19th All India Moot Court Competition 2019

Memo Code: TSV 1919

Team Code:

IN THE SUPREME COURT OF INDIA

FRIENDS OF WOMEN……………………………………………………….PETITIONER

VERSUS

UNION OF INDIA………………………………………………………….RESPONDENT

As submitted to the Judges of Hon’ble Supreme Court of India

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TABLE OF CONTENTS

CONTENTS

TABLE OF CONTENTS ........................................................................................................... 2

ABBREVIATIONS ................................................................. Error! Bookmark not defined.

TABLE OF AUTHORITIES ..................................................................................................... 4

STATEMENT OF JURISDICTION.......................................................................................... 7

STATEMENT OF FACTS ........................................................................................................ 8

ISSUES FOR CONSIDERATION .......................................................................................... 10

SUMMARY OF ARGUMENTS ............................................................................................. 11

ARGUMENTS ADVANCED ................................................................................................. 12

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ABBREVIATIONS

ISSN International Standard Serial Number

H.R.E Hindu Religious Endowments
DLT Delhi High Court
W.B. West Bengal
M.P. Madhya Pradesh
AIR All India Reporter
SC Supreme Court
CriLJ Criminal Law Journal
SCR Supreme Court Reports
SCC Supreme Court Cases
P Page

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TABLE OF AUTHORITIES

CASES

ACHARYA MAHARAJSHRI NARENDRA PRASADJI ANANDPRASADJI MAHARAJA

V. STATE OF GUJARAT ....................................................................................................... 17

AHMED KHAN V. SHAH BANO ......................................................................................... 11

ANIMAL WELFARE BOARD OF INDIA VS. A. NAGARAJA & ORS ............................. 11

BENGAL IMMUNITY CO. V. STATE OF BIHAR .............................................................. 16

CHARANJIT LAL V. UNION OF INDIA ............................................................................. 15

CHATURBHAI M. PATEL V. UNION OF INDIA AND ORS ............................................. 13

COMMISSIONER, HR & CE V LT SWAMIAR ................................................................... 18

CST V. RADHAKRISHNAN ................................................................................................. 13

GENERAL MANAGER, NORTH WEST RAILWAY V. CHANDA DEVI......................... 16

HARAKCHAND RATANCHAND BANTHIA V. UNION OF INDIA ................................ 12

INDIAN YOUNG LAWYER ASSOCIATION V. THE STATE OF KERALA .................... 20

J.R.G. MFG. ASS. V. UNION OF INDIA .............................................................................. 16

K.C. GAJAPATI NARAYAN DEO V. STATE OF ORISSA ................................................ 16

KEDAR NATH SINGH V. THE STATE OF BIHAR ............................................................ 15

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KESAVANANDA BHARATI V. STATE OF KERALA ...................................................... 14

LILLY THOMAS V. UNION OF INDIA ............................................................................... 19

MANEKA GANDHI V UNION OF INDIA ........................................................................... 14

NAND LAL V. STATE OF HARYANA ................................................................................ 15

O’GORMAN & YOUNG V. HARTFORD FIRE INSURANCE ........................................... 15

SHRI RAM KRISHNA DALMIA V. SHRI JUSTICE S. R. TENDOLKAR & ORS ............ 15

P.N. KUMAR V. MUNICIPAL CORPORATION OF DELHI .............................................. 11

RIJU PRASAD SHARMA & ORS. V. STATE OF ASSAM & ORS .................................... 18

SHRI A.S. NARAYANA DEEKSHITULU V STATE OF ANDHRA PRADESH ............... 17

SHRI RAM KRISHNA DALMIA V. SHRI JUSTICE S. R. TENDOLKAR ......................... 16

UNION OF INDIA V. RAGHUBIR SINGH .......................................................................... 16

VENKATARAMANA V. STATE OF MYSORE .................................................................. 17

STATUTES

CST V. RADHAKRISHNAN ................................................................................................. 13

THE RELIGIOUS INSTITUTION (PREVENTION OF MISUSE) ACT, 1988 .................... 13

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OTHER AUTHORITIES

CHAPTER 15, VERSE 19 OF THE BOOK OF LEVITICUS ................................................ 21

CHAPTER 22 OF GAUTAMA SMRITI ................................................................................ 21

CHAPTER 4 OF VASHISHTHA SMRITI ............................................................................. 21

DHARMASUTRA OF VASISTHA ........................................................................................ 21

M P JAIN INDIAN CONSTITUTION LAW, 7TH EDITION ................................................. 16

MANU SMRITI ....................................................................................................................... 21

QURAN, CHAPTER 2, VERSE 222 ...................................................................................... 21

VISHNU SMRITI .................................................................................................................... 21

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STATEMENT OF JURISDICTION

THE PETITIONER HAS APPROACHED THE COURT UNDER ARTICLE 321 OF THE
CONSTITUTION OF INDIA.

The Respondent humbly submits to the jurisdiction of this Hon'ble Court.

1
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred
by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament may by
law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers
exercisable by the Supreme Court under clause ( 2 )
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution

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STATEMENT OF FACTS

 Sapthagiri is the most important pilgrimage destinations in the State of Shanthisthan

in the Indian Union.
 The temple will remain open for five days every month and for “Mandalakalam”
festival it remains open from 1st November to 11th December.
 A devotee who desires to visit the temple during “Mandalakalam” has to follow
‘Vratham’ for the period of 41 days.
 The 41 days vratham starts by wearing a special chain which consists of ‘Rudraksha’
and during the course of the 41 days of Vratham, the devotee is supposed to have a
lacto-vegetarian diet, abstain from marriage and sexual relations, not to consume
alcohol in any form, and are not even allowed to style and dress their hair and nails.
 Earlier only few women pilgrims visited the temple, but usually women between the
age of 10 and 50 were abstained from visiting the temple due to difficulties on
physiological grounds.Women below the age of 50 had visited the temple to conduct
the first feeding ceremony of their children.
 In 1981, STAB issued a notification during “Mandalakalam”, prohibiting the entry of
women of the age group 10 to 50, taking into account the religious sentiments and
practices followed in the temple since centuries. A devotee approached the Hon’ble
High Court of Shanthistan seeking action against a young woman who visited the
temple for her infant’s first-feeding ceremony.
 High Court banned the entry of women in the age group of 10-50 claiming it to be
relevant according to the traditional practices.The High Court directed the
Government of Shanthisthan to implement its decision and accordingly Rule 5A was
added in Sapthagiri Temple Administration Rules 1956.
 Friends of Women filed a PIL in 2012 under Article 32 in the Supreme Court of India
assailing the constitutionality of Rule 5A of the Temple Administration Rules 1956.
The Supreme Court of India in its decision allowed the entry of all women into the
Sapthagiri Prathan temple and declared that Rule 5A of the Sapthagiri Temple
Administration Rules 1956 was unconstitutional.
 Large scale protest occurred against the Supreme Court decision and then Parliament
enacted the Hindu Places of Public Worship (Authorisation of Entry) Act, 2018 which
prohibited women, lunatics, professional beggars etc. to enter temple.
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 Friends of Women filed a Writ petition Under Art 32 of the Constitution, challenging
the validity of The Hindu Places of Public Worship (Authorisation of Entry) Act,
2018.

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ISSUES FOR CONSIDERATION

THE PETITIONER VERY RESPECTFULLY PUT FORTH TO THE HON’BLE SUPREME

COURT, THE FOLLOWING QUERIES:

I. WHETHER THE PIL IS MAINTAINABLE?

II. WHETHER THE PARLIAMENT HAS LEGISLATIVE COMPETENCE TO ENACT THE HINDU PLACES
OF PUBLIC WORSHIP (AUTHORISATION OF ENTRY) ACT, 2018?
III. WHETHER THE ACT IS IMMUNE TO JUDICIAL REVIEW?
IV. WHETHER THERE IS VIOLATION OF FUNDAMENTAL RIGHTS?

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SUMMARY OF ARGUMENTS

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ARGUMENTS ADVANCED

ISSUE I

I. WHETHER THE PIL IS MAINTAINABLE?

 It is submitted that the NGO’s name is Friends of Women2 and six years back they
had file PIL for removing restrictions on entry of women and now in six years they
cannot change the subject of their NGO and file a PIL for women, lunatics, people
with communicable diseases etc. It is unreasonable on the part of the NGO to change
their subjects.
 PIL is not maintainable because in P.N. Kumar v. Municipal Corporation of
Delhi3. This Hon’ble Court redirected the petitioner to approach the High Court under
Article 226, and reasoned that the scope of Article was wider.
 Union Govt. can overturn the verdict of Supreme Court by enacting a law in the
Parliament. It was done in famous Ahmed Khan v. Shah Bano,4 she divorced from
his husband and his husband rejected to take any care of her i.e. denied maintenance
money. She filled case and when wasn’t satisfied with High Court decision appealed
to Supreme Court. Supreme Court ruled that Section 125 of Code of Criminal
Procedure applies to everyone regardless of caste, creed or religion it ruled that Shah
Bano must be given maintenance money, similar to alimony. It caused uproar in
Muslims and they claimed that according to Muslim Law, no such thing should be
done. The then Prime Minister Rajiv Gandhi, enacted a law Muslim Woman
(Protection of Rights on Divorce) Act 1986 which diluted the verdict of Supreme
Court. It allowed the husband to take care or give maintenance to divorced woman for
only 90 days. This is how Govt. overturned the decision of Supreme Court by
enactment of law.
 A very recent case is of Animal Welfare Board of India vs. A. Nagaraja & Ors.5
Supreme Court banned the Jallikattu - a bull taming festival of Tamil Nadu on the
grounds of that it caused cruelty to animals under Prevention of Cruelty to Animal

2
Factsheet
3
(1987) 4 SCC 609
4
AIR 1985 SC 945
5
(2014) 7 SCC 547
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Act. Union Govt. lifted the ban of Jallikattu going against the decision of Supreme
Court.

ISSUE II

II. WHETHER THE PARLIAMENT HAS LEGISLATIVE COMPETENCE TO

ENACT THE HINDU PLACES OF PUBLIC WORSHIP (AUTHORISATION
OF ENTRY) ACT, 2018?
 It is hereby submitted that Article 245,6 elaborates the extent of laws made by the
parliament and by the legislatures of states. Article 246,7 elaborates subject-matter of laws
made by the parliament and by the legislatures of the state
 It is submitted that in Harakchand Ratanchand Banthia v. Union of India,8
Ramaswami, J. observed: Before construing the entries it is useful to notice some of
the well-settled rules of interpretation laid down by the Federal Court and by this
Court in the matter of construing the entries. The power to legislate is given to the
appropriate Legislature by Article 246 of the Constitution. The entries in the three
Lists are only legislative heads or fields of legislation; they demarcate the area over
which the appropriate Legislatures can operate.
 Entry 28 of Concurrent list,9 gives the power to parliament and as well as to the
legislatures of the state to enact laws on the subject matter of: Charities and charitable
institutions, charitable and religious endowments and religious institutions. Hence the
parliament has the power to enact laws for the whole of the territory of India under the
head “religious institutions”.
 Section 2,10-“Place of public worship” means a place, by whatever name known or to
whomsoever belonging, which is dedicated to, or for the benefit of, or is used
generally by, Hindus or any section or class thereof, for the performance of any
religious service or for offering prayers therein, and includes all subsidiary shrines,
mutts, devasthanams and namaskara mandapams, and also any sacred tanks, wells,

6
Constitution of India
7
Constitution of India
8
(1969) 2 SCC 166
9
Article 246
10
Factsheet
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springs and water courses, the waters of which are worshipped, or are used for bathing
or for worship.
 The Religious Institution (Prevention of Misuse) Act, 1988,11 defines religious
institution as an institution for the promotion of any religion or persuasion, and
includes any place or premises used as a place of public religious worship, by
whatever name or designation known.
 In CST v. Radhakrishnan,12 this Court while dealing with the question of
constitutional validity of a statute held that the presumption is always on the
constitutionality and the burden is upon the person who attacks it to show that there
has been transgression of constitutional principles. It was held in that decision that for
sustaining the constitutionality of an Act, a Court may take into consideration matters
of common knowledge, reports, preamble, history of the times, object of the
legislation and all other facts which are relevant and that it must always be presumed
that the legislature understands and correctly appreciate the need of its own people
and that discrimination, if any, is based on adequate grounds and considerations.
 In Chaturbhai M. Patel v. Union of India and Ors.,13, another Constitution Bench
had held that in every case where the legislative competence of the legislature in
regard to a particular enactment was challenged with reference to the entries in the
various lists, it was necessary to examine the pith and substance of the Act and if the
matter came substantially within an item in the Central List, it could not be deemed to
come within an entry in the provincial list
 Thus the Act which is to authorise the entry of all sections of Hindus to Places of
public worship and for matters connected therewith or incidental thereto comes under
the entry 28.

11
Section (f)
12
[1979] 118 ITR 534(SC)
13
1954 SCR 873
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ISSUE III

III. WHETHER THE ACT IS IMMUNE TO JUDICIAL REVIEW?

 The majority judgment in Kesavananda Bharati v. State of Kerala,14 read with
Maneka Gandhi v Union of India,15 requires the validity of each new constitutional
amendment to be judged on its own merits. The actual effect and impact of the law on
the rights guaranteed under Part III has to be taken into account for determining
whether or not it destroys basic structure. The impact test would determine the
validity of the challenge.
 It is submitted that a law that abrogates or abridges rights guaranteed by Part III of the
Constitution may violate the basic structure doctrine or it may not. If former is the
consequence of law, whether by amendment of any Article of Part III or by an
insertion in the Ninth Schedule, such law will have to be invalidated in exercise of
judicial review power of the Court. The validity or invalidity would be tested on the
principles laid down in this judgment.
 It is further submitted that the terms "abridge" and "abrogate" have been employed by
this Court to distinguish between acceptable and unacceptable legislation. Whether
legislation abridges or abrogates is a question of degree. Using these terms is another
way of asking whether the legislation had such an effect that it changed the basic
structure of the Constitution. If legislation merely abridges the basic structure, the
structure's identity remains. The legislation is upheld. In this sense, the Parliament
may take away or destroy fundamental rights by amending the Constitution, provided
that the basic structure is not altered. 484. If it abrogates the basic structure, the
structure and thus the Constitution lose their identities. The legislation must be struck
down. This is determined on a case-by-case basis by applying the effect test
(impact/rights tests).16
 The fundamental are not getting violated and hence it cannot be said that the basic
structure of Indian Constitution is getting harmed. It is thus submitted that the
impugned act is immune from judicial review.

14
(1973) 4 SCC 225
15
Maneka Gandhi v union of india (1978) 2 SCR 621
16
Ashoka Kumar Thakur vs. Union of India (UOI) and Ors. (10.04.2008 - SC) : MANU/SC/1397/2008

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ISSUE IV

IV. WHETHER THERE IS VIOLATION OF FUNDAMENTAL RIGHTS?

 Presumption of Constitutionality is a legal theory that was developed by Common

Law Courts to deal with the cases challenging the constitutionality of statutes. The
presumption of Constitutionality was first employed in the case of O’Gorman &
Young v. Hartford Fire Insurance,17 in 1931 in which Justice Brandeis wrote, “The
presumption of constitutionality must prevail in the absence of some factual
foundation of record for overthrowing the statute.”
 While applying the doctrine of presumption of constitutionality, the Courts usually
apply the concept of ‘reading down’ while interpreting provisions under question. The
circumstances under which the need for the applicability of the doctrine arises can be
understood through the case of Kedar Nath Singh v. The State of Bihar,18 -
“It is well settled that if certain provisions of law construed in one way
would make them consistent with the Constitution and another
interpretation would render them unconstitutional, the Court would
lean in favor of the former construction.”
 In Charanjit Lal v. Union of India,19 the Supreme Court stated-
“…the presumption is always in favor of the constitutionality of an
enactment, and the burden is upon him who attacks it to show that
there has been a clear transgression of the constitutional principles.”
 The principles on the applicability of this doctrine was laid down in the case of Shri
Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar & Ors,20 are employed by
the court in determining the constitutionality of any particular statute challenged as
violative of the Constitution of India, 1950.
 A statute cannot be declared invalid on the ground that it contains vague or uncertain
or ambiguous or mutually inconsistent provisions.[Nand Lal v. State of Haryana,21]

17
282 U.S. 251 (1931)
18
1962 AIR 955
19
1951 AIR 41
20
1958 AIR 538
21
AIR 1980 SC 2097, 2100
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 Ascertaining the conditions prevailing at the time of its enactment and the extent and
urgency of the evil sought to be remedied by it is material to decide the
constitutionality of a statute. [J.R.G. Mfg. Ass. v. Union of India,22]
 In India, by and large, the courts seek to ignore extra legal materials pertaining to
measures impugned before them and seek to derive their ratio of decisions largely
from the language of statute and the decided cases. The courts go too much by the
words by the words of the statute maintaining a divorce between law and politics,
economics or sociology. The courts do not recognize the fact that if materials from
other social sciences are also taken into consideration, the dry statutory provisions
may have an ampler meaning especially when their constitutional validity is being
considered. [M P Jain Indian Constitution Law, 7th edition,23]
 A statute cannot be challenged on the ground of mala fides. [General Manager,
North West Railway v. Chanda Devi,24]. If legislature is competent to pass a
particular law, the motives which impelled it to act are really irrelevant. [K.C.
Gajapati Narayan Deo v. State of Orissa,25]
 The Court expressed the opinion that it was not bound by earlier judgments; it could
reconsider its own previous decisions. [Bengal Immunity Co. v. State of Bihar,26] In
the Constituent Assembly, the view was expressed that in order to enable mistakes to
be rectified, the Supreme Court should not be bound b its own decisions and that it
should be able to amend its own interpretations of law made by it previously to rectify
the errors it might have committed earlier. [Union of India v. Raghubir Singh,27]
 It is humbly submitted that the classical formulation of the law on the subject is
contained in the decision of the Supreme Court of India in the case of Shri Ram
Krishna Dalmia v. Shri Justice S. R. Tendolkar,28 It must be presumed that the
legislature understands and correctly appreciates the need of its own people, that its
laws are directed to problems made manifest by experience and that its
discriminations are based on adequate grounds; (4) The legislature is free to recognise

22
AIR 1970 SC 1589
23
P. 1642.
24
(2008) 2 SCC 108
25
AIR 1953 SC 375
26
AIR 1955 SC 661
27
AIR 1989 SC 1933]
28
1958 AIR 538
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degrees of harm and may confine its restriction to those cases where the need is
deemed clearest;

ARTICLE 25 AND ARTICLE 26

 Article 25(a): “Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom of conscience and
the right freely to profess, practise and propagate religion.”
 Article 26(b): “Freedom to manage religious affairs Subject to public order, morality
and health, every religious denomination or any section thereof shall have the right to
manage its own affairs in matters of religion.”
 The restrictions which may be imposed by the State upon the rights guaranteed by this
Article are those imposed on the grounds of – (i) public order, morality and health; (ii)
other provisions of Part III; (iii) regulating non-religious activity associated with
religious practice (iv) social welfare and reform; (v) throwing open Hindu religious
institutions of public character to all classes of Hindus. [Venkataramana v. State of
Mysore,29]
 Freedom guaranteed under Article 25 of the constitution is such freedom which does
not encroach upon a similar freedom of other persons. Supreme Court had observed
that no rights in an organized society can be absolute. Enjoyment of one’s right must
be consistent with the enjoyment of rights also by others. Where a free play of social
forces is not possible to bring about a voluntary harmony the state has to step in to set
right the imbalance between two competing interests. [Acharya Maharajshri
Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat,30]
 It has been held in Shri A.S. Narayana Deekshitulu v state of Andhra Pradesh,31
that the court must strike a balance between the freedom of the individual as regards
essential religious practices and the right of the state to regulate non-integral practices
in the interests of the community32

29
AIR 1958 S 255
30
AIR 1974 SC 2098
31
[1996] 9 SCC 548
32
Ibid Pg 551
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 The prohibition of persons suffering from any loathsome or contagious disease is

reasonable as right under Article 25 is subjected to public health. In the interests of
public health, the state may provide for isolation of contagious disease.
 The prohibition of unsound person and drunken person is reasonable on the ground of
public order, health. The state can regulate non religious activity. Prohibition of
drunken person, unsound person, and beggar is necessary to maintain sanctity of place
of public worship.
 Practise of restricting the entry of women of certain age on basis of custom and usage
(between the ages of 10 to 50 years) is an essential and integral part of the customs
and usages of the Temple, which is protected under Articles 25 and 26 of the
Constitution. Being a religious custom, it is also immune from challenge under other
provisions of Part III of the Constitution in light of the ruling of this Court in [Riju
Prasad Sharma & Ors. v. State of Assam & Ors.,33]
 Customs and usages forming an essential part of the religion cannot be overridden.
There is no ban, but only a limited restriction during the notified period, based on
faith, custom and belief, which has been observed since time immemorial.
 The characteristics and elements of a valid custom are that it must be of immemorial
existence, it must be reasonable, certain and continuous. The customs and usages,
religious beliefs and practises as mentioned above are peculiar to the Sapthagiri
Temple, and have admittedly been followed since centuries. Restriction based on
custom is part of essential religious practice of any temple.
 Sapthagiri is a religious denomination because the present definition of denomination
in Oxford dictionary is that any group or branch of any religion and the people who
are visiting the temple constitute a group of Hindu religion. In Commissioner, HR &
CE v LT Swamiar,34 the Hon’ble Court adopted the meaning of the word
denomination as given in the Oxford dictionary (as existed at that time) which read a
collection of individuals classed together under the same name; a religious sect or
body having a common faith and organization and designated by a distinctive name is
a denomination. Similarly relying on the present definition of Oxford dictionary
Sapthagiri constitutes a religious denomination as the group of people who are
visiting the temple they belong to a religion.

33
(2015) 9 SCC 461
34
1954 AIR 282
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 Religion as defined in, Lilly Thomas v. Union of India35 is a matter of faith

stemming from the depth of the heart and mind. Religion is a belief which binds the
spiritual nature of man to a supernatural being; it is an object of conscientious
devotion, faith and pietism. The devotees of Sapthagiri Temple have the same belief
that is the reason they live a strenuous life of 41 days in order to strengthen the
binding between their spiritual nature and supernatural being therefore they follow a
religion and the entire group of the religion is a denomination hence they have right to
religious denomination under Article 26 (b).
 The 41 day vratham is essential religious practice, the practice or rituals followed are
integral part of worship and everyone coming as a devotee has to follow that practice.
Custom followed by any religious institute for many years become important part of
its practice.
 The prohibition on the basis of birth or death, drunken person, contagious disease,
unsound mind and professional beggar is not permanent but only temporary to
maintain sanctity of places of public worship.

Article 17

 The object and core of Article 17 was to prohibit untouchability based on ‘caste’ in
the Hindu religion. No such caste-based or religion-based untouchability is practiced
 Article 11 of the Draft Constitution corresponds to Article 17 of our present
Constitution.36 A perusal of the Constituent Assembly debates on Article 11 of the
Draft Constitution would reflect that “untouchability” refers to caste-based
discrimination faced by Harijans, and not women
 Mr. Seervai, in his seminal commentary, states that “Untouchability” must not be
interpreted in its literal or grammatical sense, but refers to the practise as it developed
historically in India amongst Hindus.

Article 14 & 15

 The twin-test for determining the validity of a classification under Article 14 is:
 The classification must be founded on an intelligible differentia; and

35
AIR 2013 SC 2662
36
“Untouchability” is abolished and its practice in any form is forbidden. The enforcement of any disability
arising out of “Untouchability" shall be an offence punishable in accordance with law.”
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 It must have a rational nexus with the object sought to be achieved by the
impugned law.
The difficulty lies in applying the tests under Article 14 to religious practices which
are also protected as Fundamental Rights under our Constitution. The right to equality
claimed by the Petitioners under Article 14 conflicts with the rights of the
worshippers of this shrine which is also a Fundamental Right guaranteed by Articles
25, and 26 of the Constitution. It would compel the Court to undertake judicial review
under Article 14 to delineate the rationality of the religious beliefs or practices, which
would be outside the ken of the Courts. It is not for the courts to determine which of
these practices of a faith are to be struck down, except if they are pernicious,
oppressive, or a social evil, like Sati.
 The present case deals with the right of the devotees of this denomination or sect, as
the case may be, to practice their religion in accordance with the tenets and beliefs,
which are considered to be “essential” religious practices of this shrine.
 The age group of 10 to 50 years is not arbitrary, and stands the rigors of Article 14
since the prescription of this age-band is the only practical way of ensuring that the
limited restriction on the entry of women is adhered to.
 In dissenting judgment of Indu Malhotra J. in Indian Young Lawyer Association v.
The State of Kerala,37 the equality doctrine enshrined under Article 14 does not
override the Fundamental Right guaranteed by Article 25 to every individual to freely
profess, practise and propagate their faith, in accordance with the tenets of their
religion.
 Rights conferred in Article 19(1) are subject to clause (2) to (6), right to freedom of
speech and expression is subject to public order or decency. Begging at places of
public worship can disturb public order and also indecent in view of place. Devotees
go to such place for peace, satisfaction. Allowing of begging at such place would
seriously breach their right to privacy. Moreover, The said act does not prohibit
beggars but only prohibit professional begging (when their entry is only for the
purpose of begging)
 Prohibition of unsound mind person is also reasonable as restriction is not complete
but provides that if person taken for worship under proper control and with the

37

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permission of the executive authority of the place of public worship concerned, entry
is allowed. Temporary regulation is necessary to protect health or public order.
 Prohibition of persons suffering from any loathsome or contagious disease is
reasonable as rights are subject to health. Allowing of such person has potential risk
of spreading contagious disease.
 Prohibition of drunken and disorderly person is reasonable as right to religion is
subject to health, public order or morality.
 The restriction imposed by this Act on the persons under pollution arising out of birth
or death in their families is valid on the following grounds:
 Chapter 5 of Manu Smriti declares ten days of Sutaka (impurity) for
Sapinda. A man who hears of a (Sapinda) relative’s death, or of the birth of a
son after the ten days (of impurity have passed), becomes pure by bathing,
dressed in his garments.
 Chapter 22 of Gautama Smriti agree with Vishnu Smriti. It declares rules
regarding impurity caused by the death of a relative apply to the birth of a
child also. Chapter 4 of Vashishtha Smriti also declares the same.
 Women within the bracket of 10 to 50 years of age are not allowed to enter the temple
due to custom and usage i.e. menstruation and many spiritual texts provide support to
this. Some of the verses from the texts are
 In the Old Testament, in Chapter 15, Verse 19 of the book of Leviticus, it is
stated: If a woman has an issue and her issue in her flesh and blood, she shall
be put apart seven days: and whosoever touch her shall be unclean until the
event.
 Similarly Dharmasutra of Vasistha states that Indra, after he had killed the
three-headed son of Tvastr, was seized by sin, and he regarded himself as a
Brahmin killer and divided his sin to women, water, trees and Earth therefore
women face menstruation every month and during that phase they carry the sin
of killing a Brahmin ergo they should abstain from visiting the temple because
at that point of time they are impure .
 In the Qur‘an, Chapter 2, Verse 222 states as follows: Menstruation is a state
of hurt and ritual impurity, so keep away from women during their

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menstruation and during periods they should not be approached as they are
impure.
 Hence women under the bracket of 10 to 50 years should not visit the temple to
maintain the sanctity of the same.

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PRAYER

IN THE LIGHT OF ISSUE RAISED, ARGUMENTS ADVANCED, AND AUTHORITIES CITED, MAY THIS

HON’BLE COURT BE PLEASED TO:

 HOLD THAT THE PRESENT PUBLIC INTEREST LITIGATION IS NOT MAINTAINABLE.
 HOLD THAT THE PARLIAMENT HAS LEGISLATIVE COMPETENCE TO ENACT THE LAW.
 HOLD THAT THE ACT IS IMMUNE TO JUDICIAL REVIEW.
 HOLD THAT THERE IS NO VIOLATION OF FUNDAMENTAL RIGHTS.

AND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE PLEASED TO GRANT IN THE

INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE, ALL OF WHICH IS RESPECTFULLY

SUBMITTED.

SD /- COUNSELS FOR THE RESPONDENTS

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