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IN

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

I.A. NO. 34/2017

IN

WRIT PETITION NIO. 373/2006

IN THE MATTER OF:-

INDIAN YOUNG LAWYERS

ASSOCIATION & ORS ……PETITIONERS

VERSUS

STATE OF KERALA ….RESPONDENTS

IN THE MATTER OF :

ALL INDIA DEMOCRATIC WOMEN’S ASSOCIATION

….Applicant

SUBMISSIONS BY SR. COUNSEL, P.V.SURENDRANATH

1. Equality principle and dignity of individuals are basic features

of the constitution. That is the reason why the same is found

place in the preamble of the constitution.

2. Bhakti, devotion, worship, prayer etc. are different forms of

expression of person’s spiritual life and attempt for his/her

communion with the eternal, infinite, transcendental, the

creator- his/her concept of God.

3. It is person’s inalienable natural right, facets of which are

reflected in Arts. 19(1) and 21 of the constitution of India. It is

part of person’s right to privacy. [Right to Privacy,

Puttaswamy Judgment (2017) 10 SCC 1, Paras 42, 46 47,

118, 102, 318, 319, 320, 322.

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4. Freedom of conscience, free profession, practice and

propagation of religion is specifically declared and

guaranteed under Art. 25. Right under Art, 25 (1) is non-

discriminatory and cannot be gender-specific.

5. Decisional autonomy comprehends intimate personal

choices; even choices expressed in public such as faith,

worship, devotion, prayer etc. (para 248 of privacy judgment).

6. Even without the aid of Art, 25, Right to Worship as a non-

discriminatory right is protected under Arts. 19(1) and 21 of

the Constitution of India.

7. Dignity is part of Right to life and liberty under Art. 21. [

Puttaswamy Judgment, paras 102, 118 and 320].

8. Exclusive biological and physiological characteristics of

female gender are part of the dignity of the persona.

Discrimination on the basis of these gender-specific

characteristics in the matter of woman’s rights under Arts.

19(1) & 25 is violation of Art. 14, 15 and right to life under Art.

21 of the Constitution of India.

9. Neither life nor liberty is bounty conferred by the state nor

does the Constitution create these rights. These are inherent

inalienable natural rights.

10. Fundamental rights under are not mutually exclusive, but inter

connected. [Maneka Gandhi, R.C. Cooper etc. as approved

by Puttaswamy Judgment at paras 259 and 260].

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11. Rule 3 of Kerala Hindu Places of Worship [Authorization of

Entry] Rules, 1965 is ultravires to the Kerala Hindu Places of

Public Worship [Authorization of Entry] Act, 1965 and

unconstitutional.

12. No custom can prevail over constitutional morality and dignity

of person.

13. Discrimination on the basis of sex and age is per se violative

of Art. 14, 15, 19, 21 and 25.

14. The concept put forward by the respondents and accepted by

the High Court in Mahendran’s case, 1991 SCC Online Ker.

43 : AIR 1993 Ker. 42 that since the deity at Sabarimala is in

the form of a ‘Naishtik Barahmachari’ it is therefore believed

that young women should not offer worship in the temple so

that even the slightest deviation from celibacy and austerity

observed by the deity is not caused by the presence of such

women is, absolutely against the dignity of women as a

‘person’ and blasphemous. The concept of God is that of

undiluted perfectness and to impute vulnerability and

temptation to God makes no sense.

15. Art. 26 does not permit any exclusionary practice by any

religious denomination or any section thereof. It is subject to

public order, morality and health. The morality mentioned

herein is constitutional morality. [Adi Sivacharyargal Nala

Sangam Vs. State of T.N (2016) 2 SCC 725; Manoj Narula Vs

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Union of India (2014) 9 SCC 1 and National Legal Services

Authority Vs. Union of India & Ors. (2014) 5 SCC 438.]

16. Constitution does not approve or recognize any custom in

violation of Constitutional morality based on dignity of the

individual.

17. “Originalist”/ “Original” intent theory has been repudiated by

this Hon’ble Court in the matter of interpretation of the

constitution in 2nd Judges Case, Supreme Court

Advocates-on-Record Association Vs Union of India i.e

the 4th Judges case (2015) 6 SCC-408 and Puttaswamy

Judgment (2017) 10 SCC-1, [paragraphs 130, 259 and 324],

It has been emphatically held by this Hon’ble Court that the

constitution has evolved and must continuously evolve to

meet the aspirations and challenges of the present and the

future. The meaning of the constitution cannot be frozen on

the perspectives present when it was adopted. Hence the

interpretation of the constitution must be resilient and flexible

to allow future generations to adapt its content bearing in

mind its basic or essential features.

18. The fact that text of the article 26 of the constitution does not

say that it is subject to Part -III or Article 25 it cannot be said

that it is insulated against Part-III, especially Articles-

14,15,19,21, and 25.

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19. Even in Devaru case (1958 SCR 895), which is pre

R.C.Cooper and pre Menaka Gandhi case, at Page No. 918

has held; “The result then is that there are two provision of

equal authority, neither of them being subject to the other.

The question is how the apparent conflict between them is to

be resolved. The rule of construction is well settled that when

there are in an enactment two provisions which cannot be

reconciled with each other, they should be so interpreted that,

if possible, effect could be given to both. This is what is

known as the rule of harmonious construction. Applying this

rule, if the contention of the appellants is to be accepted, then

Art. 25(2)(b) will become wholly nugatory in its application to

denominational temples, though, as stated above, the

language of that Article includes them. On the other hand, if

the contention of the respondents is accepted, then full effect

can be given to Art,. 26(b) in all matters of religion, subject

only to this that as regards one aspect of them, entry into a

temple for worship, the rights declared under Art. 25(2)(b) will

prevail. While, in the former case, Art. 25(2)(b) will be put

wholly out of operation, in the latter, effect can be given to

both that provision and Art. 26(b). We must accordingly hold

that Art, 26(b) must be read subject to Art, 25(2)(b).

20. As Human dignity is an integral part of the constitution and

golden thread passing through Articles-14, 15, 19 , 21 and 25

of the constitution of India, Article 26 cannot be considered as

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an isolated island. At this stage of development of the

Interpretation of the Constitution and particularly in view of

Puttaswamy case para 130, 259, 324 , Article 26 is to be read

as subject to Article 25 (1) & (2).