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Moot memorial on behalf os petitioner
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1. Constitution of Indiana ACTS AND STATUTES
It is most humbly submitted that the petitioner has approached the honorable supreme court of Indiana under Article 32 of the constitution for the violation of the fundamental rights guaranteed under the constitution of Indiana by filing a public interest litigation.
curse. Now free, she asks Tenji to marry her. He refuses, explaining to her that his mission is to go to Tenjiku where he would answer the prayers of his devotees. However, he assures her, he will marry her when kanni-swamis stop coming to Himaya. She now sits and waits for him at a neighbouring shrine near the main temple and is also worshipped as Masma. And that is why women do not go to Tenji. It is partly out of empathy for Masma and her eternal wait and itâs also out of respect for Tenji's commitment to answer the prayers of his devotees.
of the HC held that the restriction was in accordance with a usage from time immemorial and not discriminatory under the Constitution. Upholding the restrictions, the High Court, in its judgment, said: âAccording to âThe Himaya Thanthriâ, these customs and usages had to be followed for the welfare of the temple. He said only persons who had observed penance and followed the customs are eligible to enter the temple and it is not proper for young women to do so."
1. Whether the petitioner and the subsequent interveners have the locus to file the present Writ Petition? It is humbly submitted that the petitioner and subsequent interveners did not have the locus to file the present writ petition. They do not have any bonafide interest to file the Public interest litigation. 2. Whether the Honâble Supreme Court has the jurisdiction in defining the boundaries of religion in public spaces? It is humbly submitted that Freedom of religion has been infringed a lot by judicial interference that led to a series of litigation and arose a new question before the judiciary, how far is it correct to apply judicial mind and constitutional adjudication in the matter of religion by the courts. 3.Whether the said restriction imposed on the women and children of certain age amounts to violation of their Fundamental Rights as enshrined in the Constitution, specifically violation of Articles 14, 15(3) and 17 in light of Rule 3(b) of Tenjiku Hindu Places of Public Worship (Authorization of Entry) Rules?* It is humbly submitted that exclusion of women was an essential practice in their religion. The exclusion was not against all women, but only women between 10-50 years of age. Considering the celibate nature of the deity, this exclusion was reasonable. So, in this case the interpretation made here is between menstruating and non-menstruating women to be a reasonable classification. The objective of menstruating women is disallowed because they are seen as âincapable of being celibateâ or âimpureâ.
4.Whether the practice of excluding such women constitutes an "essential religious practice" under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion? It is humbly submitted that practice is continuing since time immemorial without any interruption, so it become usage and custom which is pre- constitutional. According to Article 13(3)(a) law includes custom and usage, so it does not violate Article 25 of Indiana Constitution. The religious institution can assert claim under the umbrella of right to manage its own affairs in matter of religion. This statement is supported by Article 26(b) of the Constitution of India, which grants religious denominations the autonomy to regulate various aspects of religious practice, including access to places of worship and participation in religious rituals.
abstract identities is lifeless logic. Like âmanifest arbitrarinessâ, âconstitutional moralityâ is totally subjective and would itself be arbitrary.â 2.3 In the present scenario, then it is not possible for the judiciary to develop the doctrine of a religious question in a country where a number of religions coexist and also religion itself a vague concept. The case of States v. Ballard^2 That defines âDoctrine of Religious Questionsâ in the USA clearly states that. âJudicial intervention into religious questions is similar to the doctrine of a political question, wherein, it can be understood that just like it is expected that political branches are more apposite to decide the political question, religious bodies are more suitable to decide questions about religionâ. So, the religious matter should be left to be decided by the head of religious group only. 2 .4 While dealing with religious matters court Clubs numerous cases which have been filed for the same issues this creates lots of problems in the society as remedies sought in each case are usually different hence uniform verdict will give rise to religious conflicts. The General practice of transferring the issue to the larger bench while dealing with a religious question is also an important concern for the judiciary as it not only wastes lots of time but also narrows down the scope for justice. 2 .5 The court in the most religious matters has been inconsistent in applying essential practice doctrine which has created lots of resentment in common people against the judiciary as they considered it as circumscription of their freedoms to practise and profess their religion. (^2 )
3 .1 Article 14 Exclusion of women was an essential practice in their religion. The exclusion was not against all women, but only women between 10- 50 years of age. Considering the celibate nature of the deity, this exclusion was reasonable. So, in this case the interpretation made here is between menstruating and non-menstruating women to be a reasonable classification. The objective of menstruating women is disallowed because they are seen as âincapable of being celibateâ or âimpureâ. In âRevathi v. Union of India^3 In this case the court dealt with the provisions of Section 198(2) Cr.P.C and Section 497 of IPC which disable the women from prosecuting her husband for the offence of adultery was challenged on the ground that it was violating Article 14 of the constitution. The supreme court held that there was no discrimination based on the sex and these provisions were valid. With the comparison of this case with the Tenjiku temple case there is no actual prohibition of all classes of particular gender. In the case of âIndian council of legal aid and advice v. Bar council of India^4 the validity of new Rule 9 , added by the Bar Council of India in Bar council rule which barred the entry of person who had completed the age of 45 years on the date on the date of application for enrolment as an advocate was challenged as discriminatory and unreasonable and violative of Article 14 of the constitution and also section 24 of the Advocates Act 1961. But it is argued that the rule were intended to maintain the dignity and also purity of the profession by keeping out those who retire from various government and quasi government and other institution since they on bring enrolled as advocate use their past (^3) AIR 1988 SC 835 (^4) AIR 1995 SCC 732
In âAnjali Roy v. State of West Bengal^5 The court held that Article 15(3) provides for only special provision for the benefits of women and children and it does not require that absolutely identical treatment as those enjoyed by males in similar matters must be afforded to them. 3 .5 Article 17 Article 17 abolishes âuntouchabilityâ and forbids its practice in any form. The enforcement of any disability arising out of untouchability is to be an offence punishable in accordance with law. The term 'untouchability' is not defined in the constitution. So, it is not understood in its literal or grammatical sense but to be understood as the practices as it had developed historically. In this case the term untouchability is used either temporally or otherwise for various reasons such as suffering from infectious diseases or on account of social boycott resulting from castes or other disputes. 3 .6 The practices of tenjiku temples are purely based on tribal practices. So, the law is also giving some constitutional protection to the tribal peoples. âGovt. of A.P vs. Smt. Dasari Subbayamma & Anr âit was held by the court that âbelonging to a tribe is a matter of birth; not of choice â nor a matter of law. 3 .7 The Scheduled Tribes do not necessarily identify with any form of organised religion in the country. Their religious concepts, terminologies and practices are varied among the hundreds of tribes across the country. Religious concepts are intricately entwined with ideas about nature and interaction with local ecological systems as well as spiritual rituals and customs. One of the tribal groups, Santhal, has their own way of life and maintaining all privileges in matters connected with marriage and succession as per their customary tribal faith. Article 42 deals with the promotion of educational and economic interests of the Scheduled Castes, Scheduled Tribes and other weaker sections of society (^5) AIR1952 Cal 825
3 .8 Religious freedom guaranteed to Scheduled Tribes (STs) and the Traditional Forest Dwellers (TFDs) under Articles 25 and 26 of the Constitution is intended to be a guide to a community of life and social demands, so the above mentioned Articles guarantee them the right to practise and propagate not only matters of faith or belief, but all those rituals and observations which are regarded as integral part of their religion. Their right to worship the deity Niyam-Raja has, therefore, to be protected and preservedâ. In this case the various religious disabilities like preventing any person from entering any place of public worship or from worshipping or any other social disabilities is only for temporary period to such class person and not a fully prohibition it only restricting the women who are in the age between 10 to 50, and not prohibiting the entire age group of women. This practice is fully based on the tribal religious practices and on their custom.
4. WHETHER THE PRACTICE OF EXCLUDING SUCH WOMEN CONSTITUTES AN "ESSENTIAL RELIGIOUS PRACTICE" UNDER ARTICLE 25 AND WHETHER A RELIGIOUS INSTITUTION CAN ASSERT A CLAIM IN THAT REGARD UNDER THE UMBRELLA OF RIGHT TO MANAGE ITS OWN AFFAIRS IN THE MATTERS OF RELIGION? 4.1 It is humbly submitted that Custom is an important means of controlling social behaviour. The importance of customs in society cannot be minimized. They regulate social life especially among illiterate people to a great extent and are essential to the life of a society. Custom serves as the repository of our social heritage. It preserves our culture and transmits it to the succeeding generations, bring people together and develops social relationships among them. According to Salmond , âCustom is the the embodiment of those principles which have commended themselves to the national conscience as principles of justice and utilityâ.
The on-going matter in the Supreme Court has also put the spotlight on a 1991 Tenjiku High Court judgment, wherein the division bench of the HC held that the restriction was in accordance with a usage from time immemorial and not discriminatory under the Constitution. Upholding the restrictions, the High Court, in its judgment, said: âAccording to âThe Himaya Thanthriâ, these customs and usages had to be followed for the welfare of the temple. He said only persons who had observed penance and followed the customs are eligible to enter the temple and it is not proper for young women to do so." 4.3 According to Article 13(3)(a) of the constitution of Indiana^8 , âlawâ includes any ordinance, order, byelaw, rule, regulation, notification, custom or usage having in the territory of India the force of law. It is submitted that in the case of State of Bombay v. RMD Chamarbaugwala^9 , the Supreme Court held that the term "law" under Article 13(3)(a) encompasses not only enacted laws but also customs and usages having the force of law. The court emphasized that customs and usages that are recognized and enforced by the state form part of the legal system and are subject to constitutional scrutiny. This decision affirmed the broad interpretation of the term "law" to include customary practices within the scope of constitutional review. According to Article 13(3)(b) of the constitution of Indiana^10 , âlaws in forceâ includes law passed or made by a legislature or other competent authority in the territory of India before the commencement of this constitution and not previously repealed, notwithstanding that any such law or any part thereof may not be then in operation either at all or in particular areas. (^8) Article 13(3)(a) of constitution of India (^9) 1957 AIR 699 1957 SCR 874 (^10) Article 13(3)(b) of the constitution of India
It is submitted that in the case of Ranjit Udeshi v. State of Maharashtra (1965)^11 , the Supreme Court considered the validity of a law that prohibited the exhibition and distribution of obscene materials. The court held that the term "laws in force" under Article 13(3)(b) encompassed not only enacted statutes but also customs and usages that had the force of law. Therefore, the court recognized the authority of the state to regulate activities that contravened established customs and public morality, even in the absence of specific legislation. It is humbly stated that the practice is continuing since time immemorial without any interruption, so it become usage and custom which is preconstitutional. So, it does not violate Article 25 of the Constitution of Indiana 12 which gives freedom of conscience and free profession, practice and propagation of religion. So hence excluding such women from the age of 10 to 50 years is an essential religious practice under Article 25 of Constitution of Indiana. It is submitted that in the case of Commissioner of Police & Ors vs. Acharya Jagadishwarananda Avadhuta & Anr^13 , the Supreme Court reiterated that customs and usages which are integral to a religion and have been practiced since time immemorial are protected under Article 25. The Court held that such customs and usages cannot be interfered with by the State unless they are found to be contrary to public order, morality, or health. 4.4 Article 26 of the Constitution of Indiana^14 guarantees the freedom to manage religious affairs subject to public order, morality, and health. This means that religious denominations have the right to manage their own affairs without interference from the state, as long as their actions do not disrupt public order, morality, or health. (^11) 1965 AIR 881 1965 SCR (1) 65 (^12) Article 25 of the Constitution of India. (^13) AIR 1990 (Calcutta 336 at 352). (^14) Article 26 of the Constitution of India.
