GOVERNMENT LAW COLLEGE TVM INTERNAL MOOT COURT 2022

MEMORIAL FOR THE PETITIONER

N. ADITHYAN
V.
TRAVANCORE DEVASWOM BOARD AND OTH.

TEAM C

TEAM MEMBERS:
1. MOHZNAZ H
2. RINSHAD T P
3. VINDUJA CHANDRAN
 GOVERNMENT LAW COLLEGE TVM INTERNAL MOOT COURT 2022

BEFORE THE HONOURABLE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Appeal (civil) No. 6965 of 2022

IN THE MATTER BETWEEN

N. ADITHYAN……………………………………………PETITIONER

v.

TRAVANCORE DEWASOM BOARD AND OTH.

…………………………………………………………...RESPONDENTS

SUBMISSION ON BEHALF OF THE PETITIONER

 GOVERNMENT LAW COLLEGE TVM INTERNAL MOOT COURT 2022

TABLE OF CONTENTS

• INDEX OF AUTHORITIES
○ REFERENCES
○ CASE LAWS

• STATEMENT OF JURISDICTION
• STATEMENT OF FACTS
• ISSUES RAISED
• SUMMARY OF ARGUMENTS
• PLEADINGS
• PRAYER
 GOVERNMENT LAW COLLEGE TVM INTERNAL MOOT COURT 2022

INDEX OF AUTHORITIES

REFERENCES

● CONSTITUTION OF INDIA– BARE ACT

● CONSTITUTIONAL LAW OF INDIA- M.P. JAIN
● CONSTITUTIONAL LAW OF INDIA- NARENDAR KUMAR
● LIVE LAW
● INDIAN KANOON
● CASE MINE
● JUSDICERE

CASE LAWS

SL.NO. NAME OF THE CASE CITATION

1. Kailash Sonkar v. Maya Devi (1984)2 SCC 91

2. Vikram Cement v. State of (2015)11 SCC 708

Madhya Pradesh
3. Ajay Hassia v. Khalid Mujeeb (1981)1 SCC 722
4. State of West Bengal v. Anwar Ali AIR 1952 SC 75
Sarkar
5. Mookka Kone v. Ammakutti AIR 1928 Mad 299 FB
Ammal)
6. Newcastle-under-Lyme (1942) Ch 92
Corporation v. Wolstanton
7. Balusami v. Balakrishna AIR 1957 Mad 97

8. Muhammad Hussain Faroki v. (1942)1 MLJ 564

Syed Mian Saheb
9. Commissioner of the Police v. AIR 1984 SC 51
Acharya J. Avadhutta
10. Venkataramana v. State of AIR 1958 SC 255
Mysore
11. Hindu religious AIR 1945 SC 282
Endowment V. Sri LT swaniars
12. In Vekitta Ramadevu v. State of AIR 1958 SCC 255
Mysuru
 GOVERNMENT LAW COLLEGE TVM INTERNAL MOOT COURT 2022

STATEMENT OF JURISDICTION

THE RESPONDENT HEREBY SUBMITS THIS MEMORANDUM

BEFORE THE HON’BLE SUPREME COURT OF INDIA INVOKING
THE APPELLATE JURISDICTION OF THE HON’BLE SUPREME
COURT UNDER ART.32 OF THE CONSTITUITION OF INDIA.
 GOVERNMENT LAW COLLEGE TVM INTERNAL MOOT COURT 2022

STATEMENT OF FACTS

1. The appellant claims himself to be a Malayala Brahmin by

community and a worshipper of the Siva Temple in question. The
administration of the temple vests with Travancore Devaswom
Board, a statutory body created under the Travancore Cochin
Hindu Religious Institutions Act, 1950.
2. One Shri. K.K. Mohanan Poti was working as temporary
santhikaran at this temple, but due to complaints with reference
to his performance and conduct, his services were not
regularized and came to be dispensed with by an order dated
6.8.1993.
3. In his place, the third respondent, who figured at rank No. 31 in
the list prepared on 28.4.1993, was ordered to be appointed as
a regular santhikaran and the Devaswom Commissioner also
confirmed the same on 20.9.1993. The second respondent did
not allow him to join in view of a letter said to have been
received from the head of the Vazhaperambu Mana for the
reason that the third respondent was a non-Brahmin.
4. The Devaswom Commissioner replied that since under the rules
regulating the appointment there is no restriction for the
appointment of a non-Brahmin as a santhikaran, the
appointment was in order and directed the second respondent
to allow him to join and perform his duties. Though, on
12.10.1993 the third respondent was permitted to join by an
order passed on the same day, the appointment was stayed by
a learned single judge of the Kerala High Court and one
Sreenivasan Poti came to be engaged on duty basis to perform
the duties of santhikaran, pending further orders.
5. The main grievance and ground of challenge in the Writ Petition
filed in the High Court was that the appointment of a non-
Brahmin Santhikaran for the Temple in question offends and
violates the alleged long followed mandatory custom and usage
of having only Malayala Brahmins for such jobs of performing
poojas in the Temples and this denies the right of the
worshippers to practice and profess their religion in accordance
with its tenets and manage their religious affairs as secured
under Articles 25 and 26 of the Constitution of India. The
Thanthri of a Temple is stated to be the final authority in such
matters and the appointment in question was not only without
his consultation or approval but against his wish, too.
6. The Travancore Devaswom Board had formulated a Scheme and
opened a Thanthra Vedantha School at Tiruvalla for the purpose
of training Santhikarans and as per the said Scheme prepared by
Swami Vyomakesananda and approved by the Board on
7.5.1969 the school was opened to impart training to students,
irrespective of their caste/community. While having Swami
Vyomakesananda as the Director Late Thanthri Thazhman
Kandarooru Sankaru and Thanthri Maheswara Bhattathiripad,
Keezhukattu Illam were committee members. On being duly and
properly trained and on successfully completing the course, they
were said to have been given `Upanayanam' and `Shodasa
Karma' and permitted to wear the sacred thread. Consequently,
from 1969 onwards persons, who were non-Brahmins but
successfully passed out from the Vendantha School, were being
appointed and the worshippers Public had no grievance or
grouse whatsoever. Instances of such appointments having been
made regularly also have been disclosed. The third respondent
was said to have been trained by some of the Kerala's leading
Thanthris in performing archanas, conducting temple ritual,
pooja and all other observances necessary for priesthood in a
Temple in Kerala and elsewhere based on Thanthra system.
Nothing was brought on record to substantiate the claim that
 only Malayala Brahmins would be `Santhikaran' in respect of Siva
Temple or in this particular Temple.
7. In 1992 also, as has been the practice, the Board seems to have
published a Notification inviting applications from eligible
persons, who among other things possessed sufficient
knowledge of the duties of Santhikaran with knowledge of
Sanskrit also, for being selected for appointment as Santhikaran
and inasmuch as there was no reservations for Brahmins, all
eligible could and have actually applied. They were said to have
been interviewed by the Committee of President and two
Members of the Board, Devaswom Commissioner and a Thanthri
viz., Thanthri Vamadevan Parameswaram Thatathiri and that the
third respondent was one among the 54 selected out of 234
interviewed from out of 299 applicants.
8. Since the appellant failed to adduce evidence establishing the
existence of norm or custom pleaded, the Full Bench of Kerala
High Court affirmed the impugned appointment. Aggrieved,
appeal was preferred to the Hon’ble Apex Court.
 GOVERNMENT LAW COLLEGE TVM INTERNAL MOOT COURT 2022

ISSUES RAISED

1. WHETHER THE APPOINTMENT OF NON-MALAYALA

BRAHMIN CURTAILS THE RIGHTS ENSHRINED UNDER
ARTICLE 14 & 15(1) OF THE CONSTITUTION OF INDIA?

2. WHETHER THE APPOINTMENT OF NON-MALAYALA

BRAHMIN DENIES THE RIGHT OF THE WORSHIPPERS TO
PRACTICE AND PROFESS THEIR RELIGION IN
ACCORDANCE WITH ITS TENETS AND MANAGE THEIR
RELIGIOUS AFFAIRS AS SECURED UNDER ARTICLE 25 &
26 OF THE CONSTITUTION OF INDIA?

3. WHETHER A PERSON WHO IS A MALAYALA BRAHMIN

MAY BE APPOINTED AS A TEMPLE PRIEST IN A SIVA
TEMPLE IN KERALA SOLELY ON THE BASIS OF CUSTOM?
 GOVERNMENT LAW COLLEGE TVM INTERNAL MOOT COURT 2022

SUMMARY OF ARGUMENTS

1. THE APPOINTMENT OF NON-MALAYALI BRAHMIN

CURTAILS THE RIGHTS ENSHRINED UNDER ARTICLE 14 &
15(1) OF THE CONSTITUTION OF INDIA AS:
• The decision to appoint non-malayali Brahmin dehors
custom is primafacie arbitrary.
• There is no reasonable classification as enunciated under
Article 14 of the Indian Constitution.

2. THE APPOINTMENT OF NON-MALAYALI BRAHMIN

DENIES THE RIGHT OF THE WORSHIPPERS TO PRACTICE
AND PROFESS THEIR RELIGION IN ACCORDANCE WITH
ITS TENETS AND MANAGE THEIR RELIGIOUS AFFAIRS AS
SECURED UNDER ARTICLE 25 & 26 OF THE
CONSTITUTION OF INDIA AS:
• Appointment of Malayala Brahmin as a priest is an age-old
practice which has been followed since ages hence it is
protected under Article 25.
• Incumbent notification propagated by persons who are
incompetent.
• Appointment of priest by the state is violative of Article
26(b) of the Constitution.
3. A PERSON WHO IS A MALAYALI BRAHMIN MAY BE
APPOINTED AS A TEMPLE PRIEST IN A SIVA TEMPLE IN
KERALA SOLELY ON THE BASIS OF CUSTOM AS:
• No conflicting precedent or legislation as against the
custom prevailing.
• The custom is a valid custom and is not contrary to
constitution.
• It has Freedom to manage its own affairs (article 26).
 GOVERNMENT LAW COLLEGE TVM INTERNAL MOOT COURT 2022

ARGUMENTS ADVANCED

1.WHETHER THE APPOINTMENT OF NON-MALAYALI

BRAHMIN CURTAILS THE RIGHTS ENSHRINED UNDER
ARTICLE 14 & 15(1) OF THE CONSTITUTION OF INDIA?

Your lordship, it is humbly submitted before the hon’ble apex

court that the appointment of a non-Malayala Brahmin curtails the
rights enshrined under Article 14 & 15(1) of the Constitution of India
as:

• The decision to appoint non-malayali Brahmin dehors custom is

primafacie arbitrary.
Being stated, the appointment of a non-Malayala Brahmin as the
temple priest is primafacie arbitrary and is violative of Article 14 and
15(1) of the Constitution. As per the facts of the case, the Travancore
Devaswom Board had formulated a scheme and opened a Thanthra
Vedanta School at Tiruvalla for the purpose of training “santhikarans”.
And as per the said scheme prepared by Swami Vyomakesananda and
approved by the Board, training was imparted irrespective of their
caste and community origins.
So, I strongly affirm that, the hidden agenda of Board members behind
this mission is completely based on their personal interests, why
because by recruiting the persons passed out from the Vedanta
school, the authorities in charge of the Devaswom Board, could
appoint those persons of their own personal interest, as the
Thanthris/Poojaris of the temple. [Kailash Sonkar v. Maya Devi)1
In the instant case, hence there is a provision for appointment to the
post of priest on the basis of selection made by the Board in which a
panel consisting of the President and members of the Board, the
Devaswom Commissioner and a competent Thanthri would interview
the candidates which shows the efficiency of the appointments. Here,
the said provision is being misused and taken into benefit by the
concerned authorities. And the matter to be given importance is that
Malayala Brahmins is considered as the suitable for performing poojas
in the Siva Temple as hereditary rights from time immemorial as it is
the best connotation for establishing the concept of custom. So, this
appointment of non-Malayala Brahmins grossly offended and violated
the long-established custom and usage that mandated that only the
Malayala Brahmins were to be appointed as Poojaris in the concerned
temple. Therefore, the decision taken by the selection committee
members of the Devaswom Board without considering the scope of
custom is primafacie and absolutely a kind of arbitrary decision.

• There is no reasonable classification as enunciated under Article

14 of the Indian Constitution.
The underlying purpose of Article 14 is to treat all persons similarly
circumstanced alike, both in privileges conferred and liabilities
imposed. Classification under Article 14 is based on reasonable
classification and prohibits class legislation. Equality before law and
equal protection of laws connote that equality is not an absolute
concept. Equals cannot be treated unequally and un-equals cannot be
treated equally. All persons are not equal by nature, attainment or
circumstances.

1
(1984)2 SCC 91: AIR 1984 SC 600
On the basis of the principle “equals should be treated equally and
unequal unequally”, this principle of equality states that individuals
should be treated the same, unless they differ in ways that are
relevant to the situation in which they are involved. Thus, the right to
equal treatment requires that all persons be treated equally before
law without discrimination. Therefore, the classification must not be
arbitrary but must be rational, that is to say it must not only be based
on some qualities of characteristics which are found in all persons
grouped together and not in others who are left out, but those
qualities and characteristics must have reasonable relation to object
of legislation. [Vikram cement vs State of MP]2.
In fact, the concept of reasonableness and non-arbitrariness pervades
the entire constitutional scheme and is a golden thread which runs
through the whole of the fabric of the Constitution”. - Ajay Hasia v.
Khalid Mujeeb3 .
When we examine the present case, no doubt only a qualified person
well versed and properly trained for the purpose alone can perform
poojas in the Temple since he has not only to enter into the sanctum
sanctorum but also touch the idol installed therein. It therefore goes
without saying that what is required and expected of one to perform
the rituals and conduct poojas is to know the rituals to be performed
and mantras, as necessary, to be recited for the particular deity and
the method of worship ordained or fixed therefor. If traditionally or
conventionally, in any Temple, all along a Brahman alone was
conducting poojas or performing the job of Santhikaran, it may not be
because a person other than the Brahman is prohibited from doing so
because he is not a Brahman, but those others were not in a position
and, as a matter of fact, were prohibited from learning, reciting or
mastering Vedic literature, rites or performance of rituals and wearing
sacred thread by getting initiated into the order and thereby acquire
2
(2015) 11 SCC 708: 2015(4) SCALE 533
3
(1981) 1 SCC 722
the right to perform homa and ritualistic forms of worship in public or
private Temples.
In the instant case the determination of Brahmins to be the priest was
confined to the Siva Temple in question and not to any other temples
in Kerala which is prima facie arbitrary and violative of Article 14.
The two conditions as propounded in State of West Bengal v. Anwar
Ali Sarkar4 for a legislation to pass the test of reasonable classification
is that:
i) the classification must be founded on an Intelligible
differentia which distinguishes those that are grouped
together from others;
ii) that differentia must have a rational nexus to the object of
the Act;
the question for determination is whether there is some difference
which bears a just and reasonable relation to the object of legislation.
In the present case, there can be no reasonable classification visible
and the rational Nexus which have to be achieved has totally failed.
In the present case, the contention regarding long followed
mandatory custom and usage of having only Malayala Brahmins for
such jobs of performing poojas in the Temples have to be considered.
And thus, the appointment of 3rd Respondent as the Priest is
absolutely arbitrary and is not having any legal backing.
Hence the appointment of non-Malayala Brahmins as the priest of the
Siva Temple in question is violative of Article 14 of the Constitution of
India.

4 AIR 1952 SC 75
2.WHETHER THE APPOINTMENT OF NON-MALAYALI
BRAHMIN DENIES THE RIGHT OF THE WORSHIPPERS TO
PRACTICE AND PROFESS THEIR RELIGION IN ACCORDANCE
WITH ITS TENETS AND MANAGE THEIR
RELIGIOUS AFFAIRS AS SECURED UNDER ARTICLE 25 & 26 OF
THE CONSTITUTION OF INDIA?

• Appointment of Malayala Brahmin as a priest is an age-old

practice which has been followed since ages hence it is protected
under Article 25.
Only Namboodiri Brahmins alone were to perform poojas or daily
rituals by entering into the sanctum sanctorum of temples in Kerala,
particularly the temple in question and that had qualified as a
custom and it's a well-known practice. Performing poojas in the
temple, and the rituals and customs concerning it's an integral part of
religion. As per the Hindu religious texts appointment pf santhikaran
in
certain temples were based on hereditary. For example, Tirumala
Tirupati and Balaji temple. The appointment of a santhikaran is not a
secular activity, it's an integral part of religion. In Hindu religious
Endowment V. Sri LT swaniars5 as constitution Bench has observed
that if the tenets of any religious sects of the Hindus prescribe that
offering 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 recitals of sacred texts or Ablution to the sacred fire will be
regarded
as an integral part of religion. In Venkitta Ramadevu v. State of
Mysuru6, Supreme court held that, under the ceremonial law
pertaining in temples, who are entitled to enter into them for worship
5
AIR 1945 SC 282
6
AIR 1958 SCC 255
and where there entitled to stand and how the worship is to be
conducted, all are the matters of religion.
From the above judgments, which makes it clear that appointment of
a priest is part of religion, not a secular aspect, hence it protected
under Article 25 of the constitution. Here by the appointment against
the usage, Devaswom board has violated the right of worshipers.
• Incumbent notification propagated by persons who are
incompetent.
From the tradition of kongorpily Siva Temple at Alangad it's evident
that there was a usage no person other than a Malayala Brahmin is
not entitled to be the santhikaran. it's hereditary right of Malayala
Brahmins to be appointed as a priest, they are called karanma
santhikaran. It's not based on cast, even Tamil Brahmins are not
allowed to be the priest, it's strictly for Malayala Brahmin. This is
recognized usage. Section 24 of the Travancore Cochin Hindu religious
Act 1950 state that, the board shall, out of the Devaswom fund
constituted under section 25 maintain the Devaswom mentioned in
schedule 1, keep in a state of good repair the temples, buildings and
other appurtenances thereto, administer the said Devaswom in
accordance with recognized usage. Section 31 States that subject to
the provisions of this part and values made thereunder the board shall
manage the properties and affairs of the Devaswom both
incorporated and unincorporated as hereto before: and arrange for
the conduct of the daily worship and ceremonies and the festivals in
every temple according to its usage. No doubt both sections enjoin
that recognized usage shall be preserved by the board in the
administration of temple. Here these rules are violated while
imparting above stated notification. Though the aforesaid religious
practice was being observed from time immemorial by itself didn't
become a secular aspect to be dealt with by the board dehors the
wishes of worshipers.

• Appointment of priest by the state is violative of Article 26(b) of

the Constitution.
Article 26(b) says that every religious denomination of any section of
it shall have the right to manage its own affairs in matters of religion.
The term matters of religion include religious practices, rites and
ceremonies considered essential for the practice of religion. Here the
appointment of Malayala Brahmins is an age-old custom and well
recognized usage. As it’s an integral part of religion stated by in the
famous case Hindu religious Endowment, the state cannot intervene
in it. If it's a secular activity connected with religious institutions state
is free to regulate. Hence the intervention by the State is violation of
Article 26(b).

3.WHETHER A PERSON WHO IS A MALAYALI BRAHMIN MAY

BE APPOINTED AS A TEMPLE PRIEST IN A SIVA TEMPLE IN
KERALA SOLELY ON THE BASIS OF CUSTOM?

It is humbly submitted that a person who is a Malayali Brahmin may

be appointed as a temple priest in a Siva temple solely on the basis of
custom.

● No conflicting precedent or legislation as against the custom

prevailing.
A custom is a particular rule which has existed either actually or
presumptively from time immemorial, and has obtained the force of
law in a particular locality, although contrary to or not consistent with
the general common law of the realm.
In Mookka Kone v. Ammakutti Ammal7 , it was held that where custom
is set up to prove that it is at variance with the ordinary law, it has to
be proved that it is not opposed to public policy and that it is ancient,
invariable, continuous, notorious, not expressly forbidden by the
legislature and not opposed to morality or public policy.
In the instant case, what is visible is that there are no conflicting
legislations rather precedents against appointment of Brahmins as the
sole authority to the post of priest in the Siva temple. It's a long
followed custom and had been in practice from time immemorial. If it
has been contrary to any of the existing legislations or precedents,
then the impugned appointment of the noon Brahmins to the post of
Priestship should've been justified, but here the situation is entirely
different. What is visible is that utter disregard of the rights of the
particular Brahmin sect of the Siva temple who have been exercising
this right for a long period of time.
Hence it is humbly prayed that Appointment of a non-Malayala
Brahmin which is a blatant violation of the custom prevailing to be
quashed.

● The custom is a valid custom and is not contrary to constitution

Custom is a standard or practice which is trailed by the general
population from time immemorial. A custom ought to be viewed as
adequately reasonable when it isn’t against the fundamental guideline
of profound quality of the law of the state wherein it exists, standards
of equity, morality and arbitrariness.
The case in hand talks about a custom which is in practice for a long
period and it is not opposed to any public policy rather it is being
prescribed peacefully by the Brahmins of Siva temple. It is not

7
AIR 1928 Mad 299 (FB)
opposed to any Constitutional provisions and it is fully an independent
practice.

● Custom-essentials
A valid custom must be immemorial to be considered valid. A legal
custom must also be reasonable. It was established in Newcastle-
under-Lyme Corporation v. Wolstanton8 that courts will not enforce
unreasonable customs since the law will not accept what is
unreasonable and inequitable. A well-established rule is that a custom
should not be incompatible with decency and morality. The habit of
marrying a daughter’s daughter has also been declared unethical in
the case of Balusami v. Balakrishna9.
It must have been followed without fail for a long time. It was
established in Muhammad Hussain Faroki v. Syed Mian Saheb10 that
there is no custom unless there is continuity. A custom, if it abrogates
another custom, the latter no longer exists.
In order for a custom to be enforced, it must be demonstrated that
the custom has been followed without interruption or competition. A
custom must not be a conflict with other prevailing customs. The
custom must be consistent with other customs.
The only way to tell if a custom is valid is if it complies with the law. It
should not be in violation of the law. A valid custom requires certainty
as a precondition. To be legally recognized as a valid custom, a custom
must be followed as a right.

● Freedom to manage its own affairs (article 26)

8
(1942) Ch 92
9
AIR 1957 Mad 97
10
(1942)1 MLJ 564
The appointment of a non-Brahmin Santhikaran for the Temple in
question offends and violates the alleged long followed mandatory
custom and usage of having only Malayala Brahmins for such jobs of
performing poojas in the Temples. The Thanthri of a Temple is stated
to be the final authority in such matters and the appointment in
question was not only without his consultation or approval but against
his wish, too.
Clause (b) of Article 26 guarantees to every religious denomination
“the right to manage its own affairs in matters of religion”.
In Commissioner of the Police v. Acharya J. Avadhutta 11, the apex
court elucidated the expression “an essential part or practice of a
religion” to mean those practices that were fundamental to follow a
religious belief.
Matters of religion however would not include the religious practices
unless those practices are found to constitute essential and integral
part of a religion, (Venkataramana v. State of Mysore12). In the instant
case, appointment of malayali brahmins as the santhikaran is a
religious practice and custom. This custom is followed for a long
period of time or it is time immemorial, So, a sudden change cannot
be brought in this.
For example, in masjids and churches female priests are not allowed
but, in some temples, female priest will worship the deity. As these
practices are time immemorial a sudden change is not practically
possible. The same is the situation here too. So, it’s better to follow
the custom and appoint malayali brahmin as santhikaran.

11
AIR 1984 SC 51
12
AIR 1958 SC 255
 GOVERNMENT LAW COLLEGE TVM INTERNAL MOOT COURT 2022

PRAYER

Wherefore in the light of the issues raised, arguments advanced and

authorities cited, the Petitioner most humbly and respectfully pray
that this Hon’ble Supreme Court may kindly adjudge and declare that;
1. QUASH THE NOTIFICATION OF APPOINTMENT
OF RESPONDENT NO.3.
2. ORDER THE COST OF THE SUIT.

And may kindly pass any order that this Hon’ble Supreme Court may
deem fit in the interest of justice, equity and good conscience.
And for this act of kindness, the counsel for the Petitioner shall in duty
bound for ever pray.