Pt.

KANHAIYA LAL MISRA NATIONAL MOOT COURT COMPETITION,

2022

TEAM CODE:T117

1ST PT. KANHAIYA LAL MISRA NATIONAL MOOT COURT

COMPETITION, 2022

BEFORE THE HON’BLE SUPREME COURT OF DIANA

UNDER ART. 137 OF CONSTITUTION OF DIANA

IN THE MATTER OF ARTICLE 25 OF THE CONSTITUTION OF DIANA

ARTICLE 26 OF DIANA

REVIEW PETITION NO. __/2022 UNDER ARTICLE 137 OF THE CONSTITUTION OF

DIANA, 1950

IRAVANCORE BOARD

VERSUS

DIANA YOUNG LAWYERS ASSOCIATION

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF
THE HON’BLE SUPREME COURT OF DIANA

MEMORIAL ON BEHALF OF THE RESPONDENT

I Memorial for the Respondent

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TABLE OF CONTENTS

1. LIST OF ABBREVIATIONS…………………………………………IV
2. INDEX OF AUTHORITIES ………………………………………….V
3. STATEMENT OF JURISDICTION………………………………..VIII
4. STATEMENT OF FACTS……………………………………………IX
5. ISSUES RAISED ……………………………………………………..XI
6. ARGUMENTS ADVANCED…………………………………………3

Issue-I: Whether a Person not belonging to a Religious Denomination or Religious

Group Can Question a Practice of that Religious Denomination or Religious Group by
Filing a
PIL?..............................................................................................................................3

[I.A] ANY PERSON CAN APPROACH THE SUPREME COURT UNDER

ART.32………………………………………………………………………………..3
[I.A.1] Young Lawyers Association had the requisite locus to file a PIL in furtherance
of social interest………………………… …………………………………………..……3
[I.A.2] Women Constitute a Socially Disadvantaged And Ignorant
Class…………………………………………………………………………………….......3
[I.A.3] Petition is filed in Public Interest of female devotees of Lord
Innappa…………………………………………………………………………….……….4
[I.A.4] There is no extraneous motive of the respondent and they maintain
genuineInterest In the
litigation…………………………………………………………………..………………5
[I.A.5] There exists a prima facie Violation of fundamental
rights…………………………………………………………………………………..…..5
[I.B] IT IS CONTENDED THAT THE MATTER IS RES JUDICATA AND
REVIEW PETITION IS LIABLE TO BE
DISMISSED………………………………………………………………………...6

ISSUE-II: What is the scope and extent of judicial review with regard to religious
practice vis-a-vis freedom to practice one’s religion as envisaged by Art. 25 of the
Constitution of
Diana?.............................................................................................................................8

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[II.A] JUDICIAL REVIEW IS THE BASIC STRUCTURE & ART.25 IS SUBJECT

TO FUNDAMENTAL
RIGHTS…………………………………………………………………………………8
[II.B] IF RELIGIOUS PRACTICE HAS THE FORCE OF LAW IT IS LIABLE TO
BE DECLARED
UNCONSTITUIONAL……………………..………………………………………….9
[II.B.1] Art.25 is Subject to Fundamental Rights, public order, health &
Morality…………………………………………………………………………………..….9
[II.B.2] Religious practice and religious
belief…………………………………………………………………………………………..9
[II.B.3] Religious practice is not protected if it is violative of Part III of the
constitution…………………………………………………………………………………..10
[II.C] ARGUENDO EVEN IF RELIGIOUS PRACTICE DOES NOT FALL INTO
THE CATEGORY OF ‘LAW’, CUSTOM FALLS WITHIN THE SCOPE OF 13(3)
AND IS THEREFORE SUBJECT TO PART III OF THE CONSTITUTION………10
[II.D] RULE 3(B) IS ULTRA VIRES THE CONSTITUTION…………………………12
[II.D.1] Classification of Women on Physiological Reasons is Not Reasonable
Classification Under Art.14…………………………………………………………………12
[II.D.2] Discrimination on the Basis of Sex is Violative of
Art.15…………………………………………………………………………..……………...13
[II.D.3] Exclusion of women based on the grounds of Menstruation is a Violation of
Right to Privacy and Human Dignity Under
Art.21…………………………………………………………………………………….…….13
[II.D.4] The Practice is Violates the Right to Freedom of Religion Of the Female
Devotees of Lord
Innappa……………………………………………………………………………………….14
[II.D.5] The Practice is a form of ‘Untouchability’ & is prohibited under
Art.17……………………………………………………………………………………..…15
[II.E] RULE 3(B) IS ULTRA VIRES THE ACT………………………………………16

ISSUE-III Whether the practice of excluding such women constitutes an ‘essential

religious practice’ under Art. 25 and whether ‘essential religious practices’ of a religious
denomination or even a section thereof are afforded constitutional protection under Art.
26………………………………………………………………………………………. 18

[III.A] THE RESTRCITION OF THE ENTRY OF WOMEN FROM THE INBARI

TEMPLE IS NOT AN ESSENTIAL RELIGIOUS PRACTICE……………………..18
[III.A.1] The Practice does not find an express mention in the religious
Tenets………………………………………………………………………………….......18
[III.A.2] The Practice is not obligatory in nature and hence does not qualify as an
essential religious
Practice……………………………………………………………………………..…………19
[III.A.3] The Practice although religious Is rooted in Superstition………..……..19
[III.A.4] Allowing women entry in the Inbari Temple will not change the fundamental
character of the Religion…………………………………………………………………20

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[III.B] THE PRACTICE WILL NOT RECEIVE THE CONSTITUTIONAL

PROTECTION OF ART.26………………………………………………………………21
[III.B.1] A Religious Practice That Violates Fundamental Rights Cannot Be Given
Constitutional Protection…………………………………………………………………..21
[III.B.2] Art.26 Is Subject To 25(2)(b)……………………………………………………22
[III.B.3] Individualistic Morality Must Yield To Constitutional Morality….………..23

PRAYER……………………………………………………………………………………26

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LIST OF ABBREVIATIONS
ABBREVIATION FULL FORM
AIR All India Reporter

Anr Another

DPSP Directive Principles of State Policy

Ed Edition

Hon’ble Honorable

HC High Court

Ors. Others

SC Supreme Court

SCC Supreme Court Cases

Vol. Volume

& And

S. Section

Art. Article

PIL Public Interest Litigation

DYLA Diana Young Lawyers Association

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INDEX OF AUTHORITIES

Cases
Acharya Jagadishwarananda Avadhuta and others v. Commissioner of Police ...................... 23
Additional District Magistrate v Siri Ram, (2000) 5 SCC 451 ................................................ 15
Adi Saiva Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and others
(2016) 2 SCC ....................................................................................................................... 22
Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu, (2016) 2 SCC 72 .. 20
Anuj Garg and others v. Hotel Association, Appeal (civil) 5657 of 2007; Charu Khurana and
others v. Union of India, WRIT PETITION (CIVIL) NO.78 OF 2013’ ............................. 12
Anwar Ali Sarkar v. The State Of West Bengal, AIR 1952 Cal 150 ....................................... 11
Balco Employees Union (Regd.) v. Union Of India & Ors, Transfer Case (civil) 8 of 2001.. 3
Bandhua Mukti Morcha, 1984 AIR 802 .................................................................................... 4
Bennett Coleman & Co. & Ors v. Union Of India & Ors, 1973 AIR 10 ................................. 12
Chandrachud J, Indian young lawyers association v. State of Kerela. .................................... 22
Chandrachud J, Indian Young Lawyers Association v. The State Of Kerala, (2019) 11 SCC 1
................................................................................................................................................ 8
Charan Singh And Ors. v. Union Of India And Ors., ILR 1979 Delhi 422............................... 2
Commissioner of Police and others v Acharya Jagadishwarananda Avadhuta and another,
(2004) 12 SCC 770 .............................................................................................................. 22
Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others,
Appeal (civil) 6230 of 1990; Seshammal v. State of Tamilnadu, (1972) 2 SCC 11. ......... 13
Commissioner of Police v. Acharya Jagdishwarananda Avadhuta (“Avadhuta II”), (2004) 12
SCC 770 ............................................................................................................................... 19
Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshimdra Thirtha Swamiar of
Sri Shirur Mutt, [1954] SCR 1005; Sri Venkataramana Devaru v. State of Mysore, 1958 AIR
255........................................................................................................................................ 17
Dattaraj Nathuji Thaware v. State of Maharashtra and Ors., Special Leave Petition (civil)
26269 of 2004 ........................................................................................................................ 4
Deepak Sibal v. Punjab University and another, 1989 AIR 903 ............................................. 11
Deoki Nandan v. Murlidhar and others, AIR 1957 SC 133 and Sri Radhakanta Deb and another
v. Commissioner of Hindu Religious Endowments, Orissa, (1981) 2 SCC 226 ................. 22
Dr. Subramanian Swamy v. The Election Commission of India, Writ Petition No. 3969 (M/B)
of 2005 ................................................................................................................................... 4
Durgah Committee, Ajmer and others v. Syed Hussain Ali, (1962) 1 SCR 383 ..................... 18
Ewanlangki-E-Rymbai v. Jaintia Hills District Council & Ors., Appeal (civil) 9561-9562 of
2003; Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa, Appeal (civil) 5689 of 2006; Salekh
Chand (Dead) by LRs v. Satya Gupta & Ors., Special Leave Petition (civil) 1380 of 2002.
.............................................................................................................................................. 10

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Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, 1981 AIR 344; S.P. Gupta v.
President Of India And Ors., AIR 1982 SC 149; People’s Union for Democratic Rights V.
Union of India AIR 1982 SC 1473; Dr. D.C. Wadhwa v. State of Bihar, 1987 AIR 579. .... 3
Government Of Andhra Pradesh v. P.B. Vijayakumar & Anr, 1995 AIR 164 .......................... 2
Government of NCT of Delhi v Union of India, (1981) 2 SCC 22 ......................................... 20
Indian Young Lawyers Association and Ors. v. State of Kerala (2019) 11 SCC 1 ................. 14
Indian Young Lawyers Association v. The State Of Kerala, (2019) 11 SCC ......................... 10
Indian Young Lawyers Association v. The State Of Kerala, (2019) 11 SCC 1 ...................... 10
Janata Dal v. H.S. Chowdhary, AIR 1993 SC 892; S.P. Gupta v. Union of Indi ...................... 4
John Vallamattom And Another v. Union of India, (2003) 6 SCC 611 .................................. 17
Justice K.S.Puttaswamy(Retd) v. Union Of India, A.I.R. 2017 S.C. 4161........................ 12, 13
Kamlesh Verma v. Mayawati (2013) 8 SCC 320 ...................................................................... 6
Maharashtra State Board of Secondary and Higher Education v Paritosh Bhupeshkumar Sheth,
(1984) 4 ................................................................................................................................ 16
Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Rustom cooper v. Union of India, (1970)
1 SCC 248 ............................................................................................................................ 21
Manoj Narula v. Union of India, (2014) 9 SCC 1 ................................................................... 23
Mohd. Hanif Quareshi v State of Bihar ................................................................................... 19
Mohd. Hanif Quareshi v.State Of Bihar, AIR 1958 SC 731.................................................... 18
N Adithayan v Travancore Devaswom Board, (2002) 8 SCC 106 .................................... 20, 21
Nar Hari Shastri and Ors. V. Shri Badrinath Temple Committee, 1952 AIR 245................... 13
National Campaign for Dalit Human Rights v. Union of India, WRIT PETITION (CIVIL) No.
140 of 200 ............................................................................................................................ 14
Navtej Singh Johar and others v. Union of India and others, (2018) 10 SCALE 386 ............. 23
Navtej Singh v Union of India, A.I.R. 2018 S.C. 4321. .......................................................... 12
NCT of Delhi v. Union of India and others, (2018) 8 SCALE 72 ........................................... 23
Rev. Stainislaus v. State of Madhya Pradesh and others, 1977 AIR 908 ................................ 13
S.Khusboo v. Kanniammal, Criminal Appeal No. 913 of 2010 ................................................ 3
Sachidanand Pandey v. state of W.B., 1987 AIR 1109 ............................................................. 4
Sant Ram v. Labh Singh, 1965 AIR 166 ................................................................................. 10
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, [1962] Suppl. 2 SCR 496 .......... 20
Shayara bano v. Union of India ................................................................................................. 9
Shayara Bano v. Union of India, (2017) 9 SCC 1 ................................................................... 18
Shayara Bano v. Union of India, AIR 2017 9 SCC 1 (SC). ..................................................... 12
Sow Chandra Kante and Ors. v. Sheikh Habib, (1975) 1 SCC 674 ........................................... 5
Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors., 1958 SCR 895 ...................... 21
Sri Venkataramana Devaru v. State of Mysore, 1958 AIR 255............................................... 22
Sri Venkataramana Devaru v. State of Mysore, 1958 AIR 255............................................... 17
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84:53 Cri LJ 354 ............................... 9
Sunil Batra's case (1980 SCC (Cri) 777..................................................................................... 3
The State of Bombay v Narasu Appa Mali, AIR 1952 Bom 84, Chagla CJ ............................ 10

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The State of Bombay v Narasu Appa Mali, AIR 1952 Bom 84; Maddu Kishwar v. State of
Bihar, 1996 5 SCC 125 ........................................................................................................ 10
Union of India v Elphinstone Spinning and Weaving Co Ltd, (2001) 4 SCC 139 .................. 15
Union of India v. Sandur Manganese & Iron Ores Ltd., (2013) 8 SCC 337 ............................. 6

Statutes
Government Of Andhra Pradesh v. P.B. Vijayakumar & Anr, 1995 AIR 1648 ........................ 2
INDIA CONST. art. 137 ............................................................................................................ 5
INDIA CONST. art. 14 .............................................................................................................. 5
INDIA CONST. art. 15 cl. 1 ...................................................................................................... 4
INDIA CONST. art. 17 .............................................................................................................. 5
INDIA CONST. art. 21 .............................................................................................................. 5
INDIA CONST. art. 25 .............................................................................................................. 4
INDIA CONST. art. 32 .............................................................................................................. 1

Other Authorities
Annihilation of Caste, B.R Ambedkar ..................................................................................... 14
National Campaign for Dalit Human Rights v. Union of India, WRIT PETITION (CIVIL) No.
140 of 2006 .......................................................................................................................... 14
Tanushree Chandra; Literacy in India: The gender and age dimension; (Oct 31, 2019) ........... 2
The Report of the Committee on the Status of women in India (1974) ..................................... 2

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STATEMENT OF JURISDICTION

The Respondents have submitted themselves to the jurisdiction of the Hon’ble Supreme

Court of Diana under Art.137 in the Constitution Of Diana that read as follows:

I. Article 137 of the Constitution of Diana.

1. Review of judgments or orders by the Supreme Court Subject to the provisions of any

law made by Parliament or any rules made under Article 145, the Supreme Court

shall have power to review any judgment pronounced or order made by it.

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STATEMENT OF FACTS

1. The temple of Inabari is situated in the city of Mahathi in the state of Irelam in Diana. The
Temple is dedicated to Lord Innappa and is visited by thousands of pilgrims every year.
The temple is open to people from all castes. The custom of wearing a Black ‘Mundu’
whilst on pilgrimage shows that everyone is on equal footing before Lord Innappa.

2. The temple strictly adheres to rituals and customs and lieu of there exists a ban on women
from the ages 10 to 50 from entering temple vault to do the inventory, especially the
sanctum sanctorum. The temple administrators claim that they have observed this practice
for a period of over 600 years, however, there exists no scriptural evidence for the same.
The rationale behind the restriction is based on the belief that menstruating women shall
not enter the temple.

3. Further, it is believed that the restriction imposed is necessary to keep the celibacy of the
Deity intact. Further, the pilgrims lead ascetic lives for 43 days before beginning their
journey to the Inbari Temple.

4. The Diana Young Lawyers Association filed the petition before the Diana Supreme Court
to issue a directive allowing women of any age to enter the temple on the rationale that the
practice is discriminatory and had nothing to do with rituals or ceremonies. It contended
that the religious Denomination Could only restrict entry into the Sanctum Sanctorum and
could not impose a complete ban on entry to the temple.

5. The Iravancore Board, responsible for maintaining the temple, contended that the ban was
in consonance with customs and rituals practiced since time immemorial and that each

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pilgrim was live an ascetic life for 43 days before entering the temple, which the women,
could not be observed for physiological reasons.

6. The board was contended that the restriction is according to Rule 3(b) of the Irelam Hindu
Places of Public Worship (Authorization of Entry) Rules, 1965, which were framed in
exercise of the powers conferred by Section 4 of the Irelam Hindu Places of Public Worship
(Authorization of Entry) Act, 1965.

7. In 1991 the Division bench of the High Court held that the restriction was in conformity
with usage since time immemorial and was not discriminatory under the Constitution.

8. The Supreme Court ruled that the custom barring women between the ages of 10 and 50
from entering the Inbari Temple violates both Article 25(1) of the Constitution and the
Irelam Hindu Places of Public Worship (Authorization of Entry) Act, 1965 enacted under
Article 25(2) (b). In addition, it was determined that Rule 3(b) of the Irelam Hindu Places
of Public Worship (Authorization of Entry) Rules, 1965, is unconstitutional since it violates
Article 25(1) and Article 15(1) of the Constitution.

9. Iravancore Board filed a review petition against the decision of the supreme court
contending that the judgement resulted In a “grave miscarriage of Justice” as it completely
disregarded the various practices, traditions, and schools which exist within the Hindu faith
and therefore, interfered with the faith of millions of devotees of Lord Innappa. They
further contended that the practice is merely a restriction and not a ban based on
discrimination on the grounds of sex, it is imposed due to the celibate nature of the Deity.

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ISSUES RAISED

ISSUE-I: WHETHER A PERSON NOT BELONGING TO A RELIGIOUS

DENOMINATION OR RELIGIOUS GROUP CAN QUESTION A PRACTICE OF
THAT RELIGIOUS DENOMINATION OR RELIGIOUS GROUP BY FILING A PIL?

ISSUE-II: WHAT IS THE SCOPE AND EXTENT OF JUDICIAL REVIEW WITH

REGARD TO RELIGIOUS PRACTICE VIS-A-VIS FREEDOM TO PRACTICE
ONE’S RELIGION AS ENVISAGED BY ART. 25 OF THE CONSTITUTION OF
DIANA?

ISSUE-III WHETHER THE PRACTICE OF EXCLUDING SUCH WOMEN

CONSTITUTES AN ‘ESSENTIAL RELIGIOUS PRACTICE’ UNDER ART. 25 AND
WHETHER ‘ESSENTIAL RELIGIOUS PRACTICES’ OF A RELIGIOUS
DENOMINATION OR EVEN A SECTION THEREOF ARE AFFORDED
CONSTITUTIONAL PROTECTION UNDER ART. 26.

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SUMMARY OF ARGUMENTS

I. WHETHER A PERSON NOT BELONGING TO A RELIGIOUS

DENOMINATION OR RELIGIOUS GROUP CAN QUESTION A PRACTICE
OF THAT RELIGIOUS DENOMINATION OR RELIGIOUS GROUP BY
FILING A PIL.

It is contended DYLA Had the Requisite Locus standi to File a PIL of behalf of the female
devotees of Lord Innappa. It is contended that they had filed a PIL in furtherance of Social
interest on behalf of the female devotees of Lord Innappa. It is contended that they had the
requisite Locus Standi as women constitute a socially disadvantaged and ignorant class as
there is a prima facie violation of their fundamental rights. Further, it is contended that
DYLA possessed no extraneous motive behind the filing of the PIL and hence the PIL was
maintainable. Further, It is contended that the Review petition filed by Iravancore Board is
not maintainable as the matter has already been decided by the Supreme court and the
principle of Res Judicata must apply.

II. WHAT IS THE SCOPE AND EXTENT OF JUDICIAL REVIEW WITH

REGARD TO RELIGIOUS PRACTICE VIS-A-VIS FREEDOM TO
PRACTICE ONE’S RELIGION AS ENVISAGED BY ARTICLE 25 OF THE
CONSTITUTION OF INDIA?

It is submitted that judicial review constitutes the basic structure of the constitution. Further,
it is contended that Rule 3(b) falls within the ambit of 13(3) even if it doesn’t, customs are a
law under 13(3) and therefore must be declared void to the extent of inconsistency with part
III of the constitution. It is submitted that there exists a violation of Art.15(1), 15,21,17 and

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it is the duty of the court to enforce fundamental rights where there is a violation. Further, it
is contended that rule 3(b) must be struck down as it is ultra vires the constitution and the
Irelam Hindu Places of Public Worship (Authorization of Entry) Act.

III. WHETHER THE PRACTICE OF EXCLUDING SUCH WOMEN

CONSTITUTES AN ‘ESSENTIAL RELIGIOUS PRACTICE’ UNDER ART. 25
AND WHETHER ‘ESSENTIAL RELIGIOUS PRACTICES’ OF A
RELIGIOUS DENOMINATION OR EVEN A SECTION THEREOF ARE
AFFORDED CONSTITUTIONAL PROTECTION UNDER ART. 26.

It is contended that the practice of exclusion of Women of the Ages 10-50 from the temple is
not an essential religious practice as it does not find its mention in any scriptures and is based
in superstition. Further, the practice is not obligatory. It is contended that the exclusion of the
practice will not change the fundamental character of the religion. Further, the practice will
not receive constitutional protection under Art.26 as Individualistic morality must yield to
constitutional morality and art.26 is subject to Art.25(2)(b). Further, it is contented that
Religious practices which violate fundamental rights cannot be given constitutional
protection.

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ARGUMENTS ADVANCED

Issue-I: Whether a Person not belonging to a Religious Denomination or Religious Group

Can Question a Practice of that Religious Denomination or Religious Group by Filing a
PIL?

[I.A] ANY PERSON CAN APPROACH THE SUPREME COURT UNDER ART.32

1. It is contended that Art.32 of the Constitution gives an extensive original jurisdiction to the
Supreme Court in regard to enforcement of Fundamental Rights.1

2. In Bandhua Mukti Morcha v. Union of India, PN Bhagwati, J observed that the text of
Art.32(1) signifies that anyone can move to the court where there is a violation of
fundamental right.

3. It is submitted that the provision confers the right to move the Supreme Court for the
enforcement of any fundamental right and does not restrict movement of the court to any
category of persons.

1
INDIA CONST. art. 32

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[I.A.1] Young Lawyers Association had the requisite locus to file a PIL in furtherance of
social interest

4. It is contended that the PIL is maintainable as the petition includes all the necessary
elements to prove that young lawyers’ association possesses the requisite locus standi.
5. It is contended that where a legal injury is caused, any person acting with bona fide
intention with no extraneous motive may approach the Court on behalf of the socially
disadvantaged or ignorant who because of such reason is unable to approach the Court for
redress.

[I.A.2] Women Constitute a Socially Disadvantaged And Ignorant Class

6. The very insertion of Art15(3) in the constitution is the recognition of the woman of the
country begin socially and economically disadvantaged. It has been observed by the Court
that It is the lack of opportunity which has led to social backwardness amongst women.2

7. The education status of women in Diana is minuscule and therefore ignorant of their rights.
The social backwardness of women in Diana is well known and even though they do not
numerically constitute a minority they have acquired the features of a minority community3.
Where the norms and attitudes regarding a women's role in society remains traditional, the
new rights prove to be only concessional. Women satisfy the educational, social and
economic criteria of backwardness as compared to men.4 This view has also been
recognised by the Court.5

8. Therefore, it is submitted that the women of ages 10 to 50 years who are subject to
restriction from entry from the Inabari Temple constitute a socially disadvantaged group

2
Government Of Andhra Pradesh v. P.B. Vijayakumar & Anr, 1995 AIR 1648
3
Tanushree Chandra; Literacy in India: The gender and age dimension; (Oct 31, 2019)
4
The Report of the Committee on the Status of women in India (1974)
5
Charan Singh And Ors. v. Union Of India And Ors., ILR 1979 Delhi 422

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who due to the ignorance of their rights are unable to access justice and the respondents
their representative capacity had filed the PIL.

[I.A.3] Petition is filed in Public Interest of female devotees of Lord Innappa

9. It is contended that the DYLA had the locus standi to file a Public Interest Litigation to
promote and vindicate Public Interest of women who are the devotees of Lord Innappa,
who have been barred from entry into the Inbari Temple on the grounds of sex and been
deprived of their fundamental right to enter the Inbari Temple in order to offer worship to
the deity of Innappa. It is contended that women constitute a socially disadvantaged class

10. PIL was intended to be a cooperative and collaborative effort of the parties and to secure
justice for the weaker6 or illiterate sections not in position to protect their own Interests.7

11. It is contended that the association has been aggrieved by the decision of the high Court,
as it is such that shocks the conscience of the collective society by upholding a practice
derogatory to women rooted in ancient custom. Further, setting a precedent for other claims
of social exclusion of women on the notions of superstitious customs. It is contended that
any person aggrieved by the aggrieved persons may set the law in motion in the larger
Interests of the society.8

12. It is submitted the association had filed a PIL in representative capacity of women as
fundamental rights enthusiasts and therefore have locus standi.9

6
Balco Employees Union (Regd.) v. Union Of India & Ors, Transfer Case (civil) 8 of 2001
7
Fertilizer Corpn. Kamgar Union (Regd.) v. Union of India, 1981 AIR 344; S.P. Gupta v. President Of India
And Ors., AIR 1982 SC 149; People’s Union for Democratic Rights V. Union of India AIR 1982 SC 1473; Dr.
D.C. Wadhwa v. State of Bihar, 1987 AIR 579.
8
Sunil Batra's case (1980 SCC (Cri) 777
9
S.Khusboo v. Kanniammal, Criminal Appeal No. 913 of 2010

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[I.A.4] There is no extraneous motive of the respondent and they maintain a genuine
Interest In the litigation

13. The Court has opined that only a person acting bona fide and having sufficient Interest in
the proceeding if PIL will have the requisite locus standi but not a person for his own
10
personal gain or profit motive or any oblique consideration. It has been repeatedly
stressed that PIL should be exercised for a genuine Public wrong or injury. 11

14. The Court must be satisfied about the credentials of the applicant, the prima facie
correctness or nature of information given by him, the information being not vague and
indefinite. The information should show gravity and seriousness involved.12

15. In this case the DYLA has the requisite credentials being an organisation fighting for the
social justice. The information provided by them is prima facie true and the given the grave
fundamental rights violations of women speaks to the gravity of the offence.

[I.A.5] There exists a prima facie Violation of fundamental rights

16. When the Court is prima facie satisfied about variation of any constitutional right of a group
of people belonging to the disadvantaged category, it may not allow the State or the
Government from raising the question as to the maintainability of the petition.13

10
Janata Dal v. H.S. Chowdhary, AIR 1993 SC 892; S.P. Gupta v. Union of India
11
Dattaraj Nathuji Thaware v. State of Maharashtra and Ors., Special Leave Petition (civil) 26269 of 2004
12
Dr. Subramanian Swamy v. The Election Commission of India, Writ Petition No. 3969 (M/B) of 2005
13
Bandhua Mukti Morcha, 1984 AIR 802

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17. When there are complaints of such acts as shock the judicial conscience Court must leave
aside procedural shackles and hear such petitions and extend its jurisdiction for remedying
the miseries of the neglected.14

18. The right of women enshrined under Art.25(1) is violated since they are not allowed to
enter the Inbari Temple in practice of their religious belief.15 They have been prohibited
from entering a Public place of worship which is violations of Art.15(1)16 and since the
exclusion is based on the notions of purity and pollution (elaborated further) it is Violation
of Art.1717. Further, this practice is derogatory to the dignity of women and against the
notion of equality and is hence violative of Art.2118 and Art.14. Further, the classification
of women on the basis of their menstruation status does not satisfy the test of reasonable
classification under Art.14.19

[I.B] IT IS CONTENDED THAT THE MATTER IS RES JUDICATA AND REVIEW

PETITION IS LIABLE TO BE DISMISSED.

19. It is submitted that the review petition filed by the petitioners under Art. 13720 read with
Order XL VII of Supreme Court Rules, 2013 has to be within certain parameters within
which limited jurisdiction of review is to be exercised.

20. It is submitted there is no glaring omission, patent mistake or existence of a grave error21
as is a requisite for the exercise of this jurisdiction. The judgement of the Supreme Court
is sound and based on a rational reasoning giving effect to the fundamental rights of

14
Sachidanand Pandey v. state of W.B., 1987 AIR 1109
15
INDIA CONST. art. 25
16
INDIA CONST. art. 15 cl. 1
17
INDIA CONST. art. 17
18
INDIA CONST. art. 21
19
INDIA CONST. art. 14
20
INDIA CONST. art. 137
21
Sow Chandra Kante and Ors. v. Sheikh Habib, (1975) 1 SCC 674

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women, a socially disadvantaged class as opposed to a derogatory custom rooted in the

superstitious belief of inferiority of women. It has rightly appreciated that facts on record
and in the absence of an express mention of the practice of exclusion of women in the
religious tenets has held the practice to not amount to an essential religious practice. It has
correctly held the devotes of Innappa to not be a religious denomination for the lack of
characteristics required to be possessed by groups claiming to be such a denomination.

21. It is contended that no discovery of new and important matter of evidence claimed by the
petitioners.22

22. It is contended that A mere possibility of two views is not sufficient to make the review
petition maintainable.23 Therefore, since the matter is already decided by the Supreme
Court raising the contentions about a possibility of a different view is not a ground to make
the review petition maintainable and therefore, must be dismissed.

22
Kamlesh Verma v. Mayawati (2013) 8 SCC 320
23
Union of India v. Sandur Manganese & Iron Ores Ltd., (2013) 8 SCC 337

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ISSUE-II: What is the scope and extent of judicial review with regard to religious practice
vis-a-vis freedom to practice one’s religion as envisaged by Art. 25 of the Constitution of
Diana?

23. The right to religion under article 25 does not only extend to mere doctrinal belief but also
those practices which are carried out in pursuance of those religious beliefs. The right to
practice ones religion is protection under the constitution under Art.25. It is contended that
the customary practise, as codified in Rule 3(b) of the 1965 Rules does not meet the tests
of Articles 14, 15 and 21 of the Constitution.

[II.A] JUDICIAL REVIEW IS THE BASIC STRUCTURE & ART.25 IS SUBJECT TO

FUNDAMENTAL RIGHTS

24. It is submitted that the Power of judicial review has consistently been held to be a basic
feature of the Constitution.

25. The court in Minerva Mills Ltd. v. Union of India observed that judicial review being a
vital principle of the constitution cannot be abrogated without affecting the basic structure.

26. Article 13 embodies that any law passed by parliament or State legislature or an already
existing law (pre-Constitutional Law) is null and void, if it is repugnant to the part- III of the
constitution.24

27. Hence, it is contended that judicial Review is essential to give meaning to Fundamental
Rights in order to save them from being rendered as nugatory.

24
INDIA CONST. art. 13

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[II.B] RELIGIOUS PRACTICE HAS THE FORCE OF LAW IT IS LIABLE TO BE

DECLARED UNCONSTITUIONAL

[II.B.1] Art.25 is Subject to Fundamental Rights, public order, health & Morality

28. Art.25 of the constitution gives every person the right to freely profess, practice and
propogate religion, subject to public order, health morality and part III of the constitution.

29. Art 14 and 15 have not been made subject to other fundamental rights. Therefore, it is
contended that in the constitutional list of priorities individual right to freedom of religion
was not intended to prevail over but subject to constitutional ideals of equality, liberty and
personal freedoms under part III.25

30. No right under the constitution is absolute and is subject to certain restrictions. Since Art.25
is subject to fundamental rights, public order health and morality, this may give
constitutional courts the liberty to limit the boundaries of religion if a particular religious
practice is violative of fundamental rights

[II.B.2] Religious practice and religious belief

31. In A.S. Narayana Deekshitulu v. State of A.P., the court drew a distinction between
religion per se and religious practices. The court held that all religious practices cannot be
given protection under Art.25 of the constitution. Though religious practices and
performances of acts in pursuance of religious belief are as much a part of religion as faith
or belief in a particular doctrine, that by itself is not conclusive or decisive. What are
essential parts of religion and religious practice is essentially a question of fact to be

25
Chandrachud J, Indian Young Lawyers Association v. The State Of Kerala, (2019) 11 SCC 1

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considered in the context in which the question has arisen and the evidence presented in
that context is required to be considered and a decision reached.

32. In State of Bombay v. Narasu Appa Mali, the court has held that A sharp distinction must
be drawn between religious faith and belief and religious practices. What the State protects
is religious faith and belief. If religious practices run counter to public order, morality or
health or a policy of social welfare upon which the State has embarked, then the religious
practices must give way before the good of the people of the State as a whole. 26

33. It is contended that the religious practice has force of law as the term “law” includes
“custom and usage” and further, this custom has been recognised by law under rule 3(b).

[II.B.3] Religious practice is not protected if it is violative of Part III of the constitution

34. It is contended that a religious practice is not protected under Art.25 if it violates provisions
of part III of the constitution and the constitutional courts can declare it unconstitutional if
the religious practice has the force of law under article 13 of the constitution.27

35. It is contended that even if a religious practice does not have the force of law under art.13
it is rooted in custom since it is held by millions of devotees of lord Innappa and the practice
has gone on since time immemorial. This contention is established under Point 2 of this
issue.

[II.C] ARGUENDO EVEN IF RELIGIOUS PRACTICE DOES NOT FALL INTO THE
CATEGORY OF ‘LAW’, CUSTOM FALLS WITHIN THE SCOPE OF 13(3) AND IS
THEREFORE SUBJECT TO PART III OF THE CONSTITUTION

26
State of Bombay v. Narasu Appa Mali, AIR 1952 Bom 84:53 Cri LJ 354
27
Shayara bano v. Union of India

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36. It is contended that the practice of the exclusion of Women constitutes a Custom falling
under Art.13(3) and is therefore subject to judicial review to the extent of its inconsistency
with part III of the constitution. For a custom to have the force of law it must be: (i) present
since time immemorial (ii) followed by many individuals at large.28
37. It is submitted that that a practise started in hoary antiquity, and continued since time
immemorial without interruption, becomes a usage and custom.29

38. Therefore, since the aforementioned conditions are present in the practice of exclusion of
women from the ages 10 to 50, as it has gone on since time immemorial and it is practiced
by millions of devotees of Lord Innappa, the practice constitutes a Custom.

39. It is submitted that the ‘custom’ followed by the Inabari Temple is a ‘law’ within the
meaning of Art.13(3)(a) as it is a custom or usage having the force of law within the
territory of Diana.30

40. It is Contended that an expansive definition must be attached to Art.13(3) as is imported

by the use of the word ‘includes’ in the definition clauses. Therefore, laws, which were not
in operation, though on the statute book, were included in the phrase “laws in force”.31
41. It is submitted that clause (3) does not restrict the ambit of law in force in clause (2), it only
seeks to include those which would not have been included in clause (2) if it was not
specifically mentioned in clause (3). Therefore, custom and usage are under the explanation
of laws in force.32

28
Indian Young Lawyers Association v. The State Of Kerala, (2019) 11 SCC 1
29
Ewanlangki-E-Rymbai v. Jaintia Hills District Council & Ors., Appeal (civil) 9561-9562 of 2003;
Bhimashya & Ors. v. Janabi (Smt) Alia Janawwa, Appeal (civil) 5689 of 2006; Salekh Chand (Dead) by LRs
v. Satya Gupta & Ors., Special Leave Petition (civil) 1380 of 2002.
30
The State of Bombay v Narasu Appa Mali, AIR 1952 Bom 84; Maddu Kishwar v. State of Bihar, 1996 5
SCC 125
31
Sant Ram v. Labh Singh, 1965 AIR 166
32
Indian Young Lawyers Association v. The State Of Kerala, (2019) 11 SCC 1

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42. It is submitted that if there is any custom or usage which is in force in Diana, which is
inconsistent with the fundamental rights, that custom or usage is void. Hence, the validity
of a custom or usage could be tested for its conformity with Part III. 33Therefore, it is
established that the custom of exclusion of women between the ages 10 to 50 is a custom
which falls under Art.13 and is therefore, subject to Judicial review.

[II.D] RULE 3(B) IS ULTRA VIRES THE CONSTITUTION

43. Art.13 states that any rule made in contravention with the provisions of the constitution
must be declared void to the extent of such inconsistency.

44. It is submitted that an exclusionary practice per se violates the principle of equality of
women and equality before the law and it is burden of the Inbari Temple to prove that there
exists no such violation.34

[II.D.1] Classification of Women on Physiological Reasons is Not Reasonable

Classification Under Art.14

45. It is submitted that for a classification to be valid under Art.14 two conditions must be
satisfied: (i) the classification must be based on intelligible differentia (ii)it must be rational
and must have a reasonable nexus to the object sought to be achieved.35

46. The Court in Subramanian Swamy v. CBI a Constitution Bench of the Court unanimously
held that If the object itself is discriminatory, then it is immaterial that the classification is
reasonable having rational relation to the object sought to be achieved.

33
The State of Bombay v Narasu Appa Mali, AIR 1952 Bom 84, Chagla CJ
34
Deepak Sibal v. Punjab University and another, 1989 AIR 903
35
Anwar Ali Sarkar v. The State Of West Bengal, AIR 1952 Cal 150

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47. Therefore, even though the classification of women may be intelligible but the object
sought to be achieved is constitutionally invalid, being that to prevent the deity from being
polluted is against principles of justice, equality, liberty and fraternity enriched in the
preamble. Further, since it is solely based on physiological factors does not serve a valid
object and does not satisfy the test of reasonable classification under Art.14.
48. In in E.P. Royappa v. State of T.N. the Court has observed that equality was a dynamic
concept and was antithetic to arbitrariness. Further when an act is arbitrary it is unequal
both according to political logic and constitutional law and is therefore violative of Art. 14.

49. It is submitted that an exclusionary practice is manifestly arbitrary36 and does not satisfy
the test of non-arbitrariness under Art.14

[II.D.2] Discrimination on the Basis of Sex is Violative of Art.15

50. It is submitted that being an exclusionary practice based on sex it per ser violates
Art.15(1).37 The exclusion of women is discrimination on grounds of ‘sex’ since it is
based on the physiological reason, menstruation.38 Further if a practice is grounded in
and perpetuates stereotypes about a class on the grounds mentioned under Art.15(1) it
cannot be a permissible reason to discriminate.39 since, that the ban of women was due to
non-religious factors i.e., the reason being they would not be able to observe penance due
to physiological factors.

[II.D.3] Exclusion of women based on the grounds of Menstruation is a Violation of Right

to Privacy and Human Dignity Under Art.21

36
Shayara Bano v. Union of India, AIR 2017 9 SCC 1 (SC).
37
Anuj Garg and others v. Hotel Association, Appeal (civil) 5657 of 2007; Charu Khurana and others v. Union
of India, WRIT PETITION (CIVIL) NO.78 OF 2013’
38
Bennett Coleman & Co. & Ors v. Union Of India & Ors, 1973 AIR 106
39
Navtej Singh v Union of India, A.I.R. 2018 S.C. 4321.

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51. It is submitted that dignity is a facet of Art. 21.40 In ancient customs menstruation has been
equated with impurity and pollution and imposing exclusionary disabilities based on the
menstrual status of women is against the dignity of women.
52. It is submitted that the practice violates right to privacy if a woman under Art.21.41
Menstrual status of women woman cannot be a valid constitutional basis to deny her the
dignity of being and the autonomy of personhood. The menstrual status of a woman is
deeply personal and an intrinsic part of her privacy.

[II.D.4] The Practice is Violates the Right to Freedom of Religion Of the Female Devotees
of Lord Innappa

53. It is submitted that Art.25(1) guarantees right to practice religion and the right to practice
is concerned with religious worship, rituals and observations.42 It is contended that the rule
is violative of Art.25.

54. In Nar Hari Shastri and others v. Shri Badrinath Temple Committee the Court observed
that where a Public place of worship of the Hindus is concerned, the right to worship
includes darshan, flows for the nature of the institution itself and is not dependent upon
the discretion of the Inbari Temple authorities.43 Therefore, by the nature of the Inabari
temple being a public temple since people from all castes are allowed, the women have a
right to enter the temple for the purposes of worship. Their right is not subject to the
discretion of the authorities

40
Justice K.S.Puttaswamy(Retd) v. Union Of India, A.I.R. 2017 S.C. 4161
41
Justice K.S.Puttaswamy(Retd) v. Union Of India, A.I.R. 2017 S.C. 4161
42
Rev. Stainislaus v. State of Madhya Pradesh and others, 1977 AIR 908
43
Nar Hari Shastri and Ors. V. Shri Badrinath Temple Committee, 1952 AIR 245

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55. Further, the right under Art.25 is not confined to mere doctrinal belief of religion but
includes those acts done on pursuance of religious belief44 The Art. stipulates a non-
discriminatory right available Equally to both men and women of all ages practicing the
same faith. Thus, Rule 3(b) which stipulates exclusion of women of ages 10-50 makes the
Fundamental Right under Art.25 nugatory.
56. Hence, restricting women from entry being an act done in pursuance of religious belie i.e.,
visiting the Inbari Temple to freely practice their religion and exhibit her devotion towards
Lord Innappa is violative of Art.25.

[II.D.5] The Practice is a form of ‘Untouchability’ & is prohibited under Art.17

57. It is contended that the practice of exclusion of women Is violative of Art.17, being a form
of untouchability based on the notions of Purity and Pollution. 45

58. It is submitted that the constitution has designedly left untouchability undefined and any
form of stigmatisation which leads to social exclusion is violative of human dignity and
would constitute a form of untouchability.

59. It is submitted that notions of purity and pollution have been a sustaining force of the caste
system and hence the practice of untouchability.46 The Court has held that notion of purity
and pollution form the basis of the caste system. The caste system is violative of human
dignity.47 Therefore, since untouchability in ‘any form’ is forbidden and vis the operation
of the words used by the constitution the same cannot be confined to a particular
manifestation of the practice. Since Art.17 is an anti-exclusion principle it cannot be read

44
Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others, Appeal (civil) 6230
of 1990; Seshammal v. State of Tamilnadu, (1972) 2 SCC 11.
45
Indian Young Lawyers Association and Ors. v. State of Kerala (2019) 11 SCC 1
46
National Campaign for Dalit Human Rights v. Union of India, WRIT PETITION (CIVIL) No. 140 of 2006
47
Annihilation of Caste, B.R Ambedkar

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to exclude women against whom social exclusion is practiced based on the notions of purity
and pollution.

60. It is submitted that Untouchability is enforced through the civil rights act, which penalises
prohibiting any person from entering a place of Public worship on the grounds of
untouchability. The term untouchability is not defined and hence must be construed to
include social exclusion of women based on the notion of purity and pollution.
61. Therefore, since Art.25 since it is subject to part III, must be subject to Art. 17 and exclusion
of women from the Inbari Temple on the notion of purity and pollution is a form of
untouchability prohibited under Art.17.

62. In the light of the Violation of these fundamental rights it is submitted that the Court has
the not only the jurisdiction but a duty to enforce rights of the citizens.

[II.E] RULE 3(B) IS ULTRA VIRES THE ACT

63. It is contended that Rule 3(b)is ultra vires the Irelam places of Public worship act, 1965.

The rule runs contrary to the object and the provision of the Irelam Hindu Public
places of worship act.

64. The Court has held that every Hindu has a right to enter and worship the Inbari Temple.48
S.3 of the act sought to give protection to the fundamental right under Art.25 of every
individual and it furthers the object of law.

65. It is contended when the rule-making power is conferred by legislation on a delegate, the
latter cannot make a rule contrary to the provisions of the parent legislation.49 Rule 3(b) is
ultra vires the act as S.3 of the act expressly prohibits exclusion from Public places of
worship claimed to be justified on the grounds of custom and usage. Rule 3(b) provides
an exception on the grounds of custom and practice for the exclusion of women from the

48
Union of India v Elphinstone Spinning and Weaving Co Ltd, (2001) 4 SCC 139
49
Additional District Magistrate v Siri Ram, (2000) 5 SCC 451

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Inbari Temple running directly counter to the Act. Further, S.4 which endows the authority
of making a regulation specifically limits such power, stating that a regulation which
discriminates against a class or section, by excluding them from place of worship or
obstructing them in their worship, cannot be made.

66. Further, it is contended that Rule 3(b) cannot claim the exception under Proviso 3 to the
Act as Devotees of Innappa do not constitute a Religious Denomination,
67. It is submitted that the question whether the delegated legislation has exceeded that
power conferred upon it is to be considered in accordance with other provisions of the act
and the intended object of the act.50 Since the object of the act was to protect the right to
worship, Rule 3(b) is contrary to that very purpose as it takes away a Hindu woman’s rights
to worship

68. In State of West Bengal and others v. Ashutosh Lahiri, where the Court had made an
exemption for slaughtering of cows under the West Bengal Animal Slaughter Control Act,
1950, the Court held that for an exemption to be granted it must be shown that such
exemption is necessary to be granted to sub serving an essential religious, medicinal or
research purpose, if not, no such exemption should be granted in order to bypass the main
provisions of the act.

69. Therefore, it is submitted that Rule 3(b) is ultra vires the Irelam Hindu places of public act
as it is against the object of the act which is to make Places of Public worship accessible to
all. 3(b) runs directly contrary to S.3 of the act as it discriminates against women on the
basis of custom.

70. It is submitted that the court has the power to Judicially review those Practices under Art.25
which violate fundamental rights of citizens.

50
Maharashtra State Board of Secondary and Higher Education v Paritosh Bhupeshkumar Sheth, (1984) 4 SCC
27

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ISSUE-III Whether the practice of excluding such women constitutes an ‘essential

religious practice’ under Art. 25 and whether ‘essential religious practices’ of a religious
denomination or even a section thereof are afforded constitutional protection under Art.
26.

[III.A] THE RESTRCITION OF THE ENTRY OF WOMEN FROM THE INBARI

TEMPLE IS NOT AN ESSENTIAL RELIGIOUS PRACTICE

71. Art.25 merely protects the freedom to practise rituals, ceremonies, etc. which are an integral
part of a religion.51 It is submitted that the claim that a practice has been carried on since
time immemorial does not give it constitutional protection unless it passes the test of
essentiality.52 Hence, the claim of the petitioners stating that the exclusion of women is an
essential religious practice on the ground that it has been practiced for over 600 years is
fallible and the practice must be subject to the test of essentiality to determining whether it
will be protected under to the constitution.

[III.A.1] The Practice does not find an express mention in the religious Tenets

51
John Vallamattom And Another v. Union of India, (2003) 6 SCC 611
52
Sri Venkataramana Devaru v. State of Mysore, 1958 AIR 255

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72. In Shirur Mutt the Court held that what constitutes as an essential part of religion must be
ascertained by referring to the tenets and the doctrines of the religion itself.53 However,
even though the views of a religious community are taken into consideration while
determining whether a practice is qualified as essential, the same is not determinative.54

73. It is submitted that just because a practice is continued for long that itself cannot make it
valid if it has been expressly declared to be impermissible. Further, a practice does not
acquire religious sanction just because it is permissible.55 Therefore, just because the
practice is permissible or not expressly barred does not endow it with religious sanction.

[III.A.2] The Practice is not obligatory in nature and hence does not qualify as an essential
religious Practice

74. It is contended that if a practice is not considered obligatory or is optional in the

scriptures of a religious text or via practice, notwithstanding the claim for its practice since
time immemorial, it cannot be termed as an essential religious practice.56

75. Therefore, since the exclusion of women is not practiced in other Inbari Temples of Lord
Innappa it cannot be said to be obligatory in nature.

[III.A.3] The Practice although religious Is rooted in Superstition

76. It is submitted that even though some practices are religious, have sprung up from
superstitious beliefs and may be extraneous accretions to religion itself and unless such

53
Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshimdra Thirtha Swamiar of Sri Shirur
Mutt, [1954] SCR 1005; Sri Venkataramana Devaru v. State of Mysore, 1958 AIR 255
54
Sri Venkataramana Devaru v. State of Mysore, 1958 AIR 255
55
Shayara Bano v. Union of India, (2017) 9 SCC 1
56
Mohd. Hanif Quareshi v.State Of Bihar, AIR 1958 SC 731

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practices are found to constitute an essential and integral part of a religion, their claim for
protection as essential practices may have to be carefully scrutinised. Constitutional
protection can only be granted to those practices as are an essential and integral part of
religion and no other. It is submitted that even though some practices may have acquired
characteristic of religious practices, if they are found to be based on superstitious beliefs,
they are considered as unessential parts of religion.57

77. The Practice is not mentioned expressly in the religious scriptures and has sprung up as a
custom based on the notion that menstruation of a woman renders her impure and thus she
must be excluded from the place of worship. This Practice although seemingly religious is
based on a superstitious belief that stigmatises the menstruation of women and therefore,
does not qualify as an essential religious practice.

[III.A.4] Allowing women entry in the Inbari Temple will not change the fundamental
character of the Religion

78. In Commissioner of Police v. Acharya Jagdishwarananda Avadhuta , the court held

that for a practice to be considered an essential religious practice the nature of practice must
be such that the absence of it would change the fundamental character of the religion.it
must be such that additions or subtractions to such will change its fundamental character
as it is the very essence of that religion, only these parts are constitutionally protected.58
Further, a part which is alterable or optional at the choice of the devotees cannot be said to
be an essential part of religion.59

79. It is contended that Allowing women to enter the Inbari Temple to offer worship would not
that the same would result in a fundamental change as there is no scriptural evidence
supporting the practice and further, women are allowed to enter and offer worship in the

57
Durgah Committee, Ajmer and others v. Syed Hussain Ali, (1962) 1 SCR 383
58
Commissioner of Police v. Acharya Jagdishwarananda Avadhuta (“Avadhuta II”), (2004) 12 SCC 770
59
Mohd. Hanif Quareshi v State of Bihar

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other Inbari Temples of Lord Innappa around the country. Further, it cannot be said that
the inclusion of women would change the character of the religion itself, as the religion
itself practices inclusion of every caste but discriminates against a particular class i.e., that
of women, which itself is contradictory to their religious tenets, the religion stipulates
equality of all before the lord. In the absence of any scriptural or textual evidence, we
cannot accord to the exclusionary practice followed at the Inabari Temple the status of an
essential practice of Hindu religion.

80. It is submitted that the practice is optional at the end of the devotes and a change in the
practice will not alter the core of their religious structure and therefore, the practice cannot
be regarded as an essential religious practice.

[III.B] THE PRACTICE WILL NOT RECEIVE THE CONSTITUTIONAL

PROTECTION OF ART.26

[III.B.1] A Religious Practice That Violates Fundamental Rights Cannot Be Given

Constitutional Protection.

81. It is contended that where a purported essential religious practice is based on an

obnoxious social rule or practice it is amenable to a measure of social reform.60

82. It is contended that in order to achieve a balance between competing rights and Interests
the test of essentiality is infused with the necessary limitations of the constitutional
guarantees of dignity and equality.61 Further, a religious practice must pass the

60
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, [1962] Suppl. 2 SCR 496
61
Government of NCT of Delhi v Union of India, (1981) 2 SCC 226

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constitutional muster to get constitutional protection. Constitutional legitimacy must

supersede all religious beliefs and practices.62 Therefore, the Court must ensure that what
is protected is in conformity with fundamental constitutional values and guarantees and is
in line with constitutional morality.

83. It is contended that everything claimed as being part of the religious rituals, rites,
observances and method of worship cannot be purported to deride fundamental rights
which have an overriding effect in the constitutional scheme.63 Any custom or usage
irrespective of even any proof of their existence in pre constitutional days cannot be
countenanced as a source of law to claim any rights when it is found to violate human
rights, dignity, social equality and the specific mandate of the Constitution and law made
by Parliament. No usage which is found to be pernicious and considered to be in derogation
of the law of the land or opposed to public policy or social decency can be accepted or
upheld by Courts in the country.64 Therefore, the existence of the custom of exclusion of
women of menstruating age, have no significance as they violate rights of women.

[III.B.2] Art.26 Is Subject To 25(2)(b)

84. It is contended that the term ‘morality’ is to be understood in the light of the guiding
principles underlying the constitution, i.e., being, fraternity, morality, equality and liberty.

85. It is contended that Art.26 is not an independent provision owing to the absence of its
subjection to other fundamental rights. It is settled that all provisions must be read together
so as to enable them to exist in harmony65 hence, dignity of women which as examination
from Art.15 and Art.21 cannot be disassociated with Art.26. Freedom under Art.26 must
be read in a manner which preserves equality, other individual freedoms which may be
impacted by its unrestrained exercise.

62
Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu, (2016) 2 SCC 725
63
N Adithayan v Travancore Devaswom Board, (2002) 8 SCC 106
64
N Adithayan v Travancore Devaswom Board, (2002) 8 SCC 106
65
Maneka Gandhi v. Union of India, (1978) 1 SCC 248; Rustom cooper v. Union of India, (1970) 1 SCC 248

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86. It is contended that Art.25(2)(b), is a substantive right as it creates an exception for laws
providing social reform by opening of Hindu institutions to all classes, embodying the
constitutional intent of abhorring exclusionary practices.

87. It is contended that if all persons are freely worshipping in the Inbari Temple without
hindrance, it is to be inferred that they do so as a matter of right and that the original
foundation was for their benefit as well.66 Here, since persons of all creed and caste are
allowed, the Inbari Temple is open to the Public for use and the people do so as a matter
of right.

88. Therefore, Inabari temple is a Hindu place of public Worship and all the devotees, including
Hindu women, have the right to enter the Inbari Temple for the purpose of worship and the
right of entry is not a permissive right depending upon the discretion of the Inabari Temple
authorities but a legal right.67

89. In Devaru case68 the court held that when the protection of denominational rights under
Art.26 would substantially reduce the right conferred by Art. 25(2)(b), the latter would
prevail against the former. This ensures that the constitutional guarantee under Art. 25(2)(b)
is not destroyed by exclusionary claims which detract from individual dignity.69

90. A Hindu woman, vide Art.25 has the freedom to offer worship in the Inabari Temple and
their Exclusion from the temple for a period of 40 years, significantly denudes their right
to worship. In light of this, the practice of exclusion of women from the Inabari Temple
cannot claim the protection of Art.26.

[III.B.3] Individualistic Morality Must Yield To Constitutional Morality

66
Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors., 1958 SCR 895
67
Deoki Nandan v. Murlidhar and others, AIR 1957 SC 133 and Sri Radhakanta Deb and another v. Commissioner of
Hindu Religious Endowments, Orissa, (1981) 2 SCC 226
68
Sri Venkataramana Devaru v. State of Mysore, 1958 AIR 255

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91. It is contended that the term “morality” used in Art.25 and Art.26 is not an individualised
concept of morality subject to varying practices but it is a term to be understood in the
vision of the constitution as embodying principle of Equality, Liberty, Dignity and
Fraternity.70Any subjective reading of the term “morality”, would resultantly make liberty
of faith and worship under Art.25 otiose.71

92. Further, the Court has observed that the freedom under Art.25 cannot be set up to avoid
those duties that a citizen owes to the nation.72 Under Art.51 every citizen has the duty to
renounce those practices derogatory to women, be it those rooted in custom. Hence the
practice of exclusion of women makes the citizens act contrary to their fundamental duties
as prescribed by the constitution.

93. The Court in Manoj Narula v. Union of India73 held, that constitutional morality means to
bow down before the norms of the constitution. The democratic values survive where
people are strictly guided by the constitutional parameters. Hence the concept of
constitutional morality plays an important part in a democratic setup. Constitutional
morality implies strict and complete adherence to the constitutional principles as enshrined
in various segments of the document as the guiding force to protect and ensure that the
democratic setup promised to the citizenry remains unperturbed.74

94. Further, the preambular goals of our constitution can only be achieved through commitment
to constitutional morality.75 Hence. anything that is destructive of individual dignity is
anachronistic to the constitutional ethos, being that dignity of an individual is the
unwavering premise of the fundamental rights.

70
Chandrachud J, Indian young lawyers association v. State of Kerela.
71
Adi Saiva Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and others (2016) 2 SCC
725;Manoj Narula v. Union of India (2014) 9 SCC 1; and National Legal Services Authority, (2014) 5 SCC
438
72
Commissioner of Police and others v Acharya Jagadishwarananda Avadhuta and another, (2004) 12 SCC 770
73
Manoj Narula v. Union of India, (2014) 9 SCC 1
74
NCT of Delhi v. Union of India and others, (2018) 8 SCALE 72
75
Navtej Singh Johar and others v. Union of India and others, (2018) 10 SCALE 386

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95. It is contented that equality between sexes under Art.15 emerges from the fundamental
principle of Equality under the preamble and must therefore be included in the
understanding of the term morality.

96. It is contended that the exception of “Public order, morality and health” are not a colourable
device which can be used to discriminate against women restricting their entry into the
Inbari Temple, thereby violating their Right Under Art.25(1), as Public morality must yield
to constitutional morality.

97. It has been held that prohibition of a non-essential religious practice in the Interest of Public
order and morality is not violative of the rights of a denomination under Art.25 and Art.26
of the constitution.76

98. It is submitted that since, postulate of equality is that all human beings are equal, the
subjugation of women by prohibiting her the right to practice freedom of religion under
Art.25 is impermissible and it is against the principle of constitutional morality. Further,
exclusion of a women on the basis of her menstrual cycle is violative of here dignity going
against the fundamental principle of what the constitution aims to protect, i.e., individual
dignity.

76
Acharya Jagadishwarananda Avadhuta and others v. Commissioner of Police

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PRAYER

WHEREFORE, in the light of the facts used, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully prayed that this Hon'ble Court may be
pleased to adjudge and declare that:

I. The Review Petition filed before this Hon’ble Court needs to be dismissed.
II. Direct to take away the restriction imposed on the women and children of a certain
age as it amounts to the violation of their fundamental rights in light of Rule 3(b) of
Irelam Hindu Places of Public Worship (Authorization of Entry) Rules to enter the
Inabari Temple.
III. The practice of excluding such women does not constitute an ‘essential religious
practice’ under Article 25 and the practice should not be granted constitutional
protection under Art.26

The Court may also be pleased to pass any other order, which this Hon'ble Court may deem
fit in the interest of justice, equity and good conscience.

All of which has been respectfully submitted,

COUNSEL FOR THE RESPONDENT

26 Memorial for the Respondent