WHETHER 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?

It is humbly submitted before the Hon’ble Court that the prohibition of women between the age
of 11 to 51 from entering the Lord Jogeshwara Temple situated in Katra, Arya Pradesh, to
maintain the status of the deity as a Yogi in the form of a ‘Nasthik Bramhachari’ is no violative
of any of the Fundamental Rights enshrined under the Constitution of Indiana. The right of
equality has to be read in consonance to the right to freedom of religion and protection granted to
every religious denomination under the Constitution. The following facts must be taken into
consideration. [A] It does not violate the right to equality enshrined under the Constitution of
Indiana. [B] The Jogeshwara temple is a religious denomination entitled to manage its own
affairs under Art. 26. [C] it is part of the Essential Practice of the followers of Lord Jogeshwara
and cannot be curtailed as the temple will lose its religious sanctity.

A. THE RESTRICTION DOES NOT VIOLATE THE RIGHT TO EQUALITY ENSHRINED UNDER

THE CONSTITUTION OF INDIANA.

It is humbly submitted that the restriction on the entry of women between the age of 11 to 51 has
a rational nexus with the object sought to be achieved, which is to maintain the status of Lord
Jogeshwara as a Yogi in the form of a ‘Nasthik Bramhachari’ who is to strictly observe celibacy
and austerity and keep away from women.1 The restriction is based not a complete ban on entry
on the basis of sex alone but of a particular age group as women below the age of 11 and above
51 are allowed to enter the temple. Further, the Temple is maintained and administrated by the
Lord Jogeshwara Trust and does not come under the definition of state given in Article 12 of
Constitution nor a ‘place of public resort’ under Art. 15. It is humbly submitted that there has
been no violation of as a result of the practices of Temple.

1
Moot Moot Propositionsition, ¶3.
 1. THERE IS A REASONABLE CLASSIFICATION FOR ENTRY INTO THE TEMPLE
It is humbly submitted that Article 14 permits reasonable classification of persons by the
legislature for the purpose of achieving specific ends.2 The test for this reasonable classification
are that it must be founded on intelligible differentia and that this differentia must have a rational
have a rational nexus with the object sought to be achieved by the impugned law.3

i. The classification is on the basis Intelligible Differentia

Religious customs and practises cannot be solely tested on the touchstone of Article 14 and the
principles of rationality embedded therein. Article 25 specifically provides the equal entitlement
of every individual to freely practise their religion. Equal treatment under Article 25 is
conditioned by the essential beliefs and practises of any religion. Equality in matters of religion
must be viewed in the context of the worshippers of the same faith. 4 The classification made by
the legislature need not be scientifically perfect or logically complete.5 Exercising powers of
judicial review in determining the validity of religious beliefs and practises, would be outside the
ken of the courts. The issue of what constitutes an essential religious practise is for the religious
community to decide.6

ii. The differentiation is not on the grounds of ‘sex alone’

Article 15 of the Constitution prohibits differential treatment of persons on the ground of ‘sex’
alone. However, the restriction on the entry of women is limited to a notified age-group based in
the deep-rooted belief of the worshippers that the deity in the Lord Jogeshwara Temple has
manifested in the form of a ‘Nasthik Bramhachari’. The classification is founded on an
intelligible differentia which distinguishes women of that age group from both men and women
of other age groups and makes that age group the basis of exclusion based upon inherent
physiological characteristics which bear a nexus to the objects of abstinence, celibacy, purity and
self denial which is of inherent of Lord Jogeshwara.7 In matters of religion, the court cannot
approach the case on the basis of rationality or logic in the practices followed by the people of

2
R.K. Garg v. Union of India, AIR 1981 SC 1829.
3
K. Thimmappa v. Chairman, Central Board of Directors, SBI, AIR 2001 SC 467.
4
Indian Young Lawyers’ Association v. State of Kerala, WP(C) No. 373 of 2006.
5
Kedar Nath v. State of West Bengal, AIR 1953 SC 404.
6
Indian Young Lawyers’ Association v. State of Kerala, WP(C) No. 373 of 2006.
7
Moot Proposition, ¶ 3.
that faith but on the practice being an integral part of that religion.8 that if the women between
the age group of 11 to 51 years 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. It is not a complete exclusion of women from entry into the
temple but a restriction on entry which has been permitted in the case of Sri Venkatramma
Devaru v. State of Mysore9.

2. THE DIFFERENTIATION HAS A RATIONAL RELATION WITH THE OBJECT SOUGHT TO BE ACHIEVED

It is humbly submitted that the differentia is not only intelligible, not only distinguishes the
persons or things that are grouped together from others left out of the group, but the differentia
also have a rationale relation to the object sought to be achieved.10 In light of the historical origin
and continuous practices of the Lord Jogeshwara Temple, the restriction on entry qua women
between ages 10 to 50 clearly bears a reasonable nexus to the objects sought to be achieved
which is the maintenance of the purity of the deity in the form of a ‘Nasthik Bramhachari’ is also
a paramount object which is sought to be achieved.11

3. THE FOLLOWERS OF LORD JOGESHWARA FORM A RELIGIOUS DENOMINATION AND ARE

ENTITLED TO MANAGE THEIR OWN AFFAIRS

It is humbly submitted that Article 26 of the Constitution guarantees the freedom to every
religious denomination, or sect thereof, the right to establish and maintain institutions for
religious or charitable purposes, and to manage their own affairs in matters of religion. 12 A
religious denomination or organisation enjoys complete autonomy in matters of deciding what
rites and ceremonies are essential according to the tenets of that religion.13 Article 26 refers not
only to religious denominations, but also to sects thereof.14 The Respondents assert that the
devotees of the Lord Jogeshwara Temple constitute a religious denomination, or a sect thereof,
and are entitled to claim protection under Article 26 of the Constitution.
8
AIR 1958 SC 255.
9
Indian Young Lawyers’ Association v. State of Kerala, WP(C) No. 373 of 2006.
10
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2005) 8 SCC 534.
11
Moot Proposition, ¶ 3
12
Article 25, Constitution of Indiana, 1950
13
S.P. Mittal v. Union of India & Ors., (1983) 1 SCC 51.
14
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar Thirtha Swamiar of Shirur
Mutt, AIR 1954 SC 282.
the words “religious denomination” in Article 26 of the Constitution must take their colour from
the word “religion” and if this be so, the expression “religious denomination” must also satisfy
three conditions15: (1) 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;
(2) common organisation; and (3) designation by a distinctive name. It is submitted that Lord
Jogeshwara Temple clearly satisfies these Constitutional tests.

Lord Jogeshwara Temple constitute a religious denomination having a distinct faith, well-
identified practises, being followed since time immemorial. The worshippers of this shrine
observe the tenets of this faith. It is also evident in the proposition that 80% of the people of
Arya Pradesh are followers of Lord Jogeshwar.16 the Sabarimala Temple together constitute a
religious denomination, or sect thereof, as the case maybe, follow a common faith, and have
common beliefs and practises. These beliefs and practises are based on the belief that Lord
Ayyappa has manifested himself in the form of a ‘Naishtik Brahmachari’.

On a somewhat different note, Ayyangar, J. in Sardar Syedna Taher Saifuddin Saheb v. State of
Bombay (supra) in his separate judgment, expressed this term to mean identity of its doctrines,
creeds, and tenets, which are intended to ensure the unity of the faith which its adherents profess,
and the identity of the religious views which bind them together as one community. The meaning
ascribed to religious denomination by this Court in Commissioner, Hindu Religious Endowments
case (supra), and subsequent cases is not a strait-jacket formula, but a working formula. It
provides guidance to ascertain whether a group would fall within a religious denomination or
not.

If there are clear attributes that there exists a sect, which is identifiable as being distinct by its
beliefs and practises, and having a collection of followers who follow the same faith, it would be
identified as a ‘religious denomination’. judicial definition of a religious denomination laid down
by this Court is, unlike a statutory definition, a mere explanation17 After observing that any
freedom or right involving the conscience must be given a wide interpretation, and the
expressions ‘religion’ and ‘religious denomination’ must be interpreted in a “liberal, expansive

15
S.P. Mittal v. Union of India, (1983) 1 SCC 51.
16
Moot Proposition, ¶ 3.
17
Indian Young Lawyers’ Association v. State of Kerala, WP(C) No. 373 of 2006.
way”: It will be noticed that these sects possess no distinctive names except that of their founder-
teacher and had no special organisation except a vague, loose – un-knit one. The really
distinctive feature about each one of these sects was a shared belief in the tenets taught by the
teacher-founder.

It ispertinent to note that the rights of a group of devotees as constituting a religious

denomination in the context of a single temple has also been identified in the Sri Venkataramana
Temple case. And further in the case of Dr. Subramaniam Swamy v. State of Tamil Nadu.18

4. THE CUSTOM IS PART FO THE ESSENTIAL PRACTICE OF THE FAITH AND CANNOT BE CURTAILED

it is humbly submitted that the practice of prohibiting women between the ages of 11 to 51 is an
essential practice to the Lord Jogeshwara Temple and its followers as the belief is based on the
essence of Lord Jogeshwara’s vows of celibacy and abstinence and imperative custom in the
worship of Lord Jogeshwara. The curtailment of an essential practice would amount to
infringement of the Art. 25 of the Constitution. what constitutes the essential part of a religion is
primarily to be ascertained with reference to the doctrines of that religion itself.

Ratilal Panachand Gandhi v. The State of Bombay & Ors., where the narrow definition of
“religion” given by the Bombay High Court was discarded. It was held that all religious practises
or performances of acts in pursuance of religious beliefs were as much a part of religion, as faith
or belief in particular doctrines. No outside authority has any right to say that these are not
essential parts of religion and it is not open to the secular authority of the State to restrict or
prohibit them in any manner. In order that the practises in question should be treated as a part of
religion they must be regarded by the said religion as its essential and integral part; a given
religious practise is an integral part of the religion or not, the test always would be whether it is
regarded as such by the community following the religion or not.19

In Bijoe Emmanuel & Ors. v. State of Kerala & Ors., This Court had noted that such religious
beliefs and practises must be consistently held ergo, it must be part of the custom of the religion
and the evidence adduced to the conscience of the community and the tenets of its religion.

18
19
Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors.
the Constitutional fabric of our country permits religious beliefs and practises to exist, regardless
of whether or not they appeal to the rational sensibilities of this Court, or others. 20 The court
referring to the case of Carlos Frank v. State of Alaska21 it would be sufficient that a practise be
deeply rooted in religious belief for it to receive the protection of the free exercise clause.

The only way to determine the essential practises test would be with reference to the practises
followed since time immemorial, which may have been scripted in the religious texts of this
temple. If any practise in a particular temple can be traced to antiquity, and is integral to the
temple, it must be taken to be an essential religious practise of that temple22 Naishtik
Brahmachari’ which means a student who has to live in the house of his preceptor, and studies
the Vedas, living the life of utmost austerity and discipline. The deity is in the form of a ‘Yogi’
or ‘Naishtik Brahmachari’. The practise of celibacy and austerity is the unique characteristic of
the deity in the Sabarimala Temple.

In Venkataramana Devaru & Ors. v. State of Mysore & Ors. (supra), this Court had observed that
Gods have distinct forms ascribed to them, and their worship at home, and in temples, is

ordained as certain means of salvation

A practice started in hoary antiquity and continued from time immemorial without interruption
becomes usage and custom.23 The characteristics and elements of a valid custom are that it must
be of immemorial existence, it must be reasonable, it must be certain and it must be continuous.24

In the present case, the character of the temple at Sabarimala is unique on the basis of centuries
old religious practises followed to preserve the manifestation of the deity, and the worship
associated with it. Any interference with the mode and manner of worship of this religious
denomination, or sect, would impact the character of the Temple, and affect the beliefs and
practises of the worshippers of this Temple.

WHETHER THE ACCUSED ARE GUILTY OF THE ABDUCTION AND MURDER OF REEMA AND RIYA
AND THE HIGH COURT ERRED IN ACQUITTING THEM.

20
Indian Young Lawyers’ Association v. State of Kerala, WP(C) No. 373 of 2006.
21
604 P.2d 1068 (1979)
22
Indian Young Lawyers’ Association v. State of Kerala, WP(C) No. 373 of 2006.
23
Ewanlangki-E-Rymbai v. Jaintia Hills District Council, (2006) 4 SCC 748.
24
Shakuntalabai v. L.V. Kulkarni, (1989) 2 SCC 526.
It is humbly submitted before the Hon'ble Court that no person must be held liable for a Crime
until it is proven beyond reasonable doubt25. in the instant case the accused are charged with Sec.
302, Sec. 364 and Sec. 120B none of which are proved beyond reasonable doubt and the
Acquittal by the Hon'ble High Court is based on this absence of conclusive proof from
testimonies and other evidences so provided. It is also submitted that following points must be
considered before conviction [A]. There was absence of mens rea on the part of accused [B]
Lack of Substantial Evidence to prove the actus reus [C] The Medical Reports are inconclusive
as to the cause of death [D] The Investigation of the case is faulty [E] Inconclusive investigation
and reporting, before considering the crime.

A. THERE WAS ABSENCE OF MENS REA ON THE PART OF THE ACCUSED

It is humbly submitted that Mens Rea is an essential element to constitute an offence26 it is also
settled that a person cannot be made criminally liable for a crime unless he intended27 to cause or
had knowledge that the act was likely to cause the effects which constitute the crime. 28 Motive
(including intention) and conduct all form a very essential ingredient of mens rea and the
accused not possessed any of the two hence no mens rea.

1. MOTIVE OF THE ACCUSED

It is humbly submitted to the Hon'ble Court That motive which means that what end one wished
to achieve is the motive29 is a factor which leads to the Mens Rea.30 In the instant case it must be
taken into account that though the threats were made by the Accused No.1 along with the local
masses towards Victims they were mere threats so as to not allow them to enter into the temple
as the accused (along with the masses) were of the opinion in the good faith that it was against
the local cultural mythos and the significance of the temple. It is thus submitted that no rational
conclusion of the mens rea can be drawn from the same.

2. CONDUCT OF THE ACCUSED

25
State of U.P v. Krishna Gopal, (1988) 4 SCC 302.
26
Mayer Hans George AIR 1965 SC 722.
27
K D Gaur, Criminal Law Cases and Materials, 7th Ed, Lexis Nexis, Pg 51.
28
Inder Sain v. Stateof Punjab AIR 1973 SC 2309.
29
Dr, V Krishnamachari, Law Of Evidence, 7th Ed. Pg 55.
30
State of Maharastra v. Nayar Hans George AIR 1965 SC 722.
It is humbly submitted that both the Conduct subsequent and precedent are important to establish
mens rea as for the conduct precedent which by the facts may only be established by the threats
made which were made not only by the accused but also the masses of Katra31. The Previous bad
Character is not relevant as the evidence for the trail until and unless it is of utmost importance to
the case32. In the instant case, the threats which were hurled were remote in nature with respect
to crime. It is also submitted that Jagga Ram Mohan Shukla (Accused no.5) filed an FIR for the
theft of his Vehicle on 27th December 2016 which is the vehicle used in the crime and one which
was not in the possession of Accused.33 Statement of the Independent witness who is also the
only eye witness to abduction Krishna Das does not place the accused inconclusive whether the
accused were involved in the crime per se.34 It is also submitted that the Statement Of Savita is
of no material value for her conversation with accused is a privileged conversation35 secondly,
her caution is based off of a hearsay story from the Newspapers.

B. THERE WAS ABSENCE OF ANY CRIMINAL ACT

Actus Reus connotes a wrongful act.36 Thus, in the case of culpable homicide, actus reus would
be the physical result of the conduct of the accused that led to the death of the victims. In the
instant matter, atcus reus is negated by the way of [1] Inconclusiveness of the forensic report. 37
[2] The witness statement and in turn the investigation are inconclusive which is also accepted
by the CBI in its investigation report.38

1. THAT THE EXPERT EVIDENCE ARE INCONCLUSIVE IN THIS CASE

It is Humbly submitted that the post mortem report and forensic report examination is a very
important piece of evidence in criminal trials.39 In the instant case the post mortem report has not
taken into account that the excessive loss of blood which is expected of the expert to categorize.
It is also submitted that the due diligence was not taken up by the expert when they failed to do
the semen test and DNA test on the Victim No. 2. It is humbly submitted before the Hon'ble
31
Moot Proposition.
32
Moot Proposition
33
Moot Proposition
34
Moot Proposition
35
Sec. 122 Evidence Act
36
Aiyar P Ramanatha, The Law Lexicon, 2nd Ed., Pg.49.
37
Moot Proposition
38
Moot Proposition
39
Thakur v. State AIR 1955 All 189.
Court that the forensic report does not conclusively give the weapon of the murder. Also there
was no attempt made to the taking of the finger print of the weapons so presented. It is thus
submitted that the expert reports are inconclusive as the proof of criminal guilt.

2. INCONCLUSIVE INVESTIGATION AND REPORTING

It is Humbly submitted before the Hon'ble that the investigation though done has not led to any
conclusive result also the independent investigation agency report also categorically mentions
the inconclusiveness of investigation. Hence in based on these issues it can be very well inferred
that in the instant case the accused must not be held liable for the be considered guilty for the
crimes so alleged.

WHETHER ALL THE ACCUSED ARE GUILTY FOR COMMITTING RAPE.

It is humbly submitted before the Hon'ble Court that the accused must not be considered guilty
for the crime of Gang Rape and causing the death of the victim. In this regard the trial court had
taken up some exemplary measures as opposed to the fair trial that should have been provided to
the Accused the as per the available facts not even the very basic audi alterum partum was
allowed to the accused when there statement remain the statements of 161 Cr.P.C. i.e. before the
police, this elaborates the absence of fair trial.

It is also submitted that there is an absence of the chragesheet which was filed against the
accused as far as the facts of instant case go, portrays the presence of hasty conclusion of the trial
based on the public hue and cry which is regretable.40 It is humbly submitted that no evidence
has been found to be pointing towards the accused. it is also submitted that it is important for the
prosecution to discharge a evidentiary and persuasive burden of proof41 which was not done in
the instant case. It is so submitted that there was no diligence done in the making of the post
mortem report and that of the forensic report. It is thus submitted that as the related crimes are
never proved beyond reasonable doubt because of the inconclusive investigation and the
witnesses and other evidences the allegations against the accused are not made out.

40
Ananda May Chatterjee v. Saiful Ali & Ors. 2013 SCC OnLine Cal 14603.
41
Mojib Ansari & ors. v. State of Jharkhand