RL Respondents Akash

ROSTRUM LEGAL ONLINE MEMORIAL DRAFTING COMPETITION, 2019
TEAM CODE- XV40K
BEFORE THE HONOURABLE SUPREME COURT OF VINDHU
IN THE MATTERS OF
YOUNG LAWYERS ASSOCIATION & ORS ……..Petitioner

Vs
STATE OF VARELA & ORS ……Respondent
WRIT PETITION NO._/2018
ON SUBMISSION TO THE HON’BLE SUPREME COURT OF VINDHU
WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT
MEMORIAL ON BEHALF OF RESPONDENT Page 1

Table of Contents
List of Abbreviations.....................................................................................................................3
Index of Authorities.......................................................................................................................4
Statement of Jurisdiction..............................................................................................................6
Statement of Facts..........................................................................................................................7
Issues for Consideration................................................................................................................8
Summary of Arguments................................................................................................................9
Arguments Advanced..................................................................................................................10
1.Whether the exclusionary practice of menstruating women amounts to discrimination

according to the Constitution of Vindhu?..............................................................................10
2. Whether such exclusion falls under the religious practices and could it be included
under the right to manage its own affairs of the religious institution?...............................13
3. Whether the temple has a denominational character, if yes, whether it can indulge in
practices, which are unconstitutional?...................................................................................17
4. Weather Rule 3 (b) of the 1965 rules discriminates women on the basis of sex?...........22
Prayer............................................................................................................................................27

List of Abbreviations
§ Section
¶ Para
AIR All India Reporter
Art. Article
Edn. Edition
Hon’ble Honorable
Ltd. Limited
PIL Public Interest Litigation
r/w Read with

SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Review
SCW Supreme Court Weekly
SUPP Supplementary
u/s Under Section
UOI Union of India

Index of Authorities
List of Cases
1. Adelaide Company of Jehovah’s Witnesses v. Commonwealth

2. Bijoe Emmanuel& ors.v. State of Kerala & ors
3. Commissioner of Police and others v. Acharya JagadishwaranandaAvadhuta and another
4. Durgah Committee v. Hussain Ali
5. Jamshed ji v. Soonabai
6. Ramesh Prasad v. State of Bihar
7. Ratilalpanachand gandhi v. The State of Bombay and ors
8. Robertl. Hernandez v. Commissioner of Internal Revenue
9. S. Mahendran v. The Secretary, Travancore Devaswom Board & Ors
10. S.P.Mittal v. Union of India&Ors
11. Sankarlinga Nadan v. Raja Rajeswara Dorai
12. Sri Venkataramana Devaru v State of Mysore
13. State of W.B. v. Anwar Ali Sarkar
14. The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha
Swaminar of Sri Shirur Mutt
15. Tilkayat Shri Govindalji Maharaj v. State of Rajasthan
16. United States v. Edwind. Lee
17. Western UP Electric Power Supply Co. Ltd v. State of Uttar Pradesh
Books
1. B. Shiva Rao, The Framing of India’s Constitution - A Study, Page 605, 2nd Edition.
th
2. D.D. Basu, Constitution of India, 14 Edition 2009, LexisNexis, Nagpur.
3. Maxwell, Interpretation of Statutes, 1st Edition, LexisNexis, Nagpur.

4. G.P. Singh, Interpretation of Statutes, 14th Edition, LexisNexis, Nagpur.
5. M.P. Jain, Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth Wadhwa
Nagpur.

th
6. H.M. Seervai, Constitutional law of India, 4 Edition 2002, Volume 2, Universal Book
Traders.
th
7. V.N. Shukla, Constitution of India, 11 Edition 2008, Eastern Book Company.
8. P.M. Bakshi, The Constitution of India, 12 th Edition 2014, Universal Law Publishing
Company.
Statutes
1. The Constitution of India, 1950.

2. Government of India Act, 1935.
3. Protection of Civil Rights Act, 1955 (Act No. 22 Of 1955).
Legal Databases
1. HeinOnline, https://home.heinonline.org/ (last seen on June 16, 2019).
2. Lexis India, https://www.lexisnexis.com/in/legal/ (last seen on June 16, 2019).
3. Manupatra, http://www.manupatrafast.com (last seen on June 16, 2019).
4. SCC Online, http://www.scconline.com/ (last seen on June 16, 2019).
5. Westlaw India, http://www.westlawindia.com/ (last seen on June 16, 2019).

Statement of Jurisdiction
The Hon’ble Supreme Court of Vindhu has the jurisdiction in this matter under Article 32 of the
Constitution of Vindhu which reads as follows:
“Article 32. Remedies for enforcement of rights conferred by this Part
18. The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
19. The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part
20. Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
21. The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.”

Statement of Facts
1).Varela is a Provincial State located in the southern part of the Republic of Vindhu. The
country accommodates various religious, racial, traditional and linguistic groups and their values
and customs. Varela, one of the most progressive States in Vindhu.
2).The Harimala Temple is a well-known temple complex located at Harimalapuram inside the
Eriyar Tiger Reserve in Varela and is the site of the largest annual pilgrimage in the world with
an estimate of between 17 million to 50 million devotees from across the country visiting every
year. The temple is dedicated to the Hindu celibate deity “Varnappan” also known as “Dharma
Sastha”, who according to belief is the son of Shiva and Mohini, the feminine incarnation of
Vishnu.
3).The devotees are expected to follow a 41-day austerity period called as ‘Vritham’ prior to the
pilgrimage. During this period the devotee who has taken the vow, has to strictly follow a lacto
vegetarian diet, celibacy, teetotalism and ought not use any profanity.
4).Women of menstruating age were denied entry into the Harimala Temple two centuries ago
because of the age-old notion that they were impure during their menstrual period. However,
upto the year 2001 women visited the temple even though in small numbers. In 2001, the Varela
High Court, upheld the restriction imposed on women of menstrual age group considering it as a
customary practice under the right to manage its own affairs of the temple management
authority. This was based upon the belief that the deity is in the form of a ‘Naisthik
Brahmachari’ (perennial celibate), and is therefore believed that young women should not offer
worship in the temple so that even the slightest deviation from celibacy and austerity observed
by the deity is not caused by the presence of such women.
5).In the year 2018 a Public Interest Litigation (PIL) was filed by the women lawyers in Varela
challenging this ban on women devotees, which was then supported by the FDF Government
through filing an affidavit for the same cause. In addition, another PIL was filed in the Hon’ble
Supreme Court by the Young Lawyers Association contending that that Rule 3(b) of the Varela
Hindu Places of Public Worship (Authorization of Entry) Rules 1965. The Supreme Court has
clubbed these petitions.

Issues for Consideration
Issue 1
WHETHER THE EXCLUSIONARY PRACTICE OF MENSTRUATING WOMEN AMOUNTS TO

DISCRIMINATION ACCORDING TO THE CONSTITUTION OF VINDHU?
Issue 2
WHETHER SUCH EXCLUSION FALLS UNDER THE RELIGIOUS PRACTICES AND COULD IT BE
INCLUDED UNDER THE RIGHT TO MANAGE ITS OWN AFFAIRS OF THE RELIGIOUS
INSTITUTION?
Issue 3
WEATHER THE TEMPLE HAS A DENOMINATIONAL CHARACTER, IF YES, WHETHER IT CAN

INDULGE IN PRACTICES WHICH ARE UNCONSTITUTIONAL?
Issue 4
WEATHER RULE 3 (B) OF THE 1965 RULES DISCRIMINATES WOMEN ON THE BASIS OF SEX?

Summary of Arguments
1. WHETHER THE EXCLUSIONARY PRACTICE OF MENSTRUATING WOMEN AMOUNTS TO

It is humbly submitted before the Hon’ble court that the practice of excluding women from
entering into the temple premises doesn’t violates the Article 14, 15 and 17 of the Vindhu
Constitution. Because, such practice has become the essential part of the religion and it can be
protected under the Article 26 of the Constitution. Therefore, it cannot be termed as
discriminatory under the Constitution of Vindhu.
2. WHETHER SUCH EXCLUSION FALLS UNDER THE RELIGIOUS PRACTICES AND COULD IT BE
INSTITUTION?
It is humbly submitted before the Hon’ble court that excluding women of a certain age group
amounts to an essential religious practice in this case and is well within the ambit of article 25 of
the Indian Constitution. Resultantly, there should be no interference in the functioning of the
temple.
3. WEATHER THE TEMPLE HAS A DENOMINATIONAL CHARACTER, IF YES, WHETHER IT CAN

INDULGE IN PRACTICES WHICH ARE UNCONSTITUTIONAL?
It is humbly submitted before the Hon’ble Court that the temple has a denominational character
and the devotees of Lord Varnappan constitute a Religious Denomination. Because, male
devotees are called Varnappanns and all female devotees below 10 years and above 50 years of
age are called Malikapurams. A devotee has to abide by the customs and usages of this Temple,
if he is to mount the pathinettu padikal and enter the Sabarimala Temple. This set of beliefs and
faiths of the Varnappanswamis and the organization of the worshippers of Lord Varnappan
constitute a distinct religious denomination, having distinct practices. Therefore, they have the
right to manage and administer the temple in accordance with the prevailing customs and
practices.

4. WEATHER RULE 3 (B) OF THE 1965 RULES DISCRIMINATES WOMEN ON THE BASIS OF SEX?
It is humbly submitted before the Hon’ble Court that the restriction, does not discriminate
against women as a class as it applies only to a specific age bracket. It is further submitted before
the Hon’ble Court that this, hence, does not violate the fundamental rights of women under
Article 14, 15(3) and 17 of the Constitution of India in light of Rule 3(b) of the Varela Hindu
Places of Public Worship (Authorization of Entry) Rules 1965; as that is set specifically in
accordance with the religious practices of the religious denomination and do not stem from an
aim to discriminate.

Arguments Advanced
1.WHETHER THE EXCLUSIONARY PRACTICE OF MENSTRUATING WOMEN AMOUNTS TO

1.1 The Exclusionary practice of menstruating women doesn’t amounts to discrimination

according to the constitution of Vindhu
1.2 The learned counsel for the Respondent humbly submits before this Hon’ble Supreme Court
of India that the exclusionary practice of menstruating women doesn’t amounts to discrimination
according to the Constitution of Vindhu
1.3 Because, such Exclusionary practice of menstruating women is an essential practice, which is
protected under Article 26 of the Constitution.
1.4 In Tilkayat Shri Govindalji Maharaj v. State of Rajasthan 1 (supra) wherein it was held
that the question whether the practice is religious in character, and whether it can be regarded as
an integral or essential part of the religion, will depend upon the evidence adduced before a
court, with respect to the tenets of the religion.
1.5 In S. Mahendran v. The Secretary, Travancore Devaswom Board & Ors.2 (Supra), the
Kerala High court held that the restriction on the entry of the women between the ages of 10 to
50 years was in accordance with the practice prevalent since time immemorial, and not violative
of Article 14, 15 and 17 of the Constitution.
1.6 Supreme Court while recalling the influence of the Constitution of Eire in the drafting of
articles 25 and 26 of the Indian Constitution, relied on the decision Adelaide Company of
Jehovah’s Witnesses v. Commonwealth3, where Australian judges affirmed that the
Constitution protects both the religious opinion and the acts done in pursuance of a religious
belief.
1
Tilkayat Shri Govindalji Maharaj v. State of Rajasthan, 1963 AIR 1638.
2
S. Mahendran v. The Secretary, Travancore Devaswom Board & Ors , AIR 1993 Ker 42.
3
Adelaide Company of Jehovah’s Witnesses v. Commonwealth, 67 CLR 116 (1943).

1.7 Therefore, according to the Supreme Court of India, “rituals and observances, ceremonies
and modes of worship are regarded as integral parts of religion” and religious denominations
behaviors must be considered in order to ascertain the essential practices of their own religion,
which are protected by the State4.
1.8 The essential practice doctrine came into relevance even in Sri Venkataramana Devaru5,
when the Court had to decide whether the exclusion of some people, the untouchables, from
entering in a Hindu temple may be an essential part of Hinduism.
1.9 The Court deeply analyzed Hindus traditions coming to affirm that, although the worship in a
temple was not an essential part of this religion according to the Upanishads.
1.10 In Sankarlinga Nadan v. Raja Rajeswara Dorai 6, it was affirmed that worship in temple
was not an essential part of this religion according to the Upanishads.
1.11 “This distinction among worshippers was also sanctioned in the mentioned decision of the
Privy Council, where judges affirmed that “under the ceremonial law pertaining to temple, who
are entitled to enter 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”. Indeed, clarified the essentiality of
the distinction among believers according to Hindus religious practices and the related need to
protect it according to the provisions on freedom of religion, the Court had to balance them with
the abolition of the untouchability (art. 17 of the Constitution) and with the right of the State to
open public temples to all Hindus (art. 25).
1.12 Supreme Court judges affirmed that art. 17 does not apply to denominational temples,
distinguishing “between excluding persons from temples open for purposes of worship to Hindu
public in general on the ground that they belong to the excluded communities and excluding
persons from denominational temples on the ground that they are not object within the benefit of
the foundation”;
4
C. MUDALIAR, The Secular State and Religious Institutions in India: A Study of the Administration of Hindu
Public Religious Trusts in Madras, Schriftenreihe des SudasienInstituts der Universitat Heidelberg, Steiner Verlag,
Stuttgart, 1974.
5
Sri Venkataramana Devaru v. State of Mysore, (1954 S.C.R. 1046).
6
Sankarlinga Nadan v. Raja Rajeswara Dorai, 5 I.A. 176 (1908).

1.13 In Durgah Committee v. Hussain Ali7, the Court moved an interesting step forward in its
role of interpreter of the religious phenomenon, because it not only confirmed its role in defining
what is essential or not to the religion, but also recognized to itself the ability to rationalize
religion and to purge it from mere superstitions.
1.14 The specific issue of the distinction between superstition and religion came again into
question in Tilkayat Sri Govindlaji8 , where supreme judges stated that, when there is a
contention on competing religious practices, the Court may not solve it looking at what the
community considers an integral part of its religion because the community itself may speak with
more than one voice, so it is a duty of the Court to analyze if the practice is an essential part of
the religion, extricating religious practices from secular ones.
1.15 It is submitted that Menstruation is considered a “dosha” by the Hindu Mythology due to
the act done by Lord Indra. According to Mythology anything which goes away from body like
sweat, blood etc are considered toxic in nature. This is the reason why it is believed that no one
should touch a woman who is menstruating. During Menstruation women are restricted to enter
Kitchens and temples, not allowed to touch pickles, decorating themselves using flowers and talk
in high pitch is prohibited.
1.16 This is done because a menstruation woman is considered to be “impure” in nature. In few
regions the women needs to reside in the separate section of the house. Indeed, there are separate
doors and they need to cook food for themselves. In few localities during menstrual period
women reside in “menstrual huts” till they get purified.9
1.17 Here, in the present case the deity in Harimala is in the form of Nastik Bramhachari, it is
therefore believed that young women between the age of 10-50 years should not offer worship in
the temple so that even the slightest deviation from celibacy and austerity observed by the deity
is not caused by the presence of such women.
7
Durgah Committee v. Hussain Ali , 1961 AIR 1402.
8
Tilkayat Sri Govindlaji v. State of Rajasthan, 1964 SCR (1) 561.
9
Aru Bhartiya, “Menstruation, Religion and Society”, International Journal of Social Science and Humanity, Vol. 3,
No. 6, November 2013, Accessed February 19, 2018. http://ijssh.org/papers/296-B00016.pdf.

1.18 It is further submitted that the celibate nature of the deity at the Harimala Temple has been
traced in Sthal Purana of this temple Chronicled in Bhuthanantha Geetha. Evidence of these
practices is also documented in the Memoir of the survey of the Travancore and Cochin States
written by Ward and Conner Published in two parts in 1893 and 1901.
1.19 It is reiterated that the observance of 41 days Vruthum is a condition precedent for the
pilgrimage which has been an age old custom and anyone who cannot fulfill the said Vruthum
cannot enter the temple and, hence, women who have not attained puberty and those who are in
menopause alone can undertake the pilgrimage at Harimala. It has also been asserted that the said
condition of observance of 41days Vruthum is not applicable to women alone and even men who
cannot observe the 41 days Vruthum due to births and deaths in the family, which results in
breaking of Vruthum, are also not allowed to take the pilgrimage that year.
1.20 It is stated that, as the Deity is practicing Celibacy the temple authorities has restricted the
entry of women much before 1950’s since immemorial. So, it has become the essential practice,
which should be protected under Article 26 of the Constitution.
1.21 Hence, such Exclusionary practice of menstruating women doesn’t amounts to

discrimination according to the Constitution of Vindhu.
2. WHETHER SUCH EXCLUSION FALLS UNDER THE RELIGIOUS PRACTICES AND COULD IT BE
INSTITUTION?
2.1. THAT THE IMPUGNED RULE IS NOT VIOLATIVE OF ARTICLE 25 OF THE CONSTITUTION
2.1.1 The Preamble to the Constitution secures to all citizens of this country liberty of thought,
expression, belief, faith and worship. Article 25 gives freedom to profess, practice, and propagate
religion subject to public order, morality and health. Morality in Article 25 implies constitutional
morality. Constitutional Morality in a pluralistic society and secular polity would reflect that the
followers of various sects have the freedom to practise their faith in accordance with the tenets of
their religion. It is irrelevant whether the practise is rational or logical. Notions of rationality
cannot be invoked in matters of religion by courts. The right is also subject to public health. For

instance, the Epidemic Diseases Act provides rules for enacting special measures to control
epidemic diseases .10
2.1.2 In the case of Acharya Jagadishwarananda Avadhuta,11 Court observed that the full
concept and scope of religious freedom is that there are no restraints upon the free exercise of
religion according to the dictates of one's conscience or upon the right freely to profess, practice
and propagate religion save those imposed under the police power of the State and the other
provisions of Part II of the Constitution. This means that one has a right to worship God
according to the dictates of his conscience. In Bijoe Emmanuel& ors.v. State of Kerala & ors 12
this Court noted that the personal views of judges are irrelevant in ascertaining whether a
particular religious belief or practise must receive the protection guaranteed under Article 25(1).
In Jamshed ji v. Soonabai,13Court observed that the role of a judge in religious matters.
2.1.3 The Court observed that,
“If this is the belief of the Zoroastrian community, a secularJudge is bound to accept that belief
it is not for him to sit in judgment on that belief, he has no right to interfere with the conscience
of a donor who makes a gift in favour of what he believes to be the advancement of his religion
and the welfare of his community or mankind.”
2.1.4 This view was affirmed by the Supreme Court in Ratilalpanachand gandhi v. The State
of Bombay and ors.14and Bijoe Eemmanuel & ors. v. State of Kerala& ors.15.
2.1.5 In Robertl. Hernandez v. Commissioner of Internal Revenue16 it was observed that a

court is not competent to question the centrality of a particular belief or validity of litigant’s
interpretations of those creeds. In United States v. Edwind. Lee17it was observed that it is not
within the judicial function to determine whetherthe Government has the proper interpretation of
a faith or not.
10
Section 2 of the Epidemic Diseases Act, 1897 (Act 3 of 1897)
11
Commissioner of Police and others v. Acharya JagadishwaranandaAvadhuta and another, (2004) 12 SCC 770.
12
Bijoe Emmanuel& ors.v. State of Kerala & ors , (1986) 3 SCC 615.
13
Jamshed ji v. Soonabai , 33 Bom. 122 (1909).
14
Ratilalpanachand gandhi v. The State of Bombay and ors, AIR 1954 SC 388.
15
Supra note 12.
16
Robertl. Hernandez v. Commissioner of Internal Revenue , 490 U.S. 680 (1989).
17
United States v. Edwind Lee, 455 U.S. 252 (1982).

2.2. THAT THE RESTRICTION IS NOT ABSOLUTE
2.2.1 It is submitted that right under article 25 is not absolute. In instances where the temple has
restricted the access to the inner sanctuary of the temple to the public and certain particularly
sacred parts of the temple in order to ensure good order and decency of worship the same was
held to be a valid regulation. 18 The Court has also observed that where the matter pertains to
pollution or defilement of the deity then certain regulations can also be held to be valid on that
aspect.19
2.2.2 Similarly by the impugned Rule, women are not being barred in entirety from entering the
temples. Their entry shall be restricted only if there is a proper custom. They can only be
restricted for a specific period of time. This is done to respect the custom and usage of the place
of public worship. Therefore, the same is a regulation and not an absolute restriction. It does not
bar women to enter into places of public worship for entirety but for a certain period of time if
mandated by the customs of that place of worship.
2.3. THAT THE ESSENTIAL PRACTICES OF A RELIGION WILL NOT BE AFFECTED BY THE
IMPUGNED RULE.
2.3.1 Article 25 only protects those practices, which are an integral part of a religion. 20 The
guarantee is extended to rituals and observances, ceremonies and modes of worship which are
integral parts of religion.21 In Shirur Mutt case22, Court observed that, “what constitutes the
essential part of a religion is primarily to be ascertained with reference to the doctrines of that
religion itself”.
2.3.2 In addition to this the Court observed that, “Under Article 26(b), therefore, a religious
denomination or organization enjoys complete autonomy in the matter of deciding as to what
18
KalidasJivram v. GorParjaram, I.L.R. 15 BOM P. 309; Thackeray v. Harbhum, I.L.R. 8 Bom. P. 432; Nar Hari
Shastri and Ors v. Shri Badrinath Temple Committee, 1952 SCR 849.
19
Sri VenkataramanaDevaru and Ors. v. State of Mysore and Ors., 1958 SCR 895; Gopala Muppanar v.
Subramania Aiyar, (1914) 27 MLJ 253.
20
John Vallamattom and another v. Union of India, (2003) 6 SCC 61.
21
N. Adithayan v. Travancore Devaswom Board and Others, (2002) 8 SCC 10.
22
The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt,1954 AIR 282.

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.”
2.3.3 The test to determine whether a religious practice is an integral part of the religion or not is
whether the community following the religion regards it as such. 23 For a religious practise to
receive protection under Article 25(1) it must be “genuinely”, and “conscientiously” held by
persons claiming such rights.
2.3.4 Therefore, it is submitted that impugned Rule will protect and preserve the essential
practices of a religion.
2.4. COURT’S ROLE IN MATTERS OF RELIGION
2.4.1 In Sri Venkataramana Devaru v State of Mysore 24 a Constitution Bench of the Hon’ble
Supreme Court considered the constitutionality of the Madras Temple Entry Authorisation Act,
1947, which sought to reform the practice of religious exclusion of Dalits from a denominational
temple founded by the Gowda Saraswat Brahmins.
2.4.2 The Court accepted the claim that the temple was a denominational temple founded for the
benefit of the Gowda Saraswats, and proceeded to examine whether exercising the right of a
religious denomination under Article 26(b), they were ‘entitled to exclude other communities
from entering into it for worship on the ground that it was a matter of religion.’ Rather than
allowing the religious denomination ‘complete autonomy in the matter of deciding as to what
rites and ceremonies are essential’, the Court examined scripture and precedent to determine
whether the exclusion of a person from entering into a temple for worship was a matter of
religion under Hindu Ceremonial Law.
2.4.3 Justice Venkatarama Aiyar reviewed ancient literature, the practice of Hindus, and the role
of temples in that practice, and concluded on behalf of the Court that: “18…Thus, under the
ceremonial law pertaining to temples, who are entitled to enter 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.”
23
Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan &Ors., 1964 SCR (1) 561.
24
Sri Venkataramana Devaru v State of Mysore , (1958) SCR 895.

3. WHETHER THE TEMPLE HAS A DENOMINATIONAL CHARACTER, IF YES, WHETHER IT CAN

INDULGE IN PRACTICES, WHICH ARE UNCONSTITUTIONAL?
3.1.The Harimala Temple and its followers can be held as Religious Denomination
3.1.1 The Constitution doesn’t define ‘Religious Denomination’. However, in some landmark
judgements the Supreme Court has clarified what Religious Denomination defined in Article 26
of the Constitution actually means. For the first time it has defined Religious Denomination in
the case of Commissioner Hindu Religious Endowments Madras v. Sri Lakshmindra
Thirtha Swamiar of Shirur Mutt25. It has defined it as:-
“A Collection of Individuals, classed together under the same name; now almost always
specifically, specially a religious sect or body having a common faith and organisation and
designated by a distinctive name.”
3.1.2 The word Religious Denomination, which is laid down in Article 26 of the Constitution
must take their colour from the word Religion and this expression must satisfy three conditions
as laid down in S.P.Mittal v. Union of India&Ors26.
3.1.3 The conditions laid down in the above case were:-
(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.
3.1.4 Relying on the judgment in Sri Venkataramana Devaru & Ors. v. State of Mysore &
Ors. case27, it is submitted that religion, in this formulation, is a much wider concept, and
includes: Ceremonial law relating to the construction of Temples; Installation of Idols therein;
25
Commissioner Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar of Shirur Mutt ,1954
AIR 282.
26
S.P.Mittal v. Union of India&Ors , (1983) 1 SCC 51.
27
Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors ,(1958) SCR 895.

Place of consecration of the principle deity; Where the other Devatas are to be installed; Conduct
of worship of the deities; Where the worshippers are to stand for worship.
3.1.5 It is submitted that the devotees of Lord Varnappan constitute a religious denomination,
who follow the Varnappan Dharma, where all male devotees are called Varnappns and all female
devotees below 10 years and above 50 years of age are called Malikapurams. A devotee has to
abide by the customs and usages of this Temple, if he is to mount the pathinettu padikal and
enter the Harimala Temple. This set of beliefs and faiths of the Varnappanswamis, and the
organization of the worshippers of Lord Varnappan constitute a distinct religious denomination,
having distinct practices.
3.1.6 It was further submitted that the status of this temple as a religious denomination, was
settled by the judgment of the Division Bench of the Kerala High Court in S. Mahendran v. The
Secretary, Travancore Devaswom Board & Ors.28.The then Thanthri Sri Neelakandaru, who
had installed the deity was examined by the High Court, who stated that women during the age
group of 10 to 50 years were prohibited from entering the temple much before the 1950s. This
judgment being a declaration of the status of this temple as a religious denomination is a
judgment in rem. The said judgment has not been challenged by any party. Hence, it would be
binding on all parties, including the Petitioners herein.
3.1.7 Article 25(2) (b) upholds the individual’s protection from discrimination and Article 26(b)
on the contrary upholds the institutional right to an organized religious practice. This apparent
inconsistency was resolved by the court in Sri Venkataramana Devaru and Ors. V. The State
of Mysore29, where the court held that “matters of religion” in Article 26 includes those tenets
and practices of a religion that are basic to the religion fall within its ambit.
3.1.8 The reliance was placed on the decision of this Court in The Commissioner Hindu
Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt30, wherein it was observed thus:
28
S. Mahendran v. The Secretary, Travancore Devaswom Board & Ors., AIR 1993 Ker 42.
29
Sri Venkataramana Devaru and Ors. V. The State of Mysore , (1958) SCR 895.
30
The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt , 1954 AIR 282.

"The contention formulated in such broad terms cannot, we think, be supported. In the first
place, what constitutes the essential part of a religion is primarily to be ascertained with
reference to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus
prescribe that offerings of food should be given to the idol at particular hours 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 ablations to the sacred fire, all these would
be regarded as parts of religion and the mere fact that they involve expenditure of money or
employment of priests and servants or the use of marketable commodities would not make them
secular activities partaking of a commercial or economic character; all of them are religious
practices and should be regarded as matters of religion within the meaning of article 26(b)."
3.1.9 It is said that , this Court in Shirur Mutt (supra), while giving freedom under clauses (a) and
(b) of Article 26, made it clear that what is protected is only the 'essential part' of religion or, in
other words, the essence of 'practice' practiced by a religious denomination and, therefore, the
petitioners submit that before any religious practice is examined on the touchstone of
constitutional principles, it has to be ascertained positively whether the said practice is, in pith
and substance, really the 'essence' of the said religion.
3.1.10 It has been contended on behalf of the petitioner that it is for the religious denomination
itself to determine what essentially religious practices are and what are not. In this connection,
reliance is placed on the following observations of this Court in the leading case, aforesaid, of
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Mutt:
"As we have already indicated, freedom of religion in our Constitution is not confined to
religious beliefs only; it extends to religious practices as well subject to the restrictions which
the Constitution itself has laid down. Under Art. 26(b), therefore, 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.”

3.1.11 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
this 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.
3.1.12 Here, in the present case the deity in Harimala is in the form of Nastik Bramhachari, it is
therefore believed that young women between the age of 10-50 years should not offer worship in
the temple so that even the slightest deviation from celibacy and austerity observed by the deity
is not caused by the presence of such women.
3.1.13 It is further submitted that the celibate nature of the deity at the Harimala Temple has
been traced in Sthal Purana of this temple Chronicled in Bhuthanantha Geetha. Evidence of these
practices is also documented in the Memoir of the survey of the Travancore and Cochin States
written by Ward and Conner Published in two parts in 1893 and 1901.
3.1.14 It is stated that, as the Deity is practicing Celibacy the temple authorities has restricted
the entry of women much before 1950’s since immemorial. So, it has become the essential
practice, which should be protected under Article 26 of the Constitution.
3.1.15 It is further submitted that Article 290A does not in any manner take away the
denominational character of the Harimala Temple, or the Fundamental Rights under Article 26.
3.1.16 This Temple owned vast landed properties from which the Temple was being maintained.
These were taken over by the State, subject to the obligation to pay annuities to the Temple from
the coffers of the State, as is evident from the Devaswom Proclamation Annexure I. When the
erstwhile State of Travancore merged with the Union of India, the obligation of paying annuities
for the landed properties was transferred to the Government of India. The Temple is managed by
the Travancore Devaswom Board. It does not receive funds from the Consolidated Fund of India,
which would give it the character of 'State' or 'other authorities' under Article 12 of the
Constitution.
3.1.17 In a Journal, Constitution and Secularism-A Rejoinder31 it was stated that-
31
6 SA 83 (1994)

“The first thing to be noted here is that Article 290A was not part of the original text of
the Constitution. It was one among the consequences of the reorganization of States in 1956.
Earlier, there existed practices in the erstwhile State of Travancore - Cochin wherein the ruler
had established the practice of allocating money for the maintenance of shrines there and the
revenues from the temples getting into the treasury of the ruler. As there is income from the
temples in this region, expenditure is also provided out of the consolidated funds of the two
states. The States have the Hindu Religions Endowment Boards as well as Wakf Boards headed
by ministers belonging to that religion in the management of their religious affairs”
3.1.18 As the Harimala temple has fulfilled all the requisites mentioned above, it can be regarded
as a Religious Denomination.
3.2. The Harimala Temple has not indulged in any Unconstitutional Practices
3.2.1 It is humbly submitted that, 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.
3.2.2 Apparently, it is said that, Unlike Article 25, which is subject to the provisions of Part III of
the Constitution, Article 26 is subject only to public order, morality and health, and not to the
provisions of the Constitution. As, a result, the Fundamental Rights of denomination is not
subject to Articles 14 or 15 of the Constitution.
3.2.3 With respect to Article 25(1), it was submitted that the worshippers of Lord Varnappan are
entitled to the freedom of conscience, and the right to profess, practice and propagate their
religion. The right to profess their faith by worshipping at the Harimala Temple can be
guaranteed only if the character of the deity as a Nastik Bramhachari 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.

3.2.4 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 during the notified period, based on faith,
custom and belief, which has been observed since time immemorial.
3.2.5 It is further submitted that the plea of the Petitioners with reference to Article 17 was
wholly misconceived. The object and core of Article 17 was to prohibit untouchability based on
caste in the Hindu religion. No such caste-based or religion-based untouchability is practiced at
the Harimala Temple.
3.2.6 The customs practiced by the devotees at the Harimala Temple do not flow from any
practice associated with untouchability under Article 17. The custom is not based on any alleged
impurity or disability. Hence, the contention was liable to be rejected.
3.2.7 The role of Courts in matters concerning religion and religious practices under our secular
Constitutional set up is to afford protection under Article 25(1) to those practices which are
regarded as essential or integral by the devotees, or the religious community itself.
3.2.8 Hence, the Harimala temple and its administration has got Constitutional Protection from
Restricting the women from entering the temple.
4. WEATHER RULE 3 (B) OF THE 1965 RULES DISCRIMINATES WOMEN ON THE BASIS OF SEX?
4.1. THAT THE RULE IS NOT VIOLATIVE OF ARTICLE 14:
4.1.1 Article 14 of the Constitution provides for equality before law and equal protection of law.
However, it does not guarantee equal treatment of all persons. It only guarantees equality among
equals32. This means that similarly placed individuals shall be treated equally. Its aim is to
prevent discriminatory treatment of similarly placed people.
32
Western UP Electric Power Supply Co. Ltd v. State of Uttar Pradesh, 1969 SCR (3) 865.

4.1.2 Article 14 is attracted only when equals are treated as unequals or where unequals are
treated as equals. The guarantee of equality does not imply that the same rules should be made
applicable in spite of differences in their circumstances and conditions.33
4.1.3 A classification is said to be valid if satisfies the twin test as held in AnwarAli Sarkar’s
case.34 The two tests are:-
 the classification must be founded on an intelligible differentia which distinguishes those

that are grouped together from others left out of the group, and
 the differentia must have a rational relation to the objects sought to be achieved by the
Act. The differentia which is the basis of the classification and the object of the Act are
distinct and what is necessary is that there must be nexus between them.
4.1.4 It is submitted that in the given case, the object of classification is to authorize the entry of
Hindus into the places of public worship which is protected under article 25(2)(b). The
classification made is also constitutionally valid since it has a nexus with the object sought and
this is the only practical way to protect the religious customs. It is further submitted that religious
customs cannot be solely tested on the touchstone of article 14 and the principle of rationality.
Equality in matters of religion must be viewed in the context of the worshippers of the same
faith. The right to equality under article 14 conflicts with right of the worshippers which is also a
fundamental right under article 25. Determination of religious beliefs is outside the ken of the
courts. They are not to be struck down unless they are oppressive or socially evil, like sati.
4.2.That the a is not violative of Article 15(3):
4.2.1 Article 15 of the Constitution prohibits differential treatment of persons on the ground of
‘sex’ alone and they shall not be restricted from entering places of public resort. Article 15 was
proposed as draft article 9.35 Professor KT Shah proposed the Amendment no.-293 for including
33
Ramesh Prasad v. State of Bihar, AIR 1978 SC 327.
34
State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.
35
Draft Constitution of India, Drafting Committee of the Constituent Assembly of India (Manager Government of
India Press, New Delhi, 1948) available at
http://14.139.60.114:8080/jspui/bitstream/123456789/966/7/Fundamental%20Rights%20%285-12%29.pdf.

“temples” into places of public resort. 36 This proposal was rejected by the Constituent
Assembly.37 Assembly considered it fit not to include ‘places of worship’ or ‘temples’ within the
ambit of Draft Article 9 of the Constitution.
4.2.2 Professor K.T. Shah proposed Amendment No. 293 for substitution of sub-clauses (a) &
(b) as follows:
“any place of public use or resort, maintained wholly or partly out of the revenues of the State,
or in any way aided, recognised, encouraged or protected by the State, or place dedicated to the
use of general public like schools, colleges, libraries, temples, hospitals, hotels and restaurants,
places of public entertainment, recreation or amusement, like theatres and cinema-houses or
concert-halls; public parks, gardens or museums; roads, wells, tanks or canals; bridges, posts
and telegraphs, railways, tramways and bus services; and the like.”
4.2.3 Thus, there is no question of discrimination on grounds of sex since temple is not a place of
public resort and their entry can be restricted.
4.3. THAT THE IMPUGNED RULE DOES NOT VIOLATE ARTICLE 17
4.3.1 The object and core of Article 17 is to prohibit untouchability based on “caste”. The
customs practised in temples do not flow from any practices associated with untouchability
under Article 17. 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. Present Article 17 was proposed as Article 11 of
the Constitution38. It referred to caste-based discrimination faced by Harijans, and not women.
During the debate, Mr. V.I. Muniswamy Pillai had stated that adoption of article 11 would give
relief to a Harijan, who has been suffering the tyranny from ages.39
36
Statement of Professor K.T. Shah, Constituent Assembly Debates (November 29, 1948).
37
Constituent Assembly Debates (November 29, 1948).
38
Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability arising
out of “Untouchability" shall be an offence punishable in accordance with law.” Draft Constitution of
India, Drafting Committee of the Constituent Assembly of India (Manager Government of India Press, New Delhi,
1948) available at http://14.139.60.114:8080/jspui/bitstream/123456789/966/7/Fundamental%20Rights% 20%285-
12%29.pdf.
39
Statement of Shri V.I. Muniswamy Pillai, Constituent Assembly Debates (November 29, 1948).

4.3.2 Mr. Seervai 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. 40
Professor M.P. Jain states that,
“Therefore, treating of persons as untouchables either temporarily or otherwise for various

reasons, e.g., suffering from an epidemic or a contagious disease, or social observances
associated with birth or death, or social boycott resulting from caste or other disputes do no
come within the purview of Art. 17.
Art. 17 is concerned with those regarded untouchables in the course of historic developments.”41
4.3.3 In Venkataramana Devaru,42 Court observed that the object of enacting Article 17 was to
abolish untouchability based on customs which denied access to a large sections of Hindus who
were classed as untouchables. Therefore, it is submitted 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.
4.4. RULE 3(B) OF THE 1965 RULES IS NOT ULTRA VIRES THE ACT:
4.4.1 Rule3(B) of 1965 states that :
“Rule 3. The classes of persons mentioned here under shall not be entitled to offer worship in
any place of public worship or bath in or use the water of any sacred tank, well, spring or water
course appurtenant to a place of public worship whether situate within or outside precincts
thereof, or any sacred place including a hill or hill lock, or a road, street or pathways which is
requisite for obtaining access to the place of public worship-
(b) Women at such time during which they are not by custom and usage allowed to enter a place
of public worship”
40
1 H.M. Seervai, Constitutional Law of India: A Critical Commentary, p. 691 (4th Ed., Reprint 1999).
41
M.P. Jain, Indian Constitutional Law, p. 1067 (6th Ed, 2010).
42
Venkataramana Devaru & Ors. v. State of Mysore & Ors., 1958 SCR 895.

4.4.2 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 of the 1965 Act, as it recognises pre-
existing customs and usages including past traditions which have been practised since time
immemorial qua the Temple. The Tenjiki Board submits that these practises are integral and
essential to the Temple..
4.4.3 The restriction of women between the ages of 10 to 55 years as a custom and practise
integral to the sanctity of the Temple, and having the force of law under Article 13(3)(a) of the
Constitution. The High Court in S. Mahendran v. The Secretary, Travancore Devaswom
Board, Thiruvananthapuram & Ors43. noted that this practise of restricting the entry of
women is admitted to have been prevalent since the past several centuries.
4.4.4 Rule 3(b) of the 1965 Rules is not ultra vires, since the proviso carves out an exception in
the case of public worship in a temple for the benefit of any religious denomination or sect
thereof, to manage their affairs in matters of religion.
4.4.5 Hence, the contentions of the Petitioners that Rule 3(b) is ultra vires may be rejected.
Prayer
43
S. Mahendran v. The Secretary, Travancore Devaswom Board & Ors , AIR 1993 Ker 42.

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to hold:
1. That the exclusionary practice of menstruating women doesn’t amount to

discrimination according to the Constitution of Vindhu.
2. That such exclusion falls under the religious practices and hence could be included
under the right to manage its own affairs of the religious institution
3. That the temple has got denominational character and that it has not indulged in
practices which are unconstitutional.
4. That Rule 3 (b) of the 1965 rules doesn’t discriminate women on the basis of sex
and/or pass any other order that it deems fit in the interest of justice, equity and good conscience.
and for this, the Respondent as in duty bound, shall humbly pray.
Counsels for the Respondent

RL Respondents Akash

Uploaded by

Copyright:

Available Formats

RL Respondents Akash

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

RL Respondents Akash

Uploaded by

Copyright:

Available Formats

ROSTRUM LEGAL ONLINE MEMORIAL DRAFTING COMPETITION, 2019

TEAM CODE- XV40K

BEFORE THE HONOURABLE SUPREME COURT OF VINDHU

YOUNG LAWYERS ASSOCIATION & ORS ……..Petitioner

WRIT PETITION NO._/2018

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF VINDHU

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT Page 1

Issues for Consideration................................................................................................................8

1.Whether the exclusionary practice of menstruating women amounts to discrimination

MEMORIAL ON BEHALF OF RESPONDENT Page 2

AIR All India Reporter

r/w Read with

SCC Supreme Court Cases

SCR Supreme Court Review

SCW Supreme Court Weekly

u/s Under Section

UOI Union of India

MEMORIAL ON BEHALF OF RESPONDENT Page 3

1. Adelaide Company of Jehovah’s Witnesses v. Commonwealth

3. Maxwell, Interpretation of Statutes, 1st Edition, LexisNexis, Nagpur.

MEMORIAL ON BEHALF OF RESPONDENT Page 4

1. The Constitution of India, 1950.

1. HeinOnline, https://home.heinonline.org/ (last seen on June 16, 2019).

2. Lexis India, https://www.lexisnexis.com/in/legal/ (last seen on June 16, 2019).

3. Manupatra, http://www.manupatrafast.com (last seen on June 16, 2019).

4. SCC Online, http://www.scconline.com/ (last seen on June 16, 2019).

5. Westlaw India, http://www.westlawindia.com/ (last seen on June 16, 2019).

MEMORIAL ON BEHALF OF RESPONDENT Page 5

“Article 32. Remedies for enforcement of rights conferred by this Part

MEMORIAL ON BEHALF OF RESPONDENT Page 6

MEMORIAL ON BEHALF OF RESPONDENT Page 7

Issues for Consideration

WHETHER THE EXCLUSIONARY PRACTICE OF MENSTRUATING WOMEN AMOUNTS TO

WEATHER THE TEMPLE HAS A DENOMINATIONAL CHARACTER, IF YES, WHETHER IT CAN

MEMORIAL ON BEHALF OF RESPONDENT Page 8

1. WHETHER THE EXCLUSIONARY PRACTICE OF MENSTRUATING WOMEN AMOUNTS TO

3. WEATHER THE TEMPLE HAS A DENOMINATIONAL CHARACTER, IF YES, WHETHER IT CAN

MEMORIAL ON BEHALF OF RESPONDENT Page 9

MEMORIAL ON BEHALF OF RESPONDENT Page 10

1.WHETHER THE EXCLUSIONARY PRACTICE OF MENSTRUATING WOMEN AMOUNTS TO

1.1 The Exclusionary practice of menstruating women doesn’t amounts to discrimination

MEMORIAL ON BEHALF OF RESPONDENT Page 11

MEMORIAL ON BEHALF OF RESPONDENT Page 12

MEMORIAL ON BEHALF OF RESPONDENT Page 13

1.21 Hence, such Exclusionary practice of menstruating women doesn’t amounts to

MEMORIAL ON BEHALF OF RESPONDENT Page 14

2.1.3 The Court observed that,

2.1.5 In Robertl. Hernandez v. Commissioner of Internal Revenue16 it was observed that a

MEMORIAL ON BEHALF OF RESPONDENT Page 15

2.2. THAT THE RESTRICTION IS NOT ABSOLUTE

MEMORIAL ON BEHALF OF RESPONDENT Page 16

2.4. COURT’S ROLE IN MATTERS OF RELIGION

MEMORIAL ON BEHALF OF RESPONDENT Page 17

3. WHETHER THE TEMPLE HAS A DENOMINATIONAL CHARACTER, IF YES, WHETHER IT CAN

3.1.3 The conditions laid down in the above case were:-

(2) Common organization; and

(3) Designation by a distinctive name.

MEMORIAL ON BEHALF OF RESPONDENT Page 18