STATEMENTOF JURISDICTION

The Petitioner humbly submits this memorial before the Hon’ble Court. The
Petition invokes writ jurisdiction under Art 32 of the Constitution of India. It
sets forth the facts and the law on which the claims are based.

Article 32

(1)The right to move to the Supreme Court by appropriate proceedings for

the enforcement of the right conferred by this Part is guaranteed.

(2)The Supreme Court shall have power to issue directions or orders or

wr it s, incl uding wri ts in t he nat ure of habeas corpus, m andamus,
prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the right conferred by this part.

(3)Without prejudice to the powers conferred on the Supreme Court

by clauses (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).

(4) The right guaranteed by this article shall not be suspended except
as otherwise provided for by this constitution.
 STATEMENT OF FACTS

 The Sukhdam Temple, located in the state ‘X’ , is renowned for lakhs of
pilgrims thronging it all through the year. Pilgrims trek the deep forest to
reach the shrine, which has 18 sacred steps, to worship Lord ‘A’ after
undergoing strict religious vows for 48 days.
 The temple is also prominent for another reason — the selective ban on
women entering it. Women aged between 10 and 50, that is those who are
in menstruating age, are barred from entering the temple. While there is
no restriction on women to worship Lord ‘A’ in any other temple, their
entry is prohibited in this temple alone.
 The JAM (Junior Advocates Mission) and five women lawyers
approached the Supreme Court seeking a direction to allow entry of
women into the temple without age restrictions.
 Their petition contended that discrimination in matters of entry into
temples was neither a ritual nor a ceremony associated with Hindu
religion. Such discrimination was totally anti-Hindu.
 The religious denomination could only restrict entry into the sanctum
sanctorum and could not ban entry into the temple, making discrimination
on the basis of sex.
 The SUKHDAM BOARD, which maintains the temple, had replied that
the ban was in accordance with centuries-old tradition. Lord ‘A’, being a
Naishtika Brahmmachari (one who has vowed to remain celibate).
 Another argument put forth by the temple authorities is that it is not
possible for women to put up with the physical hardship, austerity and
days of celibacy like men.
 ISSUES RAISED

 Whether the exclusionary practice, which is based upon the biological

factor exclusive to the female gender amounts to discrimination and
violates very core of Articles 14, 15 and 17 and not protected by morality
as used in Articles 25 and 26 of Indian Constitution?
 Whether this exclusionary practice constitutes an essential religious
practice under Art 25 of Indian constitution?
 Whether the Sukhdam Temple is Religious denomination under Art 26 of
Indian constitution? If yes then whether such denomination managed and
administered by statutory body and financed under Art 290A of Indian
constitution, is allowed to indulge in such derogatory practices violating
constitutional morality/principles guaranteed under Articles
14,15(3),39(a) and 51A(e).
 Whether Rule 3 of 1965 Rules permits religious denomination to prohibit
entry of women between ages of 10 to 50? And if so, would it not be
against the Articles 14 and 15(3) of Indian constitution?
 Whether rule 3(b) of Rules of 1965 is ultra vires to Act of 1965? If
consider it as intra vires, whether it will be violative of the provisions of
Part III of constitution?
 ADVANCED ARGUMENTS

 It was argued by the petitioner that exclusionary practice results in discrimination against
women as a class, since the significance section between the age of 10 to 50 years are
prohibited from entry. Petitioner also trusted on impact test articulated in Bennett
Coleman and Co. & Ors. v.Union of India & Ors.[3] And said that this discrimination is
only on the ground of sex because the biological feature of menstruation emanates from
the characteristics of particular sex.
 Is was also argued that such practice which is solely based on the sex’ violates Art 15(1)
and because the Sabarimala temple is a public place so it also violates Article 15(2)(b).
 It was argued that such exclusionary or customary practice which is codified in Rule 3(b)
of Rules of 1965 and the notification issued by the statutory body does not in accordance
with the tests of Articles 14,15 and 21. This customary practice violates article 14
because the classification lacks a constitutional object.
 It was also argued that such customary practice is also violates the individuals right to
worship or follow any religion.[4] Petitioner contended that Act of 1965 passed to achieve
the goals enshrined in Art 25(2)(b) as a measure of social reform and act of 1965
contains no such provision which prohibit a women of specific age to enter into public
temple. But rule 3(b) of 1965 Rules is ultra vires the act of 1965 insofar as it bars the
entry in the public temple on the basis of sex.
 Rule 3(b) of 1965 rules says that Women at such time during which they are not by
custom and usage allowed to enter a place of worship and it was the basis of the practice
of excluding women of the age group of 10 through to 50 years. Here petitioner
contended that expression at any such time in rule does not mean total or complete bar
or prohibition/exclusion of any women. Petitioner also contended that any other
interpretation of that expression would result that rule as invalid because any other
interpretation may conflict with the act of 1965 and various fundamental rights of Indian
constitution.
 Petitioner argued that followers of lord Ayyappa do not constitute ‘religious denomination’
under art 26 of Indian constitution because they don’t have a common faith or distinct
name. Only a slight difference in rituals and ceremonies does not make them a separate
religious denomination.
 Petitioner argued that even if we suppose that devotees or followers of Lord Ayyappa
form a religious denomination, their rights under Art 26(b) should be subject to Art 25(2)
(b).[5]
 Even if devotees of Lord Ayyappa constitute a Religious denomination, the restriction on
the women is not an essential religious practice. That prohibition on women of specific
age can not be considered as core foundation of assumed religious denominations and
any custom or usage to be protected under Art 26 should have Constitutional legitimacy.
 Petitioner also argued that such practice also violates article 21 of constitution because it
cast a stigma on the women as they are polluted.
 Petitioner also contended that such customary practice also violates also violates Art 17
which is available against state and non-state, because prohibiting entrance of women in
public place is a direct form of untouchability.
 Petitioner also contented that temple is managed and administered by a statutory
authority and it receives a financial assistance from the consolidated fund of India.[6] So
it is fall under the term other authority[7] and therefore under obligation to respect
fundamental rights.
 Petitioner argued that right to worship and religion is available to both men and women
equally under constitution,[8] so right of women to enter into temple as a devotee for
worship is protected as fundamental right. This right could not be diluted by the state for
providing social reform or welfare under Art 25(2)(b).
Article 25(1) as the Foundation of the Petitioners’ Case

The Petitioners have argued that they have an Article 25(1) right to enter
the Sabarimala Temple for the purposes of worship, since it is part of their
constitutionally protected “practice” of religion. While in most cases, a Court would
not contradict this claim, as long as it is genuinely and sincerely held, the Indian
position – as we have seen earlier – is rather different when it comes to judicial
intervention into questions of faith. The position is somewhat complicated by
precedent: in Ismail Faruqui, the Supreme Court held that “the right to worship is not
at any and every place, so long as it can be practised effectively.” However, the Court
followed this up by noting “…unless the right to worship at a particular place is itself
an integral part of that right.” The distinction between mosques and temples is
relevant here: in monotheistic Islam, an individual mosque may not have specific
religious significance – while in Hinduism, individual temples dedicated to specific
deities are not substitutable in the same sense. For this reason, despite Ismail
Faruqui, the right to worship at a “particular place” could well be “an integral part
of… [the] right [to worship]” simpliciter in the present circumstances, especially since
the Sabarimala Temple is dedicated to a specific deity.

Notable, unlike other provisions of Part III, Article 25(1) is not, in its terms, only
enforceable against the State. It stipulates that “all persons are equally entitled to
freedom of conscience and the right freely to profess, practice and propagate
religion.” Consequently, individual interference with this right (through the temple
authorities), or interference by the Davaswom Board, would appear to be actionable
under Article 25(1), without getting into knotty questions of maintainability under
Article 12. At any rate, it is now well-established that the State’s obligations under
Part III are not merely negative obligations of non-interference, but extend to
guaranteeing effective exercise of fundamental rights. Consequently, at the very
least, if the Petitioners’ claims under Article 25(1) stand, they can call upon State aid
to enforce their right of access.
Article 26(b) as the Counterpoint to Article 25(1)

Article 26(b) guarantees the right of every religious denomination “to manage its
own affairs in matters of religion.” This appears to be the foundation of the
Respondents’ case. It is therefore worthwhile to focus upon it a little closely. To fall
within Article 26(b), three conditions must be satisfied: (i) since Article 26(b) is subject
to “public order, morality, or health“, that preambular clause must not be attracted;
(ii) the claimant must be a “denomination”; (iii) the claim must pertain to “matters of
religion“. With respect to (iii), Petitioners are not disputing that the issue of temple
entry is a matter of religion (indeed, having themselves claimed a right to entry
under Article 25(1), it is difficult to see how they could get out of that). To the best of
my understanding, they are also not claiming that the Temple is a denominational
temple – although the Supreme Court has, in the past, laid down fairly rigorous tests
in determining what constitutes a “religious denomination” for the purposes of
Article 26(b). Perhaps this is a question that will be raised by the amici, or one that
the Court will examine independently.

Petitioners are arguing, however, that the operation of Article 26(b) is barred by the
“morality” clause. In particular, they are arguing that the word “morality” is to be
taken to mean “constitutional morality” – and since “gender justice” is an integral
part of constitutional morality, denominational practices that go against gender
justice are not protected by Article 26(b). The bar on menstruating-age women,
whether one spins it as being based on the perceived uncleanliness of menstruation,
or on the “celibacy” of the deity, amounts to gross gender stereotyping, and
therefore violates constitutional morality.

I am sympathetic to the idea of constitutional morality, and have tried to fashion

arguments based on constitutional morality myself, in the past. However, I see at
least two problems with this argument, as it stands. The first is that insofar as
Petitioners are relying upon Articles 14 and 15(1) to establish gender justice as being
part of constitutional morality, both these Articles are expressly directed against the
State. Therefore, even if one was to accept that “morality” refers to “constitutional
morality”, the most that the Constitutional text seems to indicate is constitutional
morality requires the State not to discriminate on the basis of gender. In fact, a closer
reading of the constitutional text seems to militate against the Petitioners’
argument. Article 15(2), which is horizontally applicable, is limited to securing non-
discriminatory access to “shops, public restaurants, hotels, and places of public
entertainment.” Conspicuously, religious institutions are excluded. In fact, Article
25(2)(b), which deals with the throwing open of Hindu religious institutions to all
sections of Hindus, is framed as permitting – but not obligating – the State to make
laws for temple entry. This would seem to indicate that constitutional morality does
not mandate gender equality in with respect to access to religious institutions.
Secondly, the scheme of Articles 25 to 30 suggests that the Constitutional vision
strongly supports the rights of groups to cultural autonomy. Apart from Article
26(b), Article 29 guarantees the rights of minorities to preserving their language,
script and culture. Now, on what basis does one argue – purely from the
constitutional text – that the right to equality or gender justice necessarily overrides
the principle of cultural autonomy? On which side does constitutional morality weigh
heavier? I am not arguing that the Petitioners are incorrect – only that the
constitutional text underdetermines the question as far as constitutional morality is
concerned.

My own argument – which I’ve recently made in an article – is slightly different. The
Constitution, I’ve tried to argue, is committed to an “anti-exclusion principle”: it
prohibits both the State and communities from treating individuals in discriminatory
ways, insofar as that discrimination blocks their access to crucial public goods,
whether material or symbolic. It seems to me that access to a temple is central to
equal moral membership in the cultural community, especially in a country like ours,
where private and public life is suffused with religion to such an extent. The denial of
entry to women on grounds such as menstruation, or breaking the deity’s celibacy, is
a classic example of gender-stereotyping, which would be uncontroversially
unconstitutional if done by the State. Given the place of the temple at the heart of
community life, I would submit that it is similarly unconstitutional in the present
situation.

E. The Temple as “Public Space”

The Bench appears to have framed the issue as a question of whether religious
custom can override the right to gender equality in the context of a public temple.
With respect, I do not think this is entirely correct. As argued above, the right to
equality is not directly relevant in the present case, since Articles 14 and 15(1) make it
clear that it is only enforceable against the State. The “publicness” of the temple is
another matter altogether: I would argue that if the Court is to hold that the
Sabarimala Temple is a “public temple”, then it no longer remains a “denominational”
religious institution, and loses the protection of Article 26(b) without the necessity of
going into the morality clause. In such a situation, the question becomes
straightforward: the petitioners have a right to enter the temple under Article 25(1),
and the Devaswom Board has no corresponding right to deny them entry under
Article 26(b). Without the umbrella protection of 26(b), for the reasons adduced at
the beginning of this post, Rule 3 is either ultra vires, or unconstitutional.

(Interestingly, during the first temple entry satyagraha in 1927, Ambedkar framed the
issue as precisely being one of a right to access public spaces on an equal basis. “The
issue is not entry, but equality“, he famously said).