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IN THE HON’BLE SUPREME COURT OF INDIANA, INDIANA

(U/ Article 134, Article 142 and Article 139-A of the Constitution of Indiana)

IN THE MATTERS OF: -

(CP. No. 111 of 2018)

KADAM EK PEHAL …….………….………………………………………………Appellant

v.

GOVERNMENT OF ARYA PRADESH, LORD

JOGESHWARA TRUST

& DISTRICT MAGISTRATE OF KATRA ………………………………………Respondent

CLUBBED WITH

(Cr. App. No. 1028 of 2018)

Pt. Kali Charan & Ors ………….……...……………….……………………………Appellant

v.

State of Arya Pradesh……….……………………………………………..……….Respondent

CLUBBED WITH

(Petition No. 1008 of 2018)

Mr. Ajay Tripathi………………………………………………………….………….Appellant

v.

Union of Indiana.………………………………………………….………………..Respondent

COUNSEL ON BEHALF OF APPELLANTS

MEMORIAL FILED ON BEHALF OF APPELLANTS

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS _________________________________________________ iii

INDEX OF AUTHORITIES__________________________________________________ iv

1. Books Cited _________________________________________________________ iv

2. Cases ______________________________________________________________ iv

3. International Conventions ______________________________________________vii

4. Statutes Referred _____________________________________________________vii

5. Websites Referred ___________________________________________________ viii

STATEMENT OF JURISDICTION____________________________________________ ix

STATEMENT OF FACTS ____________________________________________________ x

ARGUMENTS PRESENTED ________________________________________________xii

SUMMARY OF ARGUMENTS _____________________________________________ xiii

1. That prohibiting women of a particular age group from entering Lord Jogeshwara
Temple is violative of the Fundamental Rights enshrined under the Constitution of Indiana,
and the claim for the exclusion of women from religious worship founded in religious text,
is subordinate to the Constitutional values of Liberty, Dignity and Equality __________ xiii

2. That all practices discriminatory to women, and also to men, of all faiths will be made
an act of discrimination contrary to Constitutional values and would Attract Penal
Provisions. _____________________________________________________________ xiii

3. That the accused are not guilty of abduction and murder of Reema and Riya, and the
High Court of Arya Pradesh erred in acquitting them ___________________________ xiii

ARGUMENTS ADVANCED_________________________________________________ 1

1. That Prohibiting women of a particular age group from entering Lord Jogeshwara
Temple is violative of the Fundamental Rights enshrined under the Constitution of Indiana,
and the claim for the exclusion of women from religious worship founded in religious text,
is subordinate to the Constitutional values of Liberty, Dignity and Equality. ___________ 1

A. That prohibiting women of a particular age group from entering Lord Jogeshwara
Temple is violative of the Fundamental Rights enshrined under the Constitution of Indiana
1

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B. That, the claim for the exclusion of women from religious worship founded in
religious text, is subordinate to the Constitutional values of Liberty, Dignity and Equality.
6

2. That All Practices Discriminatory To Women, and also to Men, of all Faiths Will Be
Made An Act Of Discrimination Contrary To Constitutional Values and would attract penal
Provisions. ______________________________________________________________ 10

A. That the present Public Interest Litigation filed is maintainable under Article 32 _ 10

B. That “laws in force” under Article 13 includes customary practices ____________ 11

C. That all religious practices shall be tested in the light of Fundamental Rights enshrined
in Part III of the Constitution of Indiana _____________________________________ 12

D. That the discriminatory practices shall be held unconstitutional and should attract
penal provisions ________________________________________________________ 14

3. That The Accused Persons Are Not Guilty Of Abduction And Murder Of Reema And
Riya & For The Rape Of Riya And The Trial Court And High Court Of Arya Pradesh Erred
In Convicting Them. ______________________________________________________ 16

Even Circumstantial Evidences Are Non-Existing _____________________________ 16

PRAYER ________________________________________________________________ xiv

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LIST OF ABBREVIATIONS

ABBREVIATIONS FULL FORM

A.I.R All India Reporter

Cr. P.C Code of Criminal Procedure

Cri.L.J Criminal Law Journal

Ed. Edition

F.I.R. First Information Report

I.P.C. Indiana Penal Code

Ors. Others

P.W. Prosecution Witness

Pg. Page

r/w Read With

S.C. Supreme Court

S.C.C. Supreme Court Cases

S.C.R. Supreme Court Reports

S.C.R. Supreme Court Reports

Sec. Section

u/s Under Section

UOI Union of India

v. Versus

Vol. Volume

Id. Ibid

art. Article

Admin. Administration

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INDEX OF AUTHORITIES

1. BOOKS CITED

S. NO. BOOKS PG. NO.

1. GRANVILLE AUSTIN, “THE INDIAN CONSTITUTION: 3
CORNERSTONE OF A NATION”, XII, XIII.OXFORD
UNIVERSITY PRESS (1999).
2. B SHIVA RAO, THE FRAMING OF INDIA’S CONSTITUTION: 4
A STUDY, INDIAN INSTITUTION OF PUBLIC
ADMINISTRATION 202 (1968). (CAD ON 21.04.1947).

2. CASES

S.NO. NAME OF CASE PG. NO.

1. ABC v. The State (NCT of Delhi) 2015 SCC OnLine SC 609 15
2. Adi Saiva Sivachariyargal Nala Sangam and others v. Government of 9
Tamil Nadu and others (2016) 2 SCC 725.
3. Adi Saiva Sivachariyargal Nala Sangam v. State of T.N (2016) 2 SCC 8
725.
4. AnujGarg and others v. Hotel Association of India, (2008) 3 SCC 1 3
5. Bachan Singh v. State of Punjab, AIR 1982 SC 1325 14
6. Bandhua Mukti Morcha v. Union of India (1982) 3 SCC 235 10
7. Bhagat Ram v. State of Punjab, AIR 1954 SC 621 16
8. Charu Khurana v. Association of India, (2008) 3 SCC 1 3
9. Chenga Reddy v. State of A.P. (1996) 10 SCC 193 18
10. Commissioner of Police v. Acharya Jagdishwarananda Avadhuta AIR 8
1984 SC 51
11. Dasaratha Rama Rao v. State of Andhra Pradesh AIR 1961 SC 67 11,13
12. Deepak Sibal v. Punjab University 1989 AIR 903 SCR (1) 689 2
13. Deoki Nandan v. Murlidhar and Others, AIR 1957 SC 133 3
14. Devarajiah v. B. Padmanna, AIR 1958 Mys 84. 4
15. E.P. Royappa v. State of Tamil Nadu and Another 1974 (4) SCC 3 13

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16. Forward Construction Company v. Prabhat Mandal AIR 1986 SC 391 10

17. Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746 4
18. Gazula Dasaratha Rama Rao v. State of Andhra Pradesh 11

19. Golaknath v. State of Punjab 1967 AIR 1643, 1967 SCR (2) 762 1
20. Government of NCT of Delhi v. Union of India and others (2019) SCC 9
OnLine SC 193.
21. Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 16
22. Indian Young Lawyers Association v. The State Of Kerala, 2016 SCC 2,9, 12
OnLine SC 1783
23. Javed v. State of Haryana (2003) 8 SCC 369 8
24. K Laxmanan v. The District Collector 2019 SCC OnLine Mad 378 1
25. Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080 6

26. Kehar Singh & Ors. v. State (Delhi Admn.), AIR 1988 SC 1883 (Indiana) 19
27. Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461 1,2
28. Kharak Singh v. State of U.P.AIR 1963 SC 597 4
29. LIC of India v. Consumer Education and Research Centre, AIR 1995 SC 2
1811, 1822
30. MadhuKishwar v. State of Bihar 1996 5 SCC 125 11
31. Mahal Chand Sethia v. State of W.B 1969 (2) UJ 616 SC 6
32. Majendran Langeswaran v. State (NCT Of Delhi) & Anr (2013) 7 SCC 16
192
33. Maneka Gandhi v Union of India, (1978) 1 SCC 248 2,5,14
34. Manthuri Laxmi Narsaiah v. State of Andhra Pradesh (2011) 14 SCC 117 19
35. MG Badappanavar v. State of Karnataka, AIR 2001 SC 260 2
36. Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789 14
37. Mohd. Ahmed Khan v. Shah Bano Begum 1985 (2) SCC 556 15
38. Mohd. Shujat Ali v. UOI , AIR 1974 SC, 1631, 1653 2
39. Mrs. Mary Roy Etc. v. State Of Kerala & Ors, 1986 AIR SC 1011 15
40. Munshi Prasad v. State of Bihar (2002 (1) SCC 351 18
41. N. Adithayan v. Travancore Devaswom Board and Ors (2002) 8 SCC 3,11
106

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42. N.H.R.C. v. State of Arunachal Pradesh, (2014) 8 SCC 390 13

43. Nallor Marthandam Vellalar and others v. Commissioner, Hindu 7
Religious and Charitable Endowment and others, AIR 2003 SC 4225
SCC 712 (Indiana).
44. Nandini Sathpathy v. P.L.Dani , AIR 1978 SC 1025 18
45. Narendra Singh v. State of M.P., (2004) 10 SCC 699 18
46. National Legal Services Authority v. Union of India, (2014) 5 SCC 438 4
47. Navtej Singh v. Union of India (2018) 1 SCC 791 3
48. Navtej Singh v. Union of India (2018) 10 SCC 1. 9
49. Padala Veera Reddy v. State of A.P., AIR 1990 SC 79 16
50. People’s Union for Democratic Rights v. Union of India AIR 1984 SC 10,11
1473
51. People's Union for democratic rights v. Union of India (1982) 3 SCC 235
52. Pravasi Bhali Sangathan v. Union of India (2014) 11 SCC 477 15
53. R.K. Dalmia v. Justice Tendolkar 2008 (6) SCALE 325 2
54. Raj Kumar Singh @ Raju v. State of Rajasthan, (2013) 5 SCC 722 19
55. Ramanand Yadav v. Prabhu Nath Jha And Ors., (2003) 12 SCC 606 20
(Indiana)
56. Ramesh Chandra Agrawal v. Regency Hospital Ltd. & ORS AIR 2010 18
SC 806
57. Re Berubari Union and Exchange of Enclaves, (1960) 3 SCR 250 12
58. Rupa Ashok Hurra v Ashok Hurra JT 2002(3) SC 609 (2002) 4 SCC 388 viii
59. S P Mittal v Union of India, (1983) 1 SCC 51. 7
60. S.P. Gupta v. Union of India AIR 1982 SC 149 10,11
61. Sanganathan v. State of Tamil Nadu (2014) 10 SCC 264 18
62. Satyawati Sharma v. Union of India 2008 (6) SCALE 325. 2
63. Seshammal v. State of T.N. (1972) 2 SCC 11 9,14
64. Sharad Birdi Chand v. State of Maharashtra, AIR 1984 SC 1622 16
65. Shayara Bano v. Union of India (2017) 9 SCC 1. 8
66. Sheikriyammada Nalla Koya v. Administrator, Union Territory of 11
Laccadives, Minicoy and Amindivi Islands AIR 1967 Ker 259
67. Sri Venkatramana Devaru v. State of Mysore AIR 1958 SC 255 5,7
68. Srinivas Theatre v. State of T.N, AIR 1992 SC 992 13

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69. State of Uttar Pradesh v. Wasif Haider Etc., (2019) 2 SCC 303 19
70. Stephen’s College v. University of Delhi (1992) 1 SCC 558 13
71. Subhash Kumar v. State of Bihar (1991) 1 SCC 598 10
72. Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021 14
73. T.N. GodavaramanThirumulkpad v. Union of India17 October, 2006 WP 11
(C) No. 202 of 1995
74. T.R. Kothandaraman v. T.N. Water Supply & Drainage Board (1994) 6 14
SCC 282
75. The Commissioner, Hindu Religious Endowments, Madras v. Sri 7,8
Lakshmindra Thirtha Swamiar of Sri Shirur Math (1954) SCR 1005
76. The United Provinces v. Mst. Atiqa Begum AIR 1941 FC 16 11
77. Vikram Cement v. State of MP, (2015) 11 SCC 708 2
78. Vineet Narain v. Union of India, (1998) 1 SCC 226 15
79. Virender Krishna Mishra v. UOI, (2015) 2 SCC 712 2
80. Vishakha and others v. State of Rajasthan (1997) 6 SCC 241 6
81. Yakub Abdul Razak Memon vs State of Maharashtra (2015) 9 SCC 552 viii

3. INTERNATIONAL CONVENTIONS

S. NO. STATUTES PG. NO.

1. Universal Declaration of Human Rights, Article 7, Dec. 10, 1948. 5

2. Convention on the Elimination of All Forms of Discrimination 6

against Women, Article 2, Dec. 18, 1979.

4. STATUTES REFERRED

S. NO. STATUTES PG. NO.

3. Indiana Evidence Act, 1872 17

4. Indiana Penal Code, 1860 13

5. The Code of Criminal Procedure, 1973 17

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6. Constitution of Indiana, 1950 16

5. WEBSITES REFERRED

S. NO. WEBSITE PG. NO.

1. SCC Online (www.scconline.in) 5, 7, 14

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STATEMENT OF JURISDICTION

1. The Petitioners most humbly submit before the jurisdiction of the Hon’ble Supreme Court
in the Criminal Appeal No. 1028 of 2018 under Article 134 read with Article 142(1) of the
Constitution of Indiana.
2. With respect to Petition No. 1008 of 2018 filed by Mr. Ajay Tripathi, this Hon’ble Court
has the jurisdiction to hear the matter under Article 139A of the Constitution of Indiana.
3. The Curative Petition No. 111 of 2018 has been filed under the plenary jurisdiction of this
Hon’ble Court, as has been decided in the case of Rupa Ashok Hurra v Ashok Hurra 1 and
Yakub Abdul Razak Memon v. State of Maharashtra 2 Also, in Supreme Court of India
Handbook on Practice and Procedure and Office Procedure, a petition under Order XLVIII
of the Rules shall be registered as a Curative Petition.

1
JT 2002(3) SC 609 (2002) 4 SCC 388
2
Yakub Abdul Razak Memon vs State of Maharashtra (2015) 9 SCC 552

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STATEMENT OF FACTS

HISTORY OF LORD JOGESHWARA TEMPLE

1. 80% of the people residing in Arya Pradesh are disciples of Lord Jogeshwara. Lord
Jogeshwara Trust is the governing and administrative body devoted towards development
of Lord Jogeshwara Temple and all other temples in the Jogeshwara Akhara. Lord
Jogeshwara is a deity depicting a “hyper masculine God” born out of the union of two male
Gods. The temple was built around 900 B.C. & the deity in the temple is in the form of
Yogi or Bramhachari.
PROHIBITING ENTRY OF WOMEN BETWEEN THE AGE OF 11 TO 51

2. People of Arya Pradesh firmly believe and promote this notion that if the women between
the age 11 to 51 are allowed to offer prayers in the temple then celibacy and austerity
observed by Lord Jogeshwara will be curtailed and the temple will lose its ancient cultural
and religious significance. The parliament of Indiana enacted the Lord Jogeshwara Temple
(Prohibition on Entry of Women) Act in 1985, in order to prohibit women of menstruating
age to enter the temple.
SUPREME COURT RULING
3. On 01.05.2013 Reema and Riya, daughters of Pt. Ram Kishan, filed a PIL before the
Supreme Court of Indiana seeking issuance of direction against the Government of Arya
Pradesh, Lord Jogeshwara Trust and District Magistrate of Katra to ensure entry of all
female devotees to Lord Jogeshwara Temple at Katra.
4. On 23.12.2016, Hon’ble Court held that “The equality doctrine enshrined under Article 14
does not override the Fundamental Right guaranteed by Article 25 of the Constitution” &
further held that “The limited restriction on the entry of women during the notified age
does not violate their Fundamental Rights.”
5. On 24.12.2016, Reema and Riya with some other women tried to enter the temple for
offering their prayers, they were stopped by devotees who were shouting that “IF ANY
WOMEN WILL STEP INTO THE TEMPLE OF LORD JOGESHWARA SHE WILL
FACE DIRE CONSEQUENCES AND THEIR ENTIRE FAMILY WILL BE KILLED”.
Pt. Kali Charan had blocked the gate of the temple with his two sons Bhanu & Kalu and
directed the other priests Bhawani & Jagga to bring lathis from the temple for teaching a
life lesson to the women.

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MURDER AND RAPE

6. On 30.12.2016, at around 1:00 a.m., Mrs Radha informed the police that her daughters
have not arrived home till now & requested police to lodge a missing complaint and
investigate further. However, the police denied to lodge FIR but started searching for the
twin sisters. While patrolling, the police discovered a suspicious SUV in an abandoned
jungle, near Mohini Bazar & towed the same to Mohini Bazar Police Station.
7. In the morning, at around 5:30 a.m., Pt. Kali Charan called the police and informed about
a dead body lying near the Sanctum Sanctorum of the temple. The police immediately
reached the temple. Mrs. Radha identified the body as that of Reema & the body was sent
for post mortem. On the incessant request made by Mrs. Radha, the police lodged FIR
against Pt. Kali Charan, Bhanu, Kalu, Bhawani, and Jagga.
8. On 31.12.2016, during preliminary investigation, the police discovered a dead body from
the jungle near Mohini Bazar which was later identified as that of Riya. The FIR was
subsequently amended and the accused were charged for murder of both Reema & Riya.
CBI COURT AND HIGH COURT VERDICT

9. CBI Court found all accused guilty of abduction and murder of Reema and Riya, and also
for the rape of Riya. The Court sentenced all of them to death & the High Court upheld the
order of the Trial Court. An appeal was filed against the order of HC before the Hon’ble
Supreme Court of Indiana in Dec., 2018, which the court has agreed to hear.
10. After the conviction order passed by the High Court of Arya Pradesh, KADAM filed a
Curative Petition against the order of Supreme Court passed in year 2016 in which court
held the prohibition on entry of women of such age not being unconstitutional.
11. A petition had been moved before the High Court of Arya Pradesh by Mr. Ajay Tripathi,
a social activist & director of an NGO, RAAHEE, seeking an end to all practices
discriminatory to both women & men of all faiths and make the act of discrimination a
penal offence. The Apex Court has withdrawn it from the High Court for disposing it off
by itself.
Hence, the present case.

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ARGUMENTS PRESENTED

ISSUE 1

THAT PROHIBITING WOMEN OF A PARTICULAR AGE GROUP FROM ENTERING

LORD JOGESHWARA TEMPLE IS VIOLATIVE OF THE FUNDAMENTAL RIGHTS
ENSHRINED UNDER THE CONSTITUTION OF INDIANA, AND THE CLAIM FOR THE
EXCLUSION OF WOMEN FROM RELIGIOUS WORSHIP FOUNDED IN RELIGIOUS
TEXT, IS SUBORDINATE TO THE CONSTITUTIONAL VALUES OF LIBERTY,
DIGNITY AND EQUALITY?

ISSUE 2

THAT ALL PRACTICES DISCRIMINATORY TO WOMEN, AND ALSO TO MEN, OF

ALL FAITHS WILL BE MADE AN ACT OF DISCRIMINATION CONTRARY TO
CONSTITUTIONAL VALUES, AND PENAL OFFENCES?

ISSUE 3

WHETHER THE ACCUSED ARE GUILTY OF ABDUCTION AND MURDER OF REEMA

AND RIYA, & ALSO FOR THE RAPE OF RIYA AND THE TRIAL COURT & HIGH
COURT OF ARYA PRADESH ERRED IN CONVICTING THEM?

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SUMMARY OF ARGUMENTS

1. THAT PROHIBITING WOMEN OF A PARTICULAR AGE GROUP FROM ENTERING LORD

JOGESHWARA TEMPLE IS VIOLATIVE OF THE FUNDAMENTAL RIGHTS ENSHRINED UNDER
THE CONSTITUTION OF INDIANA, AND THE CLAIM FOR THE EXCLUSION OF WOMEN FROM

RELIGIOUS WORSHIP FOUNDED IN RELIGIOUS TEXT, IS SUBORDINATE TO THE

CONSTITUTIONAL VALUES OF LIBERTY, DIGNITY AND EQUALITY

The argument focuses on the practice of prohibiting women of the age group of 11-51 years is
violative of Article 14, 15(1), 17 and 21 of Constitution of Indiana. Lord Jogeshwara Temple
is not a religious denomination under Article 26 and the exclusionary practice is not an essential
religious practice. The principle of Constitutional Morality says that there must be strict
adherence to the principles of the Constitution.

2. THAT ALL PRACTICES DISCRIMINATORY TO WOMEN, AND ALSO TO MEN, OF ALL FAITHS
WILL BE MADE AN ACT OF DISCRIMINATION CONTRARY TO CONSTITUTIONAL VALUES
AND WOULD ATTRACT PENAL PROVISIONS.

It is most reverentially put forth that the present Public Interest Litigation filed is maintainable
under Article 32 as it seeks to redress the interest of women and men whose right to freely
profess, practice and propagate a religion has been infringed. That all the customary practices
fall under Article 13 and shall be tested in the light of Fundamental Rights enshrined in Part III
of the Constitution of Indiana. Also, that all the discriminatory practices shall be held
unconstitutional and should attract penal provisions.

3. THAT THE ACCUSED ARE NOT GUILTY OF ABDUCTION AND MURDER OF REEMA AND

RIYA, AND THE HIGH COURT OF ARYA PRADESH ERRED IN ACQUITTING THEM

It is humbly submitted that the High Court and the CBI court erred in convicting the appellants
for abduction and murder of Reema and Riya, and also for the rape of Riya. In the present case
there is no direct evidence which is pointing towards the guilt of the accused persons. There is
no established chain of events which can prove the guilt of all the accused persons i.e. Pt. Kali
Charan, Pt. Bhanu s/o Pt. Kali Charan, Pt. Kalu s/o Pt. Kali Charan, Pt. Bhawani, and Pt. Jagga.

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ARGUMENTS ADVANCED

MOST RESPECTFULLY SHOWETH:

1. THAT PROHIBITING WOMEN OF A PARTICULAR AGE GROUP FROM ENTERING LORD

JOGESHWARA TEMPLE IS VIOLATIVE OF THE FUNDAMENTAL RIGHTS ENSHRINED UNDER
THE CONSTITUTION OF INDIANA, AND THE CLAIM FOR THE EXCLUSION OF WOMEN FROM

RELIGIOUS WORSHIP FOUNDED IN RELIGIOUS TEXT, IS SUBORDINATE TO THE

CONSTITUTIONAL VALUES OF LIBERTY, DIGNITY AND EQUALITY.

1. It is reverentially submitted that the practice of prohibiting women of the age group of 11-
51 years is violative of Article 14, 15, 17, 19, 21 and 25 (1) of Constitution of Indiana and
the claim for the exclusion of women from religious worship founded in religious text, is
subordinate to the Constitutional values of Liberty, Dignity and Equality.
A. That prohibiting women of a particular age group from entering Lord Jogeshwara
Temple is violative of the Fundamental Rights enshrined under the Constitution of
Indiana
2. It is most humbly submitted that the Preamble is the heart and soul 3 of the Constitution of
Indiana. It is the manifestation of the vision of the drafters of our Constitution to have a
welfare state and an egalitarian society. It correctly projects the aims and aspirations of the
people of Indiana 4 and sets out the main objectives which the legislation is intended to
achieve. Also, it enunciates “LIBERTY OF THOUGHT, EXPRESSION, BELIEF, FAITH
AND WORSHIP for all.
A. 1. That Article 25(1) guarantees Freedom of Religion to all
3. It is most respectfully showeth that Article 25 (1) of Constitution of Indiana protects the
equal entitlement of all persons to a freedom of conscience and to freely profess, protect
and propagate religion. The expression 'all persons', demonstrates that the right guaranteed
under Article 25(1) has nothing to do with gender.
4. That Article 25(1) in its broad contour encompasses a non-discriminatory right which is
equally available to both men and women of all age groups professing the same religion
and denial of this right to women significantly denudes a women’s right to worship.

3
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461; K Laxmanan v. The District Collector 2019 SCC
OnLine Mad 378 (Indiana).
4
Golaknath v. State Of Punjab 1967 AIR 1643, 1967 SCR (2) 762 (Indiana).

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5. CJI Dipak Misra and Justice D. Y. Chandrachud in the landmark case of Indian Young
Lawyer’s Association 5 held that a woman’s to pray shall not be dependent on any
legislation. It is a woman’s constitutional right."
A. 2. That the postulate of Right to Equality embodies woman’s right to pray
6. It is most humbly submitted that the right to equality under Article 14 is a basic feature 6
of the Constitution and any treatment of equals unequally is its violation. 7 That any
relationship with the Creator is a transcendental one which should not be circumscribed
by dogmatic notions of biological or physiological factors. Patriarchy in religion cannot
be permitted to trump over the element of pure devotion.
7. The court in the leading judgement R.K. Dalmia v. Justice Tendolkar, 8 laid down the test
to determine the question of reasonableness of classification. These have been held to be
central tests for permissible classification.
a) That, the classification must be founded on an intelligible differentia which
distinguishes person or things that are grouped together from others left out of the group
b) That the differentia must have a relation to the object sought to be achieved by the
statute in question.
8. That in the case of Satyawati Sharma v. Union of India 9 it was held that the Court might
strike down legislation if it is not reasonable and rational at the time of its enactment. In
Deepak Sibal v. Punjab University 10, the Supreme Court has pointed out that to consider
reasonableness of classification it is necessary to take into account its objective and if it is
illogical, unfair and unjust, necessarily the classification will have to be held as
unreasonable. 11
9. That Hon’ble Supreme Court has asseverated that “over-emphasis on the doctrine of
classification or an anxious and sustained attempt to discover some basis for classification
may gradually and imperceptibly deprive the guarantee of equality of its spacious content
to the largest segments of the society.” 12

5
Indian Young Lawyers Association v. The State Of Kerala, 2016 SCC OnLine SC 1783 (Indiana).
6
Kesavananda Bharati v. State Of Kerala And Anr. (1973) 4 SCC 225 (Indiana).
7
MG Badappanavar v. State of Karnataka, AIR 2001 SC 260 (Indiana)
8
R.K. Dalmia v. Justice Tendolkar AIR 2014 SC 2140 (Indiana).
9
Satyawati Sharma v. Union of India 2008 (6) SCALE 325. (Indiana).
10
Deepak Sibal v. Punjab University 1989 AIR 903 SCR (1) 689. (Indiana).
11
Vikram Cement v. State of MP, (2015) 11 SCC 708; Virender Krishna Mishra v. UOI, (2015) 2 SCC 712;
Maneka Gandhi v Union of India, (1978) 1 SCC 248. (Indiana).
12
Mohd. Shujat Ali v. UOI , AIR 1974 SC, 1631, 1653; LIC of India v. Consumer Education and Research Centre,
AIR 1995 SC 1811, 1822 (Indiana).

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10. Also, the right of a woman to enter the Temple as a devotee is an essential aspect of her
right to worship 13 and is a necessary concomitant of the right to equality. The object of
preventing the deity from being polluted runs against the constitutional objectives of
justice, liberty, equality and fraternity as enshrined in the Preamble to our Constitution.
Therefore, the exclusionary practice per se violates the sacrosanct principle of equality
before law and is manifestly arbitrary.
A. 3. That Article 15 prohibits discrimination on grounds of religion, race, caste, sex or
place of birth
11. It is humbly put forth that Chandrachud J. in Navtej Singh v. Union of India 14 asseverated
that “A discriminatory act will be tested against constitutional values and it will not survive
constitutional scrutiny when it perpetuates stereotypes about a class constituted by the
grounds prohibited in Article 15(1).
12. That gender bias in any form is opposed to constitutional norms 15 and the exclusionary
practice per se violates Article 15(1) of the Constitution which amounts to discrimination
on the basis of sex. Also, the words “equally entitled to” in Article 25(1) find resonance in
Section 3(a) of the Civil Rights Act, 1955.
13. As the temple is a public place of worship and is partly funded under Article 290A. Thus,
prohibiting women of a particular age group amounts to violation of Article 15 (2)(b).
A. 4. That Article 17 abolishes Untouchability and its practice in any form
14. It is humbly submitted that Article 17 of the Constitution of Indiana has paramount social
significance both in terms of acknowledging the past and in defining the vision of the
Constitution for the present and for the future. It abolished “untouchability” by forbidding
its practice “in any form”. 16
15. That in N. Adithayan v. Travancore Devaswom Board and Ors., 17it was upheld that “The
vision of the founding fathers of the Constitution to liberate the society from blind and
ritualistic adherence to mere traditional superstitious beliefs. Also, 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 and social equality.”

13
Deoki Nandan v. Murlidhar and Others, AIR 1957 SC 133 (Indiana).
14
Navtej Singh v. Union of India (2018) 1 SCC 791. (Indiana
15
Anuj Garg and others v. Hotel Association of India, (2008) 3 SCC 1; Charu Khurana and others v. Union of
India and others, (2015) 1 SCC 219. (Indiana).
16
Granville Austin, “The Indian Constitution: Cornerstone of a Nation”, xii, xiii.Oxford University Press (1999).
17
N. Adithayan v. Travancore Devaswom Board and Ors (2002) 8 SCC 106. (Indiana).

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16. That our Constitution makers inserted Article 17 to abolish untouchability in “all its forms”
whether it was untouchability within a community or between various communities” 18 The
draft of Fundamental Rights prepared by K M Munshi and Dr. B.R. Ambedkar reflects this
transformative ideal. Professor KT Shah and Naziruddin Ahmad also sought the same. 19
17. It is humbly submitted that the background of Article 17 lies in protecting the dignity of
those who have been victims of discrimination, prejudice and social exclusion. 20
18. Under the Protection of Civil Rights Act 1955; “Section 3 punishes anyone who on the
ground of "untouchability" prevents any person from entering any place of public worship,
or bathing in, or using the waters of, any sacred tank, well, spring or watercourse in the
same manner and to the same extent as is permissible to the other persons professing the
same religion or any section thereof.
19. Thus, the practice of not allowing the women of age group 11-51 years which is based on
the notions of “purity and pollution” stigmatizes the menstruation of women in Indian
society and is violative of Article 17.
A. 5. That every woman is entitled to dignity and privacy under Article 21
20. It is humbly submitted that in Francis Coralie v. Union Territory of Delhi 21, the court
held “the right to life includes the right to live with human dignity.” In the historic
judgement of Justice K.S. Puttaswamy and another v. Union of India &Ors., 22 it was
held that, “To live, is to live with dignity…. Privacy includes at its core the preservation
of personal intimacies and recognises the ability of the individual to control vital
aspects of his or her life.”
21. In Indian Young Lawyers Association & Ors. v. The State of Kerala &Ors. 23, the
Supreme Court has held that “the stigma around menstruation which has been built up
around traditional beliefs in the impurity of menstruating women should have no place in
a constitutional order”.
22. That the Hon'ble Supreme Court in Kharak Singh v. State of U.P., 24 held that it is possible
that a right may not be explicitly mentioned under Article 19 and yet it may be covered by
some clause therein. That freedom of speech and expression is the first condition of liberty

18
B Shiva Rao, The Framing of India’s Constitution: A Study, Indian Institution of Public Administration 202
(1968). (CAD on 21.04.1947).
19
Ibid.
20
Devarajiah v. B. Padmanna, AIR 1958 Mys 84.
21
Francis Coralie v. Union Territory of Delhi AIR 1981 SC 746 (Indiana).
22
National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (Indiana).
23
Supranote 5.
24
Kharak Singh v. State of U.P.AIR 1963 SC 597 (Indiana)..

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and occupies a preferred position in the hierarchy giving succour and protection to all other
liberties. Also, the impugned practice in the instant case is in disagreement with Article
51A(e) which imposes a fundamental duty on every citizen to renounce all practices
derogatory to the dignity of women. Thus, the practice of prohibiting women of
menstruating age violates her Fundamental right under Article 21.
A. 6. That Article 26 has to be construed in reference to Article 25
23. It is most humbly put forth that Article 25 deals with the rights of individuals and Article
26 protects the rights of denominations. In Sri Venkatramana Devaru v. State of
Mysore 25, the Court harmonized the inherent tension between the individual right under
Article 25(2) (b) and the denominational right under Article 26(b) and held that “Where
the protection of denominational rights would substantially reduce the right conferred by
Article 25(2) (b), the latter would prevail against the former. Also, “a religious
denomination cannot completely exclude or prohibit any class or section for all times. All
that a religious denomination may do is to restrict the entry of a particular class or section
in certain rituals.”
24. Also, Article 26 should not be read in isolation as it is one among a large cluster of
freedoms which the Constitution has envisaged as intrinsic to human liberty and dignity. 26
In Maneka Gandhi v. Union of India 27, the Court held that fundamental rights are not to
be interpreted as watertight compartments but as overlapping units.
25. Thus, a right of a woman to practice her faith cannot be bound and limited by the rights of
the religious denominations under Article 26.
A. 7. That India is a signatory of International conventions which condemn any
stigmatisation on the basis of menstruation
26. It is further submitted that India is a signatory to Universal Declaration of Human Rights
which provides that everyone is entitled equality before the law 28 without any
discrimination of any kind, such as race, colour, sex, language, religion, political or other
opinion, national or social origin, property, birth or other status. 29 The International
Covenant on Civil and Political Rights provides that no one shall be subjected to arbitrary
or unlawful interference with his privacy.

25
Sri Venkatramana Devaru v. State of Mysore AIR 1958 SC 255. (Indiana).
26
Supra note 30.
27
Maneka Gandhi v. Union of India (1978) 1 SCC 248 (Indiana).
28
Universal Declaration of Human Rights, Article 7, Dec. 10, 1948.
29
Ibid.

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27. Also, The Convention on the Elimination of All Forms of Discrimination against Women
mandates the states to refrain from engaging in any act or practice of discrimination against
women. 30
28. That the Apex Court in the landmark case of Vishakha and others v. State of
Rajasthan 31 said that International conventions must be followed when there is a void in
the domestic law.
A. 8. That Lord Jogeshwara Temple (Prohibition on Entry of Women) Act 1985 is
violative of Fundamental Rights enshrined in the Constitution
29. It is manifest that the law must satisfy the test that it does not take away or abridge any of
the fundamental rights enumerated in Part III of the Constitution. That the Act was passed
by the Parliament under its legislative power enumerated in Article 245 and Article 246 of
the Constitution which is subject to Article 13(2). 32
30. Also, in Mahal Chand Sethia v. State of W.B, 33 it was held that a court of law can
pronounce upon the validity of any law and declare the same to be null and void if it
infringed the rights enshrined in Part III of the Constitution. Thus, the said Act shall be
declared as null and void.
B. That, the claim for the exclusion of women from religious worship founded in religious
text, is subordinate to the Constitutional values of Liberty, Dignity and Equality.
31. It is most reverentially put forth that Lord Jogeshwara Temple is not a separate religious
denomination to be guaranteed rights under Article 26 of Constitution of Indiana. That the
practice of excluding women of the age group of 11-51 years is not an essential religious
practice of Lord Jogeshwara Temple as the superstructure of the religion is not based upon
it. Also, the principle of Constitutional Morality says that there must be strict adherence
of the values enshrined under the Constitution and each custom has to pass the test of
reasonability and Constitutional morality.
B. 1. That Lord Jogeshwara Temple is not a separate religious denomination to be
guaranteed rights under Article 26
32. It is most respectfully submitted that religious denomination has not been defined in the
Constitution. The Hon’ble Supreme Court in the case of The Commissioner, Hindu
Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur

30
Convention on the Elimination of All Forms of Discrimination against Women, Article 2, Dec. 18, 1979.
31
Vishakha and others v. State of Rajasthan (1997) 6 SCC 241 (Indiana).
32
Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080 (Indiana).
33
Mahal Chand Sethia v. State of W.B 1969 (2) UJ 616 SC (Indiana).

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Math, 34gave a precise meaning to the word "religious denomination" and held that it must
take its colour from the word 'religion' and if this be so, the expression 'religious
denomination' must also satisfy three conditions:
• It must be a collection of individuals who have a system of beliefs or doctrines which
they regard as conducive to their spiritual well-being, that is, a common faith.
• a common organisation
• designation by a distinctive name 35
33. In S.P. Mittal’s case 36, the court pointed out that in order to constitute a separate
denomination, there must be something distinct from another. HM Seervai has emphasized
that the sense of ‘exclusive belongingness’ with binding sanction leading to possible
excommunication on non- observance of its basic tenets would make an organization a
religious denomination.
34. Further, in Sri Venkataramana Devaru & Ors. v. State of Mysore &Ors. 37 it has been
cited, where it has been categorically held that the religious denomination cannot
completely exclude the members of any community. They can restrict their entry in certain
rituals.
35. Therefore, in view of the law laid down by the Hon’ble Supreme Court in Shirur Mutt 38
and S.P. Mittal 39, the devotees of Lord Jogeshwara do not constitute a separate religious
denomination as they do not have common religious tenets peculiar to themselves, which
they regard as conducive to their spiritual well-being, other than those which are common
to the Hindu religion. Thus, the devotees of Lord Jogeshwara are exclusively Hindus and
do not constitute a separate religious denomination to get protection under Article 26.

34
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Math (1954) SCR 1005, S P Mittal v Union of India, (1983) 1 SCC 51.
35
Nallor Marthandam Vellalar and others v. Commissioner, Hindu Religious and Charitable Endowment and
others, AIR 2003 SC 4225 SCC 712 (Indiana).
36
S P Mittal v Union of India (1983) 1 SCC 51. (Indiana).
37
Sri Venkataramana Devaru & Ors. v. State of Mysore & Ors AIR 1958 SC 255. (Indiana).
38
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Math (1954) SCR 1005. (Indiana).
39
Supra note 36.

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B. 2. That the practice of excluding women to enter Lord Jogeshwara temple is not an
essential religious practice
36. It is most respectfully submitted that in the case of Shirur Mutt 40, it has been clearly laid
down that under clauses (a) and (b) of Article 26 what is protected is only the “essential
part” of religion or, in other words, the essence of practice practised by a religious
denomination.
37. In the case of Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, 41 it was held that
if the practice in question is purely secular in character, it cannot be urged that Article
25(1) or Article 26(b) has been contravened. In Commissioner of Police v. Acharya
Jagdishwarananda Avadhuta 42 it was held that essential practice means those
fundamental practices upon which the superstructure of a religion is built, without which
a religion will be no religion.
38. It is pertinent to note that in Shayara Bano v. Union of India 43, the Constitution Bench of
Supreme Court noted that “a practice does not acquire the sanction of religion simply
because it is permitted” and essential religious practices test set out in Javed v. State of
Haryana 44 and Avadhuta 45 was applied to the practice of triple talaq. That merely because
a practice has continued for long, that cannot make it valid even if it has been expressly
declared to be impermissible.”
39. Also, the Supreme Court in Adi Saiva Sivachariyargal Nala Sangam v. State of T.N, 46
held that “Any apprehension that the determination by the court of an
essential religious practice itself negatives the freedoms guaranteed by Articles 25 and 26
will have to be dispelled on the touchstone of constitutional necessity.”
B. 3. That every customary practice has to be in accordance to Constitutional Morality.
40. It is most humbly submitted that a custom to be valid under law has to be of immemorial
existence, reasonable and must pass the test of constitutional morality and constitutional
legitimacy. 47 The term 'morality' occurring in Article 25(1) of the Constitution cannot be
viewed with a narrow lens so as to confine the sphere of definition of morality to what an
individual, a section or religious sect may perceive the term to mean. Public morality in

40
The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Math (1954) SCR 1005. (Indiana).
41
Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan AIR 1963 SC 1638 (Indiana).
42
Commissioner of Police v. Acharya Jagdishwarananda Avadhuta AIR 1984 SC 51 (Indiana).
43
Shayara Bano v. Union of India (2017) 9 SCC 1. (Indiana).
44
Javed v. State of Haryana (2003) 8 SCC 369. (Indiana).
45
Commissioner of Police v. Acharya Jagdishwarananda Avadhuta AIR 1984 SC 51 (Indiana).
46
Adi Saiva Sivachariyargal Nala Sangam v. State of T.N (2016) 2 SCC 725. (Indiana).
47
Id.

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Article 25 has to be appositely understood as being synonymous with constitutional

morality. 48
41. Morality for the purposes of Articles 25 and 26 cannot have an ephemeral existence.
Popular notions about what is moral and what is not are transient and fleeting. The
Constitution would not render the existence of rights so precarious by subjecting them to
passing fancies or to the aberrations of a morality of popular opinion. The draftspersons of
the Constitution would not have meant that the content of morality should vary in
accordance with the popular fashions of the day. 49
42. In Government of NCT of Delhi v. Union of India and others 50, the Court held
that “Constitutional morality in its strictest sense of the term implies strict and complete
adherence to the constitutional principles as enshrined in various segments of the
document.” 51
43. That every practice or a custom has to pass the test of constitutional morality and
constitutional legitimacy as held in the cases of Adi Saiva Sivachariyargal Nala Sangam
and others v. Government of Tamil Nadu and others 52and Seshammal v. State of T.N., 53
It was also observed that “The requirement of constitutional conformity is inbuilt and if a
custom or usage is outside the protective umbrella afforded and envisaged by Articles 25
and 26, the law would certainly take its own course. The constitutional legitimacy,
naturally, must supersede all religious beliefs or practices.”
44. It is also pertinent to note that stereotypical understandings of sex hold no legitimate claim
under our Constitution, this was observed by Chandrachud J in Navtej Singh v. Union of
India 54,
45. Thus, it is being asserted that the values of constitutional morality are non-derogable
entitlements and notions of “purity and pollution”, which stigmatize individuals, can have
no place in a constitutional regime.

48
Indian Young Lawyers Association v. The State of Kerala &Ors. 2018 SCC OnLine SC 1690. (Indiana).
49
Id.
50
Government of NCT of Delhi v. Union of India and others (2019) SCC OnLine SC 193. (Indiana).
51
Indian Young Lawyers Association v. The State of Kerala &Ors.2018 SCC OnLine SC 661 (Indiana).
52
Adi Saiva Sivachariyargal Nala Sangam and others v. Government of Tamil Nadu and others (2016) 2 SCC
725. (Indiana).
53
Seshammal v. State of T.N. (1972) 2 SCC 11. (Indiana).
54
Navtej Singh v. Union of India (2018) 10 SCC 1. (Indiana).

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2. THAT ALL PRACTICES DISCRIMINATORY TO WOMEN, AND ALSO TO MEN, OF ALL

FAITHS WILL BE MADE AN ACT OF DISCRIMINATION CONTRARY TO CONSTITUTIONAL

VALUES AND WOULD ATTRACT PENAL PROVISIONS.
46. It is most reverentially put forth that since time immemorial, society has tried to justify
and proffer explanation to impose a rule however unjustified it may be. That the practices
of not allowing menstruating/non-menstruating women of any religion to enter Zoroastrian
Fire Temple and Temple of Silence, prohibition of women of any religion to enter and
pray at men-only temples anywhere and prohibition of men to pray at women-only temples
anywhere in Indiana, the ban on any women of any religion to enter and pray at mosques
along with men on Fridays, the custom which binds women of Hindu religion cannot
observe fast, enter in kitchen, offer prayers or to go to any place during menstruation
should be declared violative of Article 14, 15, 17 and 21 of the Constitution of Indiana.
A. That the present Public Interest Litigation filed is maintainable under Article 32
47. It is humbly submitted that the present petition is maintainable under Article 32 of the
Constitution of Indiana as it has been filed in public interest for women and men whose
right to freely profess, practice and propagate a religion has been infringed.
48. In the landmark cases of S.P. Gupta v. Union Of India 55; People’s Union for Democratic
Rights v. Union of India 56 and Bandhua Mukti Morcha v. Union of India 57, the Supreme
Court expanded the locus standi and evolved the new rule viz., any member of the public,
acting bona fide and having sufficient interest can maintain an action for redressal of public
wrong. Justice Bhagwati 58 stated that to provide access to justice to large masses of people
who are denied the basic human rights, the only way in which this can be done is by
entertaining writ petitions from public spirited individuals. 59
49. It is most humbly submitted that large number of men, women are today living in sub-
human existence in conditions of abject poverty. 60In the case of Forward Construction
Company v. Prabhat Mandal 61, it was held that the principle of rule of law does not mean
that protection of law must be available only to a fortunate few but the poor; the ignorant
and the ones who are in a socially disadvantaged position should not go unnoticed and un-
redressed. Social Justice is the signature tune of our Constitution and it becomes the solemn

55
S.P. Gupta v. Union of India AIR 1982 SC 149 (Indiana).
56
People’s Union for Democratic Rights v. Union of India AIR 1984 SC 1473 (Indiana).
57
Bandhua Mukti Morcha v. Union of India (1982) 3 SCC 235 (Indiana).
58
SP Gupta v. Union of India (1981 (Supp) SCC 87: AIR 1982 SC 149 (Indiana).
59
Subhash Kumar v. State of Bihar (1991) 1 SCC 598: AIR 1991 SC 420 (Indiana).
60
People's Union for democratic rights v. Union of India (1982) 3 SCC 235 (Indiana).
61
Forward Construction Company v. Prabhat Mandal AIR 1986 SC 391 (Indiana).

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duty of the court under the constitution to enforce the basic human rights of the vulnerable
sections of the community and actively help them in the realisation of the Constitution
goals. 62
50. That the present petition has been filed by Ajay Tripathi, social activist and the Director of
NGO RAHEE (Regional Association for Awareness in Health, Education, and
Environment) The petition has been filed to end all the discriminations against men and
women originating from customs sanctioned by different religions which are violative of
Article 14, 15, 17 and 21 of the Constitution. It has been upheld by this court that whenever
there is a gross violation of fundamental rights the court should leave aside procedural
shackles and hear such petitions by extending its jurisdiction under all available provisions
for remedying the hardships and miseries of the needy and the neglected. Also, as the
petition involves a substantial question of law 63, it shall be maintainable.
B. That “laws in force” under Article 13 includes customary practices
51. It is hereby put forth that “laws in force” under Article 13 includes customary practices.
That the expression “law in force” was interpreted by the Federal Court in The United
Provinces v. Mst. Atiqa Begum, 64 Justice Suleman held: that the legislative powers of the
Provincial Legislature extend to all laws, including customary laws. 65 In Sheikriyammada
Nalla Koya v. Administrator, Union Territory of Laccadives 66 K.K. Mathew, J., held that
customs which are immoral and are opposed to public policy can neither be recognised nor
be enforced.
52. In Dasaratha Rama Rao v. State of Andhra Pradesh 67and N. Adithayan v. Travancore
Devaswom Board and Ors 68 the Court held that no custom or 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.” 69
Thus, all the customary practices which are against public policy and contrary to the
Fundamental rights shall be declared void.

62
People's Union for democratic rights v. Union of India, (1982) 3 SCC 235 (Indiana); S.P. Gupta v Union of
India, AIR 1982 SC 149 (Indiana).
63
T.N. Godavaraman Thirumulkpad v. Union of India 17 October, 2006 WP (C) No. 202 of 1995 (Indiana).
64
The United Provinces v. Mst. Atiqa Begum AIR 1941 FC 16 (Indiana).
65
Gazula Dasaratha Rama Rao v. State of Andhra Pradesh
66
Sheikriyammada Nalla Koya v. Administrator, Union Territory of Laccadives, Minicoy and Amindivi Islands
AIR 1967 Ker 259 : 1967 Ker LT 395 : 1967 Ker LJ 482 (Indiana).
67
Dasaratha Rama Rao v. State of Andhra Pradesh AIR 1961 SC 67 (Indiana).
68
N. Adithayan v. Travancore Devaswom Board and Ors AIR 2002 SC 3538 (Indiana).
69
Madhu Kishwar v. State of Bihar 1996 5 SCC 125 (Indiana).

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C. That all religious practices shall be tested in the light of Fundamental Rights
enshrined in Part III of the Constitution of Indiana
53. It is humbly submitted that the Hindu religion views the menstruating woman as “impure”,
and “polluted”. In fact, menstruation is referred to in some places as a “curse” 70. They are
not allowed to partake in the Naulas or traditional water springs and do not have access to
water when they need it for personal hygiene. They are not allowed to cook food 71, and
must keep separate utensils 72. Women may not enter the pooja room and may not enter the
temple.
54. In Islam, the Quran, 2:222 reads, “They ask you about menstruation. Say, ‘It is an impurity,
so keep away from women during it and do not approach them until they are cleansed;
when they are cleansed you may approach them as God has ordained…” 73 A clear reading
of the section tells us that Prophet Mohd. through these words imposed a restriction on men
to indulge into sexual activities with women while they are menstruating.
55. In Zoroastrianism when a woman is in a state of impurity, she presents a danger to the good
creations (water, fire, the “orderly” man) and must be isolated from them in a “quiet
place” 74
56. That this stigma around menstruation has been built up around traditional beliefs in the
impurity of menstruating women and should have no place in a constitutional order. No
body or group can use it as a barrier in a woman’s quest for fulfilment, including in her
finding solace with the creator.” 75
57. That the Preamble which is the key to the Indiana’s Constitution 76 secures to all “LIBERTY
OF THOUGHT, EXPRESSION, BELIEF, FAITH AND WORSHIP.” It tells us about the
essential principles and goals of the Constitution and promotes to all the goals of justice,
liberty and equality.
58. In Srinivas Theatre v. State of T.N., 77 Reddy, J., has noted that equality before law is a
dynamic concept and it imposes an obligation upon the state to bring about through the

70
Sharma Neeru et al, Age at Menarche in Two Caste Groups (Brahmins and Rajputs) From Rural Areas of Jammu.
Anthropologist, 55, (2006).
71
Joshi, D. & Fawcett, B. N. Water, Hindu Mythology and an Unequal Social Order in India,1 , 8, Second
Conference of the International Water History Association, Bergen, Norway. (2001).
72
Supra note 18.
73
Maulana Wahiduddin Khan, The Quran (translated) 222 (1st ed. 2009).
74
Prods Oktor Skjærvø, Introduction to Zoroastrianism 66 (2005).
75
Indian Young Lawyers Association v. The State Of Kerala 2018 SCC OnLine SC 1690, para 57 (Indiana).
76
In re Berubari Union and Exchange of Enclaves, (1960) 3 SCR 250 (Indiana).
77
Srinivas Theatre v. State of T.N, AIR 1992 SC 992 (Indiana).

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machinery of law, a more equal society as envisaged by the preamble and Directive
Principles of State Policy 78.
59. It is most humbly submitted that Article 14 79 provides that “The State shall not deny to any
person equality before the law or the equal protection of the laws within the territory of
India.” By conferring this right on all persons, the Constitution emphasizes the universal
nature of the right. The state is bound to protect every human being from inequality. 80
60. That the majority in E.P. Royappa v. State of Tamil Nadu and another, 81 held that "from
a positivistic point of view, equality is antithetic to arbitrariness. Where an act is arbitrary,
it is violative of Article 14. In Stephen’s College v. University of Delhi 82 the court held to
ensure equal protection of laws necessary social changes must be brought.
61. The plight of Indian woman has been remarkably explained by this court in Madhu
Kishwar v. State of Bihar 83as “Half of the Indian population is women. Women have
always been discriminated against and have suffered and are suffering discrimination in
silence. Self-sacrifice and self-denial are their nobility and fortitude and yet they have been
subjected to all inequities, indignities, inequality and discrimination.” Excluding women
on the basis of physiological factors and stereotyping menstruation as impure violates
Articles 14 and 17.
62. It is most humbly submitted that social exclusion of women based on menstrual status, and
their non-ordination to Ministerial and Priestly Offices such Priest, Purohit, Pujaris, Monks
in Hindu Temples, Mosque etc., where men are allowed to hold the given positions, violates
Article 15 of Constitution of Indiana.
63. Also, the social exclusion of women based on menstrual status, is a form of untouchability
which is an anathema to constitutional values. The practices in question are violative of
Article 17 as our society is governed by the Constitution and the notions of “purity and
pollution”, which stigmatize individuals, can have no place in a constitutional regime. 84
64. Article 21 of the Constitution envisages a right to life and personal liberty of a person.
Justice Bhagwati in Maneka Gandhi v. Union of India 85, said: “These fundamental rights
represent the basic values cherished by the people of this country…they are calculated to

78
INDIANA CONST. Directive Principles of State Policy Part IV.
79
INDIANA CONST. art. 14
80
N.H.R.C. v. State of Arunachal Pradesh, (2014) 8 SCC 390 (Indiana).
81
E.P. Royappa v. State of Tamil Nadu and Another 1974 (4) SCC 3 (Indiana).
82
Stephen’s College v. University of Delhi (1992) 1 SCC 558 (Indiana).
83
Madhu Kishwar v. State of Bihar (1996) 5 SCC 145 (Indiana).
84
Id., para 81
85
Maneka Gandhi v. Union of India (1978) 1 SCC 248: AIR 1978 SC 597. (Indiana).

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protect the dignity of the individual and create conditions in which every human being can
develop his personality to the fullest extent.”
65. That Article 25 of the Constitution keeps social reforms over religious reforms. It enables
judges to overrule traditions or decisions made by the religious authorities.
66. Article 14 strikes at arbitrariness because it negates equality 86 and permeates the entire
fabric of Rule of Law 87 In Minerva Mills Ltd. v. Union of India, 88 it was held that “Three
Articles of our Constitution stand between the heaven of freedom into which Tagore wanted
his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and
21.”
67. That Constitutional Morality is of paramount importance in deciding the validity of
customs and in the case of Seshammal v. State of T.N., 89 it was also observed that “The
requirement of constitutional conformity is inbuilt and if a custom or usage is outside the
protective umbrella afforded and envisaged by Articles 25 and 26, the law would certainly
take its own course.”
D. That the discriminatory practices shall be held unconstitutional and should attract
penal provisions
68. It is most humbly submitted that the existing constitutional protections against
discrimination under articles 14, 15, 16 and 17 are not sufficient and need to be
strengthened with additional statutory protections in order to realize their intended purpose.
The constitutional directive under Articles 38 as well as the Fundamental Duty of all
citizens under clauses (c) and (e) of article 51A are also intended towards ensuring equality
among all.
69. That our Constitution is a living document and for it to become dynamic, law has to change.
In Pravasi Bhali Sangathan v. Union of India 90, the Supreme Court held that, though the
court cannot legislate a law and has the power only to enforce the existing laws, where
there is absence of law to deal with a particular situation, it may issue directions or
guidelines.
70. It is most humbly submitted that with a greater gender understanding and empathy towards
women, a penal law must also be incorporated. There is a need to protect everyone who is

86
Suresh Chandra Sharma v. Chairman, AIR 2005 SC 2021. (Indiana).
87
Bachan Singh v. State of Punjab, AIR 1982 SC 1325 (Indiana).
88
Minerva Mills Ltd. v. Union of India AIR 1980 SC 1789 (Indiana); T.R. Kothandaraman v. T.N. Water Supply
& Drainage Board (1994) 6 SCC 282 (Indiana).
89
Seshammal v. State of T.N (1972) 2 SCC 11 (Indiana).
90
Pravasi Bhali Sangathan v. Union of India (2014) 11 SCC 477 (Indiana).

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subject to any form of unfair discrimination under a single comprehensive legislation which
should also attract penal provisions on violation.
71. It is hereby put forth that the Supreme Court has the power to issue directions under Article
142 where none already exist and such directions shall be binding till such time as new
rules are enacted by the legislature on the subject. Thus, ample powers are conferred on the
Court under Articles 32, 141, 142 and 144 to issue necessary directions. 91
72. It is most reverentially submitted that in various landmark cases the court have given
secular laws precedence over personal and religious laws namely Mohd. Ahmed Khan v.
Shah Bano Begum 92 whereby Muslim women were entitled to maintenance; in Mary
Roy’s case 93 Syrian Christian women were entitled to have an equal share in their father’s
property; and in ABC v. The State (NCT of Delhi) 94, the Supreme Court said that an unwed
mother in India can become the sole legal guardian of a child without the consent of the
father.
73. Thus, directions should be issued in this regard and all discriminatory acts shall attract
penal provisions.

91
Vineet Narain v. Union of India, (1998) 1 SCC 226, para 51 (Indiana).
92
Mohd. Ahmed Khan v. Shah Bano Begum 1985 (2) SCC 556 (Indiana).
93
Mrs. Mary Roy Etc. v. State Of Kerala & Ors, 1986 AIR SC 1011 (Indiana).
94
ABC v. The State (NCT of Delhi) 2015 SCC OnLine SC 609 (Indiana).

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3. THAT THE ACCUSED PERSONS ARE NOT GUILTY OF ABDUCTION AND MURDER OF
REEMA AND RIYA & FOR THE RAPE OF RIYA AND THE TRIAL COURT AND HIGH
COURT OF ARYA PRADESH ERRED IN CONVICTING THEM.

74. It is humbly submitted that the High Court and the CBI court erred in convicting the
appellants for abduction and murder of Reema and Riya, and also for the rape of Riya. In
the present case there is no direct evidence which is pointing towards the guilt of the
accused persons. Considering the circumstantial evidence, there are no such circumstances
and established chain of events which can prove the guilt of all the accused persons i.e. Pt.
Kali Charan, Pt. Bhanu s/o Pt. Kali Charan, Pt. Kalu s/o Pt. Kali Charan, Pt. Bhawani, and
Pt. Jagga.
Even Circumstantial Evidences Are Non-Existing
75. That, in Sharad Birdi Chand v. State of Maharashtra 95, the Supreme Court laid down
five golden principles of circumstantial evidence which were reiterated in number of
cases 96. These are as follows:
a) It is well to remember that in cases where the evidence is of a circumstantial nature,
the circumstances from which the conclusion of guilt is to be drawn should in the first
instance be fully established, and
b) All the facts so established should be consistent only with the hypothesis of the guilt
of the accused, that is to say, they should not be explainable on any other hypothesis
except with that the accused is guilty.
c) The circumstances should be of a conclusive nature and tendency unerringly pointing
towards the guilt of the accused.
d) They should be such as to exclude every hypothesis but the one proposed to be proved.
e) There must be a chain of evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of the accused and it must be
such as to show that within all human probability the act must have been done by the
accused.
76. Taking into account the essentials one have to establish the circumstances from which an
inference of guilt is sought to be drawn which must be cogently and firmly established and
should be of a definite tendency unerringly pointing towards guilt of the accused.

95
Sharad Birdi Chand v. State of Maharashtra, AIR 1984 SC 1622, Bhagat Ram v. State of Punjab, AIR 1954 SC
621.(Indiana)
96
Majendran Langeswaran v. State (NCT Of Delhi) & Anr (2013) 7 SCC 192; Padala Veera Reddy v. State of
A.P., AIR 1990 SC 79; Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 (Indiana).

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77. That, according to the statement of Police Head Constable Mr. Uday Shetty who was
deputed outside the Temple, on the night of 29th December, 2016 Pt. Kali Charan was
inside the temple and was chanting prayers as it was amawasya and after chanting the
prayers at 12:00 pm Pt. Kali came outside the temple and gave him pooja prasad and then
went away.
78. That, there is no such evidence which can lead to the conclusion as to the presence of the
Pt. Bhanu and Kalu, the two sons of Pt Kali Charan on the crime scene. The SUV car in
the instant case which the police found near the jungle was of Jagga, the fifth accused. On
27th December, 2016 his car was stolen and he lodged an FIR for the same. This makes it
very much clear that he is not having the possession of his car and thus he was not aware
about the whereabouts of his car as to who is using his car and for what purpose.
79. That, Pt Bhawani, was in his relative’s house outside Katra. Thus, there is nothing which
makes his presence possible on the scene of crime on the said date of commission of the
offence. Further, the statement made by his wife falls under the ambit of privileged
communication. No person who is or has been married, shall be compelled to disclose any
communication made to him during marriage by any person to whom he is or has been
married; nor shall he be permitted to disclose any such communication. 97
80. That, the evidence adduced by the prosecution was not sufficient to sustain the appellant’s
conviction for the alleged offences. Further, no medical examination of the appellants was
conducted and thus, in the absence of any injury on the appellant's body, it is difficult to
hold that the appellant was involved in the commission of offence. Both the Courts failed
to properly appreciate the same, therefore, the conviction is bad in law.
81. It is humbly submitted in the instant case there is no iota of evidence which could implicate
the accused in the offence of rape. There is no direct evidence in the present case and thus
the case of the prosecution rests on the circumstantial evidences. All the circumstances
must be complete and there should be no gap left in the chain of evidence. 98 From the
above mentioned facts it is explicit that presence of no accused could be secured in the
alleged offence.
82. That, all the accused are priests of Lord Jogeshwara Temple. They all are man of god and
always served the diety of the temple, further, it was Pt. Kali Charan who informed the
police about the dead body of Reema.

97
Indian Evidence Act, Section 122.
98
Chenga Reddy v. State of A.P. (1996) 10 SCC 193 (Indiana).

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83. That, the Constitution of Indiana guarantees every person right against self incrimination
under Article 20 (3): "No person accused of any offence shall be compelled to be a witness
against himself". It is well established that the Right to Silence has been granted to the
accused by virtue of the pronouncement in the case of Nandini Sathpathy v. P.L.Dani 99,
no one can forcibly extract statements from the accused, who has the right to keep silent,
but only in the court of law.
84. That, the entire prosecution story hinges on the identification of the accused, the
genuineness of which in itself is questionable. The statement of Krishna Das 100 no where
establishes that the persons he saw while passing by the road were the accused. Further,
no evidence is adduced to show that the car which he saw was the same SUV car which
was recovered from the jungle.
85. No evidence is produced which could establish the identity of the accused persons in the
present case. It is settled position of law that suspicion however strong cannot be a
substitute for proof. In a case resting completely on the circumstantial evidence the chain
of circumstances must be so complete that they lead only to one conclusion, that is, the
guilt of the accused. 101 There is a long distance between “may be” and “must be”, which
must be traversed by the prosecution to prove its case beyond reasonable doubt. 102
86. That, in Munshi Prasad v. State of Bihar 103, Supreme Court observed, “the post mortem
document by itself is not a substantive evidence but it is the doctor's statement in court,
which has the credibility of a substantive evidence and not the report, which in normal
circumstances ought to be used only for refreshing memory of the doctor witness or to
contradict whatever he might say from the witness box.” It becomes necessary in each and
every case where the expert evidence is admitted to check and counter-check it by
producing the expert witness before the court. Without examining the expert witness, his
evidence may become inadmissible.’ 104 Thus, it is another fault on the part of the
respondents that they failed to examine the doctor who conducted the post mortem and the
doctor who received the evidences for forensic analysis.

99
Nandini Sathpathy v. P.L.Dani , AIR 1978 SC 1025 (Indiana).
100
Annexure-4, Statement of witnesses.
101
Sanganathan v. State of Tamil Nadu (2014) 10 SCC 264 (Indiana).
102
Narendra Singh v. State of M.P., (2004) 10 SCC 699 (Indiana).
103
Munshi Prasad v. State of Bihar (2002 (1) SCC 351, Ramesh Chandra Agrawal v. Regency Hospital Ltd. &
Ors. AIR 2010 SC 806 (Indiana).
104
Thanawalla Hanishi K., “Development and Liberalisation of Hearsay doctrine”, Journal of the Indian Law
Institute, Vol 38.1 (1996)

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87. That, there are multiple investigative laches and flaws on the part of the investigating
ageny which goes to the root of the matter. There is no presence of fingerprints or semen
or any other evidence which establishes the presence of accused on the crime scene. The
accused cannot be expected to relinquish his innocence at the hands of an inefficacious
prosecution, which is ridden with investigative deficiencies. The benefit of doubt arising
out of such inefficient investigation must be bestowed upon the accused. 105 Further, the
lower courts decided the case without hearing Jagga in the present case.
88. That, the case decided by the lower courts without hearing Jagga is a clear violation of his
right to fair trial. A statement under Section 313, 106 is recorded to meet the requirement of
the principles of natural justice as it requires that an accused may be given an opportunity
to furnish explanation of the incriminating material which had come against him in the
trial. 107
89. Thus, from the abovementioned facts it is very much clear that no such circumstances are
established which can make the conclusion of guilt a reality. It is humbly submitted that
both the lower courts have erred in convicting all the accused for the abduction and murder
of Reema and Riya and also for the rape of Riya. There is no iota of evidence adduced in
the present case which makes implicates the accused in the alleged offences.
90. No connection could be established which could infer the presence or connection of all or
any of the accused persons with the offence alleged by the prosecution. It is well settled
that in a case relating to circumstantial evidence the chain of circumstances has to be spelt
out by the prosecution and if even one link in the chain is broken the accused must get the
benefit thereof. 108
91. That, if the discrepancies are material it would be safer to err in acquitting than in
convicting the accused. 109 The golden thread which runs through the web of
administration of justice in criminal cases is that if two views are possible on the evidence
adduced in the case, one pointing to the guilt of the accused and the other to his innocence,
the view which is favourable to the accused should be adopted. 110

105
State of Uttar Pradesh v. Wasif Haider Etc., (2019) 2 SCC 303 (Indiana).
106
Of CrPC. 1973.
107
Raj Kumar Singh @ Raju v. State of Rajasthan, (2013) 5 SCC 722 (Indiana).
108
Manthuri Laxmi Narsaiah v. State of Andhra Pradesh (2011) 14 SCC 117 (Indiana).
109
Kehar Singh & Ors. v. State (Delhi Admn.), AIR 1988 SC 1883 (Indiana).
110
Ramanand Yadav v. Prabhu Nath Jha And Ors., (2003) 12 SCC 606 (Indiana).

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PRAYER

Wherefore in the light of facts of the case, arguments advanced and authorities cited, it is most
humbly prayed before the Hon’ble Court that it may be pleased to hold, adjudge and declare-

1. That, prohibiting women of a particular age group from entering Lord Jogeshwara
Temple is violative of the Fundamental Rights enshrined under the Constitution of
Indiana,

2. That, all practices discriminatory to women, and also to men, of all faiths shall be made
an act of discrimination contrary to Constitutional values and should attract penal
provisions.

3. That the conviction order passed by the Trial Court and the High Court should be set
aside.

And/or any other relief that this Hon’ble Court may be pleased to grant in the interest of justice,
equity and good conscience.

And in these premises the Appellant as duty bound shall forever pray.

Counsel for Appellant

S/d.

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