SIMRAN YADAV

MEMORIAL ON BEHALF OF THE RESPONDENT

SIMRAN YADAV

BEFORE,

THE HON’BLE SUPREME COURT OF KENDIA

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF KENDIA

BEFORE,

THE KENDIA LAWYERS’ ASSOCIATION & Ors.

THE HON’BLE SUPREME COURT OF KENDIA
(PETITIONERS)
WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF KENDIA
v.
THE KENDIA LAWYERS ASSOCIATION & ORS.
STATE
(PETITIONERS)
(RESPONDENTS)
v.

STATE
ON SUBMISSION TO THE HON’BLE SUPREME COURT OF KENDIA
(RESPONDENT)

MEMORIAL FOR THE RESPONDENT

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF KENDIA

MEMORIAL FOR THE RESPONDENT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES...........................................................................................................3
STATEMENT OF JURISDICTION...............................................................................................4
STATEMENT OF FACTS..............................................................................................................5
QUESTIONS PRESENTED...........................................................................................................6
SUMMARY OF ARGUMENTS.....................................................................................................7
ARGUMENTS ADVANCED.........................................................................................................8
[I.]THE PRESENT WRIT PETITION FILED UNDER ARTICLE 32 OF THE
CONSTITUTION OF KENDIA, IS NOT MAINTAINBLE.....................................................8
[I.1] S&M TEMPLE IN HUMAN HANDS IS NOT A STATE UNDER ARTICLE
12 OF THE KENDIAN CONSTITUTION:........................................................................8
[I.2] PRACTICE OF BANNING THE ENTRY OF WOMEN OF MENSTRUATING
AGE IN S&M TEMPLE IS NOT VIOLATIVE OF FUNDAMENTAL RIGHTS
CONFERRED BY PART III OF THE CONSTITUION....................................................8
[I.2.1]THE PRACTICE DOES NOT VIOLATE ARTICLE 14 OF THE
CONSTITUION..................................................................................................................8
[I.2.2] THE PRACTICE IS NOT VIOLATIVE OF ARTICLE 15 OF THE
CONSTIUTION-.................................................................................................................9
[1.2.3] THE PRACTISE IS ENJOYED WITHIN THE AMBIT OF FREEDOM
GIVEN UNDER ARTICLE 25 AND 26 OF THE CONSTITUION................................10
[II.] THE HON’BLE SUPREME COURT HAS NO JURISDICTION TO
INTERFERE IN THE MATTER OF RELIGION...............................................................10
[II.1] WORSHIPPERS OF LORD JINDI FORM A RELIGIOUS DENOMINATION
AND ONLY THEY CAN MANAGE THIER OWN RELIGIOUS AFFAIRS................11
[II. 2] THE COURTS HAVE NO JURISDICTION TO INTERFERE IN
RELIGIOUS AFFAIRS.....................................................................................................11
PRAYER........................................................................................................................................15

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INDEX OF AUTHORITIES

CASES
A R Antulay v. R.S. Nayak, A.I.R. 1988 S.C. 1531 (India)..........................................................11
Adelaide Co. v. The Commonwealth, (1943) 67 C.L.R. 116-127.................................................13
Bijoe Emmanuel v. State of Kerala, (1986) 3 S.C.C. 615 (India).................................................14
Commr., Hindu Religious Endowments v. Sri LakshmindraThirthaSwamiar of Sri Shirur
Mutt, A.I.R. 1954 S.C. 282 (India)............................................................................................12
D R R Varu v. State of Andhra Pradesh, A.I.R. 1970 S.C. 181 (India)........................................13
Deptt. of Human Resources of Oregon v. Smith, 1990 S.C.C. OnLine U.S. S.C. 54...................14
Hernandez v. Commr. of Internal Revenue, 1989 S.C.C. OnLine U.S. S.C. 102.........................14
Indian Young Lawyers Assn v. State of Kerala, (2019) 11 S.C.C. 1 (India)................................10
K. Thimmappa v. Chairman, Central Board of Directors, SBI, A.I.R. 2001 S.C. 467 (India).
...................................................................................................................................................10
MoïseAmselem v. SyndicatNorthcrest, 2004 S.C.C. OnLine Can. S.C. 47..................................15
Narayanan Namboodiri v. State of Kerala, A.I.R. 1985 Ker. 160 (India).....................................15
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 S.C.C. 111 (India).
.....................................................................................................................................................9
R v. Secy. of State for Education and Employment, (2005) 2 W.L.R. 590...................................14
Raja Bira Kishore Deb v. State of Orissa, A.I.R. 1964 S.C. 1501 (India).....................................13
Ramana Dayaram Shetty v. The International Airport Authority of India, A.I.R. 1979 S.C.
1628 (India).................................................................................................................................9
S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvanthapuram, A.I.R.
1993 Ker. 42 (India)..................................................................................................................11
S.P. Mittal v. Union of India, (1983) 1 S.C.C. 51 (India).............................................................12
Shayara Bano v. Union of India, (2017) 9 S.C.C. 1 (India............................................................13
Som Prakash v. Union of India, A.I.R. 1981 S.C. 212 (India)........................................................9
T. Krishnan v. Guruvayoor Devaswom Managing Committee, A.I.R 1978 Ker. 68 (India)........15
United States v. D. Lee, 1982 S.C.C. OnLine U.S. S.C. 30..........................................................14

STATUTES
INDIA CONST. art. 15..................................................................................................................10
INDIA CONST. art. 25, cl. 1.........................................................................................................11
INDIA CONST. art. 26, cl. b.........................................................................................................12

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STATEMENT OF JURISDICTION

The petition has been filed by the Petitioners invoking writ jurisdiction of the Hon’ble
Supreme Court of Kendia under article 32 of the Constitution of Kendia.
The present memorandum sets forth the facts, contentions and arguments in the present
case.

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STATEMENT OF FACTS

The S&M Temple is one of the few temples in Human Hands that welcomes men and women
of every caste and depicts Lord Jindi as a ‘Naistika Brahmcharya’ i.e., his powers derive
specifically from abstention from sexual activities. Therefore there is a selective ban on
women entering the temple. Women aged between 10 and 50, that is those who are in
menstruating age, are barred from entering the temple from a very long period of time.

The Kendia Lawyers Association and five women lawyers approached the High Court of
Human Handsunder Article 226 of the Constitution of Kendia, seeking a direction to allow
entry of women into the temple without age restrictions. Another group of women, part of the
“Menstruation – A God’s Gift” campaign, has also sought the court's direction on whether
society should continue to bear with ―menstrual discrimination. However HC gave
judgment in favor of the ban which is in practice since time immemorial and not violative of
the Constitution and the court has no jurisdiction to interfere in religious matter.

Against this decision, all the petitioners have now approached Supreme Court under article
32 of the Constitution of Kendia. And the matter relating to right of women in menstruating
age is pending before a thirteen judge bench of the Hon‘ble Supreme Court of Kendia,
regarding whether the present Writ Petition is Maintainable? And whether the Hon‘ble
Supreme Court has the jurisdiction to interfere in the matters of religion in the present
context.

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QUESTIONS PRESENTED

I. THE PRESENT WRIT PETITION FILED UNDER ARTICLE 32 OF THE

CONSTITUTION OF KENDIA, IS NOT MAINTAINBLE BEFORE THE
HON’BLE SUPREME COURT OF KENDIA.
II. THE HON’BLE SUPREME COURT OF KENDIA HAS NO JURISDICTION TO
INTERFERE IN THE MATTER OF RELIGION.

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SUMMARY OF ARGUMENTS

I. THE PRESENT WRIT PETITION UNDER ARTICLE 32 OF THE

CONSTITUTION OF KENDIA, IS NOT MAINTAINBLE.
It is humbly submitted before the hon’ble Supreme Court of Kendia that the present
writ petition filed by the petititoners under article 32 of the constitution of Kendia is
not maintainable due to following reasons- 1.) The S&M temple which is practicing
the ban on entry of women of menstruating age from entering the temple, in the
present case is not a state under article 12 of the Constitution of Kendia therefore no
writ jurisdiction of the hon’ble Supreme Court can be invoked for violation of
fundamental rights conferred by part III of the Constitution. 2.) The ban practiced by
the S&M temple on entry of women of menstruating age does not violate any
fundamental rights under part III of the Constitution of Kendia and the practice is
protected under article 25 and 26 of the Kendian Constitution and can be considered
as an essential religious practice which can be managed only by a religious
denomination under article 26 (b) which is not subject to part III.
Therefore writ jurisdiction invoked by the petitioners under article 32 of the
Constitution of Kendia is not maintainable.
II. THE HON’BLE SUPREME COURT HAS NO JURISDICTION TO
INTERFERE IN THE MATTER OF RELIGION.
It is humbly submitted before the hon’ble Supreme Court that the present matter of
dispute is concerning a particular religion of group of people. Jidnini forms a religious
denomination in respect of article 26 of the Constitution and by virtue of clause (b)
has autonomy to manage its own religious affairs. Since the religious practices are
essential to the religion and have to be determined the people who are following that
religion and such practices are protected under article 25 and 26 of the Constitution of
Kendia therefore, it is no other body not even courts have autonomy to manage
religious affairs as that would tantamount to violation of fundamental rights
guaranteed under article 25 and 26.

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ARGUMENTS ADVANCED

[I.]THE PRESENT WRIT PETITION FILED UNDER ARTICLE 32 OF THE

CONSTITUTION OF KENDIA, IS NOT MAINTAINBLE.

It is humbly submitted before the Supreme Court of Kendia that the writ petition filed by the
petitioners is not maintainable before the court. Article 32 of the Kendian Constitution can be
invoked to enforce the fundamental rights conferred by the part III of the Kendian
Constitution.

[I.1] S&M TEMPLE IN HUMAN HANDS IS NOT A STATE UNDER ARTICLE 12 OF THE
KENDIAN CONSTITUTION:
In Pradeep Kumar Biswas v. Indian Institute of Chemical Biology 1, the court held that the
government should have overriding control over the organisation and dominant role in
governing the body then only the organisation can become instrumentality of a state under
article 12 of the Constitution. In Som Prakash v. Union of India2, the court held that it is not
only the statutory body which is a state under other authorities but any government company,
registered society or body having any nexus with the government would be a state under
article 12 of the Constitution. One of the tests to determine a body as state is that the entire
share capital of the corporation is held by the government.3
In the present case S&M temple cannot be considered as a state under article 12 of the
constitution not even within the gamut of other authorities as there is neither governmental
control over the temple nor the temple is funded by the government of Kendia or the temple
is having any nexus with the government.

[I.2] PRACTICE OF BANNING THE ENTRY OF WOMEN OF MENSTRUATING AGE IN

S&M TEMPLE IS NOT VIOLATIVE OF FUNDAMENTAL RIGHTS CONFERRED BY PART
III OF THE CONSTITUION

[I.2.1]THE PRACTICE DOES NOT VIOLATE ARTICLE 14 OF THE CONSTITUION :

Banning entry of women aged between 10 to 50 years in the S&M temple is not violative of
article 14 of the Kendian Constitution. Article 14 says that no state shall deny to any person

1
Pradeep Kumar Biswas v. Indian Institute of Chemical Biology, (2002) 5 S.C.C. 111 (India).
2
Som Prakash v. Union of India, A.I.R. 1981 S.C. 212 (India).
3
Ramana Dayaram Shetty v. The International Airport Authority of India, A.I.R. 1979 S.C. 1628 (India).

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equality before the law or the equal protection of law within the territory of Kendia. However
the article allows for the reasonable classification on the basis that the classification should be
based on intelligible differentia, and classification should have nexus with the object which is
sought to be achieved.4 In the present case there are many temples of lord Jindi in Human
Hand where entry of all devotees irrespective of gender, is allowed except in the S&M temple
because it is the belief that here is the Nistika Brahamcharya form of lord Jindi and this form
derives its power from the practice of celibacy therefore women of menstruating age are
barred entry in the temple. Women as a class is not prohibited entry in the temple. Therefore
the classification amounts to reasonable classification owing to special form of lord and the
practice has been in use since time immemorial and has formed essential religious practice
for the Jindi religion.

[I.2.2] THE PRACTICE IS NOT VIOLATIVE OF ARTICLE 15 OF THE CONSTIUTION-

Article 155 states that the state shall not discriminate against any citizen on the ground only of
religion, race, caste, sex, place of birth or any of them.
The Constituent Assembly considered it fit not to include “places of worship” or “temples”
within the ambit of draft Article 9 of the Constitution which corresponds to Article 15 of the
Constitution. The conscious deletion of “temples” and “places of worship” from Draft Article
9(1) has to be given due consideration. Therefore S&M Temple cannot be included within the
ambit of “places of public resort” under Article 15(2).6
S&M temple is not a state as proved above so there is no question of violation of fundamental
rights under article 15 and also place of worship is consciously not included in the clause (2)
of article 15 and temples cannot be treated as place of public resort therefore it can be
concluded that the religious temples should have freedom to form their religious practices
which is not subject to fundamental right.

[1.2.3] THE PRACTISE IS ENJOYED WITHIN THE AMBIT OF FREEDOM GIVEN

UNDER ARTICLE 25 AND 26 OF THE CONSTITUION.

Articles 25(1)7 of the constitution guarantees every person the freedom of conscience and the
right to profess, practice and propagate religion. However the right is not absolute and subject
to certain conditions including part III of the constitution but article 26 (b) gives right to

4
K. Thimmappa v. Chairman, Central Board of Directors, SBI, A.I.R. 2001 S.C. 467 (India).
5
INDIA CONST. art. 15.
6
Indian Young Lawyers Assn v. State of Kerala, (2019) 11 S.C.C. 1 (India).
7
INDIA CONST. art. 25, cl. 1.

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religious denomination to manage its own affairs which is not subject to fundamental rights
conferred by part III as expressly mentioned in article 25.

In S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvanthapuram and

others8, facts of the case were same as the present and the court had held that banning of entry
of women of menstruating ages in the temple were in accordance with the custom and usage
practiced from time immemorial and were held valid and not violative of article 15, 25 and
26 of the Constituion.
The Framers of the Constitution were aware of the rich history and heritage of this country
being a secular polity, with diverse religions and faiths, which were protected within the fold
of Articles 25 and 26. And therefore Jidnini have every right to frame rules for their religious
conduct which does not violate fundamental rights conferred by part III of the constitution.
Judiciary is also a state under article 12 of the constitution. 9 State interference is not
permissible, except as provided by Article 25(2) (b) of the Constitution, where the State may
make law providing for social welfare and reform.
Bearing in mind all laws it can rightly be concluded that since the S&M temple is not a state
and there is no violation of any fundamental right contained in part III of the constitution
therefore the writ petition filed by the petitioners is not maintainable under article 32 of the
constitution of Kendia.

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.

[II.] THE HON’BLE SUPREME COURT HAS NO JURISDICTION TO INTERFERE

IN THE MATTER OF RELIGION.
It is humbly submitted before the Hon’ble Supreme Court of Kendia that the Court has no
jurisdiction to interfere in the religious affairs.

[II.1] WORSHIPPERS OF LORD JINDI FORM A RELIGIOUS DENOMINATION AND

ONLY THEY CAN MANAGE THIER OWN RELIGIOUS AFFAIRS
The rights of the worshippers of S&M Temple are also fundamental rights guaranteed by
Articles 25 and 26 of the Constitution of Kendia. Article 26 (b) of the Kendian Constitution,
guarantees that every religious denomination, or sect thereof, shall have the right inter alia to

8
S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvanthapuram, A.I.R. 1993 Ker. 42 (India).
9
A R Antulay v. R.S. Nayak, A.I.R. 1988 S.C. 1531 (India).

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manage its own affairs in matters of religion.10 This right is made subject to public order,
morality and health.
In Commr. Hindu Religgious Endowmnets v. Sri Lakshmindra Thirtha Swamiar of Sri Shriur
Mutt11, the court held that the article 25 (1) of the constitution does not only protect the
freedom of religion but also the act done in pursuance of that religion.
In S.P. Mittal v. Union of India12 the court held that for a group to be qualified as a “religious
denomination” should have three distinctive features as follows: The collection of individuals
should have common faith; common organisation and should be designated by a distinctive
name. It was further held that definition of “religious denomination” as given by the court
should be interpreted in a liberal and expansive way.
In the present case devotees of lord Jindi have formed their own distinct group and follow
their distinct religious practices one of which includes banning entry of women of
menstruating age, they also have a distinct name as ‘Jidnini’. Therefore the devotees of lord
Jindi, possess all qualifications, and bearing in mind the liberal interpretation of “religious
denomination”, to be called a religious denomination. And under the provision of article
26(b) of the Constitution, has freedom to manage its own religious affairs.

[II. 2] THE COURTS HAVE NO JURISDICTION TO INTERFERE IN RELIGIOUS

AFFAIRS
“A denomination within Article 26 and persons who are members of that denomination are
under Art. 25 entitled to ensure the continuity of the denomination and such continuity is
possible only by maintaining the bond of religious discipline which would secure the
adherence of its members to certain essentials like faith, doctrine, tenets and practices.”13
While interpreting Article 26(b) of the Constitution the Supreme Court in D.R.R.
Varu v. State of Andhra Pradesh14, held that a religious denomination or organisation 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 its decision in such matters. It was further laid down that a law which takes away the
right of administration from the hands of a religious denomination altogether and vests in any

10
INDIA CONST. art. 26, cl. b.
11
Commr., Hindu Religious Endowments v. Sri LakshmindraThirthaSwamiar of Sri Shirur Mutt, A.I.R. 1954
S.C. 282 (India).
12
S.P. Mittal v. Union of India, (1983) 1 S.C.C. 51 (India).
13
Raja Bira Kishore Deb v. State of Orissa, A.I.R. 1964 S.C. 1501 (India).
14
D R R Varu v. State of Andhra Pradesh, A.I.R. 1970 S.C. 181 (India).

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other authority would amount to a violation of the right guaranteed under clause (d) of Art.
26.15
It was held by the apex court what constitutes the essential part of the religion is to be
ascertained with reference to the doctrine of that religion itself. Religious denomination or
organisation enjoys complete autonomy as to what rites and ceremonies are essential
according to the tenets of the religion that they hold and no other authority has jurisdiction
over such matters.16
From the judgment of Khehar, C.J. in ShayaraBano v. Union of India17 it is not for a court to
make a choice of something which it considers as forward-looking or non-fundamentalist. It
is not for a court to determine whether religious practices were prudent or progressive or
regressive. Religion and “Personal Law”, must be perceived, as it is accepted by the
followers of the faith. …”
The Supreme Court quoted a passage contained in Adelaide Co. v. The Commonwealth18,
Latham C.J. of the High Court of Ausralia, while dealing with Section 116 of the Australian
Constitution which inter alia forbids the Commonwealth prohibit “free exercise of any
religion” said:
“The section refers in express terms to the exercise of religion, and therefore it is intended
to protect from the operation of any Commonwealth laws acts which are done in the exercise
of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also
acts done in pursuance of religious belief as part of religion”.
The House of Lords in R. v. Secy. of State for Education and Employment 19 , held that the
court ought not to embark upon an enquiry into the validity or legitimacy of asserted beliefs
on the basis of objective standards or rationality.
In United States v. D. Lee20, it was held “7. … It is not within “the judicial function and
judicial competence”, however, to determine whether appellee or the Government has the
proper interpretation of the Amish faith; “[c]ourts are not arbiters of scriptural
interpretation”.
On similar line the Court noted in Hernandez v. Commr. of Internal Revenue21,

15
Id.
16
Id. at 7.
17
Shayara Bano v. Union of India, (2017) 9 S.C.C. 1 (India).
18
Adelaide Co. v. The Commonwealth, (1943) 67 C.L.R. 116-127.
19
R v. Secy. of State for Education and Employment, (2005) 2 W.L.R. 590.
20
United States v. D. Lee, 1982 S.C.C. OnLine U.S. S.C. 30.
21
Hernandez v. Commr. of Internal Revenue, 1989 S.C.C. OnLine U.S. S.C. 102.

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“33. … It is not within the judicial ken to question the centrality of particular beliefs or
practices to a faith or the validity of particular litigants’ interpretations of those creeds.
In Deptt. of Human Resources of Oregon v. Smith22, wherein Scalia, J. noted as follows
22. That courts must not presume to determine the place of a particular belief in a
religion or the plausibility of a religious claim. …”
The observations of Chinnappa Reddy, J. in Bijoe Emmanuel v. State of Kerala23, are
instructive in understanding the nature of the protection afforded under Article 25, and the
role of the Court in interpreting the same. The relevant extract from the opinion of Chinnappa
Reddy, J. is extracted hereinbelow: (SCC p. 626, para 18)
“18. … Article 25 is an article of faith in the Constitution, incorporated in recognition of the
principle that the real test of a true democracy is the ability of even an insignificant minority
to find its identity under the country’s Constitution. This has to be borne in mind in
interpreting Article 25.”
In the decision of the Supreme Court of Canada in MoïseAmselem v. SyndicatNorthcrest 24, 
But, emphatically, it is not for the court to embark on an inquiry into the asserted belief and
judge its “validity” by some objective standard such as the source material upon which the
claimant founds his belief or the orthodox teaching of the religion in question or the extent to
which the claimant’s belief conforms to or differs from the views of others professing the
same religion.
A Full Bench of Five Judges of this Court in T. Krishnan v. Guruvayoor Devaswom
Managing Committee25, held that no tampering with the religious rights can be countenanced
so long as the Constitution stands as it is today. The Bench observed that any attempt to do so
would be not only an act of breach of faith, but would be constitutionally impermissible and
liable to be struck down by the Courts. 
Full Bench of this Court in Narayanan Namboodiri v. State of Kerala26, held that it is a
matter for adjudication by a Civil Court and the decision of the Civil Court will be binding on
all members of the denomination, if there is any dispute among the members of the
denomination with respect to religious, spiritual, ritual or ceremonial matters pertaining to the
Devaswom.

22
Deptt. of Human Resources of Oregon v. Smith, 1990 S.C.C. OnLine U.S. S.C. 54.
23
Bijoe Emmanuel v. State of Kerala, (1986) 3 S.C.C. 615 (India).
24
MoïseAmselem v. SyndicatNorthcrest, 2004 S.C.C. OnLine Can. S.C. 47.
25
T. Krishnan v. Guruvayoor Devaswom Managing Committee, A.I.R 1978 Ker. 68 (India).
26
Narayanan Namboodiri v. State of Kerala, A.I.R. 1985 Ker. 160 (India).

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Many foreign judgments and High courts’ judgements of Knedia, having persuasive value
show that why it is not under the authority of courts to embark on issues relating to religious
affairs and only group of people following that religion should have autonomy in matter of
their religious affairs in line of tenets of the religion.
If courts be allowed to interfere in religious matters then the freedom to practice and profess
one’s religion guaranteed under articles 25 and 26 of the constitution of Kendia will become
pointless. And any order or judgement which contradicts with the religious practices followed
or holds those practices as wrong, would amount to violation of fundamental rights
guaranteed under article 25 and 26 of the Constitution of Kendia. Therefore considering all
points mentioned above the Hon’ble court has no jurisdiction to interfere in religious matters.

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PRAYER

In light of the questions presented, arguments advanced and authorities cited, the Respondent
most humbly and respectfully prays before this Hon’ble Court, that it may please to adjudge
and declare that –

1) That the present writ petition filed by the petitioner under article 32 of the
Constitution is not maintainable.
2) The Hon’ble Supreme Court has no jurisdiction to interfere in the matter of religious
affairs.
The Respondent further prays that the Court may make any such order as it may deem
fit in terms of equity, justice and good conscience.

(Respectfully Submitted)

-Counsel for the Respondent

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