X A L M C C: Team Code: Als-02

TEAM CODE: ALS-02
XII AMITY LUCKNOW MOOT COURT COMPETITION
BEFORE THE HON’BLE SUPREME COURT OF INDIANA
WRIT PETITION NO. OF 2019
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIANA
THE INDIANA YOUNG LAWYERS ASSOCIATION & ORS…................PETITIONER
V.
UNION OF INDIANA..............................................................................RESPONDENT
WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT
COUNSEL APPEARING ON BEHALF OF RESPONDENT

Table of Contents
LIST OF ABBREVIATIONS.........................................................................................................ii
INDEX OF AUTHORITIES...........................................................................................................iii
STATEMENT OF JURISDICTION..................................................................................................v
STATEMENT OF FACTS.............................................................................................................vi
STATEMENT OF ISSUES..............................................................................................................1
SUMMARY OF ARGUMENTS.......................................................................................................2
ARGUMENTS ADVANCED...........................................................................................................4
1. THAT THE PETITIONER AND THE SUBSEQUENT INTERVENERS DO NOT HAVE THE
LOCUS TO FILE THE PRESENT WRIT PETITION....................................................................4
2. THAT THE HON’BLE SUPREME COURT HAS THE JURISDICTION IN DEFINING THE
BOUNDARIES OF RELIGION IN PUBLIC SPACES.....................................................................7
3. That the said restriction imposed on the women and children of certain age does
not amount to violation of their Fundamental Rights as enshrined in the Constitution,
specifically violation of Articles 14, 15(3) and 17 in light of Rule 3(b) of Tenjiku Hindu
Places of Public Worship (Authorization of Entry) Rules*............................................11
4. that the practice of excluding women constitutes an “essential religious practice”

under article 25 and whether a religious intitution can assert a claim in that regard
under the umbrella of right to manage its own affairs in the matters of religion........14
PRAYER.....................................................................................................................................18
MEMORIAL ON BEHALF OF RESPONDENT

LIST OF ABBREVIATIONS
¶ Paragraph
§ Section
A.I.R. All India Reporter
Co Company
Edn. Edition
Ltd Limited
Mad. Madras
PIL Public Interest Litigation
P&H Punjab & Haryana
r/w Read With
SUPP Supplementary
S.C. Supreme Court
S.C.C. Supreme Court Cases
Sec. Section
u/s Under Section
UOI Union of India
US United States
v. Versus
MANU Manupatra
Ors. Others
S.C.R. Supreme Court Reporter
ii

INDEX OF AUTHORITIES
CASES
1. Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors.,1955
SCR (1)1284.
2. Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshimdra Thirtha
Swamiar of Sri Shirur Mutt, 1954 SCR 1005.
3. Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors., 1958 SCR 895.
4. Mahant Moti Das v. S.P. Sahi, The Special Officer In Charge of Hindu Religious trust
& Ors., 1959 AIR 942.
5. Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors., 1962 SCR (1) 383.
6. Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, 1962 AIR 853.
7. Bijoe Emmanuel & Ors. v. State of Kerala & Ors., 3 SCC 615.
8. Adelaide Company of Jehovah’s Witnesses Incorporated v. The Commonwealth,
(1943) ALR 193.
9. S. Mahendran vs The Secretary, Travancore, AIR 1993 Ker 42.
10. Western UP Electric Power Supply Co. Ltd v. State of Uttar Pradesh, 1969 SCR (3)
865.
11. Ramesh Prasad v. State of Bihar, AIR 1978 SC 327.
12. State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75.
13. Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and
another, (2004) 12 SCC 770.
14. Jamshed Ji v. Soonabai, 33 Bom 122 (1909).
15. Ratilal Panachand Gandhi v. The State of Bombay and Ors., AIR 1954 SC 388.
16. Robert l. Hernandez v. Commissioner of internal revenue, 490 U.S. 680 (1989).
17. United States v. Edwin D.lee, 455 U.S. 252 (1982).
18. John Vallamattom and Anr. v. Union of India, (2003) 6 SCC 61.
19. N. Adithayan v. Travancore Devaswom Board and Others, (2002) 8 SCC 10,
20. Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors., 1964 SCR (1)
561.
iii

STATUES
1. The Constitution of India.
2. The Hindu Places of Public Worship (Authorisation of Entry) Act, 2018.
3. Protection of Civil Rights Act, 1955 (Act No. 22 Of 1955).
BOOKS REFFERED
1. B. Shiva Rao, The Framing of India’s Constitution - A Study, Page 605, 2nd Edition.
2. D.D. Basu, Constitution of India, 14th Edition 2009, LexisNexis, Nagpur.
3. Maxwell, Interpretation of Statutes, 1st Edition, LexisNexis, Nagpur.
4. G.P. Singh, Interpretation of Statutes, 14th Edition 2016, LexisNexis, Nagpur.

5. M.P. Jain, Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth
Wadhwa Nagpur.
6. H.M. Seervai, Constitutional law of India, 4th Edition 2002, Volume 2, Universal Book
Traders.
7. V.N. Shukla, Constitution of India, 11th Edition 2008, Eastern Book Company.
8. P.M. Bakshi, The Constitution of India, 12th Edition 2014, Universal publishing
Company.
9. Dr. N.V. Paranjape, Studies in Jurisprudence and Legal Theory, 8 th Edition 2016,
Central Law Agency
LEGAL DATABASES
1. Manupatra
2. SCC Online
3. Westlaw India
4. Hein Online
5. Lexis Nexis
LEXICONS
rd
1. Aiyar Ramanathan, Advanced Law Lexicon, 3 Edition, 2005, Wadhwa Nagpur.
iv

th
2. Garner Bryana, Black’s Law Dictionary,7 Edition,1999
STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of India has the jurisdiction in this matter under Article 32 of the
Constitution of India 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). The Himaya Temple, located in Tenjiku, is a renowned religious spot for most of the
people residing in Tenjiku. Lakhs of pilgrims visit the place every year and complete
mountainous trek to reach the shrine. The Himaya Temple is one of the few temples in
Tenjiku that welcomes men and women of every caste.
2). Women aged between 10 and 50, that is those who are in menstruating age, are barred
from entering the temple; however no such ban applies for women younger, or older, to the
prescribed age. This is because Lord Tenji resides in the temple in his Naistik Bramhacharya
form and is believed to derive his powers from his ascetism. The devotees are aware of the
lore surrounding the deity and his vow of celibate.
3). The Indiana Young Lawyers Association and five women lawyers approached the
Supreme Court of Indiana seeking a direction to allow entry of women into the temple
without age restrictions. Another group of women, part of the "Happy
Mensuration"campaign, has also sought the court's direction on whether society should
continue to bear with what they have termed “menstrual discrimination."
4). Their petition contended that discrimination in matters of entry into temples was neither a
ritual nor a ceremony associated with the religious text and beliefs. Such discrimination was
totally anti-Hindu. The religious denomination could only restrict entry into the sanctum
sanctorum and could not ban entry into the temple, making discrimination on the basis of sex.
5). The Tenji Board, which maintains the temple, had replied that the ban was in accordance
with centuries-old tradition. Lord Ayyapa, being a Naishtika Brahmmachari (one who has
vowed to remain celibate). Another argument put forth by the temple authorities is that since
the deity inside the temple is in the form of a ‘Naistika Brahmcharya’, therefore the women
of certain age group are not allowed inside the temple since they are not in a position to
observe penance for 41 days due to physiological reasons.
6). The on-going matter in the Supreme Court has also put the spotlight on a 1991 Tenjiku
High Court judgment, wherein the division bench of the HC held that the restriction was in
vi

accordance with a usage from time immemorial and not discriminatory under the
Constitution. Upholding the restrictions, the High Court, in its judgment, said: “According to
‘The Himaya Thanthri’, these customs and usages had to be followed for the welfare of the
temple. He said only persons who had observed penance and followed the customs are
eligible to enter the temple and it is not proper for young women to do so."
7). The board has maintained that they're simply following what the dictat of their deity is,
and are doing so without discrimination as women beyond a certain age can indeed enter the
temple
vii

STATEMENT OF ISSUES
ISSUE 1
WHETHER THE PETITIONER AND THE SUBSEQUENT INTERVENERS HAVE THE
LOCUS TO FILE THE PRESENT WRIT PETITION?
ISSUE 2
WHETHER THE HON’BLE SUPREME COURT HAS THE JURISDICTION IN
DEFINING THE BOUNDARIES OF RELIGION IN PUBLIC SPACES?
ISSUE 3
WHETHER THE SAID RESTRICTION IMPOSED ON THE WOMEN AND CHILDREN
OF CERTAIN AGE AMOUNTS TO VIOLATION OF THEIR FUNDAMENTAL RIGHTS

AS ENSHRINED IN THE CONSTITUTION, SPECIFICALLY VIOLATION OF
ARTICLES 14, 15(3) AND 17 IN LIGHT OF RULE 3(B) OF TENJIKU HINDU

PLACES OF PUBLIC WORSHIP (AUTHORIZATION OF ENTRY) RULES*?
ISSUE 4
WHETHER THE PRACTICE OF EXCLUDING WOMEN CONSTITUTES AN
“ESSENTIAL RELIGIOUS PRACTICE” UNDER ARTICLE 25 AND WHETHER A
RELIGIOUS INTITUTION CAN ASSERT A CLAIM IN THAT REGARD UNDER THE
UMBRELLA OF RIGHT TO MANAGE ITS OWN AFFAIRS IN THE MATTERS OF
RELIGION?

SUMMARY OF ARGUMENTS
1. THAT THE PETITIONER AND THE SUBSEQUENT INTERVENERS DO NOT HAVE THE LOCUS
TO FILE THE PRESENT WRIT PETITION.
It is humbly submitted before the Hon’ble Court that the Indiana Young Lawyers Association
and members of the “Happy Menstruation” campaign do not have the locus standi to file such
a petition. They are not stakeholders in the ongoings of the Himaya temple and entertaining
PILs by such people would set a dangerous precedent and put at risk the minority religions
while causing serious damage to the Constitutional and secular fabric of this country.
BOUNDARIES OF RELIGION IN PUBLIC SPACES.
It is humbly submitted before the Hon’ble Court that the subject matter of the petition brings
into question an essential religious practice of the followers of Lord Tenjiku and hence the
Constitution protects it under its ambit. The same was upheld in the high court judgement of
1991.
3. THAT THE SAID RESTRICTION IMPOSED ON THE WOMEN AND CHILDREN OF CERTAIN
AGE DOES NOT AMOUNT TO VIOLATION OF THEIR FUNDAMENTAL RIGHTS AS ENSHRINED
IN THE CONSTITUTION, SPECIFICALLY VIOLATION OF ARTICLES 14, 15(3) AND 17 IN
LIGHT OF RULE 3(B) OF TENJIKU HINDU PLACES OF PUBLIC WORSHIP (AUTHORIZATION

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

4. THAT THE PRACTICE OF EXCLUDING WOMEN CONSTITUTES AN “ESSENTIAL RELIGIOUS
PRACTICE” UNDER ARTICLE 25 AND WHETHER A RELIGIOUS INTITUTION CAN ASSERT A
CLAIM IN THAT REGARD UNDER THE UMBRELLA OF RIGHT TO MANAGE ITS OWN AFFAIRS
IN THE MATTERS OF RELIGION.
It is humbly submitted before the Hon’ble court that excluding women of a certain age group
amounts to an essential religious practice in this case and is well within the ambit of article 25
of the Indian Constitution. Resultantly, there should be no interference in the functioning of
the Himaya temple.

ARGUMENTS ADVANCED
1. THAT THE PETITIONER AND THE SUBSEQUENT INTERVENERS DO NOT HAVE THE LOCUS
TO FILE THE PRESENT WRIT PETITION.
1. The right to move the Supreme Court under Article 32 for violation of Fundamental
Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this
Temple have been violated. The Petitioners do not claim to be devotees of the Himaya
Temple where Lord Tenjiki is believed to have manifested himself as a ‘Naishtik
Brahmachari’. To determine the validity of long-standing religious customs and usages of a
sect, at the instance of an association/Intervenors who are “involved in social developmental
activities especially activities related to upliftment of women and helping them become aware
of their rights”, would require this Court to decide religious questions at the behest of persons
who do not subscribe to this faith.
2. The absence of this bare minimum requirement must not be viewed as a mere
technicality, but an essential requirement to maintain a challenge for impugning practices of
any religious sect, or denomination. Permitting PILs in religious matters would open the
floodgates to interlopers to question religious beliefs and practices even if the petitioner is not
a believer of a particular religion, or a worshipper of a particular shrine. The perils are even
graver for religious minorities if such petitions are entertained.
3. In matters of religion and religious practices, Article 14 can be invoked only by

persons who are similarly situated, that is, persons belonging to the same faith, creed, or sect.
The Petitioners do not state that they are devotees of Lord Tenjiki, who are aggrieved by the
practices followed in the Himaya Temple1. The right to equality under Article 14 in matters of
religion and religious beliefs has to be viewed differently. It has to be adjudged amongst the
worshippers of a particular religion or shrine, who are aggrieved by certain practices which
are found to be oppressive or pernicious.
1
Moot Proposition, Para 5
4

4. Article 25(1) confers on every individual the right to freely profess, practise and
propagate his or her religion2. The right of an individual to worship a specific manifestation
of the deity, in accordance with the tenets of that faith or shrine, is protected by Article 25(1)
of the Constitution. If a person claims to have faith in a certain deity, the same has to be
articulated in accordance with the tenets of that faith.
5. In the present case, the worshippers of this Temple believe in the manifestation of the
deity as a ‘Naishtik Brahmachari’. The devotees of this Temple have not challenged the
practises followed by this Temple, based on the essential characteristics of the deity.
6. The right to practise one’s religion is a Fundamental Right guaranteed by Part III of
the Constitution, without reference to whether religion or the religious practises are rational
or not. Religious practises are Constitutionally protected under Articles 25 and 26(b). Courts
normally do not delve into issues of religious practises, especially in the absence of an
aggrieved person from that particular religious faith, or sect.
7. In Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors 3.,
this Court held that a person can impugn a particular law under Article 32 only if he is
aggrieved by it.
8. Precedents under Article 25 have arisen against State action, and not been rendered in
a PIL.
9. An illustrative list of such precedents is provided here in below:
 In Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshimdra Thirtha

Swamiar of Sri Shirur Mutt4 , this Court had interpreted Articles 25 and 26 at the
instance of the Mathadhipati or superior of the Shirur Mutt who was in-charge of
managing its affairs. The Mathadhipati was aggrieved by actions taken by the Hindu
Religious Endowments Board, which he claimed were violative of Articles 25 and 26.
 In Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors5, this Court dealt with
the question whether the rights under Article 26(b) are subject to Article 25(2)(b), at
2
H.M. Seervai, Constitutional Law of India : A Critical Commentary, Vol. II (4th Ed., Reprint)
3
1955 SCR (1)1284
4
1954 SCR 1005
5
Venkataramana Devaru & Ors. v. State of Mysore & Ors., 1958 SCR 895
5

the instance of the Temple of Sri Venkataramana and its trustees who belonged to the
sect known as Gowda Saraswath Brahmins.
 In Mahant Moti Das v. S.P. Sahi, The Special Officer In Charge of Hindu Religious
trust & Ors6., this Court considered the Constitutional validity of actions taken by the
Bihar State Board of Religious Trusts under the Bihar Hindu Religious Trusts Act,
1950 as being violative of the Fundamental Rights of Mahants of certain Maths or
Asthals guaranteed, inter alia, under Articles 25 and 26.
 In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors7., this Court was
called upon to decide the Constitutionality of the Durgah Khwaja Saheb Act, 1955 in
view of Articles 25 and 26, inter alia, at the instance of Khadims of the Tomb of
Khwaja Moin-ud-din Chisti of Ajmer. The Khadims claimed to be a part of a religious
denomination by the name of Chishtia Soofies.
 In Sardar Syedna Taher Saifuddin Saheb v. State of Bombay8 , this Court was called
upon to test the Constitutionality of the Bombay Prevention of Excommunication Act,
1949 on the ground that it violated Fundamental Rights guaranteed under Articles 25
and 26 to the petitioner who was the Dai-ul-Mutlaq orHead Priest of the Dawoodi
Bohra Community.
 In Bijoe Emmanuel & Ors. v. State of Kerala & Ors9., three children belonging to a
sect of Christianity called Jehovah’s Witnesses had approached the Kerala High Court
by way of Writ Petitions to challenge the action of the Headmistress of their school,
who had expelled them for not singing the National Anthem during the morning
assembly. The children challenged the action of the authorities as being violative of
their rights under Articles 19(1)(a) and Article 25. This Court held that therefusal to
sing the National Anthem emanated from the genuine and conscientious religious
belief of the children, which was protected under Article 25(1).
In a pluralistic society comprising of people with diverse faiths, beliefs and traditions, to
entertain PILs challenging religious practises followed by any group, sect or
6
1959 AIR 942
7
1962 SCR (1) 383
8
1962 AIR 853
9
3 SCC 615
6

denomination, could cause serious damage to the Constitutional and secular fabric of
this country.
BOUNDARIES OF RELIGION IN PUBLIC SPACES.
10. Judicial review of religious practices ought not to be undertaken, as he 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 rationalising religion, faith and beliefs, which is outside the ken of Courts.
11. This Court has applied the ‘essential practices’ test to afford protection to religious
practices.
12. The ‘essential practices’ test was formulated in Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt10.Before
articulating the test, this Court drew on the words “practice of religion” in Article 25(1) to
hold that the Constitution protects not only the freedom of religious belief, but also acts done
in pursuance of a religion. In doing so, it relied on an extract from the decision of Latham,
C.J. of the High Court of Australia in Adelaide Company of Jehovah’s Witnesses
Incorporated v. The Commonwealth11. The original extract relied upon has been reproduced
herein below:
It is sometimes suggested in discussions on the subject of freedom of religion that, though the
civil government should not interfere with religious opinions, it nevertheless may deal as it
pleases with any acts which are done in pursuance of religious belief without infringing the
principle of freedom of religion. It appears to me to be difficult to maintain this distinction as
relevant to the interpretation of s. 116. The section refers in express terms to the exercise of
religion, and therefore it is intended to protect from the operation of any Commonwealth
laws acts which are done in the exercise of religion. Thus the section goes far beyond
protecting liberty of opinion. It protects also acts done in pursuance of religious belief as
part of religion.”
13. This Court then went on to formulate the ‘essential practices test in the following
words:
10
Supra 4
11
[1943] ALR 193
7

what constitutes the essential part of a religion is primarily to be ascertained with reference
to the doctrines of that religion itself. If the tenets of any religious sect of the Hindus
prescribe that offerings of food should be given to the idol at particular hours of the day, that
periodical ceremonies should be performed in a certain way at certain periods of the year or
that there should be daily recital of sacred texts or oblations to the sacred fire, all these
would be regarded as parts of religion…all of them are religious practices and should be
regarded as matters of religion within the meaning of Article 26(b)…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.”
14. The ‘essential practices test’ was reiterated in Ratilal Panachand Gandhi v. The State
of Bombay & Ors12., where the narrow definition of “religion” given by the Bombay High
Court was discarded. It was held that all religious practices or performances of acts in
pursuance of religious beliefs were as much a part of religion, as faith or belief in particular
doctrines. This Court re-iterated the ‘essential practices test’ in the following words:
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…We may refer in this connection to the
observation of Davar, J. in the case of Jamshed ji v. Soonabai13 and although they were made
in a case where the question was whether the bequest of property by a Parsi testator for the
purpose of perpetual celebration of ceremonies like Muktad bag, Vyezashni, etc., which are
sanctioned by the Zoroastrian religion were valid and charitable gifts, the observations, we
think, are quite appropriate for our present purpose. If this is the belief of the community thus
observed the learned judge, and it is proved undoubtedly to be the belief of the Zoroastrian
community, - a secular judge is bound to accept that belief – it is not for him to sit in
judgment on that belief, he has no right to interfere with the conscience of a donor who
makes a gift in favour of what he believes to be the advancement of the religion and the
welfare of his community or mankind.
12
1954 SCR 1035
13
1 Ind Cas 834
8

15. In Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors14. ,the ‘essential
practices test’ was discussed by a Constitution Bench in the following words:
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; Similarly, even practices
though religious may have sprung from merely superstitious beliefs and may in that sense be
extraneous and unessential accretions to religion itself. 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.”
16. In Bijoe Emmanuel & Ors. v. State of Kerala & Ors15., this Court emphasised that for
a religious practice to receive protection under Article 25(1) it must be “genuinely”, and
“conscientiously” held by persons claiming such rights. This Court had noted that such
religious beliefs and practices must be consistently and not “idly” held, and should not
emanate out of “perversity”. In doing so, it reaffirmed that 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.
17. The only way to determine the essential practices test would be with reference to the
practices followed since time immemorial, which may have been scripted in the religious
texts of this temple. If any practice in a particular temple can be traced to antiquity, and is
integral to the temple, it must be taken to be an essential religious practice of that temple.
18. The High Court in 1991 judgement 16 held that the restriction on the entry of women
between the ages of 10 to 50 years was in accordance with the practice prevalent since time
immemorial, and was not violative of Articles 15, 25, and 26 of the Constitution.
19. A religion can lay down a code of ethics, and also prescribe rituals, observances,
ceremonies and modes of worship. These observances and rituals are also regarded as an
integral part of religion. If the tenets of a religion lay down that certain ceremonies
are to be performed at certain times in a particular manner, those ceremonies are matters of
religion, and are to be protected as a religious belief.
14
1962 SCR (1) 383
15
Bijoe Emmanuel & Ors. v. State of Kerala & Ors, (1986) 3 SCC 615
16
S. Mahendran vs The Secretary, Travancore AIR 1993 Ker 42
9

20. The High Court recorded that a vital reason for imposing this restriction on young
women as deposed by the Thanthri of the Temple, as well as other witnesses, was that the
deity at the Himaya Temple was in the form of a ‘Naishtik Brahmachari’ which means a
student who has to live in the house of his preceptor, and studies the Vedas, living the life of
utmost austerity and discipline. The deity is in the form of a ‘Yogi’ or ‘Naishtik
Brahmachari’. The High Court noted that this practice of restricting the entry of women is
admitted to have been prevalent since the past several centuries.
21. The practice of celibacy and austerity is the unique characteristic of the deity in the
Himaya Temple.
22. Hindu deities have both physical/temporal and philosophical form. The same deity is
capable of having different physical and spiritual forms or manifestations. Worship of each of
these forms is unique, and not all forms are worshipped by all persons.
23. In Venkataramana Devaru & Ors. v. State of Mysore & Ors17. this Court had
observed that Gods have distinct forms ascribed to them, and their worship at home, and in
temples, is ordained as certain means of salvation.
24. In the present case, the character of the temple at Tenjiku is unique on the basis of
centuries old religious practices followed to preserve the manifestation of the deity, and the
worship associated with it. Any interference with the mode and manner of worship of
this religious denomination, or sect, would impact the character of the Temple, and affect the
beliefs and practices of the worshippers of this Temple.
Based on the material adduced before this Court, the Respondents have certainly made
out a plausible case that the practice of restricting entry of women between the age
group of 10 to 50 years is an essential religious practice of the devotees of Lord Tenjiki
at the Himaya Temple being followed since time immemorial.
3. That the said restriction imposed on the women and children of certain age does not
amount to violation of their Fundamental Rights as enshrined in the Constitution,
specifically violation of Articles 14, 15(3) and 17 in light of Rule 3(b) of Tenjiku Hindu
Places of Public Worship (Authorization of Entry) Rules*.
3.1. THAT THE RULE IS NOT VIOLATIVE OF ARTICLE 14:
17
10

25. Article 14 of the Constitution provides for equality before law and equal protection
of law. However, it does not guarantee equal treatment of all persons. It only guarantees
equality among equals18. This means that similarly placed individuals shall be treated
equally. Its aim is to prevent discriminatory treatment of similarly placed people. Article 14
is attracted only when equals are treated as unequals or where unequals are treated as
equals. The guarantee of equality does not imply that the same rules should be made
applicable in spite of differences in their circumstances and conditions.19
A classification is said to be valid if satisfies the twin test as held in ANWAR ALI
SARKAR’S case.20 The two tests are:-
o the classification must be founded on an intelligible differentia which

distinguishes those that are grouped together from others left out of the
group, and
o 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.
26. It is submitted that in the given case, the object of classification is to authorize the
entry of Hindus into the places of public worship which is protected under article 25(2)(b).
The classification made is also constitutionally valid since it has a nexus with the object
sought and this is the only practical way to protect the religious customs. It is further
submitted that religious customs cannot be solely tested on the touchstone of article 14 and
the principle of rationality. Equality in matters of religion must be viewed in the context of
the worshippers of the same faith. The right to equality under article 14 conflicts with right
of the worshippers which is also a fundamental right under article 25. Determination of
religious beliefs is outside the ken of the courts. They are not to be struck down unless they
are oppressive or socially evil, like sati.
That the a is not violative of Article 15(3):
18
Western UP Electric Power Supply Co. Ltd v. State of Uttar Pradesh, 1969 SCR (3) 865
19
Ramesh Prasad v. State of Bihar, AIR 1978 SC 327
20
State of W.B. v. Anwar Ali Sarkar, AIR 1952 SC 75
11

27. Article 15 of the Constitution prohibits differential treatment of persons on the

ground of ‘sex’ alone and they shall not be restricted from entering places of public resort.
Article 15 was proposed as draft article 9.21 Professor KT Shah proposed the Amendment
no.-293 for including “temples” into places of public resort. 22 This proposal was rejected by
the Constituent Assembly.23 Assembly considered it fit not to include ‘places of worship’ or
‘temples’ within the ambit of Draft Article 9 of the Constitution.
Professor K.T. Shah proposed Amendment No. 293 for substitution of sub-clauses (a) & (b)
as follows: “any place of public use or resort, maintained wholly or partly out of the
revenues of the State, or in any way aided, recognised, encouraged or protected by the
State, or place dedicated to the use of general public like schools, colleges, libraries,
temples, hospitals, hotels and restaurants, places of public entertainment, recreation or
amusement, like theatres and cinema-houses or concert-halls; public parks, gardens or
museums; roads, wells, tanks or canals; bridges, posts and telegraphs, railways, tramways
and bus services; and the like.
28. Thus, there is no question of discrimination on grounds of sex since temple is not a
place of public resort and their entry can be restricted.
3.2. THAT THE IMPUGNED RULE DOES NOT VIOLATE ARTICLE 17
29. The object and core of Article 17 is to prohibit untouchability based on “caste”. The
customs practised in temples do not flow from any practices associated with untouchability
under Article 17. All forms of exclusion would not tantamount to untouchability. Article 17
pertains to untouchability based on caste prejudice. Literally or historically, untouchability
was never understood to apply to women as a class. Present Article 17 was proposed as
Article 11 of the Constitution24. It referred to caste-based discrimination faced by Harijans,
21
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
22
Statement of Professor K.T. Shah, Constituent Assembly Debates (November 29, 1948)
23
Constituent Assembly Debates (November 29, 1948)
24
Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability
arising out of “Untouchability" shall be an offence punishable in accordance with law.” Draft Constitution of
India, Drafting Committee of the Constituent Assembly of India (Manager Government of India Press, New
Delhi, 1948) available at http://14.139.60.114:8080/jspui/bitstream/123456789/966/7/Fundamental%20Rights%
20%285-12%29.pdf
12

and not women. During the debate, Mr. V.I. Muniswamy Pillai had stated that adoption of
article 11 would give relief to a Harijan, who has been suffering the tyranny from ages.25
30. Mr. Seervai states that Article 17 must be read with the Untouchability (Offences)
Act, 1955, which punishes offences committed in relation to a member of a Scheduled
Caste.26 Professor M.P. Jain states that, “Therefore, treating of persons as untouchables
either temporarily or otherwise for various reasons, e.g., suffering from an epidemic or a
contagious disease, or social observances associated with birth or death, or social boycott
resulting from caste or other disputes do no come within the purview of Art. 17.
31. Art. 17 is concerned with those regarded untouchables in the course of historic
developments.”27
32. In VENKATARAMANA DEVARU,28 Court observed that the object of enacting
Article 17 was to abolish untouchability based on customs which denied access to a large
sections of Hindus who were classed as untouchables. Therefore, it is submitted that Article
17 refers to the practise of Untouchability as committed in the Hindu community against
Harijans or people from depressed classes, and not women.
3.3. RULE 3(B) OF THE 1965 RULES IS NOT ULTRA VIRES THE ACT:
33. Rule3(B) of 1965 states that :

“Rule 3. The classes of persons mentioned here under shall not be entitled to offer worship
in any place of public worship or bath in or use the water of any sacred tank, well, spring
or water course appurtenant to a place of public worship whether situate within or outside
precincts thereof, or any sacred place including a hill or hill lock, or a road, street or
pathways which is requisite for obtaining access to the place of public worship-
(b) Women at such time during which they are not by custom and usage allowed to
enter a place of public worship
34. Rule 3(b) is a statutory recognition of a pre-existing custom and usage being
followed by this Temple. Rule 3(b) is within the ambit of the proviso of the 1965 Act, as it
recognises pre-existing customs and usages including past traditions which have been
25
Statement of Shri V.I. Muniswamy Pillai, Constituent Assembly Debates (November 29, 1948)
26
1 H.M. Seervai, Constitutional Law of India: A Critical Commentary, p. 691 (4th Ed., Reprint 1999).
27
M.P. Jain, Indian Constitutional Law, p. 1067 (6th Ed, 2010)
28
13

practised since time immemorial qua the Temple. The Tenjiki Board submits that these
practises are integral and essential to the Temple..
35. The restriction of women between the ages of 10 to 55 years as a custom and
practise integral to the sanctity of the Temple, and having the force of law under Article
13(3)(a) of the Constitution. The High Court in S. Mahendran v. The Secretary, Travancore
Devaswom Board, Thiruvananthapuram & Ors29. noted that this practise of restricting the
entry of women is admitted to have been prevalent since the past several centuries.
36. Rule 3(b) of the 1965 Rules is not ultra vires, since the proviso carves out an
exception in the case of public worship in a temple for the benefit of any religious
denomination or sect thereof, to manage their affairs in matters of religion.
37. Hence, the contentions of the Petitioners that Rule 3(b) is ultra vires has to be
rejected
4. that the practice of excluding women constitutes an “essential religious practice”

under article 25 and whether a religious intitution can assert a claim in that regard
under the umbrella of right to manage its own affairs in the matters of religion.
4.1. THAT THE IMPUGNED RULE IS NOT VIOLATIVE OF ARTICLE 25 OF THE CONSTITUTION
38. The Preamble to the Constitution secures to all citizens of this country liberty of
thought, expression, belief, faith and worship. Article 25 gives freedom to profess, practice,
and propagate religion subject to public order, morality and health. Morality in Article 25
implies constitutional morality. Constitutional Morality in a pluralistic society and secular
polity would reflect that the followers of various sects have the freedom to practise their faith
in accordance with the tenets of their religion. It is irrelevant whether the practise is rational
or logical. Notions of rationality cannot be invoked in matters of religion by courts. The right
is also subject to public health. For instance, the Epidemic Diseases Act provides rules for
enacting special measures to control epidemic diseases .30
29
Supra 16
30
Section 2 of the Epidemic Diseases Act, 1897 (Act 3 of 1897)
14

39. In the case of ACHARYA JAGADISHWARANANDA AVADHUTA,31 Court observed that the full
concept and scope of religious freedom is that there are no restraints upon the free exercise of
religion according to the dictates of one's conscience or upon the right freely to profess,
practice and propagate religion save those imposed under the police power of the State and
the other provisions of Part II of the Constitution. This means that one has a right to,,,
worship God according to the dictates of his conscience.In BIJOE EMMANUEL & ORS. V. STATE
OF KERALA & ORs32 this Court noted that the personal views of judges are irrelevant in
ascertaining whether a particular religious belief or practise must receive the protection
guaranteed under Article 25(1). In JAMSHED JI V. SOONABAI,33 Court observed that the role of a
judge in religious matters.
The Court observed that, “If this is the belief of the Zoroastrian community, a secular Judge is
bound to accept that belief it is not for him to sit in judgment on that belief, he has no right to
interfere with the conscience of a donor who makes a gift in favour of what he believes to be
the advancement of his religion and the welfare of his community or mankind.”
40. This view was affirmed by the Supreme Court in RATILAL PANACHAND GANDHI V. THE
STATE OF BOMBAY AND ORS.34 and BIJOE EMMANUEL & ORS. V. STATE OF KERALA & ORS.35.
41. In ROBERT L. HERNANDEZ V. COMMISSIONER OF INTERNAL REVENUE36 it was

observed that a court is not competent to question the centrality of a particular belief or
validity of litigant’s interpretations of those creeds. In UNITED STATES V. EDWIN D. LEE37 it

was observed that it is not within the judicial function to determine whether the Government
has the proper interpretation of a faith or not.
4.2. THAT THE RESTRICTION IS NOT ABSOLUTE
42. It is submitted that right under article 25 is not absolute. In instances where the temple
has restricted the access to the inner sanctuary of the temple to the public and certain particularly
sacred parts of the temple in order to ensure good order and decency of worship the same was
31
Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and another, (2004) 12 SCC 770
32
(1986) 3 SCC 615
33
33 Bom. 122 (1909)
34
AIR 1954 SC 388
35
Supra note 15
36
490 U.S. 680 (1989
37
455 U.S. 252 (1982)
15

held to be a valid regulation. 38 The Court has also observed that where the matter pertains to
pollution or defilement of the deity then certain regulations can also be held to be valid on
that aspect.39
43. Similarly by the impugned Rule, women are not being barred in entirety from
entering the temples. Their entry shall be restricted only if there is a proper custom. They can
only be restricted for a specific period of time. This is done to respect the custom and usage
of the place of public worship. Therefore, the same is a regulation and not an absolute
restriction. It does not bar women to enter into places of public worship for entirety but for a
certain period of time if mandated by the customs of that place of worship.
4.3. THAT THE ESSENTIAL PRACTICES OF A RELIGION WILL NOT BE AFFECTED BY THE
IMPUGNED RULE.
44. Article 25 only protects those practices, which are an integral part of a religion. 40 The
guarantee is extended to rituals and observances, ceremonies and modes of worship
which are integral parts of religion.41 In SHIRUR MUTT case42, Court observed that, “what
constitutes the essential part of a religion is primarily to be ascertained with reference to the
doctrines of that religion itself”. In addition to this the Court observed that, “Under Article
26(b), therefore, a religious denomination or organization enjoys complete autonomy in the
matter of deciding as to what 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.”
45. The test to determine whether a religious practice is an integral part of the religion or
not is whether the community following the religion regards it as such.43 For a religious
practise to receive protection under Article 25(1) it must be “genuinely”, and
“conscientiously” held by persons claiming such rights.88
46. Therefore, it is submitted that impugned Rule will protect and preserve the essential
practices of a religion.
38
Kalidas Jivram v. Gor Parjaram, I.L.R. 15 BOM P. 309; Thackeray v. Harbhum, I.L.R. 8 Bom. P. 432; Nar
Hari Shastri and Ors v. Shri Badrinath Temple Committee, 1952 SCR 849
39
Sri Venkataramana Devaru and Ors. v. State of Mysore and Ors., 1958 SCR 895; Gopala Muppanar v.
Subramania Aiyar [(1914) 27 MLJ 253]
40
John Vallamattom and another v. Union of India, (2003) 6 SCC 61
41
N. Adithayan v. Travancore Devaswom Board and Others, (2002) 8 SCC 10
42
Supra note 4
43
Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors., 1964 SCR (1) 561
16

4.4. COURT’S ROLE IN MATTERS OF RELIGION
47. In Sri Venkataramana Devaru v State of Mysore 44 a Constitution Bench of the

Hon’ble Supreme Court considered the constitutionality of the Madras Temple Entry
Authorisation Act, 1947, which sought to reform the practice of religious exclusion of Dalits
from a denominational temple founded by the Gowda Saraswat Brahmins. The Court 26
(1958) SCR 895 PART F 48 accepted the claim that the temple was a denominational temple
founded for the benefit of the Gowda Saraswats, and proceeded to examine whether
exercising the right of a religious denomination under Article 26(b), they were ‘entitled to
exclude other communities from entering into it for worship on the ground that it was a
matter of religion.’ Rather than allowing the religious denomination ‘complete autonomy in
the matter of deciding as to what rites and ceremonies are essential’, the Court examined
scripture and precedent to determine whether the exclusion of a person from entering into a
temple for worship was a matter of religion under Hindu Ceremonial Law. Justice
Venkatarama Aiyar reviewed ancient literature, the practice of Hindus, and the role of
temples in that practice, and concluded on behalf of the Court that: “18…Thus, under the
ceremonial law pertaining to temples, who are entitled to enter them for worship and where
they are entitled to stand and worship and how the worship is to be conducted are all matters
of religion.”
44
(1958) SCR 895
17

PRAYER
In the light of the issues raised, arguments advanced and authorities cited, may this
Hon’ble
Court be pleased to:
1. Hold that the petitioners and the subsequent interveners do not have the locus
standi to file the Writ Petition.
2. Hold that the restriction imposed on women and children does not amount to
violation of their fundamental rights, namely articles 14, 15(3) and 17.
3. Hold that the restriction is an “essential religious practice” and that the Tenji Board be
allowed to manage its own affairs.
AND/OR PASS ANY OTHER ORDER THAT IT DEEMS FIT IN THE INTEREST OF JUSTICE,
EQUITY AND GOOD CONSCIENCE. AND FOR THIS, THE RESPONDENT AS IN DUTY BOUND,
SHALL HUMBLY PRAY.
Sd/-
Counsels for the Respondent
18

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XII AMITY LUCKNOW MOOT COURT COMPETITION

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

WRIT PETITION NO. OF 2019

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIANA

THE INDIANA YOUNG LAWYERS ASSOCIATION & ORS…................PETITIONER

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENT

COUNSEL APPEARING ON BEHALF OF RESPONDENT

LOCUS TO FILE THE PRESENT WRIT PETITION....................................................................4

BOUNDARIES OF RELIGION IN PUBLIC SPACES.....................................................................7

4. that the practice of excluding women constitutes an “essential religious practice”

MEMORIAL ON BEHALF OF RESPONDENT

A.I.R. All India Reporter

PIL Public Interest Litigation

P&H Punjab & Haryana

r/w Read With

S.C. Supreme Court

S.C.C. Supreme Court Cases

u/s Under Section

UOI Union of India

S.C.R. Supreme Court Reporter

MEMORIAL ON BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

1. The Constitution of India.

2. The Hindu Places of Public Worship (Authorisation of Entry) Act, 2018.

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

2. D.D. Basu, Constitution of India, 14th Edition 2009, LexisNexis, Nagpur.

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

4. G.P. Singh, Interpretation of Statutes, 14th Edition 2016, LexisNexis, Nagpur.

MEMORIAL ON BEHALF OF RESPONDENT

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

MEMORIAL ON BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

MEMORIAL ON BEHALF OF RESPONDENT

WHETHER THE PETITIONER AND THE SUBSEQUENT INTERVENERS HAVE THE

LOCUS TO FILE THE PRESENT WRIT PETITION?

WHETHER THE HON’BLE SUPREME COURT HAS THE JURISDICTION IN

DEFINING THE BOUNDARIES OF RELIGION IN PUBLIC SPACES?

WHETHER THE SAID RESTRICTION IMPOSED ON THE WOMEN AND CHILDREN

OF CERTAIN AGE AMOUNTS TO VIOLATION OF THEIR FUNDAMENTAL RIGHTS

ARTICLES 14, 15(3) AND 17 IN LIGHT OF RULE 3(B) OF TENJIKU HINDU

WHETHER THE PRACTICE OF EXCLUDING WOMEN CONSTITUTES AN

“ESSENTIAL RELIGIOUS PRACTICE” UNDER ARTICLE 25 AND WHETHER A

RELIGIOUS INTITUTION CAN ASSERT A CLAIM IN THAT REGARD UNDER THE

UMBRELLA OF RIGHT TO MANAGE ITS OWN AFFAIRS IN THE MATTERS OF

MEMORIAL ON BEHALF OF RESPONDENT

TO FILE THE PRESENT WRIT PETITION.

BOUNDARIES OF RELIGION IN PUBLIC SPACES.

AGE DOES NOT AMOUNT TO VIOLATION OF THEIR FUNDAMENTAL RIGHTS AS ENSHRINED

IN THE CONSTITUTION, SPECIFICALLY VIOLATION OF ARTICLES 14, 15(3) AND 17 IN

LIGHT OF RULE 3(B) OF TENJIKU HINDU PLACES OF PUBLIC WORSHIP (AUTHORIZATION

MEMORIAL ON BEHALF OF RESPONDENT

4. THAT THE PRACTICE OF EXCLUDING WOMEN CONSTITUTES AN “ESSENTIAL RELIGIOUS

PRACTICE” UNDER ARTICLE 25 AND WHETHER A RELIGIOUS INTITUTION CAN ASSERT A

IN THE MATTERS OF RELIGION.

MEMORIAL ON BEHALF OF RESPONDENT

TO FILE THE PRESENT WRIT PETITION.

3. In matters of religion and religious practices, Article 14 can be invoked only by

MEMORIAL ON BEHALF OF RESPONDENT