BEFORE THE HON’BLE SUPREME COURT OF INDONESIANA

Civil Appeal No.: _______ of 20__

IN THE MATTER OF

Seruni…………………………………........................Petitioners
Versus.
State of West Java ...........................................................……………Respondent

Memorial Most Humbly And Respectfully Submitted to, The Learned Court,
On Behalf Of the appellant.

Submitted by : (18BAL) Submitted to: Prof. Dr. Mukesh Kumar

Semester X [B.A.LL.B (Hons.)] (Section “A”) University Institute of Legal Studies

Chandigarh University, Mohali

 TABLE OF CONTENTS

S.No. Content Page no.

i. ABBREVATIONS ii

ii. LIST OF CASE LAWS iii

iii. LIST OF AUTHORTIES iv

iv. STATEMENT OF FACTS v

v. STATEMENT OF JURISDICTION vi

vi. STATEMENT OF ISSUES vii

vii. SUMMARY OF ARGUMENTS viii-x

viii. ADVANCEMENT OF ARGUMENTS xi-xxviii

ix. PRAYER xxix

i
 ABBREVIATIONS

i AIR All India Reporter

ii Annex. Annexure
iii Anr. Another
iv All ER All England Law Report
v Bom. Bombay
vi B/w Between
vii CA Class Action
viii Cal. Calcutta High Court
ix Cr.LJ Criminal Law Journal
x CJ Chief Justice
xi CrPC The Code Of Criminal Procedure
xii Del. Delhi High Court
xiii Ed. Edition
xiv FIR First Information Report
xv HC High Court
xvi IPC Indian Penal Code
xvii SC Supreme Court
xviii SCC Supreme Court Case
xix & And
xx UOI Union of india
xxi u/s Under section
xxii v. Versus

ii
 LIST OF CASE LAWS

S.No. Case Page no.

i. Arya Vyasa Sabha & Ors. v. Commissioner of Hindu Charitable xvii-xviii
and Religious Institutions & Endowments, Hyderabad & Ors.,
Civil writ 1383 and 1518 of 1974
ii. Bhimashya & Ors. v. Janabi (Smt.) Alia Janawwa, (2006) 13 xxvii
SCC 627
iii. Commissioner of Olice v. Acharya Jagdishvaranand, 2004 (12) xviii-xix
SCC 770
iv. Dr. Subramaniam Swamy v. State of Tamil Nadu, Civil appeal
10622 of 2013
v. DP Joshi v. State of MB, 1955 AIR 334
vi. Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors.,
1961 AIR 1402
vii. Ewanlangki-E-Rymbai v. Jaintia Hills District Council & Ors.,
(2006) 4 SCC 748
viii. Jamshed Ji v. Soonabai, 1 Ind Cas 834
ix. Mahant Moti Das v. S.P. Sahi, The Special Officer in Charge of
Hindu Religious trust & Ors., 1959 AIR 942
x. Pramatha Nath Mullick v Pradyumna Kumar Mullick, (1925) 27
Bom LR 1064

iii
 LIST OF AUTHORITIES

I. STATUTES:
• The Constitution of India, 1950
• Protection of Civil Rights Act, 1955
• Kerala Hindu Places of Public Worship (Authorisation of Entry) Act, 1965

II. BOOKS/MANUALS :
• Constitutional Law of India by H.M. Seervai
• M. P Jain, Indian Constitutional law, 8th Edition
• V N Shukla, Constitution of India, 12th Edition
• Constitutional Assembly Debates Book No. 5, Vol. No. X-XII

iv
 STATEMENT OF FACTS

1. Besakih is a Hill located in the Balinese District of the State of West Java of Country
Indonesiana, and the site of the most important Hindu temple dedicated to presiding Deity
Ayyappan Sannidhanam. Besakih Temple has its own "Purana" which stated that He is an
"Eternal Celibate." For the Purpose of Law He is considered a Juristic Person. The main
peculiarity about Besakih is that the near totality of its pilgrims are men. As a consequence, the
temple and its premises are configured as an all-male space, and the pilgrimage is configured as
a masculinity-defining practice.

2. Lord Ayyappan's believers considered that to restrict a female between 10 to 50 Years (women
in fertile age) from accessing the temple at any point in time is an "'Essential Religion Practice".

3. In 1965, the State of West Java passed an Act and allowed discriminatory access if mandated
by religious custom. This resulted in legal backing to a discriminatory practice which was earlier
followed as a custom.

4. On 24-9-1990 a Public Interest Litigation was filed by an elderly male devotee before the
State that few young women were seen trekking Besakih Hills and offering prayers at the
Besakih Shrine. It was alleged in the PIL

a. That women performing prayers at Besakih is contrary to the customs and usages followed
by the temple.
b. That special treatment is being given to wives of V.I.Ps visiting the temple as they are
allowed to worship in the temple which is banned.
c. It also specify an instance of the first rice-feeding ceremony of the granddaughter of the
former Commissioner (Female) conducted at Besakih Temple in the presence of her daughter,
the mother of the child, and other relatives including other women, attached with a photograph
which appeared in the Jakarta Newspaper dated 19-8-1990

5. In 1991, the West Java High Court, endorsed the ban imposed by the Temple Board to prevent
women (aged 10-50 years) to trek the hill and enter the shrine, upon the following
considerations. it existed from time immemorial, the prohibition was an integral part of the
Hindu religion; e it did not violate the Constitutional Principles of non-discrimination (Art. 15),
Freedom of Religion (Art.25) and Right of religious denominations to manage their religious
affairs (Art. 26), The 1965 Act Passed by the West Java State.

6. According to the West Java High Court, It was not discriminatory, since it concerned not all
women as a group, but just a part of them (i.e. age between 10-50).

7. In 2005 some women started raising their voice against this discriminatory practice. They even
went to the temple to worship, but were threatened and irated with dire consequences if they
tried to surpass the custom.
v
 STATEMENT OF JURISDICTION

The Respondent has approached the Hon’ble Supreme Court as the Petitioner has filed this writ
petition under Article 321 of the Constitution of Indonesiana for the violation of Fundamental
Rights enumerated in Part III of the Constitution. The Respondent, however contends that the
Petitioner has no locus standi as writ under Article 32 can only be invoked by the person whose
Fundamental Rights are being violated. The Respondent also maintains that no violation of
Fundamental Rights has taken place. Therefore, this Hon’ble Court need not entertain its
jurisdiction in this writ petition.

vi
 STATEMENT OF ISSUES

1. Whether this exclusionary practice amounts t discrimination"," hereby resulting in

violation of the Fundamental Rights of the Constitution?

2. Whether such practice of excluding women constitutes an "Essential Religious Practice

and whether a religious institution can assert a claim in that regard under the umbrella of
right to manage its own affairs in the matters of religion?

3. Whether Ayyappa Temple has a denominational character, if so, is it permissible on the part
of a “religious denomination” managed by a statutory board and financed under the
Constitution out of the Consolidated Fund of West Java to indulge in such practices
violating constitutional principles/morality?

4. Whether provisions of the West Java Act, 1965 permits religious denomination" to ban
entry of women between the ages of 10 to 50 years?

5. Whether Rules of the West Java Act, 1965 is ultra vires the West Java Act, 1965 and, if
treated intra vires, whether it will be violative of provisions of the Constitution?

vii
 SUMMARY OF ARGUMENTS

1. ISSUE

WHETHER THIS EXCLUSIONARY PRACTICE AMOUNTS TO ‘DISCRIMINATION’,

THEREBY RESULTING IN VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE
CONSTITUTION?
It is humbly submitted before this Hon’ble Supreme Court of Indonesiana that this exclusionary
practice does not amounts to discrimination and hence not in violation of the Fundamental Rights
of the Constitution.

2. ISSUE
WHETHER SUCH PRACTICE OF EXCLUDING WOMEN CONSTITUTES AN
“ESSENTIAL RELIGIOUS PRACTICE” AND WHETHER A RELIGIOUS INSTITUTION
CAN ASSERT A CLAIM IN THAT REGARD UNDER THE UMBRELLA OF RIGHT TO
MANAGE ITS OWN AFFAIRS IN THE MATTER OF RELIGION?
It is humbly submitted before this Hon’ble Supreme Court of Indonesiana that the practice of
excluding women of age group 10-50 years is an essential religious practice and also the Besakih
temple has right to manage its own affairs with regard to this matter and the same must be
protected under the Article 25 and Article 26 of the Constitution. It has always been a
complicated task to compartmentalize if a particular issue falls under essential religious practice
or if it is a secular activity only associated with religion.

3. ISSUE

WHETHER AYYAPPA TEMPLE HAS A DENOMINATIONAL CHARACTER, IF SO, IS IT

PERMISSIBLE ON THE PART OF ‘RELIGIOUS DENOMINATION’ MANAGED BY A
STATUTORY BOARD AND FINANCE UNDER THE CONSTITUTION OUT OF THE
CONSOLIDATED FUND OF WEST JAVA TO INDULGE IN SUCH PRACTICES
VIOLATING CONSTITUTIONAL PRINCIPLES/MORALITY?
It is most humbly submitted before the Hon’ble Supreme Court of Indonesiana that the Ayyappa
Temple has a denominational character as it has own doctrine of belief and common faith. It is
submitted that the reliance on Article 290A by the Petitioner to argue that the Temple and the
Statutory Board fall under “State” is erroneous and misleading. In any event, Article 290A does
not in any manner take away the denominational character of the Besakih Temple, or the
Fundamental Right under Article 26.

viii
 4. ISSUE
WHETHER PROVISIONS OF THE WEST JAVA ACT, 1965 PERMITS THE ‘RELIGIOUS
DENOMINATION’ TO BAN ENTRY OF WOMEN BETWEEN THE AGES OF 10 TO 50
YEARS?
It is humbly submitted before this Hon’ble Supreme Court of Indonesiana that provision of the
West Java Act, 1965 permits the ‘religious denomination’ to ban entry of women between the
age of 10 to 50 years.

5. ISSUE
WHETHER RULES OF THE WEST JAVA ACT, 1965 IS ULTRA VIRES THE WEST JAVA
ACT, 1965 AND, IF TREATED INTRA VIRES, WHETHER IT WILL BE VIOLATIVE OF
PROVISIONS OF THE CONSTITUTION?
It is humbly submitted before this Hon’ble Supreme Court that the Rule 3(b)2 of The West Java
Act 1965 is not ultra vires the Parent Act and it is not violative of the provision of Constitution
of Indonesiana.

ix
 ARGUMENTS ADVANCED

1. ISSUE

WHETHER THIS EXCLUSIONARY PRACTICE AMOUNTS TO ‘DISCRIMINATION’,

THEREBY RESULTING IN VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE
CONSTITUTION?
It is humbly submitted before this Hon’ble Supreme Court of Indonesiana that this exclusionary
practice does not amounts to discrimination and hence not in violation of the Fundamental Rights
of the Constitution.

APPLICABILITY OF ARTICLE 14

Religious customs and practices cannot be solely tested on the touchstone of Article 14 and the
principles of rationality embedded therein. Article 25 specifically provides the equal entitlement
of every individual to freely practice their religion. Equal treatment under Article 25 is
conditioned by the essential beliefs and practices of any religion. Equality in matters of religion
must be viewed in the context of the worshippers of the same faith. The twin-test for determining
the validity of a classification under Article 14 is:
• The classification must be founded on an intelligible differentia; and
• It must have a rational nexus with the object sought to be achieved by the impugned law.

The difficulty in front of the Court lies in applying the tests under Article 14 to religious
practices which are also protected as Fundamental Rights under our Constitution. The
right to equality claimed by the Petitioner under Article 14 conflicts with the rights of the
worshippers of this shrine which is also a Fundamental Right guaranteed by Articles 25,
and 26 of the Constitution.

The classification is founded on an intelligible differentia which distinguishes women of

that age group from both men and women of other age groups and makes that age group
the basis of exclusion based upon inherent physiological characteristics which bear a
nexus to the objects of abstinence, celibacy, purity and self-denial. Needless to add, the
maintenance of the purity of the idol/deity in the form of a Naishtik Brahmacharya is also
a paramount object which is sought to be achieved. Consequently, the differentia is not
only intelligible, not only distinguishes the persons or things that are grouped together
from others left out of the group, but the differentia also has a rationale relation to the
object sought to be achieved.

The submissions made by the Counsel for the Petitioner is premised on the view that this
practice constitutes gender discrimination against women. On the other hand, it is
submitted that the present case deals with the right of the devotees of this denomination

x
or sect, as the case may be, to practice their religion in accordance with the tenets and
beliefs, which are considered to be “Essential Religious Practices” of this shrine.
The Petitioner have contended that the age group of 10 to 50 years is arbitrary, and
cannot stand the rigors of Article 14. But here the prescription of this age-band is the only
practical way of ensuring that the limited restriction on the entry of women is adhered to.

The right to gender equality to offer worship to Lord Ayyappa is protected by permitting
women of all ages, to visit temples where he has not manifested himself in the form of a
‘Naishtik Brahamachari’, and there is no similar restriction in those temples. It is
pertinent to mention that there are over 1000 temples of Lord Ayyappa, where he has
manifested in other forms, and this restriction does not apply.

The prayers of the Petitioner if acceded to, in its true effect, amounts to exercising
powers of judicial review in determining the validity of religious beliefs and practices,
which is not worth and needed in the present case and even not pleaded by the Petitioner
to do so. The issue of what constitutes an essential religious practice should be left for the
religious community to decide.

APPLICABILITY OF ARTICLE 15

Article 15 of the Constitution prohibits differential treatment of persons on the ground of

‘sex’ alone. The limited restriction on the entry of women during the said age-group rests
in the deeprooted belief of the worshippers that the deity in the Besakih Temple has
manifested in the form of a ‘Naishtik Brahmachari’.

Here it is submitted that the classification would be one between women in the age group
10- 50 years, and women below the age of 10 and over the age of 50. This classification
is not gender based and is not challenged as being violative of Articles 14 and 15 of the
Constitution.3 If the complaint is of gender-based discrimination, it can only be regarded
when the classification was between women in the age group 10-50 years as against men
belonging to the same age group, as women outside this age group are permitted entry.
Classification of intra women group by age brackets is not gender based.
With respect to the right under Article 15, Petitioner had submitted that the Besakih
Temple would be included in the phrase “places of public resort”, as it occurs in Article
15(2)(b).
In this regard, reference may be made to the debates of the Constituent Assembly on this
issue which is Draft Article 9 which corresponds to Article 15 of the Constitution.
Professor K.T. Shah proposed Amendment No. 293 for substitution of sub-clauses (a) &
(b). The Vice-President took up Amendment No. 296 for vote, which was moved for
addition to sub-clause (a). Amendment No. 301 was also proposed by Mr. Tajamul
Hussain for inclusion of: “places of worship”, “Dharamshalas and Musafirkhanas” at the
end of sub-clause (a).

xi
All these proposals were voted upon, and rejected by the Constituent Assembly.8 The Assembly
considered it fit not to include ‘places of worship’ or ‘temples’ within the ambit of Draft Article
9 of the Constitution. This conscious deletion of “temples” and “places of worship” from the
Draft Article 9(1) has to be given due consideration. The contention of the learned Petitioner that
the Besakih Temple would be included within the ambit of ‘places of public resort’ under Article
15(2) cannot be accepted.

APPLICABILITY OF ARTICLE 17

Reference to Article 17 of the Constitution of Indonesiana by the Petitioner is misplaced. Article

17 originated in the context of denial of entry to a particular class of Hindus based on caste viz.
Dalits. The basic object and core of Article 17 was to prohibit untouchability based on caste in
Hindu religion and religious considerations within Hinduism. No such caste based or religions-
based discrimination or untouchability is practiced at Besakih Temple. Indeed, this temple is
unique in as much as all castes and creeds and indeed even non-Hindus are liberally allowed
entry, subject to the other “Vratham” (vow) restrictions.

It is submitted that when the specific clarification was sought by Nazruddin Ahmed in
Constitutional Assembly debate qua amendment No. 3729 to Article 11 (now Article 17), it was
not accepted by Dr. Ambedkar on 29.11.1948.

Explaining the background to Article 17, the Court in Sri Venkataramana Devaru & Ors. v. State
of Mysore & Ors.10 observed:

“23. …. one of the problems which had been exercising the minds of the Hindu social reformers
during the period preceding the Constitution was the existence in their midst of communities
which were classed as untouchables. A custom which denied to large sections of Hindus the right
to use public roads and institutions to which all the other Hindus had a right of access, purely on
grounds of birth could not be considered reasonable and defended on any sound democratic
principle, and efforts were being made to secure its abolition by legislation. This culminated in
the enactment of Article 17, which is as follows: “Untouchability” is abolished and its practise in
any form is forbidden. The enforcement of any disability arising out of ‘Untouchability’ shall be
an offence punishable in accordance with law.”

Not a single precedent has been shown to interpret Article 17 in the manner contended by the
Petitioner. Therefore, it is submitted that the court may be pleased to understand Article 17 as
implicitly prohibiting caste-based untouchability.

APPLICABILITY OF ARTICLE 21

The contention of the Petitioner that the Right to Privacy of woman is being infringed is misled
and wrong.

Moreover, it is humbly submitted that the presiding deity of the Besakih Temple, Lord Ayyappa,

xii
is a bearer of constitutional rights under Part III of the Constitution. It was submitted that the
right to preserve the celibacy of the deity is a protected constitutional right under Article 21 of
the Constitution and extends to excluding women from entering and praying at the Besakih
Temple.

The law recognizes an idol or deity as a juristic person which can own property and can sue and
be sued in the Court of law. In Pramatha Nath Mullick v. Pradyumna Kumar Mullick11 , the
Privy Council dealt with the nature of an idol and services due to the idol. Speaking for the
Court, Lord Shaw held thus:

“A Hindu idol is, according to long established authority, founded upon the religious customs of
the Hindus, and the recognition thereof by Courts of law, a “juristic entity.” It has a juridical
status with the power of suing and being sued.”

APPLICABLITY OF ARTICLE 25

With respect to Article 25(1), it is submitted that the worshippers of Lord Ayyappa are entitled to
the freedom of conscience, and the right to profess, practise and propagate their religion. The
right to profess their faith by worshipping at the Besakih Temple, can be guaranteed only if the
character of the deity as a ‘Naishtik Brahmachari’ is preserved. If women between the age of 10
to 50 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 practice their religion guaranteed by
Article 25(1) of the Constitution.

Clause (2) of Article 25 of the Constitution, which provides access to public Hindu religious
institutions to all classes and sections of the society is applicable only to societal reforms, not
religious matters which are covered under Article 26 of the Constitution. Article 26 (b) gives
right to every religious group to manage their own religious affairs. The Guwahati High Court in
Riju Prasad Sarma v. State of Assam12, ruled that the religious customs which are protected
under Article 25 and 26 are resistant from dispute under other provisions of Part III of the
constitution.

Hence, from the above arguments, it is concluded that this exclusionary practice is restricted to
an age band of 10-50 years and that too for preserving the very nature/character of the presiding
deity and thus does not tantamount to discrimination in any form.

2. ISSUE
WHETHER SUCH PRACTICE OF EXCLUDING WOMEN CONSTITUTES AN
“ESSENTIAL RELIGIOUS PRACTICE” AND WHETHER A RELIGIOUS INSTITUTION
CAN ASSERT A CLAIM IN THAT REGARD UNDER THE UMBRELLA OF RIGHT TO
MANAGE ITS OWN AFFAIRS IN THE MATTER OF RELIGION?
It is humbly submitted before this Hon’ble Supreme Court of Indonesiana that the practice of
excluding women of age group 10-50 years is an essential religious practice and also the Besakih
xiii
temple has right to manage its own affairs with regard to this matter and the same must be
protected under the Article 25 and Article 26 of the Constitution. It has always been a
complicated task to compartmentalize if a particular issue falls under essential religious practice
or if it is a secular activity only associated with religion.
TEST OF ESSENTIAL RELIGIOUS PRACTICE
The essential religious practice test originated in 1954 in case of The Commissioner, Hindu
Religious Endowment Madras v. Shri Lakshmindra Thirtha Swamiar of Shri Shirur Mutt13
popularly known as Shirur Mutt Case in this case court observed that, what constitutes the
essential part of religion is primarily to be ascertained with reference to the doctrine of that
religion itself. If the tenets of any religious sect of Hindus prescribe that offerings of food should
be given to the idol at particular hour of the day, that periodical ceremonies should be performed
in a certain way at certain periods of the year or that there should be daily recital of sacred texts
or obligations to the sacred fire, all these would be regarded as part of religion and the mere fact
that they involve expenditure of money of employment of priest and servants or the use of
marketable commodities would not make them secular activities all of them are religious practice
and should be regarded as matter of religion within the meaning of article 26(b) of the Indian
Constitution.
The ‘Essential practices test’ was reiterated in Ratilal Panachand Gandhi v. The State of Bombay
& Ors14 where the narrow definition of “religion” given by the Bombay High Court was
discarded. It was held that all religious practices or performances of acts in pursuance of
religious beliefs were as much a part of religion, as faith or belief in particular doctrines. The
Hon’ble Court reiterated the ‘Essential practices test’ in the following words:
“13. Thus, if the tenets of the Jain or the Parsi religion lay down that certain rites and ceremonies
are to be performed at certain times and in a particular manner, it cannot be said that these are
secular activities partaking of commercial or economic character simply because they involve
expenditure of money or employment of priests or the use of marketable commodities. 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 …We may refer in this connection to the
observation of Davar, J. in the case of Jamshed Ji v. Soonabai15 and although they were made in
a case where the question was whether the bequest of property by a Parsi testator for the purpose
of perpetual celebration of ceremonies like Muktad bag, Vyezashni, etc., which are sanctioned
by the Zoroastrian religion were valid and charitable gifts, the observations, we think, are quite
appropriate for our present purpose. If this is the belief of the community thus observed the
learned judge, and it is proved undoubtedly to be the belief of the Zoroastrian community, a
secular judge is bound to accept that belief – it is not for him to sit in judgment on that belief, he
has no right to interfere with the conscience of a donor who makes a gift in favour of what he
believes to be the advancement of the religion and the welfare of his community or mankind.

xiv
These observations do in our opinion afford an indication of the measure of protection that is
given by Article 26(b) of our Constitution.”
In Commissioner of Olice v. Acharya Jagdishvaranand16 , the Hon’ble Court held that,
“What is meant by an essential part or practices of a religion is now the matter of elucidation.
Essential part of a religion means the core beliefs upon which religion is founded… essential
practice means those practices that are fundamental to follow a religious belief. It is upon the
cornerstone of the essential parts or practices on which 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 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 essential or integral
part.”
The ‘Essential practices test’ in its application would have to be determined by the tenets of the
religion itself. The practices and beliefs which are considered to be integral by the religious
community are to be regarded as “essential” and afforded protection under Article 25 of the
Constitution.
The only way to determine the essential practices test would be with reference to the practices
followed since time immemorial, which may have been scripted in the religious texts of that
temple. If any practice in a particular temple can be traced to antiquity, and is integral to the
temple, it must be taken to be an essential religious practice of that temple.
In the instant case the issue revolves around the Besakih temple, dedicated to Lord Ayyappa, it is
a prominent temple in the state of West Java which is visited by over twenty million pilgrims and
devotees every year. As per centuries old tradition of this temple, and the ‘acharas’, beliefs and
customs followed by this Temple, women in the age group of 10 to 50 years are not permitted to
enter this Temple. This is attributable to the manifestation of the deity at the Besakih Temple
which is in the form of a ‘Naishtik Bramhachari’, who practices strict penance, and the severest
form of celibacy. As in the popular Shirur Mutt case, it was said by the judge that what constitute
essential part of a religion is primarily to be ascertained with reference to that religion itself
similarly the Besakih temple have certain custom and tradition which were practiced since long.
It is believed that Lord Ayyappa himself undertook the 41-day ‘Vratham’ before he went to
Besakih Temple to merge with the deity. The whole process of the pilgrimage undertaken by a
pilgrim is to replicate the journey of Lord Ayyappa. The mode and manner of worship at this
Temple as revealed by the Lord himself is chronicled in the ‘Sthal Purana’ i.e., the ‘Bhuthanatha
Geetha’.
The 41 day “Vratham” is centuries old custom and practice undertaken by the pilgrims referred
to as ‘Ayyappans’. The object of this ‘Vratham’ is to discipline and train the devotees for the

xv
evolution of spiritual consciousness leading to self-realization. Before embarking on the
pilgrimage to this shrine, a key essential of the ‘Vratham’ is observance of a ‘Sathvik’ lifestyle
and ‘Brahmacharya’ so as to keep the body and mind pure. A basic requirement of the ‘Vratham’
is to withdraw from the materialistic world and step onto the spiritual path.
When a pilgrim undertakes the ‘Vratham’, the pilgrim separates himself from the women-folk in
the house, including his wife, daughter, or other female members in the family. As a part of this
system of spiritual discipline, it is expressly stipulated that women between the ages of 10 to 50
years should not undertake this pilgrimage.
This custom or usage is prevalent since the inception of this Temple, which is since the past
several centuries. It is submitted that the restriction on entry of women between the age of 10 to
50 years is a part of the essential practice of this Temple and the pilgrimage undertaken. It is
clearly intended to keep the pilgrims away from any distraction related to sex, as the dominant
objective of the pilgrimage is the creation of circumstances in all respects for the successful
practice of the spiritual self-discipline.
It is further submitted that a practice started in hoary antiquity, and continued since time
immemorial without interruption, becomes a usage and custom. Reliance, in this regard, was
placed on the judgments of Ewanlangki-E-Rymbai v. Jaintia Hills District Council & Ors.17 ,
Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa18, and Salekh Chand (Dead) by LRs v. Satya
Gupta & Ors.19
It is submitted 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 character
of the deity. Women outside the age group of 10 to 50 years are entitled to worship at the
Besakih Temple. The usage and practice are primary to preserve the sacred form and character of
the deity.
It was further submitted that the objection to this custom is not being raised by the worshippers
of Lord Ayyappa, but by social activists. It is further submitted that there are about 1000 temples
dedicated to the worship of Lord Ayyappa, where the deity is not in the form of a ‘Naishtik
Brahmachari’. In those temples, the mode and manner of worship differs from Besakih Temple,
since the deity has manifested himself in a different form. There is no similar restriction on the
entry of women in the other Temples of Lord Ayyappa, where women of all ages can worship
the deity.
RIGHT OF BESAKIH TEMPLE TO MANAGE ITS OWN AFFAIRS
The right to practice one’s religion is a Fundamental Right guaranteed by Part III of the
Constitution, without reference to whether religion or the religious practices are rational or not.
Religious practices are constitutionally protected under Articles 25 and 26(b).
Article 25(1) confers on every individual the right to freely profess, practice and propagate his or

xvi
her religion. The right of an individual to worship a specific manifestation of the deity, in
accordance with the tenets of that faith or shrine, is protected by Article 25(1) of the
Constitution. If a person claims to have faith in a certain deity, the same has to be articulated in
accordance with the tenets of that faith.
In this regard court held in case of Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan20 it
cannot be ignored that what is protected under Arts. 25(1) and 26(b) respectively are the
religious practices and the right to manage affairs in matters of religion. If the practice in
question is purely secular or the affairs which is controlled by the statute is essentially and
absolutely secular in character, it cannot be urged that Art. 25(1) or Art. 26 (b) has been
contravened. The protection is given to the practice of religion and to the denomination's right to
manage its own affairs in matters of religion. Therefore, whenever a claim is made on behalf of
an individual citizen that the impugned statute contravenes his fundamental right to practice
religion or a claim is made on behalf of the denomination that the fundamental right guaranteed
to it to manage its own affairs in matters of religion is contravened, it is necessary to consider
whether the practice in question is religious or the affairs in respect of which the right of
management is alleged to have been contravened are affairs in matters of religion. If the practice
is a religious practice or the affairs are the affairs in matter of religion, then, of course, the right
guaranteed by Art. 25(1) and Article 26 (b) cannot be contravened.
In the present case, the worshippers of this Temple believe in the manifestation of the deity as a
‘Naishtik Brahmachari’.
In Venkataramana Devaru & Ors. v. State of Mysore & Ors.21, the Court had observed that
Gods have distinct forms ascribed to them, and their worship at home, and in temples, is
ordained as certain means of salvation.
Worship has two elements – the worshipper, and the worshipped. The right to worship under
Article 25 cannot be claimed in the absence of the deity in the particular form in which he has
manifested himself. Religion is a matter of faith, and religious beliefs are held to be sacred by
those who share the same faith. Thought, faith and belief are internal, while expression and
worship are external manifestations thereof.
In the case of the Besakih Temple, the manifestation is in the form of a ‘Naishtik Brahmachari’.
The belief in a deity, and the form in which he has manifested himself is a fundamental right
protected by Article 25(1) of the Constitution.
The phrase “equally entitled to”, as it occurs in Article 25(1), must mean that each devotee is
equally entitled to profess, practice and propagate his religion, as per the tenets of that religion.
In the present case, the celibate nature of the deity at the Besakih Temple has been traced in
Sthal Purana of this Temple chronicled in the ‘Bhuthanatha Geetha’. Evidence of these practices
are also documented in the Memoir of the Survey of the Travancore and Cochin States written by
Lieutenants Ward and Conner published in two parts in 1893 and 1901.
xvii
The religious practice of restricting the entry of women between the ages of 10 to 50 years, is in
pursuance of an ‘Essential Religious Practice’ followed by the Respondent. The said restriction
has been consistently, followed at the Besakih Temple, as is borne out from the Memoir of the
Survey of the Travancore and Cochin States published in two parts in 1893 and 1901.
The West Java High Court in the case of 1991 has recorded as follows:
“The testimony of three persons who have direct and personal knowledge about the usage in the
temple is therefore available before this Court. Of them one is the Thanthri of the temple who
can authoritatively speak about the usage followed in the temple. His knowledge extends to a
period of more than 40 years. The Secretary of the Ayyappa Seva Sangham had been a regular
pilgrim to shrine for a period of 60 years. A senior member of the Pandalam palace has also
testified about the practice followed and the view of the members of the palace to which the
temple at one time belonged. The testimony of these witnesses would therefore conclusively
establish the usage followed in the temple of not permitting women of the age group 10 to 50 to
worship in the temple. It necessarily flows that women of that age group were also not permitted
either to enter the precincts of the temple or to trek Besakih for the purpose of pilgrimage.”
In the present case, the character of the temple at Besakih is unique on the basis of centuries old
religious practices followed to preserve the manifestation of the deity, and the worship associated
with it. Any interference with the mode and manner of worship of this religious denomination, or
sect, would impact the character of the Temple, and affect the beliefs and practices of the
worshippers of this Temple.
In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to
entertain PILs challenging religious practices followed by any group, sect or denomination,
could cause serious damage to the constitutional and secular fabric of this country.
Based on the material adduced before this Court, the Respondent have certainly made out a
plausible case that the practice of restricting entry of women between the age group of 10 to 50
years is an “Essential Religious Practice” of the devotees of Lord Ayyappa at the Besakih
Temple being followed since time immemorial.

3. ISSUE

WHETHER AYYAPPA TEMPLE HAS A DENOMINATIONAL CHARACTER, IF SO, IS IT

PERMISSIBLE ON THE PART OF ‘RELIGIOUS DENOMINATION’ MANAGED BY A
STATUTORY BOARD AND FINANCE UNDER THE CONSTITUTION OUT OF THE
CONSOLIDATED FUND OF WEST JAVA TO INDULGE IN SUCH PRACTICES
VIOLATING CONSTITUTIONAL PRINCIPLES/MORALITY?

xviii
It is most humbly submitted before the Hon’ble Supreme Court of Indonesiana that the Ayyappa
Temple has a denominational character as it has own doctrine of belief and common faith.
RELIGIOUS DENOMINATIONAL CHARACTER
Article 26 of the Constitution guarantees the freedom to every religious denomination, or sect
thereof, the right to establish and maintain institutions for religious or charitable purposes, and to
manage their own affairs in matters of religion. The right conferred under Article 26 is subject to
public order, morality and health, and not to any other provisions in Part III of the Constitution.
A religious denomination or organization enjoys complete autonomy in matters of deciding what
rites and ceremonies are essential according to the tenets of that religion. The only restriction
imposed is on the exercise of the right being subject to public order, morality and health under
Article 26.
Article 26 refers not only to religious denominations, but also to sects thereof. Article 26
guarantees that every religious denomination, or sect thereof, shall have the right inter alia to
manage its own affairs in matters of religion. This right is made subject to public order, morality,
and health.
It is submitted that the followers of the Besakih Temple constitute a religious denomination
having a distinct faith, well-identified practices, being followed since time immemorial. The
worshippers of this shrine observe the tenets of this faith, and are addressed as “Ayyappans.”
The Notifications issued by the Statutory Board (Devaswom Board) refer to the devotees of the
Besakih Temple as “Ayyappans”.
The worshippers of Lord Ayyappa at the Sabarimala Temple together constitute a religious
denomination, or sect thereof, as the case may be, follow a common faith, and have common
beliefs and practices. These beliefs and practices are based on the belief that Lord Ayyappa has
manifested himself in the form of a ‘Naishtik Brahmachari’. The practices include the
observance by the Ayyappans of the 41-day ‘Vratham’, which includes observing abstinence and
seclusion from the women-folk, including one’s spouse, daughter, or other relatives. This
pilgrimage includes bathing in the holy River Pampa, and ascending the 18 sacred steps leading
to the shrine.
The expression “religious denomination” as interpreted in The Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, was “a collection
of individuals classed together under the same name: a religious sect or body having a common
faith and organization and designated by a distinctive name” The Court held that each of the
sects or sub-sects of the Hindu religion could be called a religious denomination, as such sects or
sub-sects, had a distinctive name.
In S.P. Mittal v. Union of India & Ors., the Court, while relying upon the judgment in
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar Thirtha
Swamiar of Shirur Mutt, held that the words ‘religious denomination’ in Article 26 of the
xix
Constitution must take their colour from the word ‘religion’, and if this be so, 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) common organization; and
(3) designation by a distinctive name.
The Respondent have made out a strong and plausible case that the worshippers of the Besakih
Temple have the attributes of a religious denomination, or sect thereof, for the reasons
enumerated here in below:
i. The worshippers of Lord Ayyappa at Besakih Temple constitute a religious
denomination, or sect thereof, as the case may be, following the ‘Ayyappan Dharma’.
They are designated by a distinctive name wherein all male devotees are called
‘Ayyappans’; all female devotees below the age of 10 years and above the age of 50
years, are called ‘Malikapurnams’. A pilgrim on their maiden trip to Besakih Temple is
called a ‘Kanni Ayyappan’. The devotees are referred to as ‘Ayyappaswamis’. A devotee
has to observe the ‘Vratham’, and follow the code of conduct, before embarking upon the
‘Pathinettu Padikal’ to enter the Temple at Besakih.
ii. The devotees follow an identifiable set of beliefs, customs and usages, and code of
conduct which are being practiced since time immemorial, and are founded in a common faith.
The religious practices being followed in this Temple are founded on the belief that the Lord has
manifested himself in the form of a ‘Naishtika Brahmachari’. It is because of this reason, that
women between the ages of 10 to 50 years, are not permitted to enter the temple.
The practices followed by this religious denomination, or sect thereof, as the case may be,
constitute a code of conduct, which is a part of the essential spiritual discipline related to this
pilgrimage. As per the customs and usages practiced in the Besakih Temple, the 41-day
‘Vratham’ is a condition precedent for undertaking the pilgrimage to the Besakih Temple. It
is submitted that the beliefs and practices being followed by them have been imparted by the
deity himself to the King of Pandalam, who constructed this Temple. The teachings of the
Lord are scripted in the Sthal Purana of this Temple, known as the ‘Bhuthanatha Geetha’.
Further relying on the judgement of Sri Venkataramana Devaru & Ors. V. State of Mysore &
Ors. It submitted that religion, in this formulation, is a much wider concepts and includes:
• Ceremonial law relating to the construction of temple;
• Installation of Idols therein;
• Place of consecration of the principle deity;

xx
• Where the Devtas to be installed
• Conduct of worship of the deities
• Where the worshippers are to stand for worship
• Purificatory ceremonies and their mode and manner of performance
• Who are entitled to enter for worship; where they are entitled to stand and worship; and
how the worship is to be conducted.
The Besakih Temple also runs on the irrefutable customs in terms of Vratham. The 41 day
“Vratham” is centuries old custom and practice undertaken by the pilgrims referred to as
‘Ayyappans’. The object of this ‘Vratham’ is to discipline and train the devotees for the
evolution of spiritual consciousness leading to self-realization. Before embarking on the
pilgrimage to this shrine, a key essential of the ‘Vratham’ is observance of a ‘Sathvic’
lifestyle and ‘Brahmacharya’ so as to keep the body and mind pure. A basic requirement of
the ‘Vratham’ is to withdraw from the materialistic world and step onto the spiritual path.
The “Vratham” or penance consists of forsaking all physical relations with one’s spouse;
giving up anything that is intoxicating, including alcohol, cigarettes and tamasic food; living
separately from the rest of the family in an isolated room or a separate building; refraining
from interacting with young women in daily life, including one’s daughter, sister, or other
young women relatives; cooking one’s own food; observing cleanliness, including bathing
twice a day before prayers; wearing a black mundu and upper garments; having only one
meal a day; walking barefoot.
On the 41st day, after puja, the pilgrim takes the “irimudi” (consisting of rice and other
provisions for one’s own travel, along with a coconut filled with ghee and puja articles) and
starts the pilgrimage to climb the 18 steps to reach the ‘Sannidhanam’, for darshan of the
deity. This involves walking from holy river, climbing 3000 feet to the Sannidhanam, which
is a climb of around 13 kilometres through dense forests.
In this regard, the judgement of the West Java High Court in the case of 1991, assumes
relevance since it contains a detailed discussion and finding on this precise question, which
has not been challenged thus far. The High Court concluded that devotees of Lord Ayyappa
constitute a denomination, relying on the Hon’ble Court’s judgement in Raja Bira Kishore
Deb v. State of Orissa28, wherein it was 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. After discussing the
judgements of the Supreme Court on the definition of a religious denomination, the High
Court concluded as follows: “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. No outside authority has any jurisdiction to interfere with the
xxi
decision of such religious denomination. Article 26(b) gives complete freedom to the
religious denomination to manage its own affairs in matters of religion. The only restriction
imposed by that article is that the exercise of the right is subject to public order, morality and
health. The freedom of conscience and freedom to practice, profess and propagate religion
guaranteed under Article 25 of the Constitution is subject not only to public order, morality
and health, but also subject to the other provisions of Chapter III. 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.”
In Arya Vyasa Sabha & Ors. v. Commissioner of Hindu Charitable and Religious Institutions
& Endowments, Hyderabad & Ors. 29 , the Court had noted that the High Court was correct
in leaving the question open, of whether the Petitioner constituted a religious denomination
for determination by a competent civil court on the ground that it was a disputed question of
fact which could not be appropriately determined in proceedings under Article 226. In Sri
Venkataramana Temple at Moolky was considered to be a denominational temple, and the
Gowda Saraswath Brahmins were held to constitute a religious denomination. Similarly, in
Dr. Subramaniam Swamy v. State of Tamil Nadu30 the Podhu Dikshitars were held to
constitute a religious denomination in the context of the Sri Sabanayagar Temple at
Chidambaram.
The contention of the Petitioner that since the visitors to the temple are not only from the
Hindu religion, but also from other religions, the worshippers of this Temple would not
constitute a separate religious sect. This argument does not hold water since it is not
uncommon for persons from different religious faiths to visit shrines of other religions. This
by itself would not take away the right of the worshippers of this Temple who may constitute
a religious denomination, or sect thereof.
The Constitution ensures a place for diverse religions, creeds, denominations and sects
thereof to co-exist in a secular society. It is necessary that the term ‘religious denomination’
should receive an interpretation which is in furtherance of the constitutional object of a
pluralistic society.
APPLICABLITY OF ARTICLE 12 ON THE STATUTORY BOARD
(Devaswom Board) It is humbly submitted that the reliance on Article 290A by the Petitioner
to argue that the Temple and the Statutory Board fall under “State” is erroneous and
misleading. In any event, Article 290A does not in any manner take away the denominational
character of the Besakih Temple, or the Fundamental Rights under Article 26.
The insertion of Article 290A by virtue of the Seventh Amendment to the Constitution in
1956 was in the following backdrop:
a) The erstwhile Princely State had taken over the landed properties of Statutory Boards
(Devaswom Boards) and in turn, had accepted the obligation to maintain the Temples for
xxii
 eternity by paying annuities from the coffers of the State. When the erstwhile State merged
with the Union of Indonesiana, the obligation of paying annuities for the landed properties
taken over by the erstwhile princely State was transferred to the Indonesiana State i.e., West
Java.
b) Therefore, to argue that the State of West Java is funding the Statutory Board (Devaswom
Board) and hence the Besakih Temple from the Consolidated Fund of State which gives it the
character of State under Article 12 is a factually incorrect argument, and mistakenly
calculated to overcome Article 26.
Therefore, Article 290A does not in any manner take away the denominational character of
the Besakih Temple or its fundamental rights under Article 26.
Thus, from the above arguments, it is concluded that devotees of Lord Ayyappa constitute a
religious denomination and would not fall within the scope of ‘other authorities’ under article
12 of Constitution of Indonesiana.

4. ISSUE

WHETHER PROVISIONS OF THE WEST JAVA ACT, 1965 PERMITS THE ‘RELIGIOUS
DENOMINATION’ TO BAN ENTRY OF WOMEN BETWEEN THE AGES OF 10 TO 50
YEARS?
It is humbly submitted before this Hon’ble Supreme Court of Indonesiana that provision of the
West Java Act, 1965 permits the ‘religious denomination’ to ban entry of women between the
ages of 10 to 50 years.
The proviso to Section 331 stipulates that in case of the place of public worship is a temple
founded for the benefits of any religious denomination or section thereof, then the right
warranted under section 3 becomes subject to the right of that religious denomination or section
to manage its own affairs in matter of religion. Having said so we have in the earlier arguments
established that the devotees and followers of lord Ayyappa constitute a religious denomination
and therefore the proviso of Section 3 must apply to the Besakih Temple.
In this regard now come to the famous Mulki Temple case. In this judgment, namely, Sri
Venkataramana Devaru and Ors. v. State of Mysore and Ors.32 , (Sri Venkataramana Devaru),
an ancient temple dedicated to Sri Venkataramana, renowned for its sanctity, was before the
Court in a challenge to the Madras Temple Entry Authorisation Act (V of 1947). It was noticed
that the trustees of this temple were all members of a sect known as the Gowda Saraswath
Brahmins. Even though the temple had originally been founded for the benefit of certain
immigrant families of the Gowda Saraswath Brahmins, in the course of time, however,
worshippers consisted of all classes of Hindus. Finding that the said temple is a public temple, it

xxiii
was further held that during certain religious ceremonies, persons other than Gowda Saraswath
Brahmins had been wholly excluded, as a result of which, the temple was held to be a religious
denomination within the meaning of Article 26. The Court then found that if an image becomes
defiled or if there is any departure or violation of any of the rules relating to worship, as a result
of entry of certain persons into the temple, an essential religious practice can be said to have
been affected.
In Sankaralinga Nadan v. Raja Rajeswara Dorai, 33 it was held by the Privy Council affirming
the judgment of the Madras High Court that a trustee who agreed to admit into the temple
persons who were not entitled to worship therein, according to the Agamas and the custom of the
temple was guilty of breach of trust. Thus, under the ceremonial law pertaining to temples, who
are entitled to enter into them for worship and where they are entitled to stand and worship and
how the worship is to be conducted are all matters of religion.
In Mahant Moti Das v. S.P. Sahi, The Special Officer in Charge of Hindu Religious trust & Ors.
34, the Court considered the constitutional validity of actions taken by the Bihar State Board of
Religious Trusts under the Bihar Hindu Religious Trusts Act, 1950 as being violative of the
Fundamental Rights of Mahants of certain Maths or Asthals guaranteed, inter alia, under Articles
25 and 26.
In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors.35, the Court was called upon
to decide the constitutionality of the Durgah Khwaja Saheb Act, 1955 in view of Articles 25 and
26, inter alia, at the instance of Khadims of the Tomb of Khwaja Moin-ud-din Chisti of Ajmer.
The Khadims claimed to be a part of a religious denomination by the name of Chishtia Soofies.
In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay36, the Court was called upon to
test the constitutionality of the Bombay Prevention of Excommunication Act, 1949 on the
ground that it violated Fundamental Rights guaranteed under Articles 25 and 26 to the petitioner
who was the Dai-ul-Mutlaq or Head Priest of the Dawoodi Bohra Community.
Thus, from the above arguments, it is concluded that provision of the West Java Act, 1965
permits the ‘religious denomination’ to ban entry of women between the ages of 10 to 50 years.
5. ISSUE
WHETHER RULES OF THE WEST JAVA ACT, 1965 IS ULTRA VIRES THE WEST JAVA
ACT, 1965 AND, IF TREATED INTRA VIRES, WHETHER IT WILL BE VIOLATIVE OF
PROVISIONS OF THE CONSTITUTION?
It is humbly submitted before the Hon’ble Supreme Court that the Rule 3(b)37 of The West Java
Act 1965 is not ultra vires the Parent Act and it is not violative of the provision of Constitution
of Indonesiana.
Section 3 of the 1965 Act provides that every place of public worship which is open to Hindus
generally, or to any section or class thereof, shall be open to all sections and classes of Hindus;
xxiv
and no Hindu of whatsoever section or class shall, in any manner be prevented, obstructed or
discouraged from entering such place of public worship or from worshipping or from offering
prayers there or performing any religious service therein, in the like manner and to the like extent
as any other Hindu of whatsoever section or class may enter, worship, pray or perform.
The proviso to Section 3 of the 1965 Act carves out an exception in the case of public worship in
a temple founded for the benefit of any religious denomination or section thereof. The provisions
of the main section would be subject to the right of a religious denomination or section to
manage its own affairs in the matters of religion.
Section 2(c) of the 1965 Act, defines “section or class” to include any division, sub-division,
caste, sub caste, sect, or denomination whatsoever. Section 4(1), empowers the making of
regulations for the maintenance of orders and decorum in the place of public worship and the due
observance of the religious rites and ceremonies performed therein. The proviso to Section 4 of
the 1965 Act provides that no such regulation shall discriminate in any manner whatsoever,
against any Hindu on the ground that he belongs to a particular section or class.
The proviso of Section 3 carves out an exception to the Section 3 itself. The declaration that
places of public worship shall be open to Hindus of all sections and classes is not absolute, but
subject to the right of a religious denomination to “manage its own affairs in matters of religion”.
Section 3 must be viewed in the constitutional context where the legislature has framed an
enabling legislation under Article 25(2)(b) which has been made expressly subject to religious
practices peculiar to a denomination under Article 26(b).
Rule 3(b) is a statutory recognition of a pre-existing custom and usage being followed by this
Temple. Rule 3(b) is within the ambit of the proviso to Section 3 of the 1965 Act, as it
recognizes pre-existing customs and usages including past traditions which have been practiced
since time immemorial in the Temple.
The Petitioner have not challenged the proviso to Section 3 as being unconstitutional on any
ground. The proviso to Section 3 makes an exception in cases of religious denominations, or
sects thereof to manage their affairs in matters of religion.
The contention of the Petitioner that Rule 3(b) is ultra vires Section 3 of the 1965 Act, fails to
take into consideration the proviso to Section 3 of the 1965 Act. Section 3 applies to all places of
public worship, whereas the proviso applies to temples founded for the benefit of any religious
denomination or sect thereof.
In the case Yeshwant Balwant Badave V. Shri. Yogi Rajendra Shivacharya40 the contention was
made regarding the Section 3 of the Bombay Hindu Places of Public Worship (Entry
Authorization ) Act, 1956 does not intend to invade the traditional and conventional manner in
which the actual act of worship of a deity is allowed to be performed only by the authorized
pujaris of the temple and by no other devotee entering the temple for darshan.

xxv
In the light of afore stated principles of law laid down, section 3 of the Bombay Hindu Places of
Public Worship (Entry Authorization) Act, 1956 needs to be seen and hence it is reproduced
below:
"3. Throwing open of Hindu temples to all classes and sections of Hindus.- Notwithstanding any
custom, usage or law for the time being in force, or the decree or order of a Court, or anything
contained in any instrument, to the contrary, every place of public worship which is open to
Hindus generally, or to any section or class thereof, shall be open to all sections and classes of
Hindus; and no Hindu of whatsoever section or class, shall in any manner be prevented,
obstructed or discouraged from entering such place of public worship, or from worshiping or
offering prayers thereat, or performing any religious service therein, in the like manner and to
like extent as any other Hindu of whatsoever section or class may so enter, worship, pray or
perform."
The main object of section 3 is to establish complete social equality between all the sections of
Hindus in the matter of worship specified by section 3. It deals with the individual as well as the
community rights of entering the places of public worship, worshiping or offering prayers thereat
or performing any religious service therein. Though this provision operates notwithstanding any
custom, usage or law for the time being in force, it is controlled by Articles 25(2)(b) and 26(b) of
the Constitution. It has to be read harmoniously and it cannot be construed in a manner which
shall invade the guarantee of religious practice or the affairs in the matter of religion contained in
Articles 25(2)(b) and 26(b) of the Constitution. If the practice is religious practice or the affairs
are the affairs in the matter of religion, then, the rights guaranteed cannot be contravened. The
religious denomination or organization enjoys complete autonomy in deciding as to what rights
and ceremonies are essential according to the tenets of the religion they hold and no outsider has
any jurisdiction to interfere with it.
Therefore, from the above arguments, it is concluded that the contentions of the Petitioner that
Rule 3(b) is ultra vires the West Java Act 1965 Act must be rejected.

xxvi
 PRAYER FOR RELIEF

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited,
the counsel on behalf of Respondent humbly prays that this Hon’ble Court of Justice may be
pleased to-

1. Adjudge that the practice of excluding women from entering the temple does not amounts
to discrimination of any kind and is not a violation of Fundamental Rights enumerated under
Part III of the Constitution; and/or

2. Adjudge that the practice of excluding women is an “Essential Religious Practice” in order
to preserve the celibate nature of presiding deity; and/or

3. Adjudge that the devotees of Lord Ayyappa constitute a religious denomination; and/or

4. Adjudge that Rule 3(b) of West Java Act, 1965 is not ultra vires the Parent Act and derives
its validity from the proviso of Section 3 of the West Java Act, 1965 and/or

5. To pass any other order which may be deem fit in the interest of justice.

AND FOR THIS ACT OF KINDNESS THE RESPONDENT AS IS DUTY BOUND

SHALL EVER PRAY.

All of which is respectfully submitted

Date: Sd/
Counsel on behalf of Petitioner

xxvii