Rostrum Legal Petitioner 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 PETITIONER
MEMORIAL ON BEHALF OF PETITIONER 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.Weather the temple has a denominational character, if yes, whether it can indulge in
practices which are unconstitutional?....................................................................................15
4. Weather Rule 3 (b) of the 1965 rules discriminates women on the basis of sex?...........19
Prayer........................................................................................................................................25

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. Adi Saiva Sivachariyargal Nala Sangam and Ors. v. Government of Tamil Nadu and Anr,
2. Anuj Garg and others v. Hotel Association of India and others
3. Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and another
4. Dattatreya Motiram Mohe v. State of Bombay
5. Deepak Sibal v. Punjab University and another
6. Dr. Noorjehan Safia Niaz And 1 Anr vs State Of Maharashtra.
7. Durgah Committee, Ajmer and others v. Syed Hussain Ali and others
8. Indira Nehru Gandhi v. Shri Raj Narain & Anr
9. John Vallamattom and another v. Union of India
10. M.P.Gopalkrishnan Nair vs State of Kerala
11. Manoj Narula v. Union of India and National Legal Services Authority
12. N. Adithayan v. Travancore Devaswom Board and Others
13. Nar Hari Shastri And Others v. Shri Badrinath Temple Committee
14. National Legal Services Authority v. Union of India and others
15. Sardar Syedna Taher Saifuddin Saheb v. State Of Bombay
16. Sastri Yagnapurushad ji vs. Muldas Brudardas Vaishya
17. Shayara Bano v. Union of India and others
18. SP Mittal vs Union of India & Others
19. Sri Venkatramana Devaru v. State of Mysore and others
20. State of W.B. v. Anwar Ali Sarkar
21. Sujata v. Manohar,J
22. The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha
Swaminar of Sri Shirur Mutt
23. Venkatramana Devaru v. State of Mysore
24. Vishaka and Ors. v. State of Rajasthan and Ors
25. Walter Alfred Baid v. Union of India
26. Young Lawyers Association V. state of Kerala

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).
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.
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
(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
(3) 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 )
(4) 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 violates Article 14, 15 and 17 of the Vindhu Constitution.
Classification based on menstruation of women is very much unconstitutional hence it is
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
does not amount to “essential religious practice” and that the Court has the right to step in when
the rights of a particular group in society are being violated, in order to uphold their status as
equal citizens of the country.
3. WEATHER THE TEMPLE HAS A DENOMINATIONAL CHARACTER, IF YES, WHETHER IT CAN

It is humbly submitted before the Hon’ble court that the temple has got no separate identity of its
own and also it is being administered by the state government by the funds taken out from the
Consolidated Fund of Verala through article 290-A of the constitution. The temple has also got
no protection mentioned in the constitution which gives it a right to practice things which are
considered to be unconstitutional.
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, if upheld, will make an
unreasonable classification for restricting the entry of women in places of public worship. This
will therefore wrongly discriminate against women from entering public places of worship. It is
further submitted before the Hon’ble Court that this violates fundamental rights of women

under Article 14, 15(3) and 17 of the Constitution of India in light of Rule 3(b) of the Tejiku
Hindu Places of Public Worship (Authorization of Entry) Rules.
Arguments Advanced
1. WHETHER THE EXCLUSIONARY PRACTICE OF MENSTRUATING WOMEN AMOUNTS TO

1.1 That the exclusionary practice of menstruating women amounts to discrimination according
to the constitution of Vindhu. The learned counsel for the appellant humbly submits before this
Hon’ble supreme court of India that the exclusionary practice of menstruating women amounts
to discrimination according to the constitution of Vindhu. It is because such practice is violating
the core principles enshrined in the articles 14, 15, 17 of Indian constitution1.
1.2 Article 14 of Indian constitution guarantees the right to equality and as per the same article
any law which has an intelligible differentia ought to have the reasonable nexus with the object
that is to be achieved and in this case the object of the temple authorities is that the deity who is
who is worshipped in the temple will be polluted when the menstruating women enter the temple
and thereby it is blatantly violating not only the constitution of India but also the principles of
justice, liberty, equality which are enshrined in the preamble to constitution of India.
1.3 The counsel further submits before this Hon’ble Supreme court of India that it is very clear
from the facts of the case that the classification or differentia which is based on the menstruation
of women is very clear and the object of which is unconstitutional. In the case of Sri
Venkatramana Devaru v. State of Mysore2 it has been stated by the Apex court of India that a
religious denomination cannot completely exclude or prohibit any class or section for all times.
1.4 The learned counsel for the appellant further submits before the Hon’ble supreme court of
India that exclusionary practice per se violates the sacrosanct principle of equality of women and
equality before law3. The exclusionary practise is also violating the article 15(1) of Indian
1
Article 14,15,17 Indian constitution,1950.
2
Sri Venkatramana Devaru v. State of Mysore,11 (1958) SCR 895.
3
Deepak Sibal v. Punjab University and another, (1989) 2 SCC 145.

constitution4 as it is directly discriminating the people based on the gender because the
mensuration will be exclusive to only females and the exclusionary criteria is also the same.
1.5 It is apt to mention here that this Hon’ble court has also given judgements that the gender
biasness is opposed to the constitutional norms5. This exclusionary practice of preventing the
menstruating women from entering the temple is also causing the stigma on the women
community as a whole and the reason shown by the temple authorities for not allowing the
women into temple is that the women who are menstruating are pollute and so, it is clearly
violating the article 17 of the Indian Constitution 6 as it is creating thereby a huge psychological
impact on women and article 17 of the constitution covers the discrimination based on the social
factors and this term social factors is very wide enough to cover menstrual discrimination
against women.
1.6 This article 17 of Indian Constitution is made applicable to both the state and the Non-state
actors by a central legislation named Civil Rights Act, 1955 and the judgement which is given by
the High Court which bars the women aged 10-50 from entering the temple is not in consonance
with the provisions of the above said Act.
1.7 The exclusionary practice pertaining to women is violative of Article 21 of the Constitution
as it impacts the ovulating and menstruating women to have a normal social day to day
rendezvous with the society including their family members and thus, undermines their dignity
by violating Article 21 of the Constitution7.
1.8 The counsel further submits that the exclusionary practice violates the rights of Hindu
women according to the article 25 of Indian constitution which provides the right to women to
enter the Hindu temples which are dedicated to the public and there are many judgements which
are given by the Supreme Court of India by which the Hon’ble court has upheld the entering of
the temples to all the castes as they are Hindus and it is therefore, similar to the present case as
the women who want to assert their rights to enter the temple.
4
Article 15(1), Indian constitution, 1950.
5
Anuj Garg and others v. Hotel Association of India and others, (2008) 3 SCC 1 and Charu Khurana and others v.
Union of India and others , (2015) 1 SCC 192.
6
Article 17, Indian Constitution, 1950.
7
National Legal Services Authority v. Union of India and others, (2014) 5 SCC 438 and Justice K.S. Puttaswamy
and another v. Union of India and others, (2017) 10 SCC 1.

1.9 The Article 3(b) of the 1965 Act prohibits the women who are aged about 10-50 from
entering in to the temples and this article is ultra vires and also it is unconstitutional because it is
violating Articles 14, 15, 17, 21 and 25 of the Constitution in so far as it prohibits women from
entering a public temple.
1.10 India is also one of the countries which have signed the Convention on Elimination of all
forms of Discrimination Against Women (CEDAW)8 and by this convention the country should
eradicate and eliminate the taboos relating to the women based on the mensuration which are
governed by the Customs and traditions and also the convention clearly states that the state must
not avoid their obligation by taking a plea that it is custom or tradition.
1.12 This exclusionary practice is also violating the Article 21 and the Privacy and the dignity of
the women as it is involuntarily leading to the forceful disclosure of the age and the menstrual
status of the women if they want to enter the temple and also further the respondents cannot take
the plea either on the grounds of health, public order or morality for the term morality used in
Article 25 or 26 is not an individualized or sectionalized sense of morality subject to varying
practices and ideals of every religion but it is the morality informed by the constitutional vision.
In the present case the exclusion of women is an institutional practice and any subjective reading
of the term morality in the context of Article 25 would make the liberty of faith and worship
otiose9.
1.13 In the case of Young Lawyers Association V. state of Kerala10 the facts were that the
section 3(b) of the 1965 Act in the state of Varela had prohibited the women aged about 10-50
years from entering in to the temple and they have shown the reason that the mensurating
women as pollute so they cannot enter the sabrimala where lord Ayyappa is worshipped and so,
the apex court has also held that the such exclusionary practise amounts to the discrimination and
it is also unconstitutional and the judgement was not an unanimous one but the majority
judgement was that and this case is very similar to the present case.
8
UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18
December 1979, United Nations, Treaty Series, vol. 1249, p. 13,available at:
https://www.refworld.org/docid/3ae6b3970.html [accessed 9 June 2019].
9
Manoj Narula v. Union of India and National Legal Services Authority, (2014) 9 SCC 1.
10
Young Lawyers Association V. state of Kerala, WRIT PETITION (CIVIL) NO. 373 OF 2006(Supreme
Court,2006)

1.14 The learned counsel for the appellant humbly submits before the Hon’ble supreme Court of
India that by relying upon the above cases and the articles of Indian constitution and the
exclusionary practise of disallowing the menstruating women in to the temple amounts to
discrimination and also it is unconstitutional and so, the Hon’ble supreme court of India may by
its judgement declare that such exclusionary practise is discriminating the women and therefore,
it must be held as unconstitutional.
2. WHETHER SUCH EXCLUSION FALLS UNDER THE RELIGIOUS PRACTICES AND COULD IT BE
INSTITUTION?
2.1. THAT THE IMPUGNED RULE VIOLATES ARTICLES 25:
2.1.1 Article 25 gives freedom to profess, practice, and propagate religion subject to public
order, morality and health. Article 26 gives right to religious denominations to manage their
affairs. Exclusionary practice violates the rights of Hindu women under article 25 of the
Constitution as they have a right to enter Hindu temples dedicated to public. In Haji Ali’s11 case,
Bombay High Court allowed entry of women to Haji Ali dargah and held that the practice of
restricting women from entry to dargah is violation of their fundamental rights. The right to
manage the Trust cannot override the right to practice religion itself, as Article 26 cannot be seen
to abridge or abrogate the right guaranteed under Article 25 of the Constitution.
2.1.2 In the case of Acharya Jagadishwarananda Avadhuta12, 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 the right to worship God according to the
dictates of one's conscience.
2.1.3 Article 25(1), by employing the expression “all persons”, demonstrates that the freedom of
conscience and the right to freely profess, practice and propagate religion is available, though
11
Dr. Noorjehan Safia Niaz And Anr vs State Of Maharashtra, MANU/MH/1532/2016.
12
Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and another, (2004) 12 SCC 770.

subject to the restrictions delineated in Article 25(1) itself, to every person including women.
Women of any age group have as much a right as men to visit and enter a temple in order to
freely practice a religion as guaranteed under Article 25(1). Therefore, such an exclusionary
practice violates the right of women to visit and enter a temple to freely practise Hindu religion
and to exhibit their devotion towards Lord “Varnappan”.
2.2. THAT PRACTICE OF RESTRICTING ENTRY OF WOMEN IS NOT AN

ESSENTIAL PRACTICE;
2.2.1 It is submitted that the practice of excluding women is not an essential practice under the
Hindu religion. Article 25 only protects those practices which are an integral part of a religion. 13
The guarantee is extended to rituals and observances, ceremonies and modes of worship which
are integral parts of religion.14 Unless a practice is found to constitute an essential and integral
part of a religion, the claim for protection as essential practices may have to be carefully
scrutinised.15
2.2.2 What constitutes an essential part of a religion is determined with reference to the tenets
and doctrines of religion itself.16 Merely establishing a usage will not afford it constitutional
protection as an essential religious practice. It must be proved that the practice is ‘essential’ to
religion and inextricably connected with its fundamental character. Although what constitutes
essential religious practice must be decided with reference to what the religious community itself
yet, the ultimate constitutional arbiter of what constitutes essential religious practice must be the
Court, which is a matter of constitutional necessity.17
2.2.3 Essential part of a religion means the core beliefs upon which a religion is founded.
Essential practice means those practices that are fundamental to follow a religious belief. Test to
determine whether a part or practice is essential to the religion is - to find out whether the nature
of religion will be changed without that part or practice. If the taking away of that part or
13
John Vallamattom and another v. Union of India, (2003) 6 SCC 61.
14
N. Adithayan v. Travancore Devaswom Board and Others, (2002) 8 SCC 10.
15
Durgah Committee, Ajmer and others v. Syed Hussain Ali and others, AIR 1961 SC 1402.
16
State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.
17
Adi Saiva Sivachariyargal Nala Sangam and Ors. v. Government of Tamil Nadu and Anr, (2016) 2 SCC 725.

practice could result in a fundamental change in the character of that religion or in its belief, then
such part could be treated as an essential or integral part.18
2.2.4 There has to be an unhindered continuity in a practice for it to attain the status of essential
practice. In the given case, women used to visit the temple unless there entry was banned. Hence,
there is no continuity in practice.
2.2.5 It is, therefore, submitted that the practice of exclusion of women cannot be regarded as an
essential or integral part of Hindu religion.
3.WEATHER THE TEMPLE HAS A DENOMINATIONAL CHARACTER, IF YES, WHETHER IT CAN

3.1. The Harimala Temple and its followers cannot be held as a Religious Denomination.
3.1.1 The term religious denomination was defined by the Hon’ble Supreme Court in an order in
the year 1984. It was in the case of SP Mittal vs Union of India & Others 19 were the
Constitution Bench through 1-4 delivered by Justice RB Misra had refused to accept Sri
Aurobindo as a ‘religious denomination’ and defined a Religious Denomination as follows:
“Religious denomination means a religious sect or body having common faith and organisation
and designated by a distinctive name.”
3.1.2 In another well-known case, Sastri Yagnapurushad ji vs. Muldas Brudardas Vaishya 20
the Swaminarayan Sect where the then CJI P.B. Gajendragadkar after an exhaustive
consideration of various Hindu texts and the texts and history of the Swaminarayan sect rejected
the claim of the sect of ‘Sathsangis’ to be considered as a separate religion merely on the ground
of differences observed in Hindu temples.So a religious entity cannot claim to have a
‘denomination’ simply on account of differences from the mainstream practice.
3.1.3 Although the constitution never defined the term denomination, in the landmark judgment
of the Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
18
Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others, (2004) 12 SCC 770.
19
SP Mittal vs Union of India & Others (1983) 1 SCC 51
20
Sastri Yagnapurushad ji vs. Muldas Brudardas Vaishya (1966) 3 SCR 242 : AIR 1966 SC 1119

Swamiar of Sri Shirur Mutt21 the court defined a denomination 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.”
3.1.4 Coming to the religious practice of devotees going to Harimala Temple, everyone who
wants to visit the temple should follow a 40 day austerity period and should take an oath of
celibacy for that particular time period. And after the pilgrimage the person will be back into his
normal Hindu lifestyle. Even the Puja activities in the Harimala Temple are similar to that of
other Hindu Temples. Offerings given to the god and ‘prasadam’ taken by the devotees are
carried in similar to the Hindu Temples situated in the state.
3.1.5 The temple nor the devotees of the temple have a distinctive name or any kind of special
identity provided to them. They follow the austerious lifestyle only for a brief period as
mentioned above.
3.1.6 In the case of M.P.Gopalkrishnan Nair vs State of Kerala 22, the court held that if the
right to administer the properties is never vested in the denomination, the protection under
Article 26 will not be available. So a religious denomination should own some property requiring
constitutional protection. Were as in the present case temple property through the Devaswom
Board is under the control of the government.
3.1.7 The Harimala Temple does not have its separate administration, but is administered by or
through a statutory body constituted under the Travancore - Cochin Hindu Religious Institutions
Act, 1950 and further, as per Section 29(3A) of the said Act, the Devaswom Commissioner is
required to submit reports to the government, once in three months, with respect to the working
of the Board.
3.1.8 As far as the funding aspect is considered, the Parliament, in the exercise of its constituent
power, inserted Article 290-A vide the 7th Amendment whereby a sum of rupees forty six lakhs
and fifty thousand only is allowed to be charged upon the Consolidated Fund of the State of
21
Commissioner Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt ,
1954 AIR 282.
22
M.P.Gopalkrishnan Nair vs State of Kerala ,2005 (4) SCJ 47.

Verala which is paid to the Travancore Devaswom Board. This means the temple has got no
financial support of its own instead it is being funded by the government.
3.1.9 After the insertion of Article 290-A in the Constitution and the consequent State funding,
no individual ill-practice could be carried on in any temple associated with the statutory
Devaswom Board even in case of Hindu temple as this constitutional amendment has been made
on the premise that no ill-practice shall be carried on in any temple which is against the
constitutional principles.
3.1.9 So the temple and its followers lack separate identity of their own, their administration is
under the control of the state government through the Devaswom Board and they are getting
funds from the consolidated fund of the state. Since the Harimala Temple and its followers did
not fulfill any of the conditions required for a religious denomination as established in the case of
S.P.Mittal and Shri Mutt Case they shouldn’t be considered as a Religious Denomination.
3.2. Even if Harimala Temple constitutes a Religious Denomination, it cannot indulge in

Unconstitutional practices.
3.2.1 No right is absolute and restricting a particular group of people basing on their age or
considering them to be impure during a time period is grossly violating the article 14, 15 and 17.
This is the place were the government can interfere under article 25(2)(b). Article 25(2)(b) states
as follows,
“Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law23
(b) 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”.
23
Article 25(2)(b), Indian Constitution, 1950.

3.2.2 The judgement of the Hon’ble court in Sri Venkatramana Devaru v. State of Mysore
and others24 also states that even though one group of people are considered to be a separate
Religious Denomination their methods or practices cannot violate the constitutional principles. In
the judgment the court held as follows:
“If the denominational rights are such that to give effect to them would substantially reduce the
right conferred by Art. 25(2)(b), then of course, on our conclusion that Art. 25(2)(b) prevails as
against Art. 26(b), the denominational rights must vanish.”
3.2.3 A harmonious construction of Articles 25 and 26 of the Constitution reveals that neither
Article 26 enables the State to make a law excluding any women from the right to worship in any
public temple nor does it protect any custom that discriminates against women and, thus, such
exclusion amounts to destruction of the rights of women to practise religion guaranteed under
Article 25.
3.2.4 In the case of The Commissioner Hindu Religious Endowments, Madras v. Shri
Lakshmindra Thritha Swaminar of Sri Shirur Mutt25 the court observed as following,
“....what constitutes the essential part of a religion is primarily to be ascertained with reference to
the doctrines of that religion itself.”
3.2.5 This clearly shows that the rights guaranteed under Article 26 can only be used to protect
the “essential” practices of the religion. These essential practices may include offering of food to
the deities, recital of sacred texts, and other related activities. The practice of restricting women
from a particular age group cannot be considered as an essential practice. Hence the practice can
be amended or completely boycotted.
3.2.6 In the judgment of Durgah Committee, Ajmer v. Syed Hussain Ali26 where in
Gajendragadkar, J. clarified that clauses (c) and (d) do not create any new right in favour of
religious denominations but only safeguard their rights. Similarly, in matters of religious affairs,
it is observed that the same is also not sacrosanct as there may be many ill-practices like
24
Sri Venkatramana Devaru v. State of Mysore and others, (1958) SCR 895.
25
The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt,1954 AIR 282.
26
Durgah Committee, Ajmer v. Syed Hussain Ali,1961 AIR 1402.

superstitions which may, in due course of time, become mere accretions to the basic theme of
that religious denomination. Even if any accretion added for any historical reason has become an
essence of the said religious denomination, the same shall not be protected under Article 26(b) if
it is so abhorring and is against the basic concept of our Constitution.
3.2.7 The apex court, in its December 2015 judgment in Adi Saiva Sivachariyargal Nala
Sangam vs government of Tamil Nadu27, further defined Hindu religion: “Hinduism, as a
religion, incorporates all forms of belief without mandating the selection or elimination of any
one single belief. It is a religion that has no single founder; no single scripture and no single set
of teachings. It has been described as Sanatan Dharma, namely, eternal faith, as it is the
collective wisdom and inspiration of the centuries that Hinduism seeks to preach and propagate.”
3.2.8 It can be derived from the above judgment that the Hindu religion never discriminate one
particular group on the basis of sex and age. Instead the Hindu religion offers women a higher
position than men and any kind of such discrimination is Anti-Hindu.
3.2.9 Hence the Harimala Temple and its administration cannot indulge in practices which are
unconstitutional.
4. WEATHER RULE 3 (B) OF THE 1965 RULES DISCRIMINATES WOMEN ON THE BASIS OF SEX?
The petitioner brings to the notice of the Hon’ble court that Rule 3(b) of 1965 rules discriminate
women on the basis of sex by violating 14, 15 and 17.
4.1. THAT THE IMPUGNED RULE VIOLATES ARTICLES 14.
4.1.1 The impugned Rule/Act is violative of the right to equality guaranteed under article 14 of
the Constitution. Gender equality, gender equity and gender justice are values intrinsically
entwined in the right to equality under Article 14. Discrimination on the ground of sex is
expressly prohibited under Article 15. It has been held that equality of status and opportunity
enshrined in the Constitution is a part of basic structure and cannot be altered by any Act. 28
27
Adi Saiva Sivachariyargal Nala Sangam vs government of Tamil Nadu, (2016) 2 SCC 725.
28
Indira Nehru Gandhi v. Shri Raj Narain & Anr, AIR 1975 SC 2299.

Gender justice is a constitutional goal as contemplated by the framers of the Constitution. It is

the duty of every citizen to renounce practices derogatory to the dignity women under Article
51A(e)29 of the Constitution.
4.1.2 The impugned makes an unreasonable classification and is, therefore, arbitrary. A
classification is said to be reasonable if two tests are satisfied30:-
 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
4.1.3 In the given case, the object sought be achieved is to be prevent the customs. However, the
classification being made by the legislature runs counter to the constitutional principles. Since
the classification made in this case is constitutionally invalid, one need not to dwell into the
question of nexus. The State should not establish, patronize or endow any particular religion to
the exclusion of or in preference to others.31 Exclusionary practice is manifestly arbitrary.32
4.1.4 Exclusionary practice per se violates the sacrosanct principle of equality of women and
equality before law.33 Any rule based on discrimination or segregation of women pertaining to
biological characteristics is not only unfounded, indefensible and implausible but can also never
pass the muster of constitutionality. Since the provision in the present case is based solely on
physiological factors, it neither serves any valid object nor satisfies the test of reasonable
classification under Article 14 of the Constitution.
4.2.1 Article 15 states that :

29
Article 51A(e), Indian constitution, 1950.
30
State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.
31
Speech of Pt. Laxmikanta Mitra, Constitutional Assembly Debate on Draft Article 19. (Nov. 16, 2018, 1:10 p.m.)
available at https://books.google.co.in/books?id=yjJlDwAAQBAJ&pg=PA81&lpg=PA81&dq=.
32
Shayara Bano v. Union of India and others, (2017) 9 SCC 1.
33
Deepak Sibal v. Punjab University and another, (1989) 2 SCC 145.

15. (1) The State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them.
(2) No citizen shall, on grounds only of religion, race, caste, sex, place of birth or any of
them, be subject to any disability, liability, restriction or condition with regard to—
(a) access to shops, public restaurants, hotels and places of public entertainment; or
(b) the use of wells, tanks, bathing ghats, roads and places of public resort maintained
wholly or partly out of State funds or dedicated to the use of the general public.
(3) Nothing in this article shall prevent the State from making any special provision for
women and children.
4.2.2 It is submitted that temple is a place of public worship. Sec 2(b) of the impugned Act,
declares that any place dedicated to “the performance of any religious service or for offering
prayers” is a place of public worship. § 2(d) of the Protection of Civil Rights Act defines that
place of public worship includes place used by “persons professing any religion or belonging to
any religious denomination.34”
4.2.3 In Nar Hari Shastri And Others v. Shri Badrinath Temple Committee,35 Court observed
that temple is a public place of worship for Hindus and the right of entrance into the temple for
purposes of worship is a right. For the acquisition of such rights, no custom or immemorial usage
need be asserted or proved. There is a presumption that an institution or endowment is a public
one and the burden of proof in all such cases shall lie on the institution or endowment to prove
otherwise.36
4.2.4 Article 15(3) of the Constitution of India gives powers to the legislatures to make special
provisions for women and children.
4.2.5 In Dattatreya Motiram Mohe v. State of Bombay 37, Chief Justice Chagla held: As a result
of the joint operation of Article 15(1) and Article 15(3) the state could discriminate in favour of
women against men, but it could not discriminate in favour of men against women.
34
Section 2(d), The Protection Of Civil Rights Act, 1955.
35
Nar Hari Shastri And Others v. Shri Badrinath Temple Committee, AIR 1952 SC 245.
36
Teki Venkata Ratnam and Ors. v. Dy. Commissioner, Endowment and Ors., AIR 2001 SC 2436.
37
Dattatreya Motiram Mohe v. State of Bombay,AIR 1953 Bom 311.

4.2.6 Constitution of India specifically permits the State to make ‘special provisions’ for women
under Article 15(3). The reason is that “women’s physical structure and the performance of
maternal functions place her at a disadvantage in the struggle for subsistence and her physical
well-being becomes an object of public interest and care in order to preserve the strength and
vigour of the race. The purpose is to improve and strengthen the status of women by affording
them the opportunities to participate in the socioeconomic activities of the state. According to
Sujata v. Manohar,J38, the insertion of Article 15(3) is recognition of the fact that for centuries
women of this country have been socially and economically handicapped and thus are unable to
participate in socio-economic activities on the footing of equality. Without removing these
inequalities existing in the social system, the enforcement of equality under Article 14 will be a
distant dream.
4.2.7 The welfare of women is of vital significance in a Welfare State. Consequently, any special
provision for their protection or upliftment would not offend or operate against the subject of
non-discrimination provided in Article 15(1). Therefore, Article 15(3) is intended to give an
advantage to women so that they compete with men in various fields. The provision has been
used to enact special laws for the protection of women workers in factories, mines, plantations
and establishments.
4.2.8 The Delhi High Court, in Walter Alfred Baid v. Union of India39, although dealing with a
challenge under Article 16(2), recognized some of the problems implicit in this approach to
“only on the grounds of sex”. The court observed: It is difficult to accept the position that a
discrimination based on sex is nevertheless not a discrimination based on sex ‘alone’ because it
is based on other consideration even though these other considerations have their genesis in the
sex itself. It virtually amounts to saying that women were being discriminated against…not
because she belonged to a particular sex but because of what the sex implied.
4.3.1 Article 17 abolishes untouchability in any form. Article 17 applies to both State and non-
State actors and has been made operative through a Central legislation in the form of Protection
38
Govt. of A.P. v. P.B. Vijay Kumar, (1995) 4 SCC 520.
39
Walter Alfred Baid v. Union of India, AIR 1976 Delhi 302.

of Civil Rights Act, 1955. The Protection of Civil Rights Act penalizes for preventing a person
from entering a place of worship.40 § 7 (c) of the Civil Rights Act, 1955, criminalizes the
encouragement and incitement to practice untouchability in ‘any form whatsoever. 41’
Explanation II appended to § 7 makes it clear that a person shall be deemed to incite practice of
“untouchability” if he justifies it on religious or historical grounds. 42 In the case Sardar Syedna
Taher Saifuddin Saheb v. State Of Bombay 43, Court rejected the contention that
excommunication was a purely religious matter and held that excommunication is a form of
untouchability under Article 17.
4.3.2 It is, therefore, submitted that practice of excluding women based on menstruation
constitutes a form of untouchability and is prohibited under Article 17 of the Constitution.
4.4. RULE 3(b) is ultra vires:
4.4.1 Rule 344 provides:
“The classes of persons mentioned here under shall not be entitled to offer worship in any place
of public worship or bathe 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.”
4.4.2 By Rule 3(b), women are not allowed to offer worship in any place of public worship
including a hill, hillock or a road leading to a place of public worship or entry into places of
public worship at such time, if they are, by custom or usage not allowed to enter such place of
public worship.
40
Section 3, Protection of Civil Rights Act, 1955 (ACT NO. 22 OF 1955).
41
Sec 7(c), Protection of Civil Rights Act, 1955 (ACT NO. 22 OF 1955).
42
Explanation II (ii) to Section 7, Protection of Civil Rights Act, 1955 (ACT NO. 22 OF 1955).
43
Sardar Syedna Taher Saifuddin Saheb v. State Of Bombay,1962 Supp. (2) SCR 496.
44
Rule 3, Varela Hindu Places of Public Worship (Authorization of Entry) Rules, 1965.

4.4.3 The object of the Act is to enable the entry of all sections and classes of Hindus into
temples dedicated to, or for the benefit of or used by any section or class of Hindus. The rule
recognizes the rights of all sections and classes of Hindus to enter places of public worship and
their right to offer prayers. The law was enacted to remedy centuries of discrimination and is an
emanation of Article 25(2)(b) of the Constitution. The broad and liberal object of the Act cannot
be shackled by the exclusion of women. Rule 3(b) is ultra vires.
4.4.4 The applicant/intervenor has also drawn the attention of this Court to the Convention on
Elimination of all forms of Discrimination Against Women 45 (CEDAW) and the fact that Vindhu
is a party to this Convention for emphasizing that it is the obligation of the State to eradicate
taboos relating to menstruation based on customs or traditions and further the State should
refrain from invoking the plea of custom or tradition to avoid their obligation. The judgment of
this Court in Vishaka and Ors. v. State of Rajasthan and Ors 46 has been cited to submit that
international conventions must be followed when there is a void in the domestic law or when
there is any inconsistency in the norms for construing the domestic law.
4.4.5 Hence, the contentions of the Respondent that Rule 3(b) is intra vires may be rejected.
45
UN General Assembly, Convention on the Elimination of All Forms of Discrimination Against Women, 18
December 1979, United Nations, Treaty Series, vol. 1249, p. 13, available at:
https://www.refworld.org/docid/3ae6b3970.html [accessed 5 March 2019].
46
Vishaka and Ors. v. State of Rajasthan and Ors, 1997 (6) SCC 241.

Prayer
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 amounts to discrimination

according to the Constitution of Vindhu.
2. That such exclusion doesn’t falls under the religious practices and hence could not be
included under the right to manage its own affairs of the religious institution
3. That the temple has got no denominational character and that it cannot indulge in
practices which are unconstitutional.
4. That Rule 3 (b) of the 1965 rules discriminates 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 petitioner as in duty bound, shall humbly pray.
Counsels for the Petitioner

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ROSTRUM LEGAL ONLINE MEMORIAL DRAFTING COMPETITION, 2019

TEAM CODE- XV40K

BEFORE THE HONOURABLE SUPREME COURT OF VINDHU

YOUNG LAWYERS ASSOCIATION & ORS

WRIT PETITION NO._/2018

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF VINDHU

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF PETITIONER Page 1

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

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

MEMORIAL ON BEHALF OF PETITIONER 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

MEMORIAL ON BEHALF OF PETITIONER Page 3

MEMORIAL ON BEHALF OF PETITIONER Page 4

1. The Constitution of India, 1950.

2. Government of India Act, 1935.

3. Protection of Civil Rights Act, 1955 (Act No. 22 Of 1955).

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

MEMORIAL ON BEHALF OF PETITIONER Page 5

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

MEMORIAL ON BEHALF OF PETITIONER Page 6

MEMORIAL ON BEHALF OF PETITIONER 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 PETITIONER 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 PETITIONER Page 9

1. WHETHER THE EXCLUSIONARY PRACTICE OF MENSTRUATING WOMEN AMOUNTS TO

DISCRIMINATION ACCORDING TO THE CONSTITUTION OF VINDHU?

MEMORIAL ON BEHALF OF PETITIONER Page 10

MEMORIAL ON BEHALF OF PETITIONER Page 11

MEMORIAL ON BEHALF OF PETITIONER Page 12

2.1. THAT THE IMPUGNED RULE VIOLATES ARTICLES 25:

MEMORIAL ON BEHALF OF PETITIONER Page 13

2.2. THAT PRACTICE OF RESTRICTING ENTRY OF WOMEN IS NOT AN

MEMORIAL ON BEHALF OF PETITIONER Page 14

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

MEMORIAL ON BEHALF OF PETITIONER Page 15

MEMORIAL ON BEHALF OF PETITIONER Page 16

3.2. Even if Harimala Temple constitutes a Religious Denomination, it cannot indulge in

MEMORIAL ON BEHALF OF PETITIONER Page 17

MEMORIAL ON BEHALF OF PETITIONER Page 18

4.1. THAT THE IMPUGNED RULE VIOLATES ARTICLES 14.

MEMORIAL ON BEHALF OF PETITIONER Page 19

Gender justice is a constitutional goal as contemplated by the framers of the Constitution. It is

 the classification must be founded on an intelligible differentia which distinguishes those

4.2. THAT THE IMPUGNED RULE VIOLATES ARTICLES 15:

4.2.1 Article 15 states that :

MEMORIAL ON BEHALF OF PETITIONER Page 20

MEMORIAL ON BEHALF OF PETITIONER Page 21

4.3. THAT THE IMPUGNED RULE VIOLATES ARTICLES 17:

MEMORIAL ON BEHALF OF PETITIONER Page 22