales, IILJ 43, (Ker.: 1988);
19. Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta, 12 SCC
770, (SC: 2004).
20. D.S. Chanchala v. State of Mysore, S.C.R 608, (SC: 1971).
21. Dalip Kumar Jha and Ors. v. State of Punjab and Ors., 3 RCR 928, (Civil:2017);
22. Deepak Sibal and Ors. v. Punjab University and Ors., AIR 903, (SC: 1989);
23. Deepak Sibal v. Punjab University, 2 SCC 145, (SC: 1989).
24. Deepak Sibal v. Punjab University, 2 SCC 145, (SC: 1989).
25. Deoki Nandan v. Murlidhar and others, AIR 133, (SC: 1957);
26. Devki Nandan v. Murlidhar, S.C.R 756, (SC: 1956);
27. Dhaneshwarbuwa Guru Purshottambuwa v. The Charity Commissioner, State of
Bombay, AIR 871, (SC: 1976).
28. Dothard v. Rawlinson, 433 US 321, 336-337 (1977).
29. Durgah Committee, Ajmer and others v. Syed Hussain Ali, AIR 1402, (SC: 1961).
30. Egan v. Canada, SCC 98, (Canada: 1995);
31. Fertilizer Corporation Kamagar Union v. Union Of India, AIR 344, (SC: 1981).
32. Francis Coralie Mullin vs. UT of Delhi, AIR 746, (SC: 1981).
33. Goolrokh M. Gupta v. Burjor Pardiwala, 2 RCR 91, (Civil: 2013).
34. Gopala Muppanar and Ors. v. Dharmakarta Subramania Aiyar and Ors., 27 MLJ 253,
(Mad.: 1914).
35. Goswami Shri Mahalaxmi Vahuji vs. Shah Ranchhoddas Kalidas (Dead) & Ors., AIR
2025, (SC: 1970).
36. Government of NCT of Delhi v. Union of India and Ors., 8 SCC 501, (SC: 2018);
37. Harakchand v. Union of India, 2 SCC 166, (SC: 1969);
38. Hira Naikin v. Radha Naikin, 14 BOMLR 1129, (Bom.: 1912).
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39. Indian Hotel and Restaurant Association and Ors. v. The State of Maharashtra, 1
SCALE 433, (SC: 2019).
40. Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 13 SCALE
75, (SC: 2018),
41. Janta Dal v. H.S Chauydhry, AIR 892, (SC: 1993).
42. John Vallamattom and Anr. v. Union of India, AIR 2902, (SC: 2003).
43. Joseph Shine vs. Union of India, AIR 311, (Bom.: 1953).
44. Justice K.S. Puttaswamy and Ors. v. Union of India (UOI) and Ors., AIR 4161, (SC:
2017).
45. K.S. Varghese and Ors. v. ST. Peter's and Paul's Syrian Orth. and Ors., 15 SCC 333,
(SC: 2017);
46. K.V. Narayanan Namboodiri and Ors. v. State of Kerala and Ors., AIR 160, (Ker.:
1985);
47. Kesavananda Bharati v. State of Kerala, 4 SCC 225,(SC: 1973);
48. Krushna Kahali v. Narana Kahali, AIR 134, (Ori.: 1991).
49. Kshetriaya Kisan Gramin Bank v. D. B. Sharma, AIR 168, (SC: 2001).
50. Lutchmeeput Singh v. Sadaulla Nushyo, 9 ILR 698, (Cal.: 1883).
51. M. Kumar v. Bharath Earth Movers Limited, Bangalore and Others, AIR 343, (Kant.:
1999);
52. M. Nagaraj and Ors. v. Union of India and Ors., AIR 71, (SC: 2007);
53. M.K. Sanoo v. State of Kerala, 1 ILR 583, (Ker.: 2002);
54. Mackinnon Mackenzie and Co. Ltd. v. Audrey D'Costa, 2 SCC 469, (SC; 1987);
55. Mahamaya v. Haridas, 42 I.L.R. 455, 475 (Cal.: 1914).
56. Mahant Govind Dass v. State of Himachal Pradesh and Ors., 1 ShimLC 473, (Shim.:
2011).
57. Manoj Narula v. Union of India, 9 SCC 1, (SC: 2014).
58. Masthan Sahib v. Chief Commissioner, Pondicherry, AIR 797, (SC: 1962)
59. Mathura Naikin v. Esu Naikin, 4 ILR 545, (Bom.: 1880);
60. Minerva Mills Ltd. and Ors. v. Union of India and Ors., AIR 1789, (SC: 1980);
61. Mohd. Hanif Quareshi and Ors. v. The State of Bihar, AIR 731, (SC:1958);
62. Mooka Kone v. Pichai and Vannichi Ammal, AIR 299, (Mad.: 1928);
63. N Adithayan v. The Travancore Devaswom Board, AIR 3538, (SC: 2002 SC).
64. Nagpur Improvement Trust and Anr. v. Vithal Rao and Ors., 1 SCC 500 (SC: 1973);
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65. Nallor Marthandam Vellalar and Ors. v. Commissioner, Hindu Religious and
Charitable Endowment and Ors., 10 SCC 712, (SC: 2003 ).
66. Narayan Bhagwantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and others, AIR
100, (SC: 1960).
67. Narayanan Namboodripad v. State of Madras, AIR 385, (Mad.: 1955).
68. Narayanan Pillai Madhavan Pillai v. Kali Gomathiamma, 1 KLJ 531, (Ker.: 2015).
69. National Legal Services Authority vs. Union of India (UOI) and Ors., AIR 1863, (SC:
2014).
70. Navtej Singh Johar and Ors. v. Union of India and Ors., 10 SCALE 386, (SC: 2018).
71. Neera Mathur v. Life Insurance Corporation of India and Anr., 1 SCC 286, (SC:
1992).
72. Newcastle-under-Lyme Corporation v. Wolstanton Limited, 1 Ch. 92, 107 (1947).
73. Nikhil Soni v. Union of India, CriLJ 4951, (2015).
74. Nithyananda Dhyanapeetam Thiruvannamalai Branch, Adi Annamalai v. The
Commissioner, Hindu Religious and Charitable Endowments Department and Ors., 2
CTC 136, (Mad.: 2013).
75. Noble v. Durell, 100 ER 569, (1789).
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76. P.K. Ramachandra Iyer v. Union of India, 2 SCC 141, (SC: 1984).
77. Parasamaya Kolerinatha Madam, Tirunelveli v. P. Natesa Achari, 13 SCC 431, ( SC:
2011);
78. Peoples Union for Democratic Rights v. Union of India, AIR 1473, (SC: 1983).
79. Pichai v. The Commissioner For Hindu Religious Endowments Board, AIR 405,
(Mad.:
1971).
80. Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, 5 SCC 111, (SC:
2002).
81. Praga Tools Corporation v. Shri C.A. Imanual and Others, 3 S.C.R 773, (SC: 1969).
82. Puthumma v. State of Kerala, AIR 771, (SC: 1978);
83. R. Lakshmi Narasimha Battar Swami and Ors. v. The Commissioner, Hindu Religious
and Charitable Endowment and Ors., MANU 3315, (TN.: 2010);
84. R. v. Lewisham Union Guardians, 1 Q.B. 498, (1897);
85. R.D. Shetty v. International Airport Authority, 3 S.C.R 1014, (SC: 1979);
86. R.K. Dalmia v. Justice S.R. Tendolkar, S.C.R 279, (SC: 1959);
87. R.K.Garg v. Union of India, 4 SCC 675, (SC: 1981).
88. Raja Varma Valia v. Ravi Varma Kunhi Kutti, 1 LR IA 76, (1876).
89. Rajasthan Electricity Board v. Mohanlal, 3 S.C.R 3771, (SC: 1967),
90. Rajesh Himmatlal Solanki v. Union of India (UOI) through Secretary and 3 Ors., 1
GLR 782, (Guj.: 2011).
91. Rakesh Gupta vs. Hyderabad Stock Exchange Ltd. Hyderabad & Ors., AIR 430, (AP.:
1996);
92. Ramalingayya v. The Commissioner of Charitable and Hindu religious Institutions
and Endowments, ILR 320, (AP.: 1971);
93. Ramesh Sharma v. State of Himachal Pradesh, MANU 0934, (HP.: 2014);
94. Ratilal Panachand Gandhi v State of Bombay, AIR 388, (SC: 1954);
95. S.P. Gupta v. Union of India, AIR 149, (SC: 1982).
96. S.P. Mittal v. Union of India and Ors., 1 SCC 51, (SC: 1983);
97. Sachidanand Pandey and Ors. v. The State of West Bengal and Ors., AIR 1109, (SC:
1987).
98. Seshammal v. State of T.N., 2 SCC 11, (SC: 1972).
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99. Shastri Yagnapurushdasji and Ors. v. Muldas Bhundardas Vaishya and Anr., 3 S.C.R
242, (SC: 1966).
100. Shayara Bano v. Union of India, 9 SCC 1, (SC: 2017);
101. Shivaji Bapu Chavan vs. Sharwari Gokhale, 84 BomLR 13, (Bom.: 1982);
102. Som Prakash Rekhi v. Union Of India, AIR 212, (SC: 1981); 103. SR Bommai v.
Union of India, 3 SCC 1, (SC: 1994).
104. Sri Adi Visheshwara Vishwanath Temple v. State of U.P., 4 SCC 606, (SC: 1997).
105. Sri Venkataramana Devaru v. State of Mysore, AIR 255, (SC: 1958).
106. Star Enterprises v. C.T.D.C. of Maharashtra Ltd, AIR 212, (SC: I981).
107. State of Bihar & Ors. v. Smt. Charusila Dasi, S.C.R 601, 613 (SC: 1959).
108. State of Karnataka v. Appa Balu Ingale and Ors., AIR 1126, (SC: 1993).
109. State of Madhya Pradesh v. Madanlal, 7 SCC 681, (SC: 2015).
110. State of Maharashtra v. Sheoshankar Bachhooram, 66 BomLR 476, (Bom.: 1964);
111. State of West Bengal. v. Sri Lakshmi Janardan Thakur., 7 SCC 490, (SC: 2006) 7;
112. State of West Bengal v. Anvar Ali, S.C.R. 289, (SC: 1952);
113. Sukhdev Singh v. Bhagat Ram, AIR 1331, (SC: 1975);
114. Supreme Court AOR Association v. Union of India, 5 SCC 1, (SC: 2016).
115. Syedna Mohamed Burhanuddin v. Charity Commissioner, 1 GLH 331, (Guj.: 1992);
116. T.D. Gopalan v. The Comm. of Hindu Religions and Charitable Endowments, Madras,
AIR 1716, (SC: 1972);
117. The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt, AIR 282, (SC: 1954).
118. The Magistrate of Dunbar v. The Duchess of Roxburgha, 6 ER 1642, (1835);
119. Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, AIR 1638, (SC: 1963);
120. Tulsi Ram v. Mathura Sagar Pan Tatha Krishi, AIR 243, (SC: 2003);
121. Union of India v. Kohli, A.I.R. 811, (SC:1973);
122. University of Madras v. Shantha Bai, AIR 67, (Mad.: 1954).
123. Valsamma Paul v. Cochin University, 3 SCC 545, (SC: 1996);
124. Venkataramana Devaru v. State of Mysore, AIR 255, (SC: 1958).
125. Vishaka and Ors. v. State of Rajasthan and Ors., 6 SCC 241, (SC: 1997).
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B. REPORTS/ JOURNALS/ ARTICLES REFFERED
1. “Ambedkar, Awakening India‟s Social Conscience”, Konark Publishers, New Delhi,

2014; Gail Omvedt,”
2. “Ambedkar, Towards An Enlightened India”, Penguin Books, Gurgaon, Haryana,
2008;
3. Abhishek Singhvi, India‟s Constitution and Individual Rights: Diverse Perspectives
(41 George Washington International Law Review, 2009).
4. H.W.R. Wade and C.F. Forsyth, Administrative Law (8th Edn.);
5. Justice V.R. Krishana Iyer, Religion and Politics (1991).
6. M.P. Jain, Indian Constitutional Law (4th Edition, 1987).
7. Mayne's Treatise on Hindu Law (17th Edn.Ch.28)
8. Professor Williams, The Equality Crisis: Some Reflections on Culture, Courts, and
Feminism (1982).
9. Shri Aurobindo Bharat, The Human Cycle, the Ideal of Human Unity War and Self-
Determination.
10. Swami Rama, A Call to Humanity (the Himalayan International Institute of Yoga
Science and Philosophy, 1988).
11. Swamy Ranganathananda, Eternal Values for a Changing Society .
12. Vol. I, Swami Vivekananda, The Complete Works.
13. Vol. I., Swami Vivekananda, The Complete Works.
14. Vol. II, Cf. Halsbury, Laws of England 52 (3rd ed.);
15. Vol. V, Swami Vivekananda, The Complete Works 192-93(Eighth Edn.).
C. STATUTES
1. Bombay Prevention of Excommunication Act, 1949

2. The Constitution of India, 1949
3. The Kerala Hindu Place of Public Worship (Authorisation of Entry) Act, 1965
4. The Supreme Court Rules, 2013
5. The Tamil Nadu Hindu Religious and Charitable Endowments Act, 1959.
6. The Travancore-Cochin Hindu Religious Institutions Act, 1950
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7. The Untouchability (Offences) Act, 1955

8. The Uttar Pradesh Prevention of Cow Slaughter Act, 1955
D. INTERNATIONAL CONVENTIONS
1. The Convention on the Elimination of all Forms of Discrimination Against Women

(CEDAW), 1979;
2. The International Covenant on Economic, Social and Cultural Rights (ICESCR),
1966;
3. The Universal Declaration of Human Rights, (UDHR), 1948
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STATEMENT OF JURISDICTION
THE PETITIONERS HAVE THE HONOUR TO SUBMIT BEFORE THE HON’BLE

SUPREME COURT OF PERUCIA, THE MEMORANDUM ON BEHALF OF THE
PETITIONER UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA,
1949.
THE PRESENT MEMORANDUM SETS FORTH THE FACTS, CONTENTIONS

AND ARGUMENTS IN THE PRESENT CASE.
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STATEMENT OF FACTS
For the sake of brevity and convenience of the Hon’ble Court the facts of the present case are
summarised as follow.
1. Surrogacy has been on the rise in the state of Perucia recently. Since there exists no
strict legislation in the state for this, its’ terms are governed by making contractual
relationships where the rights and liabilities of contracting parties are enumerated.
2. Mr and Mrs Chopra are a married couple aged 38 and 37 and their marriage was
registered under the Special Marriages Act, 1954. They were a from a reputed family
and were well known on social media. However, they’d found out they were not
capable for conception and got a certificate from the doctors stating so. The couple
decided to approach EBC Hospitals ART clinic for gestational surrogacy on
recommendation based out of Cati, the capital of Perucia. After knowing about the
changes brought in by the Surrogacy (Regulation) Act, 2021, they approached their
relatives to act as a surrogate mother but they all refused to carry their child. So after
consulting Dr. Goswami of EBC Hospital, they understood the procedure, then
decided to hire a surrogate mother.
3. After one week, the hospital found a candidate, Ms Khan who was a 32-year-old
widow with a 3-year-old daughter, named Alia. After much thought and due to issues
with her finances, she accepted the offer and Chopra’s willingly accepted her as the
surrogate mother. They further applied for a recommendation certificate under Sec. 4
of The SRA Act 2021 and this was granted to them.
4. Terms and conditions for the contract were negotiated upon and the Chopra’s were
willing to compensate for certain expenses of the surrogate mother containing clauses
like, cost of surrogate mother being unable to work during pregnancy, expenses for
meeting the educational costs of the first child of the surrogate mother, Alia, up to her
graduation etc. The other terms and conditions laid down included a clause where the
surrogate child was to be the successor to all the properties belonging to the Chopra’s.
5. Agreement between the intending parents and Ms. Khan was signed and registered
with the office of registrar. The Chopra’s were willing to help Ms Khan over the
contractual expenses overreaching the scope of altruistic surrogacy. The sperm and
gamete of the Chopra’s were transferred into Ms Khan’s body and soon after Ms.
Khan conceived. She abided by all the terms given in the contract until the latter half
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of the seventh month of pregnancy, when Ms Khan started feeling emotionally

attached to the child but behaved as if everything was normal.
6. During the same month, the Chopra’s miraculously naturally conceived a child and
this resulted in Ms Khan growing even more attached to the Surrogate child and by the
later half of the eighth month of pregnancy, Ms Khan decided that she couldn’t give
the child up but still felt guilty about her feelings. Ms Khan executed her plan of
leaving with the unborn child and left a letter to the intended parents and the hospital
and said that she wishes to adopt the child and also apologises.
7. The Chopra’s, shocked, searched privately for Ms Khan but didn’t find her. They
stopped themselves from approaching the authorities as they didn’t want their
surrogacy and infertility issues to be revealed to the public. They accepted their fate
and discontinued the search.
8. Ms Chopra gave birth to a boy and named him Shashwat and Ms Khan gave birth to a
boy named Abram. Abram, 19, got into an engineering college in Cati and came
across a copy of the contract and realised Ms Khan wasn’t his biological mother and
wanted to meet his intended parents. Upon further search in Cati, he realised that his
intended parents had passed away in a flight crash and that now all the properties of
the Chopra’s belonged to Shashwat. He claimed for a part in the Chopra’s property
under clause 6 of SRA, 2021 but Shashwat showed him the letter Ms Khan wrote
which asked for the adoption of Abram and rejected his claim
9. Abram filed a civil suit in the District Court of Cati, seeking a declaration that all the
self-acquired properties of the Chopra’s belonged to him. The civil ruled in favour of
Abram under certain claims. Shashwat appealed in the High Court which overturned
the Civil Court’s order stating that since the contract was commercial in nature, and
there was implied termination of the contract by parties and Abram stood adopted by
Ms Khan by implied permission from Chopra’s. However, the Counsel of Abram
through an oral application made before the High Court, got the certificate to appeal
before the Supreme Court of Perucia and Abram thus approached the Supreme Court.
STATEMENT OF ISSUES
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1.WHETHER THE SPECIAL LEAVE PETITION BROUGHT BEFORE THE

SUPREME COURT OF PERUCIA UNDER ARTICLE 136 IS MAINTAINBLE?
2. WHETHER THE SURROGACY CONTRACT WAS VALID BETWEEN MR.

AND MRS. CHOPRA AND MS. KHAN UNDER THE SURROGACY
(REGULATION) ACT, 2021?
3. WHETHER ABRAM STOOD ADOPTED BY MS. KHAN?
4. WHETHER ABRAM HAS ANY RIGHT IN THE PROPERTY OF THE

CHOPRA’S?
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SUMMARY OF ARGUMENTS
ISSUE I – THE SPECIAL LEAVE PETITION UNDER ARTICLE 136 IS

MAINTAINBLE
It is humbly submitted before the Hon’ble Court that the Special Leave Petition against the
judgment of the Hon’ble High Court is maintainable under Article 136 of the Constitution of
India. It is contended that the jurisdiction of Supreme Court under Article 136 can always be
invoked when a question of law of general public importance arises and even a question of
fact can also be a subject matter of judicial review under Article 136, which is the residuary
power of SC to do justice where the court is satisfied that there is injustice to be perpetuated.
In this case, both of the parties, Abram and Shashwat were aggrieved by the rulings of the
lower courts. Hence the appellant filed a special leave petition under Article 136 in the
Supreme Court of Perucia. Hence, the matter involves substantial question of law and is thus
entitled to be maintainable.
ISSUE II - THE SURROGACY CONTRACT WAS VALID BETWEEN MR. AND

MRS. CHOPRA AND MS. KHAN UNDER THE SURROGACY (REGULATION)
ACT, 2021.
It doesn't overreach the scope of altruistic surrogacy due to the amount paid for the previous
child of ms khan's educational purpose because it is merely compensation for the child’s
emotional and mental distress during that period due to her mother being the one carrying
another couple’s child. The child also could have faced extreme levels of neglect and would
have gone through a stage where she was devoid of all the attention that she was to get even
after being her firstborn and own child.
The commercial element in this contract can be said to be invalid as the amount offered to
Ms. Khan was only an amount enough for the basic sustenance of life of both Ms. Khan as
well as her dependant, i.e., her daughter Alia, during the term of pregnancy and also
considering the fact that Ms. Khan was the only the person working and the only source of
income for the family of two.
ISSUE III –ABRAM DOES NOT STAND ADOPTED BY MS. KHAN
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According to CARA Guidelines, “adoption” means the process through which the adopted
child is permanently separated from his biological parents and becomes the lawful child of his
adoptive parents with all the rights, privileges and responsibilities that are attached to a
biological child. In order for Abram to be the lawful child of Ms. Khan through adoption, they
should be fulfilling certain terms necessary under Section 7 of the CARA Guidelines. Even if
Ms Khan claims to “adopt” the child as he was impliedly abandoned by his intended parents,
there is no appropriate authority stating that the child became an abandoned child after the
parents left him, as under the SRA 2021 chapter I, Section 2 (1) (a) states that --“abandoned
child” means a child born out of surrogacy procedure who has been deserted by his intending
parents or guardians and declared as abandoned by the appropriate authority after due
enquiry. So, Ms. Khan does not fit the role of a legal guardian and the best interest of the
child lies with the intended parents as they are the genetic parents and Ms. Khan stood only as
a surrogate mother for the token money from the couple. Now, these two instances are
contradictory to each other because any mother, who does not want to give away her child,
would never accept money for her services. In the present case, there was a legally
enforceable contract. Consequently, it is safe to conclude that Ms. Khan is not a fit guardian
and Abram stood not adopted.
ISSUE IV - WHETHER ABRAM HAS ANY RIGHT IN THE PROPERTY OF THE

CHOPRA’S?
19 | P a g e
ARGUMENTS ADVANCED
ISSUE I - THE WRIT PETITION IS MAINTAINABLE
A. The Matter In Question Involves A Public Interest
It is humbly submitted before this Hon‟ble Supreme Court of Dharma Rajya that the Writ
Petition filed under Art.321 of the Constitution by the petitioner can be admitted as a Public
Interest Litigation2 since the question of law put forth in the petition involves violation
fundamental and constitutional rights of a class of people.3 The rule of locus standi is often
relaxed by courts to look into the grievances complained on behalf of “the poor, depraved,
illiterate and the disabled who cannot vindicate the legal wrong or legal injury caused to them
for any violation of any constitutional or legal right.”4
The issue also involves a matter of restriction of freedom of religion on grounds of public
interest. The Fundamental Right to Freedom of Religion 5 and the Right to manage its own
religious affairs of any denomination6 are subject to public order, morality and health. “The
inclusion of such rights in Part III of the Constitution will not prevent the State from acting in
an appropriate manner, in the larger public interest, as mandated by the main part of Art.25
and 26.”7
1 Article 32, The Constitution of India, 1949 - Remedies for enforcement of rights conferred by this
Part.
2 validity established in S.P. Gupta v. Union of India, AIR 149, (SC:
1982).
3 Janta Dal v. H.S Chauydhry, AIR 892, (SC:
1993).
4 Fertilizer Corporation Kamagar Union v. Union Of India, AIR 344, (SC:
1981).
5 Article 25, The Constitution of India, 1949 - Freedom of conscience and free profession, practice
and propagation of religion.
6 Article 26, The Constitution of India, 1949 - Freedom to manage religious
affairs
7 Adi Saiva Sivachariyargal Nala Sangam and Ors. v. The Government of Tamil Nadu, AIR 209, (SC:
2016).
20 | P a g e
“It is only when courts are apprised of gross violation of fundamental rights by a group or a
class action on when basic human rights are invaded or when there are complaints of such
acts as shock the judicial conscience that the courts…should leave aside procedural shackles
and hear such petitions and extend its jurisdiction under all available provisions for
remedying the hardships and miseries of the needy, the underdog and the neglected”8
Dharmagiri is a public temple
"Temple" means a place by whatever designation known, used as a place of public religious
worship and dedicated to, or for the benefit of, or used as of right by, the Hindu community
or any section thereof, as a place of religious worship.9 Generally the term temple refers to
public places of worship as opposed to „Maths‟ 10 The tests to determine the private or public
nature of temples have been laid down by courts in various decisions.11
The origin of the temple, the manner in which the affairs are managed, the gifts received by
it, the rights exercised by devotees in regard to worship therein and the consciousness of the
devotees themselves as to the character of the temple, are the factors which go to show
whether a temple is a public temple or a private temple. 12The following are some basic tests
laid down by the Court as the identifying features of a public temple:
• Are the members of the public entitled to an entry in the temple?

• Are they entitled to take part in offering service and taking Darshan in the temple?
• Are the members of the public entitled to the take part in the festivals and ceremonies
arranged in the temple?
• Are their offerings accepted as a matter of right?
8 Sachidanand Pandey and Ors. v. The State of West Bengal and Ors., AIR 1109, (SC:
1987).
9 T.D. Gopalan v. The Comm. of Hindu Religions and Charitable Endowments, Madras , AIR 1716, (SC:
1972); Parasamaya Kolerinatha Madam, Tirunelveli v. P. Natesa Achari, 13 SCC 431, ( SC: 2011); Pichai v.
The Commissioner For Hindu Religious Endowments Board, AIR 405, (Mad.: 1971).
10 Parasamaya Kolerinatha Madam, Tirunelveli v. P. Natesa Achari , 13 SCC 431, ( SC: 2011);
Section 6(3) and Section 6(20) Tamil Nadu Hindu Religious and Charitable Endowments Act,
1959.
11 Deoki Nandan v. Murlidhar and others, AIR 133, (SC: 1957); Narayan Bhagwantrao Gosavi Balajiwale
v. Gopal Vinayak Gosavi and others, AIR 100, (SC: 1960).
12 Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan and Ors. , AIR 1638, (SC:
1963).
21 | P a g e
In the case of Mannadi Bhagavathi temple13, the court laid down that if the management is
made through the agency of the public or the accounts of the temple are being scrutinized by
the public, it is indicative of the public nature of the temple.14
It is not always possible to have all the features of a public temple. Even some of the tests
may be sufficient to conclude about its public character. 15 Proof of use by the public without
interference would be cogent evidence that the dedication is in favour of the public.16
Participation of the members of the public in the darshan in the temple and in the daily acts
of worship or in the celebrations on festival occasions may be a very important factor to
consider in determining the character of the temple.17
The following tests laid down as decisive in determining the public nature of a temple in
Dhaneshwarbuwa case17 are satisfied in the present scenario.
1. Intended to be continually worshipped by an indeterminate multitude of the Hindu public.

2. In order to facilitate worship by the public, the regular worship shall be maintained and
annual ceremonies and processions for pilgrimage shall be conducted by the saints in
succession nominated by the reigning saint.
3. No evidence of any hindrance or restriction in the matter of continuous worship by the
public extending over a long period.
4. Any receipts of Royal grant managed by the saints in succession as manager, not as
personal or private property.
5. Holding out of to all intents and purposes as a public temple.
6. Treating of the temple by those who are connected with the management as intended for
user by the public without restrictions.
7. Absence of any evidence in history to warrant it had any appearance of, or that it was
ever treated as, a private property.
13 Narayanan Pillai Madhavan Pillai v. Kali Gomathiamma, 1 KLJ 531, (Ker.:

2015).
14 Mayne's Treatise on Hindu Law (17th Edn.Ch.28 pages 1576 and 1577); State of West Bengal and Ors. v.
Sri Lakshmi Janardan Thakur and Ors., 7 SCC 490, (SC: 2006) 7; Mahant Govind Dass v. State of Himachal
Pradesh and Ors., 1 ShimLC 473, (Shim.: 2011).
15 Goswami Shri Mahalaxmi Vahuji vs. Shah Ranchhoddas Kalidas (Dead) & Ors., AIR 2025, (SC:
1970).
16 Devki Nandan v. Murlidhar, S.C.R 756, (SC: 1956); State of Bihar & Ors. v. Smt. Charusila Dasi, S.C.R
601, 613 (SC: 1959). 17 Narayan Bhagwantrao Gosavi Balajiwala v. Gopal Vinayak Gosavi and others, 1
S.C.R 773, (SC: 1960).
17 Dhaneshwarbuwa Guru Purshottambuwa v. The Charity Commissioner, State of Bombay, AIR 871,
(SC: 1976).
22 | P a g e
B. The DTAC Can Be Subject To Writ Jurisdiction of the Court
It is pertinent to note that the Dharmagiri Temple Administration Committee possess the
features of a body that can be brought under the definition of “other authorities” under
Art.1218 of the Constitution. Also, it is subject to the jurisdiction of SC under Art.32 and a
Writ of Mandamus can be issued against it as it is a statutory body performing a function of
public importance.
DTAC is State under “Other Authorities”19
Firstly, DTAC exercises a function of public importance. If a given function is of such public
importance and so closely related to governmental functions as to be classified as a
government agency, is sufficient to make a finding of state action. 20 The public nature of the
function, if impregnated with governmental character or „tied or entwined with Government‟
or fortified by some other additional factor, may render the corporation an instrumentality or
agency of Government.”22
A corporation created by statute which is otherwise autonomous in its functioning will

answer to the test laid down in Article 12 when “extensive and unusual financial assistance is
given and the purpose of the Government in giving such assistance coincides with the
purpose for which the corporation is expected to use the assistance and such purpose is of
public character.”21
The DTAC can be said to be an authority of State as it is predominantly controlled by the

State.24 State aid coupled with an unusual degree of control over the management and policies
of the body and rendering of an important public service being the obligatory functions of the
18 Article 12, The Constitution of India, 1949 – “The State includes the Government and Parliament of India and
the Government and the Legislature of each of the States and all local or other authorities within the territory of
India or under the control of the Government of India”.
19 University of Madras v. Shantha Bai, AIR 67, (Mad.: 1954). overruled by Rajasthan Electricity Board v.
Mohanlal, 3 S.C.R 3771, (SC: 1967), reiterated in B. W. Devadas v. The Selection Committee for Admission
of Students to the Karnatak Engineering College, A.I.R 6, (Mysore: 1964).
20 Sukhdev Singh v. Bhagatram, AIR 1331, (SC: 1975); Pradeep Kumar Biswas v. Indian Institute of
Chemical Biology, 5 SCC 111, (SC: 2002). 22 Som Prakash Rekhi v. Union Of India, AIR 212, (SC: 1981);
Chemosyn (P) Ltd. v. Kerala Medical And
Sales, IILJ 43, (Ker.: 1988); R.D. Shetty v. International Airport Authority, 3 S.C.R 1014, (SC: 1979);
Rajasthan Electricity Board v. Mohanlal, 3 S.C.R 3771, (SC: 1967); Ajay Hasia v. Khalid Mujib, 1981 AIR 487,
(SC: 1981); B.S. Minhas v. Indian Statistical Institute, ILLJ 67, (SC: 1984).
21 R.D. Shetty v. International Airport Authority, 3 S.C.R 1014, (SC: 1979); Sukhdev Singh v. Bhagatram,
AIR 1331, (SC: 1975). 24 Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, 5 SCC 111, (SC:
2002); Ajay Hasia v. Khalid
Mujib., AIR 487, (SC: 1981); P.K. Ramachandra Iyer v. Union of India, 2 SCC 141, (SC: 1984);
Chander Mohan Khanna v. National Council of Educational Research and Training, 4 SCC 578, (SC: 1991).
23 | P a g e
State may largely point out that the body is State. 22 “The control envisaged under Art.12 is a
control of the function of the authorities concerned, and the right of the Government of India
by virtue of that control to give directions to the authority to function in a particular manner
with respect to such functions.”23
Mandamus can be issued against DTAC
The DTAC has a statutory duty to administer the temple under S.15 of the Malistan Hindu
Religious Institutions Act, 1950, in consonance with Fundamental Rights as it is an organ of
State. If the functions of the institution are public duties it would be a relevant factor for
issuing a Mandamus.24
“An order of mandamus is, in form, a command directed to a person, corporation or an

inferior tribunal requiring him or them to do a particular thing therein specified which
appertains to his or their office and is in the nature of a public duty. It is, however, not
necessary that the person or the authority on whom the statutory duty is imposed need be a
public official or an official body.”28
A writ of mandamus can be issued against DTAC even if it does not qualify as State as it is a
statutory body with a statutory or public duty. The writ of mandamus can be issued for
protection of both fundamental and other public rights. “If only fundamental rights were
forbidden access to corporations, companies, bureaus, institutes, councils and kindred bodies
which act as agencies of the administration there may be a breakdown of the rule of law and
the constitutional order in a large sector of governmental activity carried on under the guise
of jural persons. It may pave the way for a new tyranny by arbitrary administrators operated
from behind by Government but unaccountable to Part III of the Constitution.”25
22 Sukhdev Singh v. Bhagat Ram, AIR 1331, (SC: 1975); P.K. Ramachandra Iyer v. Union of India, 2 SCC
141, (SC: 1984).
23 Masthan Sahib v. Chief Commissioner, Pondicherry , AIR 797, (SC:
1962)
24 Rakesh Gupta vs. Hyderabad Stock Exchange Ltd. Hyderabad & Ors., AIR 430, (AP.: 1996); Anadi
Mukta Sadguru Shree Muktajee Vandas Swami Survarna Jayanti Mahotsav Smarak Trust & Ors., v.
V.R.Rudani & Ors., 2 SCC 691, (SC: 1989); Budha Veerinaidu v. State of Andhra Pradesh and anr., 143 ITR
1021, (AP.: 1983). 28 R. v. Lewisham Union Guardians, 1 Q.B. 498, (1897); Vol. II, Cf. Halsbury, Laws of
England 52 (3rd ed.); Praga Tools Corporation v. Shri C.A. Imanual and Others, 3 S.C.R 773, (SC: 1969).
25 Som Prakash Rekhi v. Union Of India, AIR 212, (SC: 1981); M. Kumar v. Bharath Earth Movers Limited,
Bangalore and Others, AIR 343, (Kant.: 1999); Star Enterprises v. C.T.D.C. of Maharashtra Ltd, AIR 212,
(SC: I981).
24 | P a g e
ISSUE II - THE NOTIFICATION IS UNCONSTITUTIONAL
It is humbly submitted before the Hon‟ble SC that the notification issued by the DTAC dated
21-10-1950 restricting women entry to Dharmagiri temple is unconstitutional as it violates
Articles 14, 15(1), 16, 17, 21, and 25(1) under Part III of the Constitution of Dharma Rajya.
A. Violation of Article 1426
It is established that the impugned notification merely has the force of law enjoyed by a rule
promulgated by a governmental body. The notification violates the right to equality before
law enjoyed by women and transgenders.
The notification that excludes women from entering the Dharmagiri temple itself violates the
principle of Equality before Law and the obligation to prove otherwise is on the respondent.
The exclusionary practice per se violates the sacrosanct principle of equality of women and
equality before law and the burden of proving that it does not so violate is on the
respondent.31
No rational nexus
The discrimination merely based on physiological factors exclusive to women and

transgenders violates gender equality before the law and there is no rational nexus 27 between
the object and the physiological characters. The exclusionary practice is manifestly arbitrary
in view of the judgment of this Court in as it is solely based on physiological factors and,
therefore, neither serves any valid object nor satisfies the test of reasonable classification
under Article 14 of the Constitution.28
26 Article 14, The Constitution of India, 1950 – Right to

Equality
“The State shall not deny to any person equality before the law or the equal protection of the laws within the
territory of India.” 31
Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 13 SCALE 75, (SC: 2018), referring
to Deepak Sibal v. Punjab University, 2 SCC 145, (SC: 1989).
27 Budhan Choudhry and Ors. v. The State of Bihar , AIR 191, (SC:1955); Mohd. Hanif Quareshi and Ors. v.
The State of Bihar, AIR 731, (SC:1958); State of Maharashtra v. Sheoshankar Bachhooram Pande, 66 BomLR
476, (Bom.: 1964); Harakchand v. Union of India, 2 SCC 166, (SC: 1969); Puthumma v. State of Kerala, AIR
771, (SC: 1978); Shivaji Bapu Chavan vs. Sharwari Gokhale, 84 BomLR 13, (Bom.: 1982); R.K.Garg v. Union
of India, 4 SCC 675, (SC: 1981).
28 Shayara Bano v. Union of India, 9 SCC 1, (SC: 2017); Egan v. Canada, SCC 98, (Canada:
1995);
25 | P a g e
Even in the presence of a rational nexus, inequality cannot be justified if it‟s not a reasonable
one. In considering the reasonableness of classification34 from the point of view of Article 14
of the Constitution, the Court has also to consider the objective for such classification. 35 If the
objective be illogical, unfair and unjust, necessarily the classification will have to be held as
unreasonable.36 The classification of the employees of government institutions by the
impugned rule for the purpose of admission to LLB Course to the exclusion of all other
employees, was held to be unreasonable and unjust, as it does not subserve any fair and
logical objective.37
Antiquity cannot justify the violation of equality propagated by a practice. The Supreme
Court while overthrowing the longstanding usage and custom according to which only
Brahmins could be ordained as priests in a temple in Kerala, held as follows that customs and
usages are unacceptable when they are violative of human rights, dignity, social equality and
the Constitution and laws. Usages in derogation of the law of the land or opposed to public
policy or social decency are valid.38
Discriminative towards transgender
The notification was promulgated at a time when transgender community was not legally
recognized, and do not clarify their status which has led to the present cause of action. The
society often ridicules and abuses the Transgender community. They are discriminated
against in public places and are sidelined. The Supreme Court while granting legal
recognition to the transgender community declared that they are to be treated as a third
gender, for the purpose of safeguarding their rights under Part III of the Constitution and the
laws made by the Parliament and the State Legislature.39
Notification in question is not customary law
It is henceforth established that the impugned notification does not enjoy status of customary
law since it is unreasonable and immoral, and therefore should be treated on the same footing
State of West Bengal v. Anvar Ali, S.C.R. 289, (SC: 1952); Indian Hotel and Restaurant Association and Ors. v.
The State of Maharashtra, 1 SCALE 433, (SC: 2019).
34 R.K. Dalmia v. Justice S.R. Tendolkar, S.C.R 279, (SC: 1959); Nagpur
Improvement Trust and Anr. v. Vithal Rao and Ors., 1 SCC 500 (SC: 1973);
Kshetriaya Kisan Gramin Bank v. D. B. Sharma, AIR 168, (SC: 2001).
35 Union of India v. Kohli, A.I.R. 811, (SC:1973); Bachan Singh v. State of
Punjab, 3 SCC 24, (SC: 1982); Ajay Hasia v. Khalid Mujib Sehravardi, 1 SCC 722,
(SC: 1981).
36 D.S. Chanchala v. State of Mysore, S.C.R 608, (SC: 1971).
37 Deepak Sibal v. Punjab University, 2 SCC 145, (SC: 1989).
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38 N Adithayan v. The Travancore Devaswom Board, AIR 3538, (SC: 2002 SC).
39 National Legal Services Authority vs. Union of India (UOI) and Ors., AIR
1863, (SC: 2014).
as a rule promulgated by a statutory authority. For a custom to be recognised by law it must
be proved that it is not opposed to public policy and that it is ancient, invariable, continuous,
notorious, not expressly forbidden by the legislature and not opposed to morality or public
policy.29
A valid custom must be reasonable. A custom which is not reasonable is invalid in law and
not binding.41 It was held that a custom permitting the sale of trusteeship of a religious
endowment for pecuniary advantage of the trustee as unreasonable custom. 30 In a suit by a
zamindar to restrain defendants from fishing in certain bhils (ponds) located in his land,
where the defendants enjoyed a customary right to fishing in the bhils, it was held that the
alleged custom was unreasonable as the defendants may take away the entire of fishing in the
bhils leaving nothing for the owner.31Courts will not enforce unreasonable customs, for law
will not allow what is unreasonable and inequitable.32
Secondly, a custom must not be opposed to statutory law. Thus, custom cannot abrogate a
newly enacted legislation. It cannot prevail over a statutory law.33
Thirdly, a valid custom must be moral. The custom of adoption of girls for immoral purposes,
like dancing was held to be illegal as it was designed to perpetuate this profession. 46 The
custom permitting marriage with daughter‟s daughter has also been held immoral.34
29 Mooka Kone v. Pichai and Vannichi Ammal, AIR 299, (Mad.: 1928); Krushna Kahali v. Narana Kahali, AIR
134, (Ori.: 1991). 41 Tulsi Ram and Ors. v. Mathura Sagar Pan Tatha Krishi and Ors., AIR 243, (SC: 2003);
Mahamaya v. Haridas, 42 I.L.R. 455, 475 (Cal.: 1914).
30 Raja Varma Valia v. Ravi Varma Kunhi Kutti, 1 LR IA 76,
(1876).
31 Lutchmeeput Singh v. Sadaulla Nushyo, 9 ILR 698, (Cal.:
1883).
32 Newcastle-under-Lyme Corporation v. Wolstanton Limited, 1 Ch. 92, 107
(1947).
33 The Magistrate of Dunbar v. The Duchess of Roxburgha, 6 ER 1642, (1835); Noble v. Durell, 100 ER
569, (1789). 46 Mathura Naikin v. Esu Naikin, 4 ILR 545, (Bom.: 1880); Hira Naikin v. Radha Naikin, 14
BomLR 1129, (Bom.: 1912).
34 Balusami Reddiar v. Balakrishna Reddiar, AIR 97, (Mad.:
1957).
27 | P a g e
B. Violation of Article 15(1)35
The notification violates Art.15 by discriminating against women only on ground of sex as
menstruation is something inherent to female sex. Identifying or discriminating women
merely on the basis of gender is violative of Art.15. 36 A female candidate was required to
furnish information about her menstrual period, last date of menstruation, pregnancy and
miscarriage. The Court declared that calling of such information are indeed embarrassing if
not humiliating.37
The Fundamental Rights of women cannot be sacrificed against their security. In Anuj Garg,
the Court while discussing the jurisprudential issue of the conflict between Right to Self
Determination and security and protection to carry out such choice or option held that State
protection must not translate into censorship.38 Privacy rights prescribe autonomy to choose
whereas security concerns texture methodology of delivery of this assurance. But such
safeguard measures should not be so strong that the essence of the guarantee is lost.
“Where biological distinction between sexes is assessed in the backdrop of cultural norms
and stereotypes… the issue of biological difference between sexes gathers an overtone of
societal conditions so much so that the real differences are pronounced by the oppressive
cultural norms of the time. This combination of biological and social determinants may find
expression in popular legislative mandate. Such legislations definitely deserve deeper judicial
scrutiny. It is for the court to review that the majoritarian impulses rooted in moralistic
tradition do not impinge upon individual autonomy.”39
Even if discrimination is made for the security of women with best intentions if it in theory
perpetuates a myth of inferiority of women, it cannot be allowed. J. Marshall opined that the
law prohibiting women from being employed in prisons even though made with the best of
intentions in result perpetuates the old myth that women are seductive sexual objects and
35 Article 15, The Constitution of India, 1949 - 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,
36 Mackinnon Mackenzie and Co. Ltd. v. Audrey D'Costa, 2 SCC 469, (SC; 1987); Valsamma Paul v. Cochin
University, 3 SCC 545, (SC: 1996); Charu Khurana v. Union of India, AIR 839, (SC:2015).
37 Neera Mathur v. Life Insurance Corporation of India and Anr., 1 SCC 286, (SC:
1992).
38 Anuj Garg and Ors. v. Hotel Association of India, AIR 663, (SC:
2008).
39 Professor Williams, The Equality Crisis: Some Reflections on Culture, Courts, and Feminism 175
(1982).
28 | P a g e
serves only to punish women because their very presence might provoke sexual assaults. 40
Discrimination will not survive constitutional scrutiny when it is grounded in and perpetuates
stereotypes about a class constituted by the grounds prohibited in Article 15(1).41
C. Violation of Article 17
The complete exclusion of women and transgenders from a public temple alleging them to be
impure according to religious faith is an expression of untouchability. According to Dr.
Ambedkar, untouchability is the notion of defilement, pollution, contamination and the ways
and means of getting rid of that defilement. It is a permanent hereditary stain which nothing
can cleanse.42 To consider women to be impure based on their permanent inborn biological
nature is tantamount to untouchability.
Untouchability cannot be justified on religious or customary grounds. Untouchability is the

root cause and consequently any religious, social, customary or moral grounds to enforce
untouchability no longer subsist nor are valid. 43 All customs, usages, practices directly or
indirectly recognising or encouraging the practice of untouchability in any form is void, being
opposed to public policy.44
A practice that is tantamount to untouchability cannot be held to be an essential part of

Hinduism. Untouchability is founded by superstition, ignorance, complete misunderstanding
of the true teachings of Hindu religion. 45 A custom which denied to large sections of Hindus
the right to use public roads and institution to which all the other Hindus has a right of access,
purely on grounds of birth could not be considered reasonable and defended on any sound
40 Dothard v. Rawlinson, 433 US 321, 336-337

(1977).
41 Navtej Singh Johar and Ors. vs. Union of India, Ministry of Law and Justice Secretary , 1 SCC 791, (SC:
2018).
42 Cited in Narendra Jadhav, “Ambedkar, Awakening India‟s Social Conscience”, 208, Konark Publishers, New
Delhi, 2014; Gail Omvedt,” Ambedkar, Towards An Enlightened India”, 138, Penguin Books, Gurgaon,
Haryana, 2008;
43 State of Karnataka v. Appa Balu Ingale and Ors., AIR 1126, (SC:
1993).
44 Bharatinath Namdeo Gavand v. Lakhsman Mali And Ors., 3 MhLJ 210, (Bom.:
2007).
45 Shastri Yagnapurushdasji and Ors. v. Muldas Bhundardas Vaishya and Anr., 3 S.C.R 242, (SC:
1966).
29 | P a g e
democratic principle.46The thrust of Article 17 and the Act is to liberate the society from blind
and ritualistic adherence and traditional beliefs which lost all legal or moral base.47
The constitutional obligation to prevent any acts tantamount to untouchability can be

enforced by the court against state. Article 25 secures to every person, subject of course to
public order, health and morality and other provisions of Part III, including Article 17. The
right of the State to impose such restrictions as are necessary is inbuilt in Articles 25 and 26
itself.48
Rights under Art.17 are available against private individual as well and it is the duty of the
State to ensure that these rights are not violated. 49 Article 17 read with Article 15(2) protects
an individual from discriminatory conduct not only on the part of the State but even on the
part of the private persons in certain situations.50 Whenever any fundamental right like Article
17 is violated by a private individual, it is the constitutional obligation of the state to take
necessary steps to interdict such violation and ensure observance of the fundamental right by
the private individual who is the victim of transgression51.
In the words of J. Chandrachud, “the social exclusion of women, based on menstrual status, is
a form of untouchability which is an anathema to constitutional values. Notions of “purity
and pollution”, which stigmatize individuals, have no place in a constitutional order.”52
D. Violation of Article 21
Article 21 provides for Right to Life and personal liberty. The right include the right to live
with human dignity enshrined in preamble, and all other fundamental rights spring from this
basic right.53 The right to dignity of women and transgenders are violated when they‟re
branded impure on the basis of menstruation and discriminated against. The right to life
include right to privacy.54 Bodily autonomy is a facet of right to privacy, and this includes the
46 Venkataramana Devaru vs. State of Mysore, AIR 255, (SC: 1958).

47 State of Karnataka v. Appa Balu Ingale and Ors., AIR 1126, (SC: 1993).
48 N Adithayan v. The Travancore Devaswom Board, AIR 3538, (SC: 2002).
49 Peoples Union for Democratic Rights v. Union of India, AIR 1473, (SC: 1983).
50 M.P. Jain, Indian Constitutional Law 522 (4th Edition, 1987).
51 Peoples Union for Democratic Rights v. Union of India, AIR 1473, (SC: 1983); Justice K.S. Puttaswamy and
Ors. v. Union of India (UOI) and Ors., AIR 4161, (SC: 2017).
52 Indian Young Lawyers Association & Ors. v. The State of Kerala & Ors., 13 SCALE 75, (SC: 2018).
53 Francis Coralie Mullin vs. UT of Delhi, AIR 746, (SC: 1981).
54 K.S. Puttaswamy and another v. Union of India and others, 10 SCC 1, (SC: 2017).
30 | P a g e
right not to be scrutinized, identified and judged with regard to matters of bodily privacy. To
force a person to divulge information regard to menstruation is violative of his dignity.55
Any system that treats women with indignity invites the wrath of the constitution and even if
it was declared constitutional in past decades, it has to be subjected to the test of growing
constitutional precepts and progressive perception. 56 The notion that women cannot attain
moksha in this lifetime undignifies her. In State of Madhya Pradesh v. Madanlal57, the Court
Held that dignity of a woman is a part of her non-perishable and immortal self and no one
should ever think of painting it in clay.
E. Violation of Article 25(1)58
The notification violates the right of women‟s to worship and enter Hindu temples and is
directly violative of Art.25 of the Constitution. The Preamble 59 of the Constitution and Art.25
ensures to every person the Right to Worship. “The Preamble of the Constitution sets out
secularism, equity, fraternity, liberty of worship and faith and dignity of persons as integral
scheme of the Constitution in its march to establish an egalitarian social order. Fundamental
Rights and Directive Principles seek to resuscitate them.”60
Secularism is the basic structure of the Constitution of Dharma Rajya and is intended to
establish an egalitarian society. The Constitution has chosen secularism as its vehicle to
establish an egalitarian social order. Secularism is part of the fundamental law and basic
structure of the Indian political system74 and part of the basic structure of the Constitution. 61
“Religious tolerance and equal treatment of all religious groups and protection of life,
property and place of worship are essential parts of secularism. Profession, actions and
55 Neera Mathur v. Life Insurance Corporation of India and Anr., 1 SCC 286, (SC: 1992).
56 Joseph Shine vs. Union of India, AIR 311, (Bom.: 1953).
57 State of Madhya Pradesh v. Madanlal, 7 SCC 681, (SC: 2015).
58 Article 25, The Constitution Of India 1949 - 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, practise and propagate religion,
59 “LIBERTY of thought, expression, belief, faith and worship”
60 A.S. Narayana Deekshitulu v. State of Andhra Pradesh and Ors., AIR 1765, (SC:
1996). 74 SR Bommai v. Union of India, 3 SCC 1, (SC: 1994).
61 Kesavananda Bharati v. State of Kerala , 4 SCC 225,(SC: 1973); Government of NCT of Delhi v. Union of
India and Ors., 8 SCC 501, (SC: 2018); M. Nagaraj and Ors. v. Union of India and Ors., AIR 71, (SC: 2007);
Minerva Mills Ltd. and Ors. v. Union of India and Ors., AIR 1789, (SC: 1980); Supreme Court Advocates-
onRecord-Association and Ors. v. Union of India, 5 SCC 1, (SC: 2016).
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conduct of persons should be consistent with secularism and they need to be measured in that
perspective.”62
The exclusion of any section or class of Hindus from a temple is violation of their right to
worship unless justification is offered by the temple. 77 In deciding a case where a person
belonging to Agamas caste was excluded from entering the temple of the defendant, the court
observed as follows: - “it would be for those who wish to exclude him from the usual position
in the temple assigned to a man of his caste status by the Agamas to prove that by the special
custom of that temple, even a person of that caste status is excluded.”78
J. Nariman in the Fundamental Right to Practice Religion includes the right to worship at any
temple of their choice.63
ISSUE III - THE EXCLUSIONARY PRACTICE IN THE TEMPLE IS NOT

PROTECTED UNDER ARTICLE 26
It is humbly submitted before the Hon‟ble SC that the exclusionary practice of preventing
women from entering the Dharmagiri Temple cannot be protected under Art. 26 as the
Dharmamargis who undertake the process of pilgrimage do not constitute a religious
denomination and the exclusionary practice followed by them is not integral to their faith. 80
A. „Dharmamargis’ Do Not Constitute A Denominational Sect
A religious denomination alone can avail the protection under article 26 as the Fundamental
Right guaranteed under Art.26 as opposed to Art.25 which is a collective right.64 The
62 SR Bommai v. Union of India , 3 SCC 1, (SC: 1994). 77 Supra 65 78 Venkataramana Devaru vs. State of
Mysore, AIR 255, (SC: 1958). Referring to Gopala Muppanar and Ors. v. Dharmakarta Subramania Aiyar and
Ors., 27 MLJ 253, (Mad.: 1914).
63 Supra 65 80 The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt, AIR 282, (SC: 1954); Ramesh Sharma v. State of Himachal Pradesh, MANU
0934, (HP.: 2014);
Adi Saiva Sivachariyargal Nala Sangam and Ors. v. The Government of Tamil Nadu and Ors., AIR 209, (SC:
2016); Bhuri Nath and Ors. v. State of J&K and Ors., AIR 1711, (SC: 1997); Dalip Kumar Jha and Ors. v. State
of Punjab and Ors., 3 RCR 928, (Civil:2017); K.S. Varghese and Ors. v. ST. Peter's and Paul's Syrian Orth. and
Ors., 15 SCC 333, (SC: 2017); A.S. Narayana Deekshitulu v. State of Andhra Pradesh and Ors., AIR 1765,
(SC: 1996).
64 Ratilal Panachand Gandhi v. State of Bombay, AIR 388, (SC:
1954).
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devotees of „Dharmamurthi’ do not constitute a denominational sect as the dharmamargi

community do not fit the definition of the term denominational sect. Oxford Dictionary
defines it as “a collection of individuals classed together under the same name: a religious
sect or body having a common faith and Organisation and designated by a distinctive
name.”65
Dharmamargis do not possess the essential features of a denomination The
expression 'religious denomination' must satisfy three conditions:
1. It must be a collection of individuals who have a system of beliefs or doctrines which

they regard as conducive to their spiritual well-being, that is, a common faith;
2. A common organisation, and
3. Designation by a distinctive name.”66
Common faith being the fundamental feature of a denomination, it should be unique and
distinct.67 What is universal cannot be a religious denomination. 68 In order to constitute a
separate denomination, there must be something distinct from another. 69 In Nallor
Marthandam70 case the temple at Nellor owned by the Vellala Community of Marthandam
was held to not constitute a religious denomination as there was no evidence to prove that the
members of the Vellala Community had common religious tenets peculiar to themselves
other than those which are common to the entire Hindu community.
Mere difference in ceremonies or form of worship does not constitute common faith.71
“Believers of a particular religion are to be distinguished from denominational worshippers.
Thus, Hindu believers of the Shaivite and Vaishnavite form of worship are not
denominational worshippers but part of the general Hindu religious form of worship.”89
65 The Commissioner, Hindu Religious Endowments, Madras v. Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt, AIR 282, (SC: 1954).
66 S.P. Mittal v. Union of India and Ors., 1 SCC 51, (SC:
1983 ).
67 Ramalingayya v. The Commissioner of Charitable and Hindu religious Institutions and Endowments ,
ILR 320, (AP.: 1971); S.P. Mittal v. Union of India and Ors., 1 SCC 51, (SC: 1983).
68 S.P. Mittal v. Union of India and Ors., 1 SCC 51, (SC: 1983); Indian Young Lawyers Association & Ors.
v. The State of Kerala & Ors., 13 SCALE 75, (SC: 2018).
69 S.P. Mittal v. Union of India and Ors., 1 SCC 51, (SC: 1983 ); Indian Young Lawyers Association & Ors.
v. The State of Kerala & Ors., 13 SCALE 75, (SC: 2018); Nithyananda Dhyanapeetam Thiruvannamalai
Branch, Adi Annamalai v. The Commissioner, Hindu Religious and Charitable Endowments Department and
Ors., 2 CTC 136, (Mad.: 2013).
70 Nallor Marthandam Vellalar and Ors. v. Commissioner, Hindu Religious and Charitable Endowment
and Ors., 10 SCC 712, (SC: 2003 ).
71 Supra 65 89 Ibid. referring to N. Adithayan v. Travancore Devaswom Board and Ors., 8 SCC
106, (SC: 2002).
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A mere community without a set of common religious tenets doesn‟t constitute a

denomination. In S.P.Mittal, the Court, while relying on Shirur Mutt, held that the words
'religious denomination' in Article 26 of the Constitution must take their colour from the word
'religion'. “It necessarily follows that the common faith of the community should be based on
religion and in that they should have common religious tenets and the basic cord which
connects them, should be religion and not merely considerations of caste or community or
societal status.”72
Also, a denomination is one which is different from the other. In S.P.Mittal it was held that if
the Society in question was a religious denomination, then the person seeking admission to
the institution would lose his previous religion. He cannot be a member of two religions
simultaneously. A religious denomination must necessarily be a new one and new
methodology must be provided for a religion. Court observed that Sri Aurobindo remains a
part of the Hindu philosophy. “There may be certain innovations in his philosophy but that
would not make it a religion on that account.”73
In the Sabarimala case, the question was whether all persons who visit the temple have a
common faith. All persons, regardless of caste or religion, are worshippers at the said temple.
Hindus of all kinds, Muslims, Christians etc., all visit the temple as worshippers, without, in
any manner, ceasing to be Hindus, Christians or Muslims. “They can therefore be regarded,
as has been held in Sri Adi Visheshwara74, as Hindus who worship the idol of Lord Ayyappa
as part of the Hindu religious form of worship but not as denominational worshippers.”93
Worshipping a separate deity do not qualify them as a denomination. In Adi Visheshwara

case, the Court referred to the tests of a religious denomination and held - Believers of Shaiva
form of worship are not a denominational sect or a Section of Hindus but they are Hindus as
such. They are entitled to the protection Under Articles 25 and 26 of the Constitution.
However, they are not entitled to the protection, in particular, of Clauses (b) and (d) of Article
26 as a religious denomination in the matter of management, administration and governance
of the temples under the Act.
72 Nallor Marthandam Vellalar and Ors. v. Commissioner, Hindu Religious and Charitable Endowment
and Ors., 10 SCC 712, (SC: 2003 ).
73 S.P. Mittal v. Union of India and Ors., 1 SCC 51, (SC:
1983).
74 Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of U.P. and Ors. , 4 SCC 606,
(SC: 1997). 93 Supra 88
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B. The Practice Is Not An Integral Part Of Faith Of The Sect
Assuming but not admitting that Dharmamargis constitute a denominational sect, the
exclusionary practice in question is not an integral part of the distinct faith of their sect.
Only integral parts of religion are offered protection under Art.26. In Shirur Mutt, the Court
formulated the „essentiality test‟ when defining religion according to which, only those
practices and rituals that form an integral part of the religion can form part of the religion and
be protected under the Constitution. This principle is applied to Art.26 by extending to clause
(b) „in matters of religion‟.75
“The requirement of constitutional conformity is inbuilt and if a custom or usage is outside

the protective umbrella afforded and envisaged by Articles 25 and 26, the law would certainly
take its own course. The constitutional legitimacy, naturally, must supersede all religious
beliefs or practices.”76
Article 25 merely protects the freedom to practise rituals, ceremonies, etc. which are an
integral part of a religion as observed by this Court. Only the aspects of religion which was
not altered over time can be treated as integral part of faith.77
The practice added by DTAC less than a century back does not constitute essential part of
faith. The history of the temple does not show an uninterrupted observance of such a practice.
Nobody can say that essential part or practice of one's religion has changed from a particular
date or by an event. Such alterable parts or practices are definitely not the 'core' of religion
where the belief is based and religion is founded upon. It could only be treated as mere
embellishments to the nonessential part or practices.”78
Common sense and practical consideration are relevant in deciding essential part of a faith.
The court should take a common sense view and be actuated by considerations of practical
necessity.79
75 Sri Venkataramana Devaruand Others v.The State of Mysore and Ors., AIR 255, (SC:
1958).
76 Seshammal v. State of T.N., 2 SCC 11, (SC:
1972).
77 John Vallamattom and Anr. v. Union of India, AIR 2902, (SC:
2003).
78 Durgah Committee, Ajmer and others v. Syed Hussain Ali, AIR 1402, (SC:
1961).
79 Ratilal Panachand Gandhi v State of Bombay, AIR 388, (SC: 1954);
Adelaide Company v . The Commonwealth, 67 C.L.R. 116, 129
(Australia).
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“Some practices, though religious, may have sprung from merely superstitious beliefs and
may, in that sense, be extraneous and unessential accretions to religion itself and unless such
practices are found to constitute an essential and integral part of a religion, their claim for
protection as essential practices may have to be carefully scrutinised; in other words, the
protection must be confined to such religious practices as are an essential and an integral part
of the religion and no other. There cannot be additions or subtractions to such part. Because it
is the very essence of that religion and alterations will change its fundamental character. It is
such permanent essential parts is what is protected by the Constitution.” 80 What constitutes an
integral or essential part of religion has to be determined with reference to its doctrines,
practices, tenets, historical background etc. of the given religion.81
If the community have a divided opinion in the matter, it cannot be treated as essential part of
faith.82 “In cases where conflicting evidence is produced in respect of rival contentions as to
competing religious practices the Court may not be able to resolve the dispute by a blind
application of the formula that the community decides which practice is an integral part of its
religion, because the community may speak with more than one voice and the formula would
therefore break down.”83
ISSUE IV - THE PROVISO TO SECTION 3 OF THE KERALA HINDU PLACE OF

PUBLIC WORSHIP ACT, 1965 IS UNCONSTITUTIONAL
Section 384 of The Kerala Hindu Place of Public Worship (Authorisation of Entry) Act, 1965
states that every place of public worship which is open to Hindus generally, shall be open to
all sections and classes of Hindus. No Hindu of any section or class shall be prevented or
obstructed from entering places of public worship, worshipping, offering prayers or
80 Durgah Committee, Ajmer and others v. Syed Hussain Ali, AIR 1402, (SC:
1961).
81 Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta , 12 SCC 770, (SC:
2004).
82 Nikhil Soni v. Union of India, CriLJ 4951,
(2015).
83 Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan and Ors., AIR 1638, (SC: 1963); M.K. Sanoo
v.
State of Kerala, 1 ILR 583, (Ker.: 2002); K.V. Narayanan Namboodiri and Ors. v. State of Kerala and Ors.,
AIR 160, (Ker.: 1985); Syedna Mohamed Burhanuddin v. Charity Commissioner, 1 GLH 331, (Guj.: 1992);
Rajesh Himmatlal Solanki v. Union of India (UOI) through Secretary and 3 Ors., 1 GLR 782, (Guj.: 2011).
84 Section 3, The Kerala Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 - Places of Public
Worship to be Open to All Sections And Classes of Hindus
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performing any religious service. This section shall prevail over any other law, custom or
usage or any instrument or any decree or order of court.
The proviso to Section 3 casts an exception that the provision shall be subject to the right of
that religious denomination or section to manage its own affairs in matters of religion in case
of a temple founded for the benefit of any such denomination or section. The proviso is
violative of Articles 14, 15 and 25(2)(b) and therefore unconstitutional.
A. The Proviso Is Violative Of Article 14
The Act in question restricts right under article 25 on grounds of clause 2(b) to throw open
public Hindu temples to all sections and classes of Hindus. Thus the purpose of the Act is
„social welfare and reform‟ and enabling all Hindus access to public temples. The proviso
allows religious denominations immunity from the Act. This exception disallows all sections
and class of Hindus to enter and perform worship at all Hindu temples including
denominational temples as of right. It also authorises denominations from excluding members
outside their sect from entering their temples.
The proviso reads as follows: Provided that in the case of a place of public worship which is
a temple founded for the benefit of any religious denomination or section thereof, the
provisions of this section shall be subject to the right of that religious denomination or
section, as the case may be, to manage its own affairs in matters of religion.
The purpose of the act in question has no rational nexus with this discrimination. In Shayara
Bano85 as it is solely based on physiological factors and, therefore, neither serves any valid
object nor satisfies the test of reasonable classification under Article 14 of the Constitution.
Even in the presence of a rational nexus, inequality cannot be justified and the object itself is
unfair, unjust and unconstitutional. The proviso serves a purpose outside the scope of the Act
and opposed to it. In considering the reasonableness of classification from the point of view
of Art.14 of the Constitution, the Court has also to consider the objective for such
classification. If the objective be illogical, unfair and unjust, necessarily the classification will
have to be held as unreasonable.86
85 Shayara Bano v. Union of India, 9 SCC 1, (SC: 2017).

86 Deepak Sibal and Ors. v. Punjab University and Ors., AIR 903, (SC: 1989); Atul Rana and Ors. v. Chief
Secretary and Ors., AIR 44, (Utr.: 2017).
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The Act is enacted by the government by virtue of its power derived from Article 25(2)(b) 87
of the Constitution with the object of providing for social welfare and reform or throwing
open of public Hindu religious institutions to all classes and sections of Hindus. The purpose
of the Act is to enable all Hindus access and entry to all public Hindu temples. The language
of the clause gives no exception to denominational sects. Devaru clearly states that the clause
is applicable to denominational sects also. The judgement also maintained that the right under
Art.26 has to be construed harmoniously with Art.25(2)(b) in such a way that effect could be
given to both. Thus the court held that Art.26(b) must be read subject to Art. 25(2)(b).” 88
Hence, to grant exceptions to denominational sects from the Act on ground of matters of
religion goes against scope of power given to state under Art.25(2)(b).
B. The Proviso Violates Article 15(1)
The proviso discriminates against people who are not members of particular denominational
sect. To allow denominations to exclude Hindus from public temples merely because they
don‟t belong to sect will be violative of article 15(1). To deny any Hindu entry to any public
Hindu temple cannot be justified on grounds of traditional customs and the rule that allows
the same on basis of custom is declared unconstitutional by the judgement of Indian Young
Lawyers’ Association.108 The Court struck down Rule 3(b) of the Kerala Hindu Places of
Public Worship (Authorisation of Entry) Rules, 1965 as unconstitutional for being violative
of Article 25(1) and Article 15(1) of the Constitution of India.
ISSUE V – THE EXCLUSIONARY PRACTICE IS NOT PROTECTED UNDER

ARTICLE 25
The protection under Art.25 is a right that is to be enjoyed in consonance with the exercise of
similar right of others. Here the right of women to worship in the temple cannot be prevented
87 Article 25, The Constitution of India, 1949 - Freedom of Conscience And Free Profession, Practice And
Propagation of Religion.
88 Sri Venkataramana Devaruand Others v.The State of Mysore and Ors., AIR 255, (SC: 1958).
108
Supra 65
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under the cover of the similar right of others. The exclusionary practice in question can be
interfered upon by state on two grounds under Art.25(2), clauses (a) and (b).
A. Art.25(2)(a) – Secular Activities
Only the essential matters of religion are protected from state intervention under Art.25. The
Court has to strike a careful balance between the freedom of the individual or the group in
regard to religion, matters of religion, religious belief, faith or worship, religious practice or
custom which are essential and integral part and those which are not essential and integral
and the need for the State to regulate or control in the interest of the community. 89 “All
secular activities which may be associated with religion but which do not relate or constitute
an essential part of it may be amenable to State regulations.”90
The essential part of Hinduism shall be determined by referring to its doctrines. What
constitutes the essential part of religion may be ascertained primarily from the doctrines of
that religion itself according to its tenets, historical background and change in evolved
process etc,91 and also with reference to the doctrines of that religion itself.112
A part of religion that was altered over time cannot be treated as its integral part. What is
meant by 'an essential part or practices of a religion' is now the matter for elucidation.
Essential part of a religion means the core beliefs upon which a religion is founded. Essential
practice means those practices that are fundamental to follow a religious belief. It is upon the
cornerstone of essential parts or practices the superstructure of religion is built. Without
which, a religion will be no religion. Test to determine whether a part or practice is essential
to the religion is - to find out whether the nature of religion will be changed without that part
or practice. If the taking away of that part or practice could result in a fundamental change in
the character of that religion or in its belief, then such part could be treated as an essential or
integral part.92
Hinduism is not just a doctrinal system but a composite spiritual tradition and rituals and
temples are only secondary matters to it. The case of Narayana Deekshitulu states as follows:
89 A.S. Narayana Deekshitulu vs. State of Andhra Pradesh, AIR 1765, (SC:
1996).
90
ibid
91 ibid 112 The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha
Swaminar of Sri Shirur Mutt, 9 S.C.R 1005, (SC: 1954).
92 Seshammal v. State of Tamilnadu, 3 S.C.R 815, (SC: 1972).
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“Each soul is potentially divine. The goal is to manifest this divinity within by controlling
nature, external and internal. Do this either by work, or worship, or psychic control, or
philosophy-by one, or more, or all of these- and be free. This is the whole of religion.
Doctrines, or dogmas, or rituals, or books, or temples, or forms, are but secondary details.” 93
“One must admit that law, government, politics are phases not final in any way. There is a
goal beyond them where law is not needed.... All great Masters teach the same thing. Christ
saw that the basis is not law, that morality and purity are the only strength.”94
“From that perspective, this Court is concerned with the concept of Hindu religion and
dharma. Very often one can discern and sense political and economic motives for maintaining
status quo in relation to religious forms masquerading it as religious faith and rituals bereft of
substantial religious experience. As sure, philosophers do not regard this as religion at all.
They do not hesitate to say that this is politics or economic masquerading as a religion. A
very careful distinction, therefore, is required to be drawn between real and unreal religion at
any stage in the development and preservation of religion as protected by the Constitution.
Within religion, there is an interpretation of reality and unreality which is completely
different experience. It is the process in which ideal is made rule. Thus perfection of religious
experience can take place only when free autonomy is afforded to an individual and worship
of the infinite is made simpler, direct communion, the cornerstone of human system. Religion
is personal to the individual. Greater the law bringing an individual closer to this freedom, the
higher is its laudable and idealistic purpose.”95
"With the intensification of the pace of industrialisation, our centuries-old static feudal
society is being profoundly disturbed; social mobility is fast breaking down caste and other
old forms of social relationships, and faster still, that social sanctions behind them. Virtues
that sustained a static age are found to be utterly inadequate to the demands of a dynamic
society". Everywhere, old values, old edifices and old social and economic groups are
crumbling down. This is just the beginning of the industrialisation. Complacency is not a
solution in the profound transition period. Indian spiritualism had responded successively to
all changes on the strength of her tenacious loyalty to fundamental spiritual values, which
India placed at the foundation of her national culture.96
93 Vol. I, Swami Vivekananda, The Complete
Works.
94 Vol. V, Swami Vivekananda, The Complete Works 192-93(Eighth
Edn.).
95 A.S. Narayana Deekshitulu vs. State of Andhra Pradesh, AIR 1765, (SC: 1996).
96 Swamy Ranganathananda, Eternal Values for a Changing Society 637.
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“Swami Rama in his book 'A Call to Humanity' has taken pains to demonstrate the difference
between religion and dharma. It would be profitable to note what this great saint has said in
this regard. The word religion, as presently understood, is comprised of rituals, customs, and
dogmas surviving on the basis of fear and blind faith; whereas dharma encapsulates those
great laws and disciplines that uphold, sustain, and ultimately lead humanity to the sublime
heights of worldly and spiritual glory. Dharma shines in the form of truth, non-violence, love,
compassion, forbearance, forgiveness, and mutual sharing.”97
The judgement contends that non-religious practices are anti-thesis of secularism. “In
secularising the matters of religion which are not essentially and integrally parts of religion,
secularism, therefore, consciously denounces all forms of super-naturalism or superstitious
beliefs or actions and acts which are not essentially or integrally matters of religion or
religious belief or faith or religious practices. In other words, non-religious or anti-religious
practices are antithesis to secularism which seeks to contribute in some degree to the process
of secularisation of the matters of religion or religious practices.”119
Any practice that amounts to untouchability is not based on Hinduism. Untouchability is

founded by superstition, ignorance, complete misunderstanding of the true teachings of Hindu
religion.98 The judgement of young lawyers association states that discrimination of women
based on menstruation is not an essential element of Hinduism. The judgement maintains that
courts shouldn‟t legitimise any unconstitutional practices. “A claim for the exclusion of
women from religious worship, even if it be founded in religious text, is subordinate to the
constitutional values of liberty, dignity and equality. Exclusionary practices are contrary to
constitutional morality;”121
The state intervention in religion is sanctioned by the constitution. In an early case after the
commencement of the Constitution a court had examined the US principle of the 'wall of
separation' between religion and State and Concluded that there are provisions in the Indian
Constitution which are „inconsistent with the theory that there should be a wall of separation
between Church and State'.99
97 Swami Rama, A Call to Humanity (the Himalayan International Institute of Yoga Science and
Philosophy, 1988). 119 A.S. Narayana Deekshitulu vs. State of Andhra Pradesh, AIR 1765, (SC: 1996).
98 Shastri Yagnapurushdasji and Ors. v. Muldas Bhundardas Vaishya and Anr., AIR 1119, (SC: 1966).
121 Supra 65
99 Narayanan Namboodripad v. State of Madras, AIR 385, (Mad.:
1955).
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B. Articles 25(2)(b)
It is humbly submitted that the protection under Art.26 100 to religious denominations cannot
nullify the effect of The Kerala Hindu Place of Public Worship (Authorisation of Entry) Act,
1965. Art.25(2)(b)124 provides for state interference in matters of religion to promote social
welfare and reform and for making laws for opening Hindu religious institutions to all classes
and sections of Hindus. The Act is promulgated by the government under its powers derived
from Art.25(2)(b) which overrides Art.26(b). The Act provides for opening to all sections and
classes of Hindus, all places of public worship which is open to Hindus generally or to any
section or class of them.125
In Devaru, the Court applying the rule of harmonious construction held that Art.25(2)(b) and
Art.26(b) should be read together in such a way that effect could be given to both. “Full effect
can be given to Art. 26(b) in all matters of religion, subject only to this that as regards one
aspect of them, entry into a temple for worship, the rights declared under Art. 25(2)(b) will
prevail. While, in the former case, Art.25(2)(b) will be put wholly out of operation, in the
latter, effect can be given to both that provision and Art. 26(b). We must accordingly hold
that Art.26(b) must be read subject to Art. 25(2)(b).”126
The Act can limit Art.26 under the exception of public morality
A law enacted by the government can place a reasonable restriction on operation of Art.26(b)
on grounds of public morality. The exception of morality in the context of Fundamental
Rights refers to the constitutional morality. “The term 'morality' occurring in Article 25(1) of
the Constitution cannot be viewed with a narrow lens so as to confine the sphere of definition
of morality to what an individual, a section or religious sect may perceive the term to mean.
We must remember that when there is a violation of the fundamental rights, the term
'morality' naturally implies constitutional morality and any view that is ultimately taken by
the Constitutional Courts must be in conformity with the principles and basic tenets of the
concept of this constitutional morality that gets support from the Constitution.”127
The constitutional morality can be derived from values enshrined in preamble. “The principle
of constitutional morality basically means to bow down to the norms of the Constitution and
100 Article 26, The Constitution of India, 1949 – Freedom to Manage Religious Affairs.
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Subject to public order, morality and health, every religious denomination or any section thereof shall have the
right - (b) to manage its own affairs in matters of religion
124 Article 25 - Freedom of Conscience And Free Profession, Practice And Propagation of
Religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(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.
125 Section 3, The Kerala Hindu Place of Public Worship (Authorisation of Entry) Act, 1965 - Places of
Public Worship to be Open to All Sections And Classes of Hindus
126
Sri Venkataramana Devaru v. State of Mysore, AIR 255, (SC: 1958).
127
Supra 65
not to act in a manner which would become violative of the Rule of law or reflectible of
action in an arbitrary manner. Commitment to the Constitution is a facet of constitutional
morality.”101
Constitutional morality in its strictest sense of the term implies strict and complete adherence
to the constitutional principles as enshrined in various segments of the document. 102 “The
concept of constitutional morality is not limited to the mere observance of the core principles
of constitutionalism as the magnitude and sweep of constitutional morality is not confined to
the provisions and literal text which a Constitution contains, rather it embraces within itself
virtues of a wide magnitude such as that of ushering a pluralistic and inclusive society, while
at the same time adhering to the other principles of constitutionalism.” 103 The Secular model
followed by the constitution of Dharma Rajya provides for interference in religious affairs by
the state based on the ideals enshrined in the Constitution.
The Preamble to the Constitution provides for equality of status, right to worship and dignity
of the individual.
The Art.38(2) of the Constitution provides for promotion of equality of status in society. “The
State shall, in particular, strive to minimize the inequalities in income, and endeavor to
eliminate inequalities in status, facilities and opportunities, not only amongst individuals but
also amongst groups of people residing in different areas or engaged in different vocations.”
51A(e) reads as follows: “to promote harmony and the spirit of common brotherhood
amongst all the people of India transcending religious, linguistic and regional or sectional
diversities; to renounce practices derogatory to the dignity of women;”
101 Manoj Narula v. Union of India, 9 SCC 1, (SC:

2014).
102 Government of NCT of Delhi v. Union of India and ors Ors. , 8 SCALE 72,
(SC:2018).
103 Navtej Singh Johar and Ors. v. Union of India and Ors., 10 SCALE 386, (SC: 2018).
43 | P a g e
The international covenants shall also be considered by the court while interpreting the law.
International conventions must be followed when there is a void in the domestic law or when
there is any inconsistency in the norms for construing the domestic law. 104 The Article 3 of
International Covenant on Economic, Social and Cultural Rights provide for equal cultural
rights for men and women: “The States Parties to the present Covenant undertake to ensure
the equal right of men and women to the enjoyment of all economic, social and cultural rights
set forth in the present Covenant.” According to the Convention on Elimination of all forms
of Discrimination Against Women (CEDAW) it is the obligation of the State to eradicate
taboos relating to menstruation based on customs or traditions.
The Notification is unenforceable
The Notification is unenforceable and the purpose it seeks to realise is practically impossible.
As a result only practical consequence of the notification is the exclusion of women.
Article 25(2)(b) ensures the right of the State to make a law providing for social welfare and
reform besides throwing open of Hindu religious institutions of a public character to all
classes and sections of Hindus and any such rights of the State or of the communities or
classes of society were also considered to need due regulation in the process of harmonizing
the various rights.105
"Secularism in India has a spiritual foundation not because of a profusion of competing

religions and Gods but because of the realisation that the universal essence of all of them is
that service of man is the worship of God and the reverence for all creation is compassion
which springs from the recognition of the divinity imminent everywhere. Our composite
cultural heritage conceives of a synthesis between these two great values. One does not
contradict the other but complements the other. True secularism is humanism in action and
perceives divinity in everyone. True spirituality is not refuge in other worldliness and has a
factor of universality where even on the material plane every human being is seen as of equal
value and potential as every other member of the human family. We have to steer clear of all
narrow religious denominations and communal classifications by emphasising that in secular
104 Vishaka and Ors. v. State of Rajasthan and Ors., 6 SCC 241, (SC: 1997).
105 R. Lakshmi Narasimha Battar Swami and Ors. v. The Commissioner, Hindu Religious and Charitable
Endowment and Ors., MANU 3315, (TN: 2010); Goolrokh M. Gupta v. Burjor Pardiwala, 2 RCR 91,
(Civil: 2013). 133
Justice V.R. Krishana Iyer ,Religion and Politics 204 (1991).
44 | P a g e
affairs all will be dealt with on the same footing, whether one belongs to the 'minority' or the
'majority' community"133
PRAYER
Wherefore in the light of the facts stated, issues raised, authorities cited and arguments
advanced, it is most humbly prayed before this Honorable Supreme Court that it may be
pleased:
1. To declare the Notification dated 21-10-1950 issued by DTAC as unconstitutional

2. To declare any customary law related to exclusion of women from Dharmagiri temple
as unconstitutional
3. To order the State government of Malistan to ensure accessibility to the Dharmagiri
temple for women worshippers and ensure their protection while performing worship
and ceremonies
4. To order the District Magistrate to enforce the relevant orders
5. To declare the proviso to Section 3 of The Kerala Hindu Place of Public Worship
(Authorisation of Entry) Act, 1965 as unconstitutional.
AND/OR
And Pass any other Order, Direction, or Relief that it may deem fit in the Best
Interests of Justice, Fairness, Equity and Good Conscience.
For This Act of Kindness, the Petitioner Shall Duty Bound Forever Pray.
45 | P a g e
Sd/-
COUNSELS ON BEHALF OF THE RESPONDENT.
46 | P a g e

Memorandum On Behalf of Petitioners

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Memorandum on behalf of the Petitioner

3rd NATIONAL MOOT COURT COMPETITION- 2023

BEFORE THE HONOURABLE SUPREME COURT OF PERUCIA

SPECIAL LEAVE PETITION

ARTICLE 136 OF THE CONSTITUTION OF INDIA

SLP No: _______/20

MEMORANDUM ON BEHALF OF THE PETITIONER

S.NO. TITLE PAGE NO.

1. LIST OF ABBREVIATIONS 4-6

B. Reports, Journals, Articles And Other Sources 11 - 12

ISSUE I - THE WRIT PETITION IS MAINTAINABLE 20

A. The Matter in Question involves a public interest 20 - 22

B. The DTAC Can Be Subject To Writ Jurisdiction of the Court 22 - 24

ISSUE II - THE NOTIFICATION IS UNCONSTITUTIONAL 25

B. Violation of Article 15(1) 27 - 28

E. Violation of Article 25(1) 31 - 32

ISSUE III - THE EXCLUSIONARY PRACTICE IN THE TEMPLE 32

A. „Dharmamargis‟ Do Not Constitute A Denominational Sect 32 - 34

B. The Practice Is Not An Integral Part Of Faith Of The Sect 34 - 36

ISSUE IV - THE PROVISO TO SECTION 3 OF THE KERALA 36

A. The Proviso Is Violative Of Article 14 37 - 38

B. The Proviso Violates Article 15(1) 38

ISSUE V – THE EXCLUSIONARY PRACTICE IS NOT 38

S.NO Abbreviation Expansion

2. A.W.C. Allahabad Weekly Cases

3. AIR All India Reporter

8. BomCR Bombay Cases Reporter

9. BomLJ Bombay Law Journal

10. BOMLR Bombay Law Report

11. Cal. Calcutta

12. Cir. Circuit

13. CJ. Chief Justice

14. CLR Commonwealth Law Report

15. Co. Company

16. CriLJ Criminal Law Journal

17. Del. Delhi

18. DPSP Directive Principles of State Policy

19. DTAC Dharmagiri Temple Administration Committee

20. Edn. Edition

21. Eng. England

22. ER English Report

23. Etc. Et cetera

24. GLH Gujarat Law Herald

25. GLR Gujarat Law Reporter

26. Govt. Government

27. Guj. Gujarat

28. H.P. Himachal Pradesh

29. HC High Court

30. Hon‟ble Honourable

31. i.e. that is

32. ICPS Institute of Constitutional and Parliamentary Studies

33. ICR Industrial Cases Report

34. ILR Indian Law Report

35. ITR Income Tax Reports

37. Kant. Karnataka

38. KB King‟s Bench Division

39. Ker. Kerala

40. KJL Kerala Law Journal

41. LGBT Lesbian, Gay, Bisexual, Transgender

42. Ltd Limited

43. Mad. Madras

44. Mfg. Manufacturing

45. MhLJ Maharashtra Law Journal