RGNUL INTRA MOOT COURT COMPETITION, 2022 TC - 08

RGNUL INTRA MOOT COURT COMPETITION, 2022

IN THE HON’BLE SUPREME COURT OF MALAYALIPURAM

IN THE MATTER BETWEEN

R.P. (Civil) No. __/ 2022

THE SABRI MALE BOARD AND THE STATE/UNION ……PETITIONER

VERSUS

INDIA WOMEN LAWYERS ASSOCIATION ……DEFENDENT

And

W.P. (Civil) No. __/ 2022

THE SABRI MALE BOARD AND THE STATE/UNION ……PETITIONER

VERSUS
ROMILA AND MR. MANILA ……DEFENDENT

UPON SUBMISSION TO THE SUPREME COURT OF MALAYALIPURAM

— MEMORIAL ON BEHALF OF PETITONER —

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS......................................................................................................................IV
STATEMENT OF JURISDICTION................................................................................................................V
STATEMENT OF FACTS..........................................................................................................................VI
ISSUES RAISED....................................................................................................................................VIII
SUMMARY OF ARGUMENTS...................................................................................................................IX
ARGUMENTS ADVANCED.......................................................................................................................1
ISSUE I- WHAT IS THE SCOPE AND EXTENT OF THE WORD MORALITY UNDER ARTICLES 25 AND 26
OF THE CONSTITUTION OF INDIA AND WHETHER IT IS MEANT TO INCLUDE CONSTITUTIONAL
MORALITY?........................................................................................................................................1
1.1 Constitutional morality in matters of Religion in a secular polity............................................1
1.2 Article 26 is subject to public order, morality and health only.................................................2
1.3 The said practice is EESSESTIAL religious PRACTICE under Article 25.............................3
1.3.1 The practise has been followed since time immemorial....................................................3
1.3.2 The Nature of deity in the temple......................................................................................4
ISSUE II- WHETHER THE BAN OF ENTRY OF WOMEN OF MENSTRUATING AGE BETWEEN 10-50
YEARS OWING TO RELIGIOUS BELIEFS IS VIOLATIVE OF ARTICLES 14, 15, 17 AND 25(1) OF THE
INDIAN CONSTITUTION?.....................................................................................................................4
2.1 The practice does not violate Article 14 and Article 15...........................................................5
2.1.1 There exists intelligible differentia for such classification................................................5
2.1.2 Banning the entry of menstruating women does not violate Article 15.............................6
2.2 Action of Temple Authorities to ban entry is not violative of ARTICLE 17...........................7
2.3 To deny entry in sanctum sanctorum is not violative of Article 25 (1)....................................8
ISSUE III- Whether the action of the temple authorities is violative of the fundamental rights of
Mr. Palermo and Mr. Manila under Article 15(2) and 21 of the Constitution?..................................9
3.1 Deny to temple entry was not violative of Article 15 (2) of the Constitution...........................9
3.1.1 They were given the “access” to the temple....................................................................10
3.1.2 Secondly, even if they have been denied the entry there has been no violation of Article
15 (2).......................................................................................................................................10
3.2 Action of temple authorities does not violate Article 21........................................................12
3.2.1 Article 21 is subject to procedure established by law......................................................12
3.2.2 Fundamental rights remain unprotected if person voluntarily invites a controversy.......13
ISSUE IV- WHETHER THE ABSENCE OF A STATE ENACTED LAW UNDER ARTICLE 25(2)(B) LEADS TO
THE VIOLATION OF THE FUNDAMENTAL RIGHTS OF PEOPLE?............................................................13

4.1 Constitution acts as gurantor of fundamental rights and hence no need of statute for every
matter...........................................................................................................................................14

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4.2 State can enact laws on social norms and not religious one...................................................14

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INDEX OF AUTHORITIES

CASES

1. ADI SAIVA SIVACHARIYARGAL NALA SANGAM & ORS. v. Govt. Of Tamil Nadu,
2015 SCC OnlineSC 1325.........................................................................................................2
2. Air India v. Nergest Meerza, 1981 AIR 1829..........................................................................11
3. Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa, 2006 SCC OnLine SC 1379......................6
4. Bijoe Emmanuel & Ors vs State Of Kerala & Ors, 1987 AIR 748............................................9
5. Commr. Of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770................15
6. Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt, AIR 1954 SC 282...............................................................................................1, 3, 5, 15
7. D. R. R. Varu v. State of Andhra Pradesh, 1970 AIR 181.........................................................2
8. Dargah Committee, Ajmer v Syed Hussain Ali, (1962) 1 SCR 383.........................................3
9. Dr. Subramanian Swamy v. State of Tamil Nadu and Ors., (2014) 5 SCC 75..........................3
10. Ewanlangki-E-Rymbai vs Jaintia Hills District Council, 2006 SCC OnLine SC 354...............6
11. Ganga Kumari vs. State of Rajasthan and Ors., S.B. Civil Writ Petition No. 14006 / 2016...11
12. Ganga Ram Moolchandani v. High Court of Judicature for Rajasthan (1994) Tr. LJ 2125....11
13. Govind v. State of M.P., 1975 AIR 1378.................................................................................13
14. Indian Young Lawyers Association v. The State of Kerala & Ors., 2016 SCC OnLine SC
1783...................................................................................................................................passim
15. Javed Niyaz Beg v. Union of India, 1981 AIR 794.................................................................11
16. Jayantilal Mohanlal Shah vs. State of Saurashtra and Ors., MANU/GJ/0019/1955................11
17. Kantaru Rajeevaru vs. Indian Young Lawyers Association and Ors., (2020) 2 SCC 1.............1
18. Maneka Gandhi v. Union of India, 1978 AIR 597...................................................................12
19. NALSA v Union of India, 2014 SCC OnLine SC 328............................................................11
20. Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.......................................................12
21. R. Adijagopal v. Union of India, AIR 1995 SC 264................................................................13
22. Raja Bira Kishore Deb v. State of Orissa, 1964 AIR 1501........................................................3
23. S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvanathapuram & Ors,
AIR 1993 Ker 42....................................................................................................................4, 9
24. S.R Bommai v. Union of India, (1994)3 S.C.C. 1...................................................................15
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25. Salekh Chand (Dead) by LRs v. Satya Gupta & Ors, 2008 SCC OnLine SC 429....................6
26. Sardar Syedna Taher Saifuddin ... v. The State Of Bombay, 1962 AIR 853......................2, 14
27. Sarika v. Shri Mahakaleshwar Mandir Committee, (2018) 17 SCC 112...................................3
28. Shri Ram Krishna Dalmia v. Justice S.R Tendolkar, 1958 AIR 538.........................................6
29. State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284.......................................................5
30. Suo Motu vs. Travancore Devaswom Board, Nanthancode and Ors. (22.04.2022-KERHC):
MANU/KE/1371/2022...............................................................................................................1
31. Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, 1963 AIR 1638............................4, 7
32. Vankataramana Davaru v. State of Mysore, AIR 1958 SC 255................................................9
33. Yusuf Abdul Aziz v. State of Bombay 1954 AIR 321.............................................................11

BOOKS

 V.N Shukhla’s Constitution of India

 Dr. J.N Pandey’s Constitutional Law of India
 M. P Jain

CONSTITUTIONS

 The Constitution of India, 1950

STATUTES

 Protection of Civil Rights Act, 1955

CONVENTIONS

 ICCPR (International Covenant on Civil and Political Rights)

 Convention on the Elimination of All Forms of Discrimination against Women, 1979
 ICESCR (International Covenant on Economic, Social and Cultural Rights)

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LIST OF ABBREVIATIONS

Abbreviation Corresponding Expansion

& And
¶ Paragraph
AIR All India Reporter
Annex. Annexure
Anr. Another
Art. Article
Bom Bombay
cl. Clause
Cal Calcutta
Ed. Edition
HC High Court
Hon’ble Honourable
ILR International Law Review
P&H Punjab and Haryana High Court
Pat Patna High Court
Ker Kerala
M.P. Madhya Pradesh
No. Number
SC Supreme Court
SCC Supreme Court Case Online
SCR Supreme Court Reporter
v. Versus

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STATEMENT OF JURISDICTION

Petitioners have approached this Hon’ble Court by means of Review Petition under Article
137 of the Constitution as well as Rule 1 Order XLVII of Code of Civil Procedure 1908, to
review its own judgement. Article 137 reads as:

Article 137: Power to review its judgement

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

Rule 1 Order XLVII of Code of Civil Procedure: Application for review of judgment

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STATEMENT OF FACTS

HISTORY OF TEMPLE

1. Millions of visitors come to the Sabari Male Mandir, which is situated in the Periyar Tiger
Reserve in the Western Ghat mountain ranges of the Republic of Malayalipuram. To get to
the temple's premises, which include an Entry Complex that is accessible to the public and a
sanctum sanctorum that houses Lord Bhimappa's sacred shrine, worshippers must trek across
mountains. The Lord Bhimappa shrine is the temple's main attraction, and after 48 days of
strict religious vows, visitors must ascend 18 sacred steps from the Entry Complex to enter
the sanctum sanctorum.
BAN ON ENTRY OF WOMEN
2. Menstruating women between the ages of 10 and 50 are prohibited from entering the temple.
Although there is no limitation on women worshipping Lord Bhimappa in any other temple,
their entry is prohibited in this temple due to the nature of the deity of this shrine.
3. The Indian Women Lawyers Association approached the Supreme Court for a ruling allowing
women of any age to enter the temple as this restrictions violated Articles 14, 15, and 17 of
the Constitution. She further claimed that women should be able to worship where they like
because the tradition is stigmatising and discriminatory in nature.
RELIGIOUS SECT. BHIMAPPANS
4. The temple is maintained by Sabari Male Mandir Board (also ― The Boardǁ) which is
managed by a renowned religious sect. of Bhimappans who follow the Bhimappan Dharama.
The Board holds that the ban was in accordance with a centuries-old tradition –Lord
Bhimappa of this shrine being a Naishtika Brahmmachari. It argues that these restrictions
can’t be challenged as they are on the basis of the religion and traditions of the deity of the
temple. It was also argued that Lord Bhimappa is a celibate and should be treated as a person.
And as a person, Lord Bhimappa‘s Right to Privacy under Article 21 should be protected.
5. Meanwhile, women devotees who ran the #ReadyToWait campaign, in response to the
#RightToPray campaign, also opposed the petition. The trial in the SC also put the spotlight
on a High Court judgment, which held that the restriction was in accordance with usage from
time immemorial and not discriminatory under the Constitution and ruled that only the tantri
(priest) was empowered to decide on traditions.
SIGNS OF WOMEN ENTERING TEMPLE

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6. In 2006, astrologers conducted several researches at the temple and found that there were
signs of a woman having entered the sanctum sanctorum.
7. Finally, in 2018, in a 4:1 judgement of the Supreme Court, the majority held that debarring
women, belonging to the age group of 10-50 years, from the temple was unconstitutional and
also held that such custom was contrary to Constitutional Morality and that it undermined the
ideals of autonomy, liberty, and dignity.
8. However, in her dissenting opinion, Malhotra J. opined that judges should not impose their
personal views, rationality, or morality when it comes to the form of worship of a deity. One
organization led by Mr. Palermo and Mr. Manila, a biologically female transgender duo of
LGBTQ+ rights activists, who prefer to be addressed as ―He/Him, broke open the gates of
Entry Complex in order to enter the temple premises. Though they were allowed entry into
the shrine, after having discovered that they were biological females and were of
menstruating age, the authorities chucked them out of the temple premises.
9. They both filed a petition in the Supreme Court claiming the violation of their Fundamental
Right under Article 15(2) and 21of the Malayalipuram Constitution and also argued that
temple authorities only banned menstruating women and not trans-genders and violating their
fundamental rights.
REVIEWING THE JUDGEMENT

10. A 5-judge bench headed by the Chief Justice, while reviewing the Sabari Male Mandir
matter, observed by 3:2 majority decided to keep the review petitions in the Sabari Male
Mandir matter pending until a larger bench determined questions related to essential religious
practices. The Chief Justice, in the review hearing itself, referred the matter to a larger bench.
ISSUES FRAMED

11. The Chief Justice took note of the press conference and constituted a bench of 11 judges to
hear all matters. The questions formulated, preliminary as well as on merits, read as follows:
I. What is the scope and extent of the word morality under Articles 25 and 26 of the
Constitution of India and whether it is meant to include Constitutional Morality?
II. Whether the ban of entry of women of menstruating age between 10-50 years owing to
religious beliefs is violative of Articles 14, 15, 17 and 25(1) of the Indian Constitution?
III. Whether the action of the temple authorities is violative of the fundamental rights of Mr.
Palermo and Mr. Manila under Article 15(2) and 21 of the Constitution?
IV. Whether the absence of a State enacted law under Article 25(2)(b) leads to the violation
of the fundamental rights of people?

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ISSUES RAISED

-ISSUE I-

What is the scope and extent of the word morality under Articles 25 and 26 of the
Constitution of India and whether it is meant to include Constitutional Morality?

-ISSUE II-

Whether the ban of entry of women of menstruating age between 10-50 years owing to
religious beliefs is violative of Articles 14, 15, 17 and 25(1) of the Indian Constitution?

-ISSUE III-

Whether the action of the temple authorities is violative of the fundamental rights of Mr.
Palermo and Mr. Manila under Article 15(2) and 21 of the Constitution?

-ISSUE IV-

Whether the absence of a State enacted law under Article 25(2)(b) leads to the violation of
the fundamental rights of people?

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SUMMARY OF ARGUMENTS

ISSUE I- What is the scope and extent of the word morality under Articles 25 and 26 of
the Constitution of India and whether it is meant to include Constitutional Morality?

It is submitted that to explain the constitutional morality under Article 25 and 26 it has to be
undersood that CONSTITUTIONAL MORALITY IN MATTERS OF RELIGION IN A
SECULAR POLITY, Article 26 is subject to public order, morality and health only and
exclusion of women is an essential religious practice under Article 25 as the practice has been
followed since time immemorial and due to the nature of deity worshipped in the temple.

ISSUE II- Whether the ban of entry of women of menstruating age between 10-50 years
owing to religious beliefs is violative of Articles 14, 15, 17 and 25(1) of the Indian
Constitution?

It is submitted that the ban on entry of women of menstruating age does not violates Article
14 and 15 as there exists intelligible differentia for such classification and banning the entry
of women does not violate Article 15. Further, the ban does not violate Article 17 as it was
never understood to apply on women as a class.  It does not violate Article 25(1) upholding
the article would change the unique nature of the deity, which is in contravention of Article
26 of the constitution.

ISSUE III- Whether the action of the temple authorities is violative of the fundamental
rights of Mr. Palermo and Mr. Manila under Article 15(2) and 21 of the Constitution?

It is submitted that action of temple authorities has not violated the fundamental rights of duo
as action of temple authorities was neither violative of Article 15(2) of the constitution
because they were given “access” to the temple and even if they have been denied the entry
there is no violation of Article 15 (2). Further, action does not violate article 21 of the
constitution because Article 21 is subject to the procedure established by law and
fundamental rights remain unprotected if a person voluntarily invites a controversy.

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ISSUE IV- Whether the absence of a State enacted law under Article 25(2)(b) leads to
the violation of the fundamental rights of people?
It is submitted that the absence of law would not lead to violation of fundamental rights as
the Constitution acts as a guarantor of fundamental rights and the state can enact laws on
social norms but not on religious one.

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ARGUMENTS ADVANCED

ISSUE I- WHAT IS THE SCOPE AND EXTENT OF THE WORD MORALITY UNDER ARTICLES
25 AND 26 OF THE CONSTITUTION OF INDIA AND WHETHER IT IS MEANT TO INCLUDE

CONSTITUTIONAL MORALITY?

1. It is submitted that religion is certainly a matter of faith with individuals or communities and
it is not necessarily theistic.1 A religion undoubtedly has its basis in a system of beliefs or
doctrines which are regarded by those who profess that religion 2 as conducive to their
spiritual well-being, but it would not be correct to say that religion is nothing else but a
doctrine of belief.3
2. It is further submitted that a religion may not only lay down a code of ethical rules for its
followers to accept, it might prescribe rituals and observances, ceremonies and modes of
worship which are regarded as integral parts of religion, and these forms and observances
might extend even to matters of food and dress. 4 For explaining the constitutional morality
under Article 25 and 26 it has to be undersood that firstly, Constitutional morality in matters
of Religion in a secular polity (1.1), secondly, Article 26 is subject to public order, morality
and health only (1.2) and thirdly, it is an essential religious practice under Article 25 (1.3).

1.1 Constitutional morality in matters of Religion in a secular polity

3. India is a country comprising diverse religions, creeds, sects each of which have their faiths,
beliefs, and distinctive practises. Constitutional Morality in a secular polity would
comprehend the freedom of every individual, group, sect, or denomination to practice their
religion in accordance with their beliefs, and practises.5
4. Constitutional Morality in a pluralistic society and secular polity would reflect that the
followers of various sects have the freedom to practice their faith in accordance with the
tenets of their religion. It is irrelevant whether the practice is rational or logical. Notions of
rationality cannot be invoked in matters of religion by courts.6

1
Kantaru Rajeevaru vs. Indian Young Lawyers Association and Ors., (2020) 2 SCC 1.
2
Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC
282.
3
Suo Motu vs. Travancore Devaswom Board, Nanthancode and Ors. (22.04.2022-KERHC):
MANU/KE/1371/2022.
4
Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC
282.
5
Indian Young Lawyers Association v. The State of Kerala & Ors., 2016 SCC OnLine SC 1783.
6
Indian Young Lawyers Association v. The State of Kerala & Ors., 2016 SCC OnLine SC 1783.

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5. The Preamble to the Constitution secures to all citizens of this country liberty of thought,
expression, belief, faith and worship. Article 25 in Part III of the Constitution makes freedom
of conscience a Fundamental Right guaranteed to all persons who are equally entitled to the
right to freely profess, practise and propagate their respective religion. 7
6. Constitutional Morality in a secular polity would imply the harmonization of the
Fundamental Rights, which include the right of every individual, religious denomination, or
sect, to practise their faith and belief in accordance with the tenets of their religion,
irrespective of whether the practise is rational or logical.8
7. Article 26 guarantees the freedom to every religious denomination, or any sect thereof, the
right to establish and maintain institutions for religious purposes, manage its own affairs in
matters of religion, own and acquire movable and immovable property, and to administer
such property in accordance with law. This right is subject to public order, morality and
health. The right under Article 26 is not subject to Part III of the Constitution. 9
8. Bhimappans are a separate relegious denomination. 10 so they have a complete right to manage
their affairs and have the freedom to practice their faith in accordance with the tenets of their
religion as enshrined under Article 26 of the Constitution.

1.2 Article 26 is subject to public order, morality and health only

9. It is submitted that under Article 26 (b), a religious denomination or organization enjoys

complete autonomy in the matter of deciding as to what rites and ceremonies are essential
according to the tenets of the religion they hold and no outside authority has any jurisdiction
to interfere with their decision in such matters. 11
‘Matters of religion’ protected under
article 26 (b) are those acts which are treated as essential and integral parts by the religion.12
10. The fundamental rights protected under Article 26 cannot be waived. Thus, the power to
supersede the administration of a religious denomination, if only for a certain purpose and for
a limited duration, will have to be read as regulatory, otherwise, it will violate the
fundamental right contained in Article 26.13 It is well established that social reforms or the
need for regulations contemplated by Article 25(2) cannot obliterate essential religious

7
Ibid.
8
Ibid.
9
Ibid.
10
Moot Proposition, Para 7.
11
ADI SAIVA SIVACHARIYARGAL NALA SANGAM & ORS. v. Govt. Of Tamil Nadu, 2015 SCC
OnlineSC 1325.,D. R. R. Varu v. State of Andhra Pradesh, 1970 AIR 181.
12
Sardar Syedna Taher Saifuddin ... v. The State Of Bombay, 1962 AIR 853.
13
Dr. Subramanian Swamy v. State of Tamil Nadu and Ors., (2014) 5 SCC 75.

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practices or their performances and what would constitute the essential part of a religion can
be ascertained with reference to the doctrine of that religion itself.14
11. Court has no jurisdiction to interfere with religious practices and pujas to be performed in
Temple.15 Unlike Article 25, which is subject to the other provisions of Part III of the
Constitution, Article 26 is subject only to public order, morality, and health, and not to the
other provisions of the Constitution.16
12. The Supreme Court held that the identity of a religious denomination consists in the identity
of its doctrines, creeds and tenets and these are intended to ensure the unity of the faith which
its adherents profess and the identity of the religious views are the bonds of the union which
binds them together as one community.17
13. It is submiited that as proved above, the practice to exclude mensurating women to reach
sanctum sanctorum is within the reasonable restriction, and hence, religious demonination
has right to restrict their entry.

1.3 The said practice is EESSESTIAL religious PRACTICE under Article 25

14. It is submitted that the practises and beliefs which are considered to be integral by the
religious community are to be regarded as “essential”, and afforded protection under Article
25.18 The way to determine the essential practises test would be with reference to, firstly, the
practises followed since time immemorial (1.3.1) and secondly, the nature of deity enshrined
(1.3.2).

1.3.1 The practise has been followed since time immemorial

15. It is submitted that the issue of what constitutes an essential religious practice is for the
religious community to decide19 and only tantris (priest) are empowered to decide on
tradition.20 Matters that are essential to religious faith and/or belief are to be judged on
evidence before a court of law by what the community professing the religion itself has to say
as to the essentiality of such belief.

14
Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954
SC 282 : 1954 SCR 1005; Sri Venkataramana Devaru v. State of Mysore [AIR 1958 SC 255 : 1958 SCR 895.
15
Sarika v. Shri Mahakaleshwar Mandir Committee, (2018) 17 SCC 112.
16
Indian Young Lawyers Association v. The State of Kerala & Ors., 2016 SCC OnLine SC 1783.
17
Raja Bira Kishore Deb v. State of Orissa, 1964 AIR 1501.
18
Dargah Committee, Ajmer v Syed Hussain Ali, (1962) 1 SCR 383.
19
Indian Young Lawyers Association v. The State of Kerala & Ors., 2016 SCC OnLine SC 1783.
20
Moot Proposition, Para 5.

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16. The restriction imposed on women aged from 10-50 to reach the sanctum sansctorum the
usage prevalent from time immemorial,21 due to nature of deity.22 As devotees have to
undergo strict religious vows for 48 days,23 which mensurating women are unable to. If the
Courts started enquiring and deciding the rationality of a particular religious practice then
there might be confusion and the religious practice would become what the courts wish the
practice to be.24
1.3.2 The Nature of deity in the temple

17. If any practise in a particular temple can be traced to antiquity, and is integral to the temple, it
must be taken to be an essential religious practices of that temple. 25 The same deity is capable
of having different physical and spiritual forms or manifestations. Worship of each of these
forms is unique, and not all forms are worshipped by all persons. The form of the deity in any
temple is of paramount importance. For instance, Lord Krishna in the temple at Nathdwara is
in the form of a child.26
18. It is submitted that entry of women is not restricted in any other temple but only in Lord
Bhimppa27 due to the nature of deity i.e. Naishtika Brahmmachari. 28 Further, the Sabari Male
Board held that this practice is in accordance with centuries old-tradition 29 since the deity has
manifested himself in the form of a ‘Naishtik Brahmachari.’30

ISSUE II- WHETHER THE BAN OF ENTRY OF WOMEN OF MENSTRUATING AGE BETWEEN
10-50 YEARS OWING TO RELIGIOUS BELIEFS IS VIOLATIVE OF ARTICLES 14, 15, 17 AND
25(1) OF THE INDIAN CONSTITUTION?

19. Religion is a matter of faith. Religious beliefs are held to be sacred by those who have faith.
The term ‘religion’ has reference to one’s views of his relation to his Creator and to the
obligations they impose of reverence for His Being and character and of obedience to His
Will”. 31
The ban on entry of women of menstruating age firstly, does not violates Article 14
and 15 (2.1), secondly, not violates Article 17 (2.2), and thirdly to deny entry in sanctum
21
Clarification 43.
22
Moot Proposition, Para 2.
23
Moot Proposition, Para 1.
24
D. D. Basu, Commentary on the Constitution of India, vol.2 (Calcutta, S.C. Sarkar & Sons, 1962), p. 144.
Sadiq Ali, ed., Congress and the problem of Minorities (Allahabad, Law Journal press, 1947), pp.119, 129.
25
1964 SCR (1) 561.
26
Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, 1963 AIR 1638.
27
Moot Proposition, Para 4.
28
Moot Proposition, Para 4.
29
Moot Proposition, Para 4.
30
S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvanathapuram & Ors, AIR 1993 Ker 42.
31
Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC
282.

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sanctorum is not violative of Article 25 (1) (2.3).

2.1 The practice does not violate Article 14 and Article 15

20. It is submitted that Article 14 states that the exclusion of women in this Temple is not
absolute or universal. It is limited to a particular age group in one particular temple, with the
view to preserve the nature of the deity. 32 Only women within the age group of 10-50 years
are denied worship to sanctum sanctorum.33 The usage and practice is primarily to preserve
the sacred form and character of the deity which is a Naishtika Brahmmachari. 34
21. The equality doctrine enshrined under Article 14 does not override the Fundamental Right
guaranteed by Article 25 to every individual to freely profess, practise and propagate their
faith, in accordance with the tenets of their religion. 35
The restriction imposed on women
aged above 10 and below 50 from offering worship at Shrine is in accordance with the usage
prevalent from time immemorial36 and centuries-old tradition culture.37 It does not violate
article 14 and 15 as firstly, there exists intelligible differentia for such classification (2.1.1)
and secondly, banning the entry of menstruating women does not violate Article 15 (2.1.2).

2.1.1 There exists intelligible differentia for such classification

22. It is submitted that Article 14 forbids class legislation, but does not forbid reasonable
classification. Whether a classification is a permissible classification under Article 14 or not,
two conditions must be satisfied, namely: (1) that the classification must be founded on an
intelligible differentia which distinguishes persons or things that are grouped together from
others left out of the group, and (2) that the differentia must have a rational nexus to the
object sought to be achieved by the statute in question.38
23. It is submitted that in order to consider the question as to the reasonableness of the
classification, it is necessary to take into account the objective for such classification. The
women aged group 10-50 are banned to enter the temple due to their mestruating age. 39 It is
further submitted that not all women has been excluded but only of a certain age.
24. It is humbly submitted that surrounding circumstances may be taken into consideration in

32
Moot Proposition, Para 2.
33
Moot Proposition, Para 1.
34
Moot Proposition, Para 4.
35
Indian Young Lawyers Association v. The State of Kerala & Ors., 2016 SCC OnLine SC 1783.
36
Moot Proposition, Para 5.
37
Moot Proposition, Para 4.
38
State of West Bengal v. Anwar Ali Sarkar, 1952 SCR 284 : 7 DLR SC 188 : 1952 Cri LJ 510 : AIR 1952 SC
75.
39
Moot Proposition, Para 2.

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support of the constitutionality of a law which is otherwise hostile or discriminatory in

nature.40 But the circumstance must be such as to justify the discriminatory treatment or the
classification sub-serving the object sought to be achieved.
25. There is a reasonable classification as to enter the Lord Bhimappa shrine, pilgrims has to
undergo strict religious vows for 48 days.41 The problem with women is that they cannot
complete the 48 days42 because the Asaucham of periods will surely fall within the 48 days. It
is not a mere physiological phenomenon. It is the custom among all Hindus that women
during periods do not go to Temples or participate in religious activity. This is as per the
statement of the basic Thantric text of Temple worshiping in Kerala Thanthra Samuchayam,
Chapter 10, Verse II.43
26. It was also held that the deity is in the form of a Naisthik Brahmachari, as a result of which,
young women should not offer worship in the temple, so that even the slightest deviation
from celibacy44 and austerity observed by the deity is not caused by the presence of such
women.
27. That the deity at Sabarimala is in the form of a ‘Naishtik Brahmachari‘ and that is the reason
why young women are not permitted to offer prayers in the temple as the slightest deviation
from celibacy and austerity observed by the deity is not caused by the presence of such
women. That a practice started in hoary antiquity, and continued since time immemorial
without interruption, becomes a usage and custom.45

2.1.2 Banning the entry of menstruating women does not violate Article 15

28. It is submitted that deny the entry of menstruation women does not violate Article 15. As the
provided is not on the basis of sex “only” but the menstruating women. Women outside the
bracket of 10-50 has been allowed entry and they are even running the campaign
#ReadytToWait.46
29. The custom and usage of restricting the entry of women in the age group of 10 to 50 years
followed is pre-constitutional.“Law” includes custom or usage, and would have the force of

40
Shri Ram Krishna Dalmia v. Justice S.R Tendolkar, 1958 AIR 538.
41
Moot Proposition, Para 1.
42
Moot Proposition, Para 1.
43
Indian Young Lawyers Association v. The State of Kerala & Ors., 2016 SCC OnLine SC 1783 ; Kerala
Thanthra Samuchayam, Chapter 10, Verse II.
44
Moot Proposition, Para 4.
45
Ewanlangki-E-Rymbai vs Jaintia Hills District Council, 2006 SCC OnLine SC 354; Bhimashya & Ors. v.
Janabi (Smt) Alia Janawwa, 2006 SCC OnLine SC 1379; Salekh Chand (Dead) by LRs v. Satya Gupta & Ors,
2008 SCC OnLine SC 429.
46
Moot Proposition, Para 5.

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law.47 The characteristics and elements of a valid custom are that it must be of immemorial
existence, it must be reasonable, certain and continuous. The customs and usages, religious
beliefs and practices as mentioned above are peculiar to the Sabarimala Temple, and have
admittedly been followed since centuries.
30. It is submitted that the mode of worship adopted when Lord Krishna was worshiped in the
form of a child. Religion does not merely lay down a code of ethical rules for its followers to
accept, but also includes rituals and observances, ceremonies and modes of worship which
are regarded as integral parts of the religion.48
31. If women as a class were prohibited from participation, it would amount to social
discrimination. However, this is not so in the present case. Girls below 10 years, and women
after 50 years can freely enter this Temple, and offer worship. Thus, discrimination not being
only on the basis of sex, but on the basis of mensuration is not violative of Article 15.

2.2 Action of Temple Authorities to ban entry is not violative of ARTICLE 17

32. It is submitted that all forms of exclusion would not tantamount to untouchability. Article 17
pertains to untouchability based on caste prejudice. Literally or historically, untouchability
was never understood to apply to women as a class.49
33. The right asserted to enter into sanctum sanctorum is different from the right asserted by
Dalits in the temple entry movement. The restriction on women within a certain age-band i.e.
10-50,50 is based upon the historical origin and the beliefs and practises since time
immemorial,51 with centuries old tradition.52 In the present case, women of the notified age
group are allowed entry into all other temples of Lord Bhimappa. The restriction on the entry
of women during the notified age group in this Temple is based on the unique characteristic
of the deity,53 and not founded on any social exclusion.
34. Reference to Article 17 of the Constitution of India by the association is misplaced for the
following reasons:-
35. Article 11 of the Draft Constitution corresponds to Article 17 of our present Constitution. A
perusal of the Constituent Assembly debates on Article 11 of the Draft Constitution would

47
Article 13(3)(a), The Constitution of India, 1950.
48
Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors, 1963 AIR 1638.
49
Indian Young Lawyers Association v. The State of Kerala & Ors., 2016 SCC OnLine SC
1783.
50
Moot Proposition, Para 2.
51
Clarification 43.
52
Moot Proposition, Para 4.
53
Moot Proposition, Para 2.

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reflect that “untouchability” refers to caste-based discrimination faced by Harijans, and not
women.54
36. During the debates, Mr. V.I. Muniswamy Pillai had stated:
“…Sir, under the device of caste distinction, a certain section of people have been
brought under the rope of untouchability, who have been suffering for ages under
tyranny of so-called caste Hindus, and all those people who style themselves as
landlords and zamindars, and were thus not allowed the ordinary rudimentary facilities
required for a human being… I am sure, Sir, by adoption of this clause, many a Hindu
who is a Harijan, who is a scheduled class man will feel that he has been elevated in
society and has now got a place in society…”55
37. Mr. Seervai, in his seminal commentary, states that “Untouchability” must not be interpreted
in its literal or grammatical sense, but refers to the practise as it developed historically in
India amongst Hindus. He further states that Article 17 must be read with the Untouchability
(Offences) Act, 1955, which punishes offences committed in relation to a member of a
Scheduled Caste.56
38. It is clear that Article 17 refers to the practise of Untouchability as committed in the Hindu
community against Harijans or people from depressed classes, and not women.Thus, action
of the temple authorities to ban entry of women of mensurating age owing to religious belief
is not violative of Article 17 of the Constitution.

2.3 To deny entry in sanctum sanctorum is not violative of Article 25 (1)

39. It is submitted that the worshippers of this deity in Sabarimala Temple even individually have
the right to practise and profess their religion 57 in accordance with the tenets of their faith,
which is protected as a Fundamental Right. As a result, the Fundamental Rights of the
denomination is not subject to Articles 14 or 15 of the Constitution. With respect to Article
25(1), it is submitted that the worshippers of Lord Bhimappa are entitled to the freedom of
conscience, and the right to profess, practise and propagate their religion.
40. The right to profess their faith by worshipping at the Sabarimala Temple, can be guaranteed
only if the character of the deity as a ‘Naishtik Brahmachari’58 is preserved. If women
54
Indian Young Lawyers Association v. The State of Kerala & Ors., 2016 SCC OnLine SC
1783.
55
Statement of Shri V.I. Muniswamy Pillai, Constituent Assembly Debates (November 29,
1948).
56
M.P. Jain, Indian Constitutional Law, (6th Ed., Revised by Justice Ruma Pal and
Samaraditya Pal; 2010), at p. 1067.
57
Article 25(1), The Constitution of India, 1950.
58
Moot Proposition, Para 4.

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between the age of 10 to 5059 years are permitted entry, it would result in changing the very
character/nature of the deity, which would directly impinge on the right of the devotees to
practise their religion guaranteed by Article 25(1) of the Constitution. It necessarily implies
that the right to freedom of religion guaranteed under Article 25 is subject to the freedom to
manage religious affairs guaranteed under Article 26(b) of the Constitution.60
41. It is submitted that the right of a denomination to wholly exclude members of the public from
worshipping in a temple though comprised in Article 26(b), must yield to the overriding right
declared by Article 25(2)(b) in favour of the public to enter into the temple for worship. 61
42. It is submitted that the personal views of judges are irrelevant in ascertaining whether a
particular religious belief or practice must receive the protection guaranteed under Article
25(1).62 Claim of the right to worship in the Temple under Article 25(1) in accordance with
their beliefs and practises as per the tenets of their religion. These practices are considered to
be essential or integral to that Temple. Any interference with the same would conflict with
their right guaranteed by Article 25(1) to worship deity in the form of a ‘Naishtik
Brahmachari’.63

ISSUE III- Whether the action of the temple authorities is violative of the fundamental
rights of Mr. Palermo and Mr. Manila under Article 15(2) and 21 of the Constitution?

43. It is submitted that action of temple authorities has not violated the fundamental rights of duo
as deny to temple entry was firstly, neither violative of Article 15(2) of the constitution (3.1)
nor secondly, it violated article 21 of the constitution (3.2).

3.1 Deny to temple entry was not violative of Article 15 (2) of the Constitution

44. It is humbly submitted that there has been no violation of the fundamental rights of Mr.
Palermo and Mr. Manila as enshrined in article 15(2) of the Indian Constitution. Firstly, they
were given the access to the temple (3.1.1) Secondly, Even if they would have been denied
the entry there has been no violation of Article 15 (2) (3.1.2).

59
Moot Proposition, Para 2.
60
S. Mahendran v. Respondent: The Secretary, Travancore Devaswom Board, Thiruvananthapuram
and Ors., 1991 SCC OnLine Ker 43.
61
Vankataramana Davaru v. State of Mysore, AIR 1958 SC 255.
62
Bijoe Emmanuel & Ors vs State Of Kerala & Ors, 1987 AIR 748.
63
Moot Proposition, Para 4.

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3.1.1 They were given the “access” to the temple

45. It is submitted that Prohibition of discrimination on grounds of religion, race, caste, sex or
place of birth

(1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them

(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any
of them, be subject to any disability, liability, restriction or condition with regard to

(a) access to shops, public restaurants, hotels and palaces of public entertainment; or

(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.64

46. It is submitted that term access means “an opportunity or ability to enter”.65 They were
allowed the entry the access to the shrine. 66 Having allowed access to temple, it is submitted
that there is no violation of any right as enshrined in art 15(2) of the constitution.

3.1.2 Secondly, even if they have been denied the entry there has been no violation of
Article 15 (2)

47. It is submitted that the grounds mentioned in article 15 are religion, race cast, sex and the
place of birth. It has often been emphasized in interpreting art. 15 that the importance of the
word “only”67 should not be minimized; this word in fact can be described as the key word in
the article. It is not all discriminations which may, incidently and in a subsidiary way, be
preferable to religion, race, caste, sex or place of birth that are prohibited. It is only when
discrimination against a citizen can be referred to no other reasonable ground that it falls
within the mischief of Art. 15
48. The place of residence was not included in Article 15 of the constitution laying laying the
strict interpretation and keeping the place of residence from place of birth separate has held
the following:-

“ the discrimination arising from a denial of the benefit of free education in

this school to the non-Limbdi and non-Lakhtar students therefore arises on the

64
Article 15, The Constitution of India, 1950.
65
Black Law’s Dictionary, pg: 28.
66
Moot Proposition, Para 8.
67
Article 15, The COnstitution of India, 1950.

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ground of residence and not on any of the grounds mentioned in Art. 15 of the
Constitution. Even if a person was born outside the Limbdi State, he could
acquire the status of a resident of the State by fulfilling the requirements of S.
3(11) of the Act and no distinction was made on account of mere place of birth,
Therefore the classification here rests on the ground of residence, and does not
infringe Art. 15.”68

49. The Hon’ble Supreme court in the case of NALSA v. Union of India69 has nowhere clearified
the deference between gender and sex and has assumed them to be same. But, it is submitted
that the terms ‘gender’ and ‘sex’ have very different meanings as gender is a socio-cultural
construct while sex is primarily biological.70
50. The difference between the two terms could be clarified as Sex refers to biological status as
male or female. It includes physical attributes such as sex chromosomes, gonads, sex
hormones, internal reproductive structures, and external genitalia. Gender is a term that is
often used to refer to the ways that people act, interact, or feel about themselves, which are
associated with boys/men and girls/women. While aspects of biological sex are the same
across different cultures/aspects of gender may not be.71
51. In article 15(2) the discrimination has been prohibited only on the grounds of race, caste, sex
and place of birth, the Judiciary across India has always given a very strict interpretation of
this article and has always laid the emphasis on the word ‘only’ in the article.
52. So, the terms ‘sex’ and ‘gender’ have very different meanings and the term ‘gender’ not
being included in article 15(2) clearly doesn’t restrict the government from discriminating on
the grounds of gender.
53. Further, Articles 15 and 16 inhibit the discrimination only and only on the grounds mentioned
in these Articles including the sex. But the said Articles do not prohibit the said principle
making the discrimination on the ground other than those mentioned therein, or grounds
mentioned therein coupled with other consideration.72
54. Even if the interpretation of the words gender and sex is taken to be the similar one in that
case too there can be discrimination on the ground mentioned in article 15 coupled with other
considerations. As has been explained earlier essential religious practice is that consideration
68
Jayantilal Mohanlal Shah vs. State of Saurashtra and Ors., MANU/GJ/0019/1955.
69
NALSA v Union of India, 2014 SCC OnLine SC 328.
70
NALSA v. Union of India - Metamorphosis of Gender Recognition in India, 2.2 CALQ (2015) 48 at page 56.
71
Ganga Kumari vs. State of Rajasthan and Ors., S.B. Civil Writ Petition No. 14006 / 2016.
72
Yusuf Abdul Aziz v. State of Bombay 1954 AIR 321, Javed Niyaz Beg v. Union of India, 1981 AIR 794 and
Air India v. Nergest Meerza, 1981 AIR 1829, Ganga Ram Moolchandani v. High Court of Judicature for
Rajasthan (1994) Tr. LJ 2125.

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in the case in hand.

3.2 Action of temple authorities does not violate Article 21

55. It is submitted that the sphere of privacy allows persons to develop human relations without
interference from the outside community or from the State. The exercise of autonomy enables
an individual to attain fulfilment, grow in self-esteem, build relationships of his or her choice
and fulfill all legitimate goals that he or she may set. 73 There is no violation of fundamental
rights as firstly, Article 21 is subject to procdure established by law (3.2.1) and secondly,
fundamental rights remain unprotected if person voluntary invites a controversy (3.2.2).

3.2.1 Article 21 is subject to procedure established by law

56. It is submitted that that sexual orientation is an essential attribute of privacy and that the right
to privacy and the protection of sexual orientation lies at the core of the fundamental rights
guaranteed by Articles 14, 15 and 21 of the Constitution.74 But, the right to privacy can be
restricted by procedure established by law and this procedure would have to be just, fair and
reasonable.75 “Law” includes custom or usage, and would have the force of law. 76 The
characteristics and elements of a valid custom are that it must be of immemorial existence, it
must be reasonable, certain and continuous. The Custom to ban the entry of women has been
in existence and practiced since time immemorial77 is protected. Further, Temples have been
provided freedom to manage its own affairs in matters of religion.78
57. It is submitted that reasonable restrictions can be imposed on the right to privacy in the
interest of the sovereignty and integrity of India, the security of the State, friendly relations
with foreign States, public order, decency or morality, or in relation to contempt of court,
defamation or incitement to an offence.79 The right to privacy can be restricted if there is a
compelling state interest to be served, which is protection of essential religious practice in the
case in hand.80

73
Navtej Singh Johar v. Union of India, (2018) 1 SCC 791.
74
Express Web, “Right to privacy judgment: SC says sexual orientation essential attribute of privacy and must
be protected”, THE INDIAN EXPRESS, August 24, 2017.
75
Maneka Gandhi v. Union of India, 1978 AIR 597.
76
Article 13(3)(a), The Constitution of India, 1950.
77
Clarification 43.
78
Article 26 (b), The Constitution of India, 1950.
79
Article 19 (2), The Constitution of India, 1950.
80
Govind v. State of M.P., 1975 AIR 1378.

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58. Thus, it is submitted that though sexual rights has been recognized by the court, but the same
is subject to reasonable restrictions, in light of Article 26, exclusion of women considered as
essential religious practice and the tradition has been continued for time immemorial.81

3.2.2 Fundamental rights remain unprotected if person voluntarily invites a controversy

59. It is submitted that “The right to privacy is implicit in the right to life and liberty guaranteed
to the citizens of this country by Article 21. It is a "right to be let alone". None can publish
anything concerning the above matters without his consent whether truthful or otherwise and
whether laudatory or critical. If he does so, he would be violating the right to privacy of the
person concerned and would be liable in an action for damages. Position may, however, be
different, if a person voluntarily thrusts himself into controversy or voluntarily invites or
raises a controversy.”82
60. It is submitted that, Mr. Palermo and Mr. Manila,83 leading the organisation and protesting in
front of temple, had the knowledge of exclusionary practice adduced with the fact of being
agnostic,84 with the widespread protests across the nations.85 It is submitted that they were
aware of the practice that menstruating people are not denied entry in the sanctum
sanctorum.86 But they entered the temple. These are in position of voluntary thrusting into
controversy and them claiming violation of their fundamental rights.
61. It is submitted that in such a condition, remedy under Article 21 is not available with them.
Otherwise, courts would be flooded on the basis, firstly, individuals indulging themselves in
controversy and them seeking relief from the court.

ISSUE IV- WHETHER THE ABSENCE OF A STATE ENACTED LAW UNDER ARTICLE 25(2)(B)
LEADS TO THE VIOLATION OF THE FUNDAMENTAL RIGHTS OF PEOPLE?

62. It is submitted that Article 25(2)(b) declares that nothing in Article 25(1) shall prevent the
State from making any law 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.
Absence of law would not lead to violation of fundamental rights as firstly, Constitution acts
as guarantor of fundamental rights (4.1) and secondly, state can enact laws on social norms
but not on religious one (4.2).

81
Clarification 43.
82
R. Adijagopal v. Union of India, AIR 1995 SC 264.
83
Moot Proposition, Para 8.
84
Moot Proposition, Para 9.
85
Moot Proposition, Para 8.
86
Moot Proposition, Para 1.

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4.1 Constitution acts as gurantor of fundamental rights and hence no need of statute for
every matter

63. It is submitted that dedicated part87 has been included in our constitution by constitution
makers to ensure protection of fundamental rights. And for every matter, enactment of
legislation is not required. Thus, absence of same is not in violation of 25(2)(b) of the
constitution.
64. The ‘throwing open’ to ‘all classes and sections of Hindus’ was intended to redress caste
based prejudices and injustices in society. Article 25(2)(b) cannot be interpreted to mean that
customs and usages forming an essential part of the religion, are to be overridden. Article
25(2)(b) would have no application since there is no “ban”, but only a limited restriction,
based on faith, custom and belief, which has been observed since time immemorial.88
65. It is submitted that the exception carved in Art. 25 (2) of the Constitution of India to the
Freedom of Religion enabling the state to enact laws providing for social welfare and reform
was not intended to enable the legislature to reform a religion out of its existence or identity.
It was also stated that even while bringing in such a social reform it is not permissible to
change the entire practice or acts done in pursuance of such religion.89

4.2 State can enact laws on social norms and not religious one

66. It is submitted that Art. 25(2)(b) sanctions only social and not religious reform. Hence it is
the duty of the court to ensure that in the name of effecting social reform, the legislature does
not efface a religion altogether, by doing away with its basic or essential doctrines or
practices. The concept of social reforms was inherited by the Indian constitution under
Article 25(2)(b) without impairing the freedom of religion.90
67. But this does not mean that any practice followed by a particular sect or a group of people in
the name of religion cannot be termed as a religious practice or secularism. The very idea of
secularism followed in India is entirely different from other western countries where the state
does not interfere with religious matters, however in India the State takes all measures to
preserve & promote the age-old customs & traditions, which gives the country a unique
identification among other countries across the world, it has also recognized secularism as a
basic structure of the constitution.91

87
Part III, The Constitution of India.
88
Clarification 43.
89
Sardar Sydena Taher Saifuddin Saheb v. State of Bombay. 1962 AIR 853.
90
Article 25 (2) (b), The Constitution of India, 1950.
91
S.R Bommai v. Union of India, (1994)3 S.C.C. 1

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68. Religious practices or performances of acts in pursuance of religious beliefs are as much a
part of religion as faith or belief in particular doctrines. Man’s relation to his GOd is no
concern of the state.92 No outside authority has any right to say that these are not essential
parts of religion and it is not open to the secular authority of the State to restrict or prohibit
them in any manner they like under the guise of administering the trust estate.93
69. The most striking aspect of the essential practices doctrine is the attempt by the Court to
fashion religion in the way a modern state would like it to be rather than accept religion as
represented by its practitioners.94 Famous philosopher in fact denied the participation of
religion in the law formation process.95

92
Commr. Of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770.
93
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshimindra Thirtha Swamiar of Sri Shirur
Mutt, AIR 1954 SC 282
94
Ibid.
95
I. Kant, Critique of Practical Reason (Science Publishing, St. Petersburg, 2007).

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PRAYER

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