R- 139

IN THE HON‘BLE SUPREME COURT OF INDIA

(CIVIL ORIGINAL JURISDICTION)

PUBLIC INTEREST LITIGATION

WRIT PETITION (CIVIL) NO.___ OF 2019

A PUBLIC INTEREST LITIGATION UNDER ARTICLE 32 OF THE CONSTITUTION OF SENTARA

PRAYING FOR A WRIT OF DECLARATION OR ANY OTHER APPROPRIATE WRITS

--IN THE MATTER BETWEEN—

SHRADDHA & ORS………. (PETITIONERS)

V.

STATE OF KERIPULA & ORS……….……...…………………..… (RESPONDENTS)

UPON SUBMISSION TO THE HON‟BLE CHIEF JUSTICE AND HIS LORDSHIP‟S

COMPANION JUSTICES OF THE HON‟BLE SUPREME COURT OF SENTARA

MEMORIAL ON BEHALF OF THE RESPONDENT

MEMORIAL ON BEHALF OF THE RESPONDENT Page 1

 TABLE OF CONTENTS

STATEMENT OF JURISDICTION ...................................................................................... 3

STATEMENT OF FACTS ...................................................................................................... 4
SUMMARY OF ARGUMENTS ............................................................................................. 5
-I- WHETHER THE HON’BLE SUPREME COURT HAS THE JURISDICTION IN DEFINING THE
BOUNDARIES OF RELIGION IN ACCORDANCE WITH CONSTITUTIONAL MANDATE?.................6

1.1 JUDICIAL INTERVENTION IS VIOLATIVE OF FREEDOM OF RELIGION ......................... 6

1.2 COURTS ARE NOT THE ARBITERS OF SCRIPTURAL INTERPRETATION. ....................... 7

1.3 ART. 25(2) PERMITES STATE MADE LAWS AND NOT JUDICIAL INTERVENTION. ......... 9

1.4 THE RIGHT UNDER ART. 26 IS NOT SUBJECT TO PART III OF THE CONSTITUTION. ..... 9

II- WHETHER THE SAID RESTRICTION IMPOSED ON THE WOMEN AMOUNTS TO VIOLATION OF
THEIR FUNDAMENTAL RIGHTS AS ENSHRINED IN THE CONSTITUTION, SPECIFICALLY
VIOLATION OF ARTICLES 14, 15, 17 AND 21 IN LIGHT OF RULE 3(B) OF ABC PLACES OF
PUBLIC WORSHIP (AUTHORIZATION OF ENTRY) RULES?....................................................10

-III- WHETHER THE PRACTICE OF EXCLUDING A CATEGORY OF WOMEN CONSTITUTES AN

"ESSENTIAL RELIGIOUS PRACTICE" UNDER ARTICLE 25 AND WHETHER A RELIGIOUS

DENOMINATION CAN ASSERT SUCH A CLAIM UNDER THE UMBRELLA OF RIGHT TO MANAGE ITS

OWN AFFAIRS IN THE MATTERS OF RELIGION UNDER ARTICLE 26(2)(B) ? ………………..20

PRAYER …………………………………………………………………………………..30

MEMORIAL ON BEHALF OF THE RESPONDENT Page 2

 STATEMENT OF JURISDICTION

The petitioners have approached the Hon‟ble Supreme Court of Sentara through a Public
Interest Litigation under Article 32 of the Constitution of Sentara. The Article reads as
follows:

32. Right to Constitutional Remedies:

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.
(2) 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.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 3

 STATEMENT OF FACTS

The material case arises out of a writ in the form of a Public Interest Litigation filed by Shraddha
and other women advocates before the Supreme Court of Sentara to seek the direction to allow
entry of women into the temple without age restrictions.
I. BACKGROUND OF THE SRIPURA TEMPLE
Sentara is a country with glorious and rich heritage with multifarious religious groups. The temple of
Sripura is a temple complex located in Keripula. It is sight of largest pilgrimage in the world with an
estimate of between 17 million and 50 million devotees visiting every year, the temple is situated on a
hill top and the pilgrims trek to reach the holy place to worship lord A after undergoing strict religious
vows for 48 days. Deity “A” who according to belief is the son of Shiva and Mohini, the feminine
incarnation of Vishnu, the unique feature of this temple is that every year Rath Yatras are organized
and celebrations go on for months.
II. SELECTIVE BAN ON WOMEN BECAUSE OF THE NATURE OF THE DEITY
& RULE 3(b) of the ABC PLACES OF PUBLIC WORSHIP.
Shraddha and other women were highly intrigued by the way this particular temple is male only where
women of particular age group are not permitted. However the women between 10 to 50 years are not
prohibited to worship lord A in any other temple, their entry is prohibited only in the temple of Sripura.
The exclusion of women is justified on the basis of custom which is sanctioned by rule 3b framed by the
government under authority of the ABC places of worship act. Women are excluded as lord A is a
“Naishtika Brahmachari”.
III. BELIEF BEHIND LORD A‘S ASCETISM AND HIGH COURT RULING
The exclusion of (a class of) women from the Temple is justified on the basis of ancient custom, which
was sanctioned by rule 3(b) framed by the Government under the authority of a certain Act namely “The
ABC Places of Worship (Authorization of Entry Act). In the year 1991, in response to PIL filled before
the Hon‟ble Court of Keripula, the Hon‟ble High Court confirmed the practice and judged that the
restriction of entry of women ages 10-50 to the temple was in accordance with the usage prevalent from
time immemorial and it directed the Board to uphold the customary traditions of the temple
IV. INSTANTANEOUS PUBLIC INTEREST LITIGATION
The petitioners approached the supreme court seeking to allow entry of women and to decide against the
discrimination which is anti-Hindu. The matter being of public interest the Hon‟ble Supreme court of
Sentara granted leave and posted for final disposal.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 4

 SUMMARY OF ARGUMENTS

-I- WHETHER THE HON’BLE SUPREME COURT HAS THE JURISDICTION IN DEFINING THE BOUNDARIES
OF RELIGION IN ACCORDANCE WITH CONSTITUTIONAL MANDATE?
This Hon‟ble Court does not have the jurisdiction in defining the boundaries of religion in public spaces.
Judicial intervention is violative of freedom of religion under Art.25 and 26 of the Constitution. Courts are
not the arbiters of scriptural interpretation and the religious belief of the people. It is upon the devotees to
decide the boundaries of religion in public spaces. The right under Art. 26 is not subject to Part III of the
Constitution.

-II- WHETHER THE SAID RESTRICTION IMPOSED ON THE WOMEN AMOUNTS TO VIOLATION OF THEIR
FUNDAMENTAL RIGHTS AS ENSHRINED IN THE CONSTITUTION, SPECIFICALLY VIOLATION OF
ARTICLES 14, 15, 17 AND 21 IN LIGHT OF RULE 3(B) OF ABC PLACES OF PUBLIC WORSHIP
(AUTHORIZATION OF ENTRY) RULES?

The freedom of conscience is guaranteed to every individual but his actions in pursuance of those beliefs
may be liable to restrictions in the interest of the community at large, as may be determined by common
consent, that is to say, by a competent legislature. The state cannot make any law under Art.15 (3) which
takes away the fundamental rights of the devotees to profess their religion. Moreover, the exclusion of
women between the age of 10 to 50 years is not covered under the protection against discrimination
provided for under Art.17 of the Constitution. Thus, the said practice and the Rule 3(b) do not violate
Art.14, 15(3) and 17 of the Constitution.
-III- WHETHER THE PRACTICE OF EXCLUDING A CATEGORY OF WOMEN CONSTITUTES AN "ESSENTIAL
RELIGIOUS PRACTICE" UNDER ARTICLE 25 AND WHETHER A RELIGIOUS DENOMINATION CAN ASSERT

SUCH A CLAIM UNDER THE UMBRELLA OF RIGHT TO MANAGE ITS OWN AFFAIRS IN THE MATTERS OF

RELIGION UNDER ARTICLE 26(2)(B) ?

The exclusion of women between the ages of 10 to 50 years forms an essential religious practice as per the
religious text. It has direct connection with the very nature of the deity. Interfering with the essential
practice will disrespect the common faith and wisdom of the devotees. It is a matter of faith which is to be
left with the devotees. Also, the practice is a custom from time immemorial forming a valid custom. The
Keripula temple being a religious denomination, fulfilling the basic conditions, can assert the claim under
the umbrella of right to manage its own affairs in the matters of religion under Art. 26 of the Constitution.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 5

 ARGUMENTS ADVANCED

-I- WHETHER THE HON‘BLE SUPREME COURT HAS THE JURISDICTION IN DEFINING THE
BOUNDARIES OF RELIGION IN ACCORDANCE WITH CONSTITUTIONAL MANDATE?
It is humbly submitted that this Hon‟ble Court does not have the jurisdiction in defining the
boundaries of religion in public spaces. Judicial intervention is violative of freedom of religion
(1.1). Courts are not arbiters of scriptural interpretation (1.2). The right under Art.2 is not subject
to Part III of the Constitution (1.3). The intervention of the Supreme Court‟s will cause great
threat to Indian cultural diversity (1.4).

1.1 JUDICIAL INTERVENTION IS VIOLATIVE OF FREEDOM OF RELIGION

1. Religion is the belief which binds spiritual nature of men to super-natural being. It includes
worship, belief, faith, devotion, etc and extends to rituals. Religious right is the right of a person
believing in a particular faith to practice it, preach it and profess it. 1 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.2
2. Under Art. 25(2) the State has the authority to make laws for regulating or restricting any
economic, financial, political or other secular activity which may be associated with religious
practice and Providing for social welfare and reform or the throwing open of Hindu religious
institutions of a public character to all classes and sections of Hindus.
3. The freedom of a religious denomination to manage its own religious affairs can be regulated by
a law contemplated by Art. 25(2) provided that, such law does not obliterate the essential part of
a religious practice. 3 In deciding the question as to whether a given religious practice is an
integral part of the religion or not the test always would be whether it is regarded as such by the
community following the religion or not and the finding of the court on such an issue will always
depend upon the evidence adduced before it as to the conscience of the community and the tenets
of its religion. 4

1
PMA Metropolitan v. Moran Mar Marthoma, AIR 1995 SC 2001.
2
T. Krishnan v. GuruvayoorDevaswom Managing Committee, AIR 1978 Kerala 68.
3
Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461.
4
TilkayatShriGovindlaljiMaharaj v. State of Rajasthan, AIR 1963 SC 1638.

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4. In TILKAYAT SHRI GOVINDLALJI V. RAJASTHAN, 5 Gajendragadkar J. adverted to the rights
under Arts. 25(1) and 26(b) and stated that if a matter was obviously secular and not religious, a
Court would be justified in rejecting its claim to be a religious practice, as based on irrational
considerations. It is submitted that the real question is whether the religious denomination looks
upon it as an essential part of its religion, and however irrational it may appear to persons who
do not share that religious belief, the view of the denomination must prevail, for, it is not open to
a court to describe as irrational that which is a part of a denominations religion.
5. The actual decision in the case, that the right to manage the property was a secular matter, is
correct, but that is because, as pointed out by Mukherjea J., Art. 26(b) when contrasted with Art.
26(c) and (d) shows that matters of religious belief and practices are distinct and separate from
the management of property of a religious denomination. The distinction between religious belief
and practices which cannot be controlled, and the management of the property of a religious
denomination which can be controlled to a limited extent, is recognized by the Art. Itself and
must be enforced.
6. A Religious denomination or organization enjoys COMPLETE AUTONOMY in the matter of
deciding as to what rites and ceremonies are essential according to the tenets of the religion. No
outside authority has any jurisdiction to interfere with its decision in such matters.6

1.2 COURTS ARE NOT THE ARBITERS OF SCRIPTURAL INTERPRETATION:

7. In a plethora of U.S. Supreme Court and Indian Supreme Court cases it has been held that it is
not the Supreme Court to decide the validity of the beliefs and faith of the people. It is left upon
the people to decide what is part of religion is and what is not.
8. It is not within the judicial function and judicial competence, however, to determine whether
appellate or the Government has the proper interpretation of the Amish faith; courts are not
arbiters of scriptural interpretation.7 The determination of what is a religious belief or practice is
more often than not a difficult and delicate task. However, the resolution of that question is not
to turn upon a judicial perception of the particular belief or practice in question.8 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.9
9. 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.10

5
TilkayatShriGovindlaljiMaharaj v. State of Rajasthan, AIR 1963 SC 1638.
6
Digyadarsan Rajendra Ramdassjivaru v. State of A.P., (1969) 1 SCC 844 at ¶ 9.
7
United States v. Edwin D. Lee 455 U.S. 252 (1982).
8
Eddie C. Thomas v. Review Board of the Indiana Employment Security Division 450 U.S. 707 (1981).
9
Robert L. Hernandez v. Commissioner of Internal Revenue 490 U.S. 680 (1989).
10
Employment Division, Department of Human Resources of Oregon v. Alfred L. Smith 494 U.S. 872 (1990).

MEMORIAL ON BEHALF OF THE RESPONDENT Page 7

10. Art. 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 borne in mind in interpreting Art. 25.11 The wisdom
emerging from judgments rendered by this Court is unambiguous, namely, that while examining
issues falling in the realm OF RELIGIOUS PRACTICES OR ―PERSONAL LAW”, 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. And not how another would like it to be (including self-proclaimed rationalists of the
same faith). Article 25 obliges all constitutional courts to protect “Personal Laws” and not to find
fault therewith. Interference in matters of “Personal Law” is clearly beyond judicial
examination.12
11. 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.
The personal views of judges are irrelevant in ascertaining whether a particular religious belief or
practice must receive the protection guaranteed under Article 25(1)13.
12. What is religion to one is superstition to another. Though this argument was rejected by the
Court14, the same is inconsistent with the previous decision of a Constitution Bench of seven
Judges in SHIRUR MUTT and a Constitution Bench of five Judges in RATILAL.
13. The real question is whether the religious denomination looks upon it as an essential part of its
religion, and however irrational it may appear to persons who do not share that religious belief,
the view of the denomination must prevail, for, it is not open to a court to describe as irrational
that which is a part of a denomination's religion.15 The distinction between religious belief and
practices which cannot be controlled, and the management of the property of a religious
denomination which can be controlled to a limited extent, is recognized by the Article itself and
must be enforced.16
14. The Constitution lays emphasis on social justice and equality. It has specifically provided for
social welfare and reform, and throwing open of Hindu religious institutions of a public character
to all classes and sections of Hindus through the process of legislation in Article 25(2)(b) of the

11
Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615 ¶ 18.
12
Shayara Bano v. Union of India, (2017) 9 SCC 1 : 2017 SCC OnLine SC 963 at page 296
13
Bijoe Emmanuel v. State of Kerala, (1986) 3 SCC 615.
14
Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. (1962) 1 SCR 383 : AIR 1961 SC 1402 ¶59.
15
H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4 th Ed., Reprint 1999), ¶12.18 at p.
1267-1268.
16
Id. At ¶ 12.66 at p. 1283.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 8

 Constitution. Article 25(2)(b) is an enabling provision which permits the State to redress social
inequalities and injustices by framing legislation. Thus, JUDICIAL REVIEW OF RELIGIOUS

PRACTICES OUGHT NOT TO BE UNDERTAKEN, as the Court cannot impose its morality or
rationality with respect to the form of worship of a deity. Doing so would negate the freedom to
practice one's religion according to one's faith and beliefs. It would amount to rationalizing
religion, faith and beliefs, which is outside the ken of Courts. 17 What is permitted by Article
25(2) is State made law on the grounds specified therein, and not judicial intervention.
15. Suggesting that the fact of agreement, rather than being a proof of the stability of objects, is a
testimony to the power of an interpretive community to constitute the objects upon which its
members (also and simultaneously constituted) can then agree. This account of agreement has
the additional advantage of providing what the objectivist argument cannot supply, a coherent
account of disagreement. To someone who believes in determinate meaning, disagreement can
only be a theological error. The truth lies plainly in view, available to anyone who has the eyes to
see; but some readers choose not to see it and perversely substitute their own meanings for the
meanings that texts obviously bear18.

1.3 ART. 25(2) PERMITES STATE MADE LAWS AND NOT JUDICIAL INTERVENTION.
16. It is humbly submitted that what is permitted by Art. 25(2) is State made law on the grounds
specified therein, and not judicial intervention. In the present case, the 1965 Act is a legislation
framed in pursuance of Art. 25(2)(b) which provides for the throwing open of Hindu places of
public worship. The proviso to Section 3 of the 1965 Act carves out an exception to the
applicability of the general rule contained in Section 3, with respect to religious denominations,
or sect(s) thereof, so as to protect their right to manage their religious affairs without outside
interference.

1.4 THE RIGHT UNDER ART. 26 IS NOT SUBJECT TO PART III OF THE CONSTITUTION.
17. Art. 26 is subject to public order, morality and health but not subject to Part III of the
Constitution. 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 Art. 25 and 26. State interference was not permissible, except as provided by Art.
25(2)(b) of the Constitution, where the State may make law providing for social welfare and
reform. Constitutional Morality as a ground to challenge the impugned practice does not hold
good in Law.

17
Indian Young Lawyers Association v. State of Kerala &Ors, 2018 Scc OnLine SC 1698 ¶ 306.13.
18
“Is There a Text in This Class?” The Authority of Interpretive Communities by Stanley Fish; HARVARD
UNIVERSITY PRESS, Cambridge, Massachusetts London, England.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 9

18. The Reformative levers provided in the Constitution cannot be to reform a Religion or Religious
Institution out of its identity and the State must be careful in applying its notions of equality and
modernity to Religious Institutions. 19 THE POWER OF EX-COMMUNICATION OF A RELIGIOUS
DENOMINATION WAS HELD CONSTITUTIONAL FOR THE PURPOSE OF ADHERENCE to the tenets of
the denomination for the same reasons, the impugned essential practice cannot be said as
violative of Constitution, when the same is based on the well-recognized Fundamental Right of
the deity, who is a Celibate here.
19. It is essential to observe that a practice started in hoary antiquity and continued from time
immemorial without interruption becomes usage and custom20 and thereby such custom like it
the present scenario should be uplifted as it is certain, reasonable and continuous.21

-II- WHETHER THE SAID RESTRICTION IMPOSED ON THE WOMEN AMOUNTS TO VIOLATION OF
THEIR FUNDAMENTAL RIGHTS AS ENSHRINED IN THE CONSTITUTION, SPECIFICALLY
VIOLATION OF ARTICLES 14, 15, 17 AND 21 IN LIGHT OF RULE 3(B) OF ABC PLACES OF
PUBLIC WORSHIP (AUTHORIZATION OF ENTRY) RULES?

20. The Respondents contends that the Religious customs and practices cannot be solely tested on
the touchstone of Article 14 and the principles of rationality embedded therein. Article 15 of the
Constitution prohibits differential treatment of persons on the ground of „sex‟ alone. The limited
restriction on the entry of women during the notified age-group is based on the deep-rooted
belief of the worshippers with regards to the deity of the temple manifested as „NAISHTIK
BRAHMACHARI‘22. The contention of Petitioners that the exclusion is based on „Untouchability‟
is to be discarded since Article 17 is based on Case based and not on basis of Gender.

2.1 APPLICABILITY OF ARTICLE 14 IN MATTERS OF RELIGION

21. It is the most humble contention of the Respondents that the impugned Rule is based upon the
facets of the reasonable classification which is well recognized under the notion of Equality. The

19
Sardar Syadna Taher Saifuddin Saheb v. The State of Bombay 1962 AIR 853 per Rajagopala Ayyangar. J.
20
Ewanlangki-E-Rymbai v. Jaintia Hills District Council, (2006) 4 SCC 748, (DB) (¶26); Bhimashya v. Janabi,
(2006) 13 SCC 627, (DB) (¶ 25-29); Salekh Chand v. Satya Gupta, (2008) 13 SCC 11, (DB) (¶ 26 and
27);RamkanyaBai v. Jagdish, (2011) 7 SCC 452, (DB) (¶ 31); Laxmibai v. Bhagwantbuva, (2013) 4 SCC
97, (DB) (¶ 12-14); Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461, (DB) (¶ 31-32, 61, 64, 66).
21
Shakuntalabai v. L.V. Kulkarni, (1989) 2 SCC 526, ¶ 19.
22
Moot Proposition ¶5.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 10

 right to equality23 under the Constitution is regarded as the FONJURIS‟24and it is the humble
contention of the Respondents that Rule 3(b) does not violate the concept of Equality.
22. Differential treatment is not per se amount to violation of Art. 14 25. The Principle of Equality
does not mean that every law must have universal application26 for all persons who are not by
nature, attainment or circumstances in the same position, as the varying needs of different classes
of persons often require separate treatment.27 It would be inexpedient and incorrect to think that
all laws have to be made uniformly applicable to all people in one go 28 and thereby it is
necessary to note at this juncture that the laws of Sentara paves way for a constitutional Equality
to have reasonable classification.
23. Moreover, the Court has pronounced a self-imposed restraint, that ordinarily it will not determine
the merits of legislation 29 and as an arguendo even if the Court decides to arrive at a conclusion
that „State‟s action was arbitrary30 it should keep in mind that the impact of the impugned Rule
3(b) is in consonance with the Constitutional Scheme of Sentara.
TWIN TEST UNDER ARTICLE 14
24. Religious customs and practices cannot be solely tested on the touchstone of Article 14 and the
principles of rationality embedded therein. Article 25 specifically provides the equal entitlement
of every individual to freely practice their religion. Equal treatment under Article 25 is
conditioned by the essential beliefs and practices of any religion. The Respondent contends that
Equality in matters of religion must be viewed in the context of the worshippers of the same
faith.
25. The twin-test for determining the validity of a classification under Article 14 is:

a. The classification must be founded on an intelligible differentia; and

b. It must have a rational nexus with the object sought to be achieved by the impugned law.

26. The Respondent asserts that, the difficulty lies in applying the tests under Article 14 to religious
practices which are also protected as Fundamental Rights under our Constitution. The Right to

23
Also under Art.7 of UDHR.
24
Latin term meaning „Fountain head of the Constitution.
25
Rajasthan v. Shankar LalParmar, AIR 2012 SC 1913, page 7, ¶ 3.
26
Chirendra v. Legal Remembrancer, AIR 1954 SC 424.
27
BabulalAmthalal Mehta v. Collector of Customs, Calcutta, AIR 1957 SC 877.{ TA \l "Babulal Amthalal Mehta
v. Collector of Customs, Calcutta, AIR 1957 SC 877," \s "Babulal Amthalal Mehta v. Collector of Customs,
Calcutta, AIR 1957 SC 877," \c 1 }
28
PannalalBansilalPitti v. State of A.P., (1996) 2 SCC 498{ TA \l "Pannalal Bansilal Pitti v. State of A.P., (1996) 2
SCC 498" \s "Pannalal Bansilal Pitti v. State of A.P., (1996) 2 SCC 498" \c 1 }, (¶ 12).
29
Page 909, Jain M.P., Indian Constitutional Law, 7thEd.2014 (reprint May 2016), Lexis Nexis.
30
State of Kerala v. Peoples Union for civil Liberties.Civil Appeals Nos. 104-105 of 2001.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 11

 Equality which the Petitioner claims to be violated, conflicts with the rights of worshippers of the
temple under Article 25 and Article 26 of the Constitution.
27. It would compel the Court to undertake judicial review under Article 14 to delineate the
rationality of the religious beliefs or practices, which would be outside the ken of the Courts. The
contention of the Petitioners that the said limited restriction of women is based on Gender
Discrimination cannot be viewed as violation of Article 14 as the same is regarded as „Essential‟
and protected by Article 25 and 26 of the Constitution.
28. The submission is that, the Gender Equality as the Petitioner claims to be violated shall be cured
only by granting Gender Justice and equality by permitting women of all ages, to visit temples
where he has not manifested himself in the form of a „Naishtik Brahamachari‟, and there is no
similar restriction in those temples.
29. It is respectfully submitted that the said Classification must be reasonable and should fulfil the
following two tests which are also known as the twin test of classification:
a. It should be based on an INTELLIGIBLE DIFFERENTIA, some real and substantial distinction,
which distinguishes persons or things grouped together in the class from others left out of it – the
real & substantial distinction lies on the basis of a custom and it‟s relation to the male celibate,
thereby women menstruating (only at a specific duration) are restricted from entry.
b. The difference adopted as the basis of classification must have a rational or REASONABLE NEXUS
with the objects sought to be achieved by the Statute in question31 - The object to be achieved is
32
OPTIMA LEGUME INTERPRESEST CONSUETUDE and that such spirit that is also intended to be
protected by the constitution should be protected.
c. But, it has to be noted that women of all ages can worship Lord A in other temples33 and If this
be so, the classification is really between the Temple of Lord A at Sripura, with its special
attributes as against all other Temples of Lord A all over Sentara. Therefore, this classification
has a nexus with worship at the Sripura Temple in the context of its origins, history and
evolution.
30. It is thereby contended that as long as classification could withstand the test of Art. 14, the same
couldn‟t be questioned as to why one subject was included and other left out and why one was
given more benefit than the other34 and hence, Rule 3(b) under the “The ABC Places of Worship
(Authorization of Entry) Act” does not violate the concept of Equality.

31
LaxmiKhandsari v. State of Uttar Pradesh, (1981) 2 SCC 600; Western U.P. Electric Power and Supply Co. Ltd.
V. State of UP, AIR 1970 SC 21,24; Sham Rao v. D.M., 1952 SCR 683.
32
Meaning: custom is the best interpretation of law.
33
Moot Proposition ¶3.
34
Omblika Das v. Husila ShawAIR 2002 SC 1685.

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DIFFERENTIAL TREATMENT IS NOT VIOLATIVE PER SE:

31. Differential treatment is not per se amount to violation of Art. 14,35 it denies equal protection
only when there is no reasonable basis for the differentiation, based on the fact, every law
needn‟t have universal application.36The Principle of Equality does not mean that every law must
have universal application for all persons who are not by nature, attainment or circumstances in
the same position, as the varying needs of different classes of persons often require separate
treatment. 37 It would be inexpedient and incorrect to think that all laws have to be made
uniformly applicable to all people in one go.38
32. Moreover, the Court has pronounced a self-imposed restraint, that ordinarily it will not determine
the merits of legislation 39 and if anybody raises a contention that it is arbitrary in nature, it
would be for him to bring on record sufficient material to lead the Court to arrive at a conclusion
that „State‟s action was arbitrary.‟40

2.2 APPLICABILITY OF ARTICLE 15 IN MATTERS OF RELIGION.

33. Article 15 of the Constitution prohibits differential treatment of persons on the ground of „sex‟
alone. The Respondent submits that the limited restriction on the entry of women during the
notified age-group is in the deep-rooted belief of the worshippers that the deity in the
34. Temple has manifested in the form of a „Naishtik Brahmachari‟. As regards to right under Article
15, in order to come under Article 15(2) (b), the dedication must be in favor of the public
generally, as distinguished from a section of the public. 41
35. Interpretation of Temples as “places of public resort”, as it occurs in Article 15(2)(b) should not
be constructed. It must not be lost sight that there was a constant series of debates with regard to
not bringing the temples into the ambit of place of public resort under
ART.15(2)(B).CONSTITUTIONAL DEBATES FIRMLY ESTABLISH THAT THE INTENT OF THE

FRAMERS OF THE CONSTITUTION was not to bring in temple/shrine under the shadow of Art.15.

35
Rajasthan v. Shankar LalParmar, AIR 2012 SC 1913, page 7, ¶ 3.
36
Chirendra v. Legal Remembrancer, AIR 1954 SC 424.
37
BabulalAmthalal Mehta v. Collector of Customs, Calcutta, AIR 1957 SC 877.{ TA \l "Babulal Amthalal Mehta
v. Collector of Customs, Calcutta, AIR 1957 SC 877," \s "Babulal Amthalal Mehta v. Collector of Customs,
Calcutta, AIR 1957 SC 877," \c 1 }
38
PannalalBansilalPitti v. State of A.P., (1996) 2 SCC 498{ TA \l "Pannalal Bansilal Pitti v. State of A.P., (1996) 2
SCC 498" \s "Pannalal Bansilal Pitti v. State of A.P., (1996) 2 SCC 498" \c 1 }, (¶ 12).
39
Page 909, Jain M.P., Indian Constitutional Law, 7thEd.2014 (reprint May 2016), Lexis Nexis.
40
State of Kerala v. Peoples Union for civil Liberties.Civil Appeals Nos. 104-105 of 2001.
41
Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors. case1958 SCR 895

MEMORIAL ON BEHALF OF THE RESPONDENT Page 13

36. The debates of Constituent Assembly on this issue, Draft Article 9 corresponding to Article 15 of
the present Constitution is not be discarded. 42 It is further submitted that gender justice , that is
non-discrimination at the very least, is part of the constitutional morality of Sentara and Rule
3(b) does not intend to prosper any such discrimination against women as it is evident by the
words used in the exception “at any specific time in accordance with custom43”. This brings us to
safely conclude that the underlined intent of Rule 3(b) is to protect customary value of Religion
and not to infringe upon the rights of Women.
37. It should also be duly noted that the said classification made under Rule 3(b) is not based “only”
on the grounds of sex but is closely associated to the beliefs and traditions associated to a
religion 44 .The main object of Section 3 is to establish complete social equality between all
sections of the Hindus in the matter of worship45;
38. A custom which any honest or right-minded man would deem to be unrighteous is bad as
unreasonable46 and at this juncture it is essential to note that the sight of temple of Sripura is the
largest pilgrimage in the world47 and there are an approximate 50 million devotees visiting every
year which is sufficient to demonstrate that the said custom is not deemed to be unreasonable by
the natives of Sentara48.
39. Further, discrimination in the favor of particular sex or caste will be permissible if the
classification is the result of other consideration besides the fact the person belongs to that sex or
caste.49 Hence in the case at hand, RULE 3(B) OF THE IMPUGNED ACT DOES NOT DISCRIMINATE
WOMEN AS A CLASS; NEITHER SUCH A RESTRICTION IS ABSOLUTE IN NATURE. The limitations
are on the basis of customary practices prevailing in the religious pilgrimage
40. Professor K.T. Shah proposed Amendment No. 293 for substitution of sub-clauses (a) & (b) and
Amendment No. 296 when taken up for vote by the Hon‟ble Vice President which read as “
50
After the words of Public entertainment the words or places of worship be inserted”. and
Amendment No. 301 proposed by Mr. Tajamul Hussain for inclusion of “PLACES OF PUBLIC
51
WORSHIP‖ , ―DHARMASHALAS AND MUSAFIRKHANAS‖ at the end of sub clause (a) was voted

42
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%.
43
Moot Proposition ¶4.
44
A S NaryanaDeekshitulu v. State of AP 1996 (9) SCC 548 ¶ 5.
45
Sastri Yagnapurushadji and Ors.v. MuldasBhudardasVaishya and Anr AIR 1966 SC 1119 ¶ 58.
46
Paxton v. Courtnay (1860) 2 F & F 131.
47
Moot Proposition ¶ 2.
48
Ibid.
49
Chitra v Union of India, AIR 1970 SC 35 (38); (1969) 2 SCC 228.
50
Statement of Vice-President, Constituent Assembly Debates (November 29, 1948).
51
Statement of Mr. Mohd. Tahir, Constituent Assembly Debates (November 29, 1948).

MEMORIAL ON BEHALF OF THE RESPONDENT Page 14

 upon and rejected by the Constituent Assembly 52 . The Assembly considered it fit not to include
„places of worship‟ or „temples‟ within the ambit of Draft Article 9 of the Constitution.
41. Thus, the conscious deletion of “temples” and “places of worship” from the Draft Article 9(1)
has to be given due consideration, by virtue of which the assertion of violation of Article 15 by
the Petitioners holds no good in Law.
42. It is highly essential at this juncture to note the remarkable words of the Chief Justice Hon‟ble
Ranjan Gogoi in a recent matter between SWAMY DETHATHREYA SAI SWAROOP NATH &
UNION OF INDIA, wherein he observed orally that “Let a Muslim Woman challenge it.53” The
SLP was so dismissed after which, it should be observed that the women in the particular
instance are intrigued54 and are not really a disclosed devotee of Lord „A‟, in fact there is no plea
that they are the devotees.
43. Hence, the notion of Equality amongst equals should be applied while considering that a
Woman should first be a worshipper to claim the right of worshipping. This can be deduced by
the recent order observation made by Supreme Court55.
44. It is also essential to consider that Worshippers lay great, store by the rituals and whatever other
people, not of the faith, may think about these rituals and ceremonies, they are a part of the
Hindu Religious faith and cannot be dismissed as either irrational or superstitious.56

2.3 APPLICABILITY OF ARTICLE 17 IN MATTERS OF RELIGION.

45. The reliance by the Petitioner on the prohibition against Untouchability under Article 17 is a
desperate and baseless attempt to overcome the hurdles posed by the settled law on Articles
25(1), 25(2)(b) and 26.
46. It is pertinent to note that the courts have indicated that un-touch ability does not include all the
instances in which a person is treated unclean and a course of pollution. It does not include such
temporary and expiable states of pollution as those suffered by women on childbirth,
menstruating women, mourners, people with contagious disease, persons who violated the
prescribed cleanliness nor does it refer to situational or relative impurity such as that between
ordinary worshipper and priest or temple attendant. 57

52
Constituent Assembly Debates (November 29, 1948).
53
Swamy Dethathreya Sai Swaroop Nath & Union Of India SPECIAL LEAVE PETITION (CIVIL) Diary No.
4999/2019.
54
Moot Proposition ¶ 3.
55
Swamy Dethathreya Sai Swaroop Nath & Union Of India SPECIAL LEAVE PETITION (CIVIL) Diary No.
4999/2019.
56
Seshammal v. State of Tamil Nadu AIR 1972 SC 1586.
57
Marc Galanter, Competing Equalities - Law of Backward Classes in India, 1984 Edn.,pp 145-146.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 15

47. It is important to observe the object and core of Article 17; the intention of the Constitutional
drafters was to prohibit Untouchability based on „caste‟ in the Hindu religion. The customs
practiced by the devotees of the temple do not flow from any practice associated with
Untouchability under Article 17. The custom is not based on any alleged impurity or disability.
The analogy sought to be drawn by comparing the rights of Dalit with reference to entry to
temples and women is wholly misconceived and unsustainable.
48. The abolishment of Untouchability is an arch of Constitution to make its preamble meaningful
and to integrate the Dalits in the nation‟s mainstream. Hence from the above contentions it could
be understood that such right, which was intended to protect the rights of underprivileged caste,
must not be evaluated with the entry restriction of women based on custom, which is wholly
irrelevant. 58
49. In the present case, the statutory power of the parliament has been exercised honestly and not in
fraudulent manner, 59 or mala fide in other words, neither that the power conferred by the statute
has been utilized for some indirect purpose not connected with the objects of the statue. It must
also be presumed that the legislature understood and precisely appreciated the need of its own
peoples, that its laws are directed to problems made manifest by experience and that by its
discriminations or based on adequate grounds. 60 Moreover in a secular polity, issues which are
matters of deep religious faith and sentiment must not ordinarily be interfered with by Courts.
50. Adding up it is also well said in the maxim “OPTIMA LEGUME INTERPRESEST CONSUETUDE”61
and there it is humbly submitted that the custom should be preserved as it does not violate any
fundamental right.
51. All forms of exclusion would not tantamount to Untouchability. Article 17 pertains to
Untouchability based on caste prejudice. Untouchability was never understood to apply to
women as a class. The right asserted by the Petitioners is different from the right asserted by
Dalits in the temple entry movement. The restriction on women within a certain age-band, is
based upon the historical origin and the beliefs and practices of the Temple. Therefore, it is the
Petitioner which is guilty of mischievously turning a discussion on celibacy into one relating to
alleged notions of impurity associated with menstruation.
52. ARTICLE 11 OF THE DRAFT CONSTITUTION CORRESPONDS TO ARTICLE 17 OF OUR PRESENT

CONSTITUTION. 62 A PERUSAL OF THE CONSTITUENT ASSEMBLY DEBATES ON ARTICLE 11 OF

58
State of Karnataka v. AppaBaluIngale&Ors AIR 1993 SC 1126, 1993 (1) ALT Cri 390, 1993 CriLJ 1029,
1992.
59
R v Holiday, (1917) AC 260; Liversidge v Anderson, (1942) AC 206; K.Emp v sibnath (1945), 8 FLJ 203 (PC).
60
H.M.Seervai Constitution law of India vol 1 294 3rdedition 1983.
61
Meaning: custom is the best interpretation of law.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 16

 THE DRAFT CONSTITUTION WOULD REFLECT THAT ―UNTOUCHABILITY‖ REFERS TO CASTE-

BASED DISCRIMINATION faced by Harijans, and not women as contended by the Petitioners. A
bare perusal of Statement of Shri V.I. Muniswamy Pillai in the Debate and of Mr. Dr.
Monomohan Das, quoting Mahatma Gandhi while undeniably accepting the meaning of
“Untouchability” as intended under the Constitution would show what the Constitution makers
intended.
53. Mr. Seervai, in his seminal commentary, states that “Untouchability” must not be interpreted in
its literal or grammatical sense, but refers to the practice as it developed historically in India
amongst Hindus. He further states that Article 17 must be read with the Untouchability
(Offences) Act, 1955, which punishes offences committed in relation to a member of a
Scheduled Caste 63
54. 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. 64
55. LITERALLY OR HISTORICALLY, UNTOUCHABILITY WAS NEVER UNDERSTOOD TO APPLY TO

WOMEN AS A CLASS. The analogy sought to be drawn by comparing the rights of Dalit with
reference to entry to temples and women is wholly misconceived and unsustainable.
56. In STATE OF KARNATAKA V. APPABALU INGALE &ORS.65, it was held that “the abolishment of
Untouchability is an arch of Constitution to make its preamble meaningful and to integrate the
Dalit‟s in the nation‟s mainstream. Hence from the above contentions it could be understood that
such right, which was intended to protect the rights of underprivileged caste, MUST NOT BE

EVALUATED WITH THE ENTRY RESTRICTION OF WOMEN BASED ON CUSTOM, which is wholly
irrelevant.
57. Further, adding up an Axiom in connection to this is “CONSUETUDO LOCI EAT OBSERVANDA”66
and therefore the submission of the counsel for the Respondents is for this Hon‟ble Court to

62
“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disabilityarising
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.
63
12 H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. I (4th Ed., Reprint 1999),
paragraph 9.418 at p. 691.
64
M.P. Jain, Indian Constitutional Law, (6th Ed., Revised by Justice Ruma Pal and Samaraditya Pal; 2010), at p.
1067.
65
State of Karnataka v. AppaBalu Ingale &Ors AIR 1993 SC 1126.
66
Meaning: the custom or usage of a place is to be observed.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 17

 uplift the manifestations of custom as an important source of law and to not interfere arbitrarily
to violate the rights of individuals to belief and faith in religions.
58. Thus, it is clear that Article 17 refers to the practice of Untouchability as committed in the Hindu
community against Harijans or people from depressed classes, and not women, as contended by
the Petitioners. Thus, the assertion of the Petitioners that Article 17 would include women does
not hold well in Law.

2.4 EFFECT OF INTERPLAY BETWEEN ARTICLES 14, 15(3), 17, 25(1), 25(2)(B) AND 26(B)

59. The Shirur Mutt decision makes it abundantly clear that while Article 26 is subject to the
reformative lever (if reform is indeed called for based on evidence) provided to the Executive
under Article 25(2)(b), nowhere does it hold that the rights of religious denominations under
Article 26(b) are subservient to rights under Article 25(1). IN FACT, WHILE RIGHTS UNDER

ARTICLE 26(B) ARE SUBJECT TO ARTICLE 25(2)(B), RIGHTS UNDER ARTICLE 25(1) ARE

SUBSERVIENT TO ARTICLE 26.

60. Had this not been the case, all denominational rights of religious institutions and their traditions
can be reduced to nothing in one fell swoop citing Article 25(1), which was never the intention
of the framers of the Constitution since that would defeat the very object of vesting rights in
denominations under Article 26.
61. The seven-Judge Bench in Shirur Mutt harmonized the interplay between Article 25(2)(b) and
Article 26, it did not consciously do so with respect to Articles 25(1) and 26 because it‟s
devastating effects on the identity of religious denominations were clear to the Bench. Clearly,
the Petitioner seeks subversion of the Constitution using Constitutional values as the means to
achieve the said object in the name of gender equality. Therefore, the religious practices of the
Sabarimala Temple do not warrant this Hon‟ble Court‟s intervention since no evidence has been
led by the Petitioner to invite the intervention of the Court.
62. It is submitted that the entire Rules has to be read together along with Section 3 as well as the
other provisions of the Act to understand the magnitude and impact of Rule 3(b) of the 1965
Rules. In fact, to understand whether the provision is ultra vires the statute one needs to
understand the pith and substance of the statute to solve whether the delegated legislation is
beyond the powers vested with the delegates.
63. IT IS THE HUMBLE CONTENTION OF THE RESPONDENT COUNSEL THAT THE PURPOSE OF THE RULES
IS MAINTENANCE OF ORDER AND DECORUM AND NOT RESTRICTION OF ENTRY – THE PURPOSE

WOULD BE MISSED IF RULE 3(B) WERE READ IN ISOLATION. The attempt of the Rules in its entirety

MEMORIAL ON BEHALF OF THE RESPONDENT Page 18

 is for the maintenance of Order and decorum and the due performance of rites and ceremonies in
places of public worship and the reading in entirety of the Rules would spell out how the purpose
is envisaged by the Rules.
64. Hence it could be understood that Rule 3(b) is not definitely and specifically dealing with
women between the age of 10 to 50 years. Rather, it is in fact dealing with women who may be
susceptible to cause impurity to the idol as per the customs at the temple during a particular time.
65. Having analyzed the pith and substance and the core of the statute it will be correct to hold that
Rule3(b) of the ABC Places of Public Worship (Authorization of Entry) Rules is not ultra vires
of Section 3 of the ABC Places of Public Worship (Authorization of Entry) Act.
66. It is humbly pleaded that in a recent case before one of the Hon‟ble High Courts of Sentara, the
court held that “there should be no restraints upon the free exercise of religion and the Court
cannot impose its morality or rationality with respect to the form of worship and it is irrelevant
whether the practice is rational or logical. Notions of rationality cannot be invoked in matters of
religion by Court.” 67 This leads us to our final submission of pleading before this Hon‟ble
Supreme Court of Sentara to hold that the rule 3(b) instated under the ABC Places of Worship
(authorization of Entry) Act is constitutional.
RIGHTS OF THE DEITY

67. An essential feature of Hindu religion is a worship of idols. After a deity is installed it should be
worshipped daily according to Hindu Sastras. “The Deity in short is considered as a living being,
a deity is a juristic person”. Any interference with the mode and manner of worship would
impact the character of the Temple, and affect the beliefs and practices of the worshippers of this
Temple.68
68. Every Hindu Deity has characteristics of its own. The rituals and ceremonies followed in a
temple would be either unique or at least peculiar to the temples which come under the same
category. For example, the rituals and ceremonies that are followed in Shaivite temple would be
different from the rituals and ceremonies that are followed in the Vaishnavite temple 69.Hindu
religion therefore considers the deity as a living being. The infusion of life to an idol so as to
make it a deity is therefore an elaborate procedure70.

67
W.P.No.14417 of 2019 and W.M.P.Nos.14435 & 14436 of 2019, MHC, 15/05/2019.
68
Indian Young Lawyers Association &Ors.v State of Kerala &Ors. WRIT PETITION (CIVIL) NO. 373 OF 2006.
69
¶ 11 of Seshammal, ,Tagore Law Lectures by B.K. Mukherjea in the relevant page of compilation.
70
¶ 11; ¶ 13of Adi Visheshwar of Kashinath Temple, (1997) 4 SCC 606 ).

MEMORIAL ON BEHALF OF THE RESPONDENT Page 19

-III- WHETHER THE PRACTICE OF EXCLUDING A CATEGORY OF WOMEN CONSTITUTES AN

"ESSENTIAL RELIGIOUS PRACTICE" UNDER ARTICLE 25 AND WHETHER A RELIGIOUS

DENOMINATION CAN ASSERT SUCH A CLAIM UNDER THE UMBRELLA OF RIGHT TO MANAGE ITS

OWN AFFAIRS IN THE MATTERS OF RELIGION UNDER ARTICLE 26(2)(B) ?

69. It is humbly submitted that the exclusion of certain class persons to the Hindu places of public
worship as under S. 4 of the Act are within the ambit of reasonable restriction under Art. 25 of
the Indian Constitution. “Subject to public order, morality & health & to the other provisions of
Part III, all persons are equally entitled to freedom of conscience & the right freely to profess,
practice & propagate religion.”71

3.1 S. 4(A) – PERSONS WHO ARE NOT HINDUS

70. Art. 25 (2) (b) specifies throwing open of all Hindu religious institutions of a public character to
all classes & sections of „Hindus‟. This does not include within its ambit, the persons who are
not Hindus. Therefore, § 4 (a) does not violate the Fundamental Right under Art. 25. When a
statute provides the procedure in which an act is to be done; only that procedure is to be adopted.
This settled legal proposition is based on the maxim “EXPRESSIO UNIUS EST EXCLUSIO
72
ALTERIUS‖ . The continuance of existing legislation, in the absence of an express provision of
repeal by implication lies on the party asserting the same. 73 Moreover, it has been well
established that „EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS‘ IS not a Rule of law but a tool of
interpretation which must be cautiously applied.
71. The Court must operate within the provisions which empower it and cannot exercise its
jurisdiction and pass order in a method and mode different from such provisions.74 Before the
principle can be applied, all the Court must find an express mode of doing something that is
provided in a statute, which, by its necessary implication, could exclude the doing of that very
thing and not something else in some other way. Persons having contrary faith with that of a

71
The Constitution of India, Art.25.
72
Selvi J. Jayalalithaa & Ors. v. State of Karnataka & Ors., (2014) 2 SCC 401; Kishorebhai Khamanchand Goyal
v. State of Gujarat & Ors., (2004) 1 CLJ (SC)194, State of M.P. v. Kedia Leather & Liquor Ltd. & Ors. AIR
2003 SC 3236 .
73
Securities & Exchange Board of India & Ors.v. Kanaiyalal Baldevbhai Patel & Ors., (2017) 11 SCALE 600.
74
Mary Angel & Ors. v. State of T.N., AIR 1999 SC 2245, Ramdev Food Products Pvt. Ltd. v. State of Gujarat
AIR 2015 SC 1742.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 20

 religious institution cannot compel such religious institutions to permit them to practice their
faith in such institutions. Freedom of religion of an individual cannot be exercised as being
injurious to other person‟s religious beliefs.

3.2 RULE 3(B) WOMEN AT SUCH TIME DURING WHICH THEY ARE NOT BY CUSTOM & USAGE

ALLOWED TO ENTER A PLACE OF PUBLIC WORSHIP

72. In MAHENDRAN V. SECY. DEVASWOM BOARD75, the Court prohibited women entry to uphold the
value of customs and practices. Art. 25(2) (b) does not permit women entry, if it is barred by
customary practices. It mentions only all classes & sections of Hindus & does not specify the
term „sex‟, if the constitutional framers had intended for the application of gender equality in
religious matters then the term sex would have been included but, it is not done so. Though
Art.25 is subject to other provisions of Part III of the constitution, one right should not override
the other. The principle of equality has been primarily enshrined under Art. 14 of the
Constitution, if the constitutional frames intended for an unrestricted application of equality in all
aspects then there would have not been a necessity to explicitly mention the term sex under
Articles 15 & 16 of the Constitution as it already bares the term „any citizen‟ which includes
both men & women.
73. Applying the maxim “EXPRESSIO UNIUS EST EXCLUSIO ALTERIUS” which means explicit
mention of one thing is the exclusion of another. 76 Statutes must be given proper effect and
allowed to work in their respective fields.
74. The term sex has been explicitly mentioned under Articles 15 & 16 & has been intentionally
omitted in Art. 25. This is because the constitutional framers never intended for gender equality
in religious matters & were aware of such customary practices & therefore included the term
„custom or usage‟ as law under Art. 13(3) (a).

3.2.1. THE EXCLUSION SATIATE THE ESSENTIAL RELIGIOUS PRACTICE TEST.

75. The Exclusion of women at such time during which they are not by custom or usage allowed to
enter a public place of Worship. The test is applied to afford protection to religious practices.
The practice has nexus with the Celibate nature of the Deity.

3.2.2. THE SCOPE OF ‗ESSENTIAL RELIGIOUS PRACTICE TEST.

75
Mahendran v. Secy. Devaswom Board AIR 1993 Kerala 42
76
Mayar (H.K.) Ltd. & Ors. v. Owners & Parties Vessel M. V. Fortune Express & Ors., AIR 2006 SC 1828;
Nirshi Dhobin & Ors. v. Sudhir Kumar Mukherjee & Ors., AIR 1969 SC 864.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 21

76. The words „practice of Religion‟ under Article 25(1) protects not only the freedom of Religious
beliefs, but also acts done in pursuance of Religion.77 What constitutes the essential part of a
religion is primarily to be ascertained with reference to the doctrines of that religion itself. 78 In
order that the practices in question should be treated as a part of religion they must be regarded
by the said religion as its essential and integral part; in other words, the protection must be
confined to such religious practices as are an essential and an integral part of it and no other.79
77. In a given religious practice is an integral part of the religion or not, the test always would be
whether it is regarded as such by the community following the religion or not. In cases where
conflicting evidence is produced in respect of rival contentions as to competing religious
practices the Court may not be able to resolve the dispute by a blind application of the formula
that the community decides which practice in [sic] an integral part of its religion, because the
community may speak with more than one voice and the formula would, therefore, break down.
78. This question will always have to be decided by the Court and in doing so, the Court may have to
enquire whether the practice in question is religious in character, and if it is, whether it can be
regarded as an integral or essential part of the religion, and the finding of the Court on such an
issue will always depend upon the evidence adduced before it as to the conscience of the
community and the tenets of its religion.80
79. A religious practice to receive protection under Article 25(1) it must be “genuinely” and
“conscientiously” held by persons claiming such rights. Religious beliefs and practices must be
consistently and not “idly” held, and should not emanate out of “perversity”. The Constitutional
fabric of our country permits religious beliefs and practices to exist, regardless of whether or not
they appeal to the rational sensibilities of this Court, or others.81
80. Thus, reference is required to be made to the doctrines and tenets of a religion, its historical
background, and the scriptural texts to ascertain the „essentiality‟ of religious practices. The
„essential practices test‟ in its application would have to be determined by the tenets of the
religion itself. The practices and beliefs which are considered to be integral by the religious
community are to be regarded as “essential” and afforded protection under Article 25. 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

77
Adelaide Company of Jehovah‟s Witnesses Incorporated v. The Commonwealth 9 67 CLR 116
78
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt
1954 SCR 1005.
79
Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors. (1962) 1 SCR 383 : AIR 1961 SC 1402.
80
Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (1964) 1 SCR 561 at 582 : AIR 1963 SC
1638.
81
Bijoe Emmanuel & Ors. v. State of Kerala & Ors. (1986) 3 SCC 615.

MEMORIAL ON BEHALF OF THE RESPONDENT Page 22

 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.
81. The said exclusion is a religious practice which is central and integral to the tenets of this shrine,
since the deity has manifested himself in the form of a „Naishtik Brahmachari‟.

3.2.2.1 THE EXCLUSION AND ITS NEXUS WITH THE NATURE OF DEITY.

82. The Deity of the temple, Lord “A” has a legal under Law, which has been recognized by the
Courts. There exists the right of a Deity to move court, Properties of endowment vest in the
Deity and the priest‟s right to manage the Temple did not mean it became their property.82
83. According to long established authority founded upon the religious custom of Hindus, and
recognition thereof by the courts of law, a juristic entity. It has a judicial status with power of
suing and being sued.83 A deity is like a minor and the idol is a juristic person who can hold
property.84
84. The celibate nature of the Deity is also evidenced from the Tamil translation; SRI
BHOOTHANATHAN, OF SRI BHOOTHANATHA UPAKHYANAM, WHICH IS THE STHALAPURANAM of
the Sripura Temple. Therefore, it is the Petitioner which is guilty of mischievously turning
discussion celibacy into one relating to alleged notions of impurity associated with menstruation.
85. Consequently, the Deity enjoys rights as a person under Article 25(1), 26 and 21. The Deity as
the owner of his Abode enjoys the Right to Privacy under Article 21, which include the right to
preserve his celibate form and the attendant restricts that to apply to him under his vow of
Naisthika Brahmacharya. It is the will of the Deity which is being preserved by the Temple
through the traditions it observes, which the object of Article 26 is. The State is duty bound to
protect the Right/Dharma of the Deity under Article 25 (1). The Rights of Devotees must be
subservient to the Right of the Deity.
86. The Temple or its Chief Priest, fail in the duty to protect the interests of the Deity or act
adversely to the interests of the Deity, devotees such as the members of the Intervener have the
right to take legal action to protect the interest of the Deity, which is a logical Sequitur to the
rights of the devotees under Article 25(1)85

82
Sri Adi Visheshwara Kashi Vishwanath Temple, Varanasi, vs State of UP [1997 (4) SCC 606]; Ram Jankijee
Deities V. State of Bihar 1999 AIR SCW 1878; Yogendra Nath Naskar V. Commissioner of Income-Tax 1969
AIR 1089.
83
Pramathanath Mullick Vs. Pradyumna Kumar Mullick 1925) 27 Bom Lr 1064.
84
Jodhi Rai Vs Basdeo Prasad (1908) ILR 30 All 167.
85
Bishwanath Vs. Sri Thakur Radhaballabhji and Ors. 1967 AIR 1044.

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87. The practice of Celibacy and austerity is the unique characteristic of the deity in this temple.
Hindu deities have both physical/temporal and philosophical form. The same deity is capable of
having different physical and spiritual forms or manifestations. The form of deity in any temple
is of paramount importance.86 The Gods have distinct forms ascribed to them and their worship
at home and in temples is ordained as certain means of salvation.87
88. The right to worship under Article 25 cannot be claimed in the absence of the deity in the
particular form in which he has manifested himself. Religion is a matter of faith, and religious
beliefs are held to be sacred by those who share the same faith. Thought, faith and belief are
internal, while expression and worship are external manifestations thereof. The phrase “equally
entitled to”, as it occurs in Article 25(1), must mean that each devotee is equally entitled to
profess, practice and propagate his religion, as per the tenets of that religion.

3.2.3. THE DEVOTEES OF LORD ‗A‘ CONSTITUTE A SEPARATE RELIGIOUS DENOMINATION.

89. 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.
90. A religious denomination or organization enjoys complete autonomy in matters of deciding what
rites and ceremonies are essential according to the tenets of that religion. The only restriction
imposed is on the exercise of the right being subject to public order, morality and health under
Article 26. The Respondents assert that the devotees of Lord „A‟ constitute a religious
denomination, or a sect thereof, and are entitled to claim protection under Article 26 of the
Constitution.

3.2.4. SCOPE OF RELIGIOUS DENOMINAITON TEST

91. A collection of individuals classed together under the same name: a religious sect or body having
a common faith and organization and designated by a distinctive name, „Religious
Denomination‟88 Each of the sects or sub-sects of the Hindu religion could be called a religious
denomination, as such sects or sub-sects, had a distinctive name. The words „religious

86
Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors (1964) 1 SCR 561 at 582 : AIR 1963 SC
1638.
87
Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors. case1958 SCR 895.
88
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt1954 SCR 1005, at ¶ 15.

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 denomination‟ in Article 26 of the Constitution must take their color from the word „religion‟,
and if this be so, the expression „religious denomination‟ must satisfy three conditions89:
92. 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) a common faith;
(b) common organization; and
(c) designation by a distinctive name
93. Religious Denomination mean identity of its doctrines, creeds, and tenets, which are intended to
ensure the unity of the faith which its adherents profess, and the identity of the religious views
which bind them together as one community90
94. The meaning ascribed to religious denomination by this Court in SHIRUR MUTT case and
subsequent cases is not a STRAIT-JACKET FORMULA, BUT A WORKING FORMULA. It provides
guidance to ascertain whether a group would fall within a religious denomination or not. If there
are clear attributes that there exists a sect, which is identifiable as being distinct by its beliefs and
practices, and having a collection of followers who follow the same faith, it would be identified
as a „religious denomination‟.
95. It will be noticed that these sects possess no distinctive names except that of their founder-
teacher and had no special organization except a vague, loose – un-knit one. The really
distinctive feature about each one of these sects was a shared belief in the tenets taught by the
teacher-founder. We take care to mention here that whatever the ordinary features of a religious
denomination may be considered to be, all are not of equal importance and surely the common
faith of the religious body is more important than the other features.91
96. Under Article 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. No outside authority has any right to say that these are not
essential parts of religion and it is not open to the secular authority of the State to restrict or
prohibit them in any manner they like under the guise of administering the trust estate. A secular
judge is bound to accept that belief – it is not for him to sit in judgment on that belief, he has no

89
S.P. Mittal v. Union of India & Ors (1983) 1 SCC 51.
90
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay 1962 Supp (2) SCR 496 : AIR 1962 SC 853 Per
Ayyangar, J.
91
S.P. Mittal v. Union of India & Ors; (1983) 1 SCC 51 Per Chinnappa Reddy J.

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 right to interfere with the conscience of a donor who makes a gift in favor of what he believes to
be the advancement of the religion and the welfare of his community or mankind.92

3.2.5. INTERPLAY BETWEEN DENOMINATIONAL RIGHTS UNDER ARTICLE 26 AND THE PUBLIC

CHARACTER OF THE TEMPLE

97. As regards the interplay between the public character of the Temple and its denominational
rights under Article 26, it is humbly submitted that the two aspects are not mutually destructive.
While the Temple has a public character, the sense that it is not a private Temple, its rights under
Article 26 to expect and enforce adherence of its traditions by devotees who visit the Temple
stand undiluted. Had that not been the case, it would mean that all religious institutions which
have a public character or which are public places of worship do not have rights under Article
26, which would be a patently ludicrous and untenable position to take. Simply stated, there is
nothing in Article 26 which gives the impression that the inherence and denomination is subject
to it not being a place of public worship. Clearly, public or private character does not affect
Article 26 so long as the requirement of religious denomination is satisfied.
98. The devotees of Lord “A” follow an identifiable set of beliefs, customs and usages and code of
conduct which being practiced since time immemorial and are founded in common faith. Hence,
the Sripura Temple constitutes a religious denomination or a sect thereof. Likewise, the devotees
of Lord “A” follow a celibate- “Naishtika Brahmachari” with its own customs and usages.
Hence, the devotees of Lord “A” constitute a Separate Religious Denomination and the practice
of a custom which is time immemorial is to be construed as one which is essential to this
particular Religion.

3.2.6. THE DISTINCT IDENTITY OF THIS TEMPLE MAKES IT A RELIGIOUS DENOMINATION.

99. The worshippers of Lord „A‟ at this Temple together constitute a religious denomination, or sect
thereof, as the case maybe, follow a common faith, and have common beliefs and practices.
These beliefs and practices are based on the belief that Lord „A‟ has manifested himself in the
form of a „Naishtik Brahmachari‟. THE PRACTICES INCLUDE THE OBSERVANCE BY THE

AYYAPPANS OF THE 41-DAY ‗VRATHAM‘, which includes observing abstinence and seclusion
from the women-folk, including one‟s spouse, daughter, or other relatives. This pilgrimage
includes bathing in the holy River Pampa, and ascending the 18 sacred steps leading to the
sanctum sanctorum. Given the distinct identity of the Temple, the traditions it subscribes to and
the clear markers of identity which devotees have to observe as „A‟‟s devotees during the period

92
Ratilal Panachand Gandhi v. The State of Bombay & Ors (1954) SCR 1055 : AIR 1954 SC 388

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 of observance of the vow and the visit to the Temple, there can be no denying the fact that the
devotees do in fact constitute a religious denomination for the purposes of Article 26.

3.2.7. THE DENOMINATIONAL CHARACTER OF THE TEMPLE IS TO BE READ WITH THE RIGHTS OF

DEITY

100. A Temple even if it a public place of worship does not lose its status as the abode of the
Deity, which is the very significance behind the act of consecration or prana pratishthana.
Therefore, it is the will of the Deity expressed in the form of tradition that shall apply to the
conduct of Devotees once they enter the Temple and not the free will of the devotees who have
no regard for the traditions of the Temple and the beliefs underlying such traditions. Therefore,
the limited consequence of the public character of the Temple is to allow access to all Hindus
WHO ABIDE BY THE RULES OF THE OWNER OF THE ABODE, NAMELY THE DEITY. Given that the
Respondents have already established that the Idol is a juristic person which enjoys fundamental
rights like any other individual under part III of the constitution. In determining the
denominational of the Sripura Temple has to be read along with the long drawn recognized
fundamental rights of the Deity.

3.3. S.4(C) PERSONS UNDER POLLUTION ARISING OUT OF BIRTH & DEATH IN THEIR FAMILIES.

101. Birth & death though a natural phenomenon, it is always related to an act of god as per the
Hindu religion coupled with certain impurity. It has been a customary practice in restraining the
entry of certain persons who are affected by pollution arising out of birth & death in their family.
The Temple Entry Proclamation, 1936 formulated by Maharaja Chithira Thirunal Balarama
Varma also contains such a restriction which evidentially shows that such customary practice
was highly prevalent since ages.
102. Moreover, custom or usage is a law within the ambit of Art.13(3)(a). An individual can
exercise his faith in private place; however, a religious institution maintained by a community
cannot be compelled to allow an individual to exercise his religious freedom in contrary to the
custom & belief of that institution. If it is so permitted, one person‟s individual freedom of
worship will destroy freedom of worship of many thousand; in addition to that every religious
institution has a right to administer their religious institution according to their customs under
Art. 26. Henceforth the individual‟s right to freedom should not run contrary to the institutions
right to administer its own affairs.
103. A Hindu place of public worship which is meant for devotees cannot be equated to any other
institution such as a museum maintained by the state where every person has an unrestricted

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 entry, as it is primarily & most importantly governed by certain customs & usages in which the
devotees have abundant faith & belief. Disbelievers of such custom & usage can never claim
entry into such institutions.

3.4. S.4(D) DRUNKEN OR DISORDERLY PERSONS.

104. Drunkard or a person under intoxication will be unable to predict the consequences of his
actions. The habit of drinking is considered as a social evil & there were several instances
wherein the SC restricted the sale & possession of alcohol.93 This provision is in accordance with
the states obligation under Art. 47 of the Indian Constitution. Entering a place of public worship
in an intoxicated state is considered as an insult to the religion.94
105. Moreover, the Temple requires pilgrims to restrain from consumption of alcohol during the
41 days vratham to visit the temple. Therefore, this provision has been included to uphold the
value of public health & morality. The rule of “expressio unius est exclusion alterius” says that
an expressly laid down mode of doing something necessarily implies a prohibition of doing it in
any other way.95

3.5. S.4(E) PERSONS SUFFERING FROM ANY LOATHSOME OR CONTAGIOUS DISEASES

106. Allowing the entry of persons affected by loathsome or contagious diseases may spread such
diseases to the other innocent pilgrims. The SC has also upheld the validity of such classification
in the interest of public health.96 Moreover, entry of such persons to public places is already
prohibited by § 269 & § 270 of IPC. Therefore this provision stands valid as it is has been made
for the common good
107. S.4(f) Persons of unsound mind except when taken for worship under proper control & with
the permission of the executive authority of the place of public worship concerned.
108. This provision does not completely restrain the entry of persons of unsound mind; it has been
inserted to maintain public order. It merely lays down the procedure in which an unsound person
is to be taken to a place of public worship, as he is incapable of understanding the consequences
of his own acts. Moreover, such a classification is justified in many other legislations &
decisions of the judiciary about persons of unsound mind.97

93
Synthetics & Chemicals Ltd. Etc., v. State of U.P. & Ors., AIR 1990 SC 1927; Khoday distilleries v. State of
Karnataka, (1995) 1 SCC 574; State of A.P. & Ors. Etc., v. Mcdowell & Co. & Ors. Etc., AIR 1996 SC 1627.
94
IPC, § 295.
95
Public Interest Foundation & Ors. v. Union of India & Ors., AIR 2018 SC 4550.
96
Dhirendra Pandua v. State of Orissa, AIR 2009 SC 163.
97
IPC, S. 90; Indian Contract Act, S. 11 & § 12.

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3.6. S.4(G) PROFESSIONAL BEGGARS WHEN THEIR ENTRY IS SOLELY FOR THE PURPOSE OF

BEGGING.

109. This provision does not completely restrain the entry of beggars. However, when their entry
to places of public worship is “solely” for the purpose of begging their entry is restrained to
maintain public morality, hence it does not violate their right to freedom of religion under Art.
25. Begging is illegal & prohibited by various state legislations.98
110. Therefore, it is conspicuous that the § 4 of the Hindu Places of Public Worship
(Authorisation of Entry) Act, 2018 does not violate any of the provisions of the Constitution.

98
The Madras Prevention of Begging Act, 1945; The Andhra Pradesh Prevention of Beggary Act, 1977

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 PRAYER

Wherefore in the lights of the issues raised, arguments advanced and authorities cited it is

most humbly and respectfully prayed before this OHoHon‟ble Court that it may be pleased to

adjudge and declare:

 To dismiss the Public Interest Litigation

And pass any order or orders as this Hon‟ble Court may deem fit and proper in the

circumstances of the given case and thus render justice.

And for this act of kindness and justice the respondent shall be duty bound and forever pray.

All of which is most respectfully submitted,

(Counsel for the Respondent)

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