HUMAN HANDS TOGETHER EDUCATION TEAM CODE: 01R

HUMAN HANDS TOGETHER EDUCATION’S LEGAL DRAFTING COURSE

9TH – 19TH JULY, 2020

BEFORE THE HON’BLE SUPREME COURT OF KENDIA

WRIT PETITION (CIVIL) NO.______OF 2019

(PUBLIC INTEREST LITIGATION)

UNDER ARTICLE 32 OF CONSTITUTION OF KENDIA

IN THE MATTER OF

THE KENDIA LAWYERS ASSOCIATION & ORS. …PETITIONER

VERSUS

UNION OF KENDIA …RESPONDENT

MEMORIAL ON THE BEHALF OF THE RESPONDENT

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TABLE OF CONTENT

Index of Abbreviations ……………………………………………………………….…3

Index of Authorities……………………………………………………………………...4

A. CASES………………………………………………………………………………...4

B. BOOKS……………………………………………………………………………..…5

C. STATUTES…………………………………………………………………………..5

Statement of Jurisdiction………………………………………………………………..6

Statement of Facts……………………………………………………………………….7

Statement of Issues………………………………………………………………………8

Summary of Arguments………………………………………………………………....9

Arguments Advanced…………………………………………………………………..10

1. WHETHER THE WRIT PETITION FILED BY THE PETITIONER UNDER ARTICLE 32 IS

MAINTAINABLE? ................................................................................................................10

(1.1) There is no Violation of Fundamental Rights of the whole class of women in present
case……………………………………………………………………………………….10

(1.2) Circumstances under which court cannot entertain writ petition filed under Art.32
............................................................................................................................................11

(1.3) No Locus Standi to file Writ Petition under Article 32 of the Constitution ……….12

2. WHETHER THE HON’BLE SUPREME COURT HAS THE JURISDICTION TO

INTERFERE IN THE MATTERS OF RELIGION? .................................................14

(2.1) Article 14 conflicts with the Rights of the worshippers of the shrine ……………..14

(2.2) The Protection guaranteed under Article 25 ………………………………………15

(2.3) Constitutional morality in matters of Religion ……………………………………16

Prayer …………………………………………………………………………………..19

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INDEX OF ABBREVIATIONS

S. No. ROOT WORDS ABBREVIATIONS

1. And &
2. Another Amr.
3. Article Art.
4. Company Co.
5. Edition Edn.
6. Honourable Hon’ble
7. High Court HC
8. Justice J.
9. Number No.
10. Others Ors.
11. Page P.
12. Paragraph ¶
13. Public Interest PIL
Litigation

14. Supplement Supp

15. Supreme Court SC
16. Supreme Court Cases SCC
17. Supreme Court Report SCR
18. Versus v.
19. Volume Vol.

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INDEX OF AUTHORITIES

A. CASES

1. Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj & Ors. v. The State
of Gujarat & Ors. (1975) 1 SCC 11
2. Baldev Singh Gandhi v. State of Punjab (2002)3 SCC 667, 674 ((¶ 15): AIR 2002 SC
1124.
3. Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161,185, (¶ II): AIR 1984 SC
802, 8/3, (¶ II).
4. Bijoe Emmanuel & Ors. v. State of Kerala & Ors (1986) 3 SCC 615.
5. Coffe Bd v. Jt. C.T.O, AIR 1971 SC 870 (877).
6. Dalmia Cement (Bharat) limited v. Union of India (1996) 10 SCC 104 (¶ 15).

7. Dattaraj Nathuji Thawre v. State of Maharashtra (2005) 1 SCC 590, 595 (¶ 12): AIR
2005 SC 540.
8. D.C. Wadhwa (Dr) v. State of Bihar (1987) 1 SCC 378: AIR 1987 SC 579.
9. Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors (1962) 1 SCR 383 :
AIR 1961 SC 1402.
10. Federation of Bar Association in Karnataka v. Union of India (2000) SCC 715 (¶ 4).
11. Gopal Das Mehta v. Union of India, AIR 1955 SC 1.
12. Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors. (1955)
1 SCR 1284 : AIR 1955 SC 367.
13. Hindi Hitarakshak samiti v. Union of India (1990) ISCJ 617 (¶ 7-8); AIR 1990 SC
851.
14. Jagannath Prasad v. State of Uttar Pradesh, AIR 1961 SC 1245 (1962) 1 SCR 151.
15. Kanhaiya Lal Sethia v. Union of India (1997) 6 SCC 573 (¶ 2).

16. Karamjeet Singh v. Union of India, (1992) 4 SCC 666: AIR 1993 SC 284.
17. Nain Sukh Das v. State of Uttar Pradesh (1953) SCR 1184 AIR 1953 SC 384.
18. Rajasthan & Ors. v. Union of India, AIR 1977 SC 1361.
19. Ratilal Panachand Gandhi v. The State of Bombay & Ors (1954) SCR 1055 : AIR
1954 SC 388.
20. Riju Prasad Sharma & Ors. v. State of Assam & Ors. (2015) 9 SCC 461.

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21. Sahara India Real Estate Corporation Limited & Ors. v. Securities and Exchange
Board of India & Anr. (2012) 10 SCC 603.
22. Simranjeet Singh Mann v. Union of India, (1992) 4 SCC 653: AIR 1993 SC 280.
23. SP Gupta v. Union of India 1981 supp. SCC 87: AIR 1982 SC 149.
24. S.P. Mittal v. Union of India & Ors (1983) 1 SCC 51.
25. State of West Bengal v. Anwar Ali, AIR 1952 SC 75 (India).

26. Subramaniam Swamy v. Union of India, Ministry of Law & Ors. (2016) 7 SCC 221.
27. Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (1964) 1 SCR 561
at 582 : AIR 1963 SC 1638.
28. TN Godavarman Thirumulpad v. Union of India (1947) 1 SCC 546.
29. Venkataramana Devaru & Ors. v. State of Mysore & Ors. 1958 SCR 895 : AIR 1958
SC 255.

B. BOOKS

1. Arthashastra by Kautilya, Penguin Books, 1992.

2. Durga Das Basu, Commentary on the Constitution of India (8th Ed., Lexis Nexis).
3. Durga Das Basu, Shorter the Constitution of India (14th Ed., Lexis Nexis).
4. Durga Das Basu, Human Rights in Constitutional Law, (ED. 3RD, LEXIS
NEXIS).
5. H.M. Seervai, Constitutional Law of India (4th Ed., Universal Law Publication).
6. M.P. Jain, Indian Constitutional Law (7th Ed., Lexis Nexis).
7. V.N. Shukla, Constitution of India (12th Ed., Eastern Book Company).
8. Aiyar Ramantha P ‘The Law Lexicon’ (2nd edition, Reprint 2000).
9. Constitutional democracy in India, 1st Edition by Bidyut Chakrabarty.

C. STATUTES

1. Constitution of Republic of India, 1950.

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STATEMENT OF JURISDICTION

The Respondent humbly submits to the Jurisdiction of the Hon’ble Supreme Court of Kendia,
in response to the Writ Petition under Art.32 of the Constitution of Kendia. The Respondent
contests that the Supreme Court lacks Jurisdiction under Art.32 of the Constitution.

Art.32 of the Constitution of Kendia reads as follows:

Art.32: Remedies for enforcement of rights conferred by this part:

a. The rights to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.

b. The Supreme Court shall have power to issue directions or orders or writs, including writs
in the nature of habeas corpus, mandamus, prohibition, quo warranto & certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.

c. Without prejudice to the powers conferred on the Supreme Court by clause (1) & (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2).

d. The rights guaranteed by this article shall not be suspended expect as otherwise provided
for by this Constitution.”

This Memorial sets forth the facts, laws & the corresponding arguments on which the claims
are based in the instant case.

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STATEMENT OF FACTS

1. Human Hands is a city in the Union of Kendia which is famous for its renowned religious
spot, the S&M Temple. This Temple welcomes each and every person irrespective of any
caste and gender. The devotees dressed uniformly in black call themselves as “Jidnini”.
2. Despite of this, the Temple has a selective ban on a certain age group of women i.e. from
10-50 years of age or who are in menstruating stage to enter it from time immemorial.
The Temple depicts Lord Jindi as ‘Naistika Brahmcharya’ i.e., his powers derive
specifically from abstention from sexual activities. The pilgrims adopt the practice of
‘Celibacy’ and have to follow a strict vow for 51 days.
3. The Kendia Lawyers Association along with five women lawyers and a group of women
from ‘Menstruation- A God’s Gift’ campaign approached the High Court of Human
Hands under Article 226 to allow the entry of the whole class of women into the Temple.
The High Court held that as the practice is going on from time immemorial, hence, the
Court opt out to decide on the case of religion as the practice is not considered to be
discriminatory under the Constitution of Kendia.
4. The Petitioners thus approached the Supreme Court of Kendia under Article 32 of the
Constitution.

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STATEMENT OF ISSUES

-I-

WHETHER THE WRIT PETITION FILED BY THE PETITIONER UNDER

ARTICLE 32 IS MAINTAINABLE?

-II-

WHETHER THE HON’BLE SUPREME COURT HAS THE JURISDICTION TO

INTERFERE IN THE MATTERS OF RELIGION?

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SUMMARY OF ARGUMENTS

ISSUE 1:

It is humbly submitted before the Hon’ble Court that the Public Interest Litigation filed under
Article 32 by the petitioner is not maintainable, because the petitioner has no locus standi,
also, there is no violation of the fundamental rights of the whole class of women in the
present case and it does not meet the threshold of maintainability of PIL as envisaged by
constitutional adjudication over it.

ISSUE 2:

It is humbly submitted before the Hon’ble Court that the right to practise one’s religion is a
Fundamental Right guaranteed by Part III of the Constitution, without reference to whether
religion or the religious practises are rational or not. Religious practises are constitutionally
protected under Articles 25 and 26(b). Courts normally do not delve into issues of religious
practises, especially in the absence of an aggrieved person from that particular religious faith,
or sect.

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE WRIT PETITION FILED BY THE PETITIONER

UNDER ARTICLE 32 IS MAINTAINABLE?

It is submitted before the Hon’ble Court that this Writ Petition filed under Article 32 of
Constitution of Kendia is not maintainable because it does not meet the threshold of
maintainability of PIL as envisaged by constitutional adjudication over it. The Respondent
will be contesting the maintainability of writ petition under threefold arguments stated as
below: (1.1) That entering the temple premises is a limited restriction on certain age group of
women and is not violative of fundamental rights of the whole gender. (1.2) Circumstances
under which court cannot entertain writ petition filed under Art.32. (1.3) No locus standi to
file writ petition under Art.32 of Constitution.

(1.1) THERE IS NO VIOLATION OF FUNDAMENTAL RIGHTS OF THE WHOLE

CLASS OF WOMEN IN PRESENT CASE.

It is humbly submitted that there has been no violation of fundamental rights of the whole
class of women in the present case. It is asserted that the practise of restricting the entry of
women between the ages of 10 to 50 years is an essential and integral part of the customs and
usages of the Temple, which is protected under Articles 25 and 26 of the Constitution. Being
a religious custom, it is also immune from challenge under other provisions of Part III of the
Constitution in light of the ruling of this Court in Riju Prasad Sharma & Ors. v. State of
Assam & Ors1. Thus the restriction implied by the temple authorities is in consonance with
the Constitution of Kendia. The petition which is filed stating that there is a breach of right to
equality of the women by the authorities is not maintainable. In the absence of infringement
of fundamental rights the writ petition is not maintainable on a fragile ground2.

Furthermore, it was held that Art.32 cannot be involved simply to adjudge validity of any
legislation or an administrative action unless it adversely affects Petitioner’s fundamental
rights.3 In the instant matter there is no violation of the fundamental rights of Petitioner as

1
Riju Prasad Sharma & Ors. v. State of Assam & Ors. (2015) 9 SCC 461.
2
Federation of Bar Association in Karnataka v. Union of India (2000) SCC 715 (¶ 4).
3
Rajasthan & Ors. v. Union of India, AIR 1977 SC 1361.

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the restriction is only applied to a certain age group of women. The exclusion of women in
this Temple is not absolute or universal. It is limited to a particular age group in one
particular temple, with the view to preserve the character of the deity. Women outside the age
group of 10 to 50 years are entitled to worship at the S&M Temple. The usage and practise is
primary to preserve the sacred form and character of the deity. 4 It was further submitted that
the objection to this custom is not being raised by the worshippers of Lord Jindi, but by social
activists.5

The sole object of Art.32 is in the enforcement of the fundamental rights guaranteed by the
Constitution. Whatever other remedies may be open, there is no right to complain under
Art.32 where no ‘fundamental rights’ has been infringed 6, & infringement of fundamental
rights cannot be founded on remote or speculative ground 7. It follows that no question other
than relating to fundamental right will be determined in a process under Art 328.

(1.2) CIRCUMSTANCES UNDER WHICH COURT CANNOT ENTERTAIN WRIT PETITION FILED

UNDER ART.32.

It is humbly submitted that no question other than that relating to a fundamental right
violation, will be determined in a proceeding under Art.32 9. Thus, even if a law is considered
to be void due to contravention of some provisions of Constitution, the court cannot give
relief under Art.32 unless it satisfied that the right, the infringement of which is alleged by
the petitioner, is a fundamental right.10
The court will not interfere with a policy decision of government unless that amounts to a
direct & causal violation of fundamental rights guaranteed by Part III of Constitution 11 or is
otherwise actuated by mala fides.12
If women as a class were prohibited from participation, it would amount to social
discrimination and the infringement of fundamental rights of the women. However, this is not
so in the present case. Girls below 10 years, and women after 50 years can freely enter this

4
Para 2 of Moot proposition.
5
Para 3 of Moot proposition.
6
Gopal Das Mehta v. Union of India, AIR 1955 SC 1.
7
Baldev Singh Gandhi v. State of Punjab (2002)3 SCC 667, 674 ((¶ 15): AIR 2002 SC 1124.
8
Coffe Bd v. Jt. C.T.O, AIR 1971 SC 870 (877).
9
Article 32, Constitution of Kendia, 1950.
10
Nain Sukh Das v. State of Uttar Pradesh (1953) SCR 1184 AIR 1953 SC 384.
11
Hindi Hitarakshak samiti v. Union of India (1990) ISCJ 617 (¶ 7-8); AIR 1990 SC 851.
12
Kanhaiya Lal Sethia v. Union of India (1997) 6 SCC 573 (¶ 2).

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Temple, and offer worship. Further, there is no similar restriction on the entry of women at
the other Temples of Lord Jindi.
The limited restriction on the entry of women from 10 to 50 years, in the S&M Temple is a
matter of ‘religion’ and ‘religious faith and practise’. Hence this Writ Petition is not
maintainable under Article 32 of the Constitution of Kendia.

(1.3) NO LOCUS STANDI TO FILE WRIT PETITION UNDER ARTICLE 32 OF THE

CONSTITUTION.
It is humbly submitted that the petitioner in the present matter has no Locus Standi to file a
Writ Petition under Art.32. The term Locus Standi means a place of standing, a right of
appearance in court of Justice. It signifies right to bring an action & to be heard. 13 A person
must have a sufficiency of interest to sustain his standing to sue. 14 Locus Standi involves the
question whether petitioner is entitled to invoke jurisdiction of the court.
The right to move to the Supreme Court under Article 32 for violation of Fundamental
Rights, must be based on a pleading that the Petitioners’ personal rights to worship in this
Temple have been violated. The Petitioners do not claim to be devotees of the S&M Temple
where Lord Jindi is believed to have manifested himself as ‘Naistika Brahmacharya’. To
determine the validity of long-standing religious customs and usages of a sect, at the instance
of an association/Intervenors who are “involved in social developmental activities especially
activities related to upliftment of women and helping them become aware of their rights” 15,
would require this Court to decide religious questions at the behest of persons who do not
subscribe to this faith. The right to worship, claimed by the Petitioners has to be predicated
on the basis of affirmation of a belief in the particular manifestation of the deity in this
Temple.
The absence of this bare minimum requirement must not be viewed as a mere technicality,
but an essential requirement to maintain a challenge for impugning practises of any religious
sect, or denomination. Permitting PILs in religious matters would open the floodgates to
interlopers to question religious beliefs and practises, even if the petitioner is not a believer of
a particular religion, or a worshipper of a particular shrine. The perils are even graver for
religious minorities if such petitions are entertained.

13
Aiyar Ramantha P ‘The Law Lexicon’ (2nd edition, Reprint 2000).
14
Id.
15
Para 3 of Moot proposition.

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It was held that if any particular ordinance was being challenged by the Petitioner, he may
not have the locus standi to challenge it simply as a member of the public unless some legal
right or interest of his is violated or threatened by such ordinance.16
In Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors. 17, the Court
held that a person can impugn a particular law under Article 32 only if he is aggrieved by it.
PIL is a weapon which has to be used with great care & circumspection & jurisdiction has to
be extremely careful to see that behind the beautiful veil of public interest, an ugly malice,
vested interest & or publicity seeking is not lurking. It is to be used as an effective weapon in
the armoury of law for delivering social justice to citizens. The attractive brand name of PIL
should not be used for suspicious products of mischief. It should be aimed at redressal of
genuine public wrong or public injury & not be publicly oriented or founded on personal
vendetta18. No trust can be placed by court on a mala fide applicant in PIL 19 only a person
acting bona-fide20 & having sufficient interest 21 in proceedings of PIL will alone have the
locus standi. The petitioner, in the present matter, is prompted by personal gain and political
motive which shows that there is an oblique consideration. The court should not allow its
processes to be abused by busybodies etc.22
It is submitted that in the instant matter, the petitioners have brought an action on behalf of
the certain restricted women in the S&M Temple. In words of BHAGWATI, J., “Where a
person or class of persons to whom legal injury is caused by reason of violation of
fundamental right is unable to approach the court for judicial redress on account of poverty or
disability or socially or economically disadvantaged position, any member of the public
acting bona-fide can move the court for relief under Art.32”. But, when the person or class of
persons whose rights have been violated is under no disability & yet does not approach the
court, any other person cannot do so on his behalf 23. The disability in this context means a
disability recognised by law.24It is therefore, submitted that the certain age group of women
in the instant matter are not disabled as they can approach the court in case of violation of

16
D.C. Wadhwa (Dr) v. State of Bihar (1987) 1 SCC 378: AIR 1987 SC 579.
17
Hans Muller of Nurenburg v. Superintendent, Presidency Jail, Calcutta & Ors. (1955) 1 SCR 1284 : AIR 1955
SC 367.
18
Dattaraj Nathuji Thawre v. State of Maharashtra (2005) 1 SCC 590, 595 (¶ 12): AIR 2005 SC 540.
19
TN Godavarman Thirumulpad v. Union of India (1947) 1 SCC 546.
20
Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161,185, (¶ II): AIR 1984 SC 802, 8/3, (¶ II).
21
SP Gupta v. Union of India 1981 supp. SCC 87: AIR 1982 SC 149.
22
Supra note 13.
23
Simranjeet Singh Mann v. Union of India, (1992) 4 SCC 653: AIR 1993 SC 280.
24
Karamjeet Singh v. Union of India, (1992) 4 SCC 666: AIR 1993 SC 284.

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their rights. Thus, in the present matter, the petitioner has no locus standi and this Petition is
not maintainable.

ISSUE 2: WHETHER THE HON’BLE SUPREME COURT HAS THE

JURISDICTION TO INTERFERE IN THE MATTERS OF RELIGION?

It is humbly submitted that Article 25(1) confers on every individual the right to freely
profess, practise and propagate his or her religion. 25 The right of an individual to worship a
specific manifestation of the deity, in accordance with the tenets of that faith or shrine, is
protected by Article 25(1) of the Constitution. If a person claims to have faith in a certain
deity, the same has to be articulated in accordance with the tenets of that faith.

In the present case, the worshippers of this S&M Temple believe in the manifestation of the
deity as a ‘Naistika Brahmcharya’. The devotees of this Temple have not challenged the
practises followed by this Temple, based on the essential characteristics of the deity.26

The right to practise one’s religion is a Fundamental Right guaranteed by Part III of the
Constitution, without reference to whether religion or the religious practises are rational or
not. Religious practises are constitutionally protected under Articles 25 and 26(b). 27 Courts
normally do not delve into issues of religious practises, especially in the absence of an
aggrieved person from that particular religious faith, or sect.

(2.1) ARTICLE 14 CONFLICTS WITH THE RIGHTS OF THE WORSHIPPERS OF

THE SHRINE.

The concept of equality & equal protection of law guaranteed under Art.14 in its proper
spectrum encompasses social & economic justice in a political democracy 28. Equal protection
of law is a positive concept, it does not mean that identically the same law should apply to all
persons or that every law must have a universal application within the country irrespective of
difference of circumstances. Equal protection of laws does not postulate equal treatment of all
persons without distinction. What it does postulate is the application of the same law alike &
without discrimination to all persons “similarly” situated.29

25
Article 25(1) of the Kendian Constitution.
26
Para 2 of Moot proposition.
27
Article 25 and 26(b) of the Constitution of Kendia.
28
Dalmia Cement (Bharat) limited v. Union of India (1996) 10 SCC 104 (¶ 15).
29
Jagannath Prasad v. State of Uttar Pradesh, AIR 1961 SC 1245 (1962) 1 SCR 151.

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Under the traditional classification-based test of Art.14, as laid down in decisions such
as Anwar Ali Sarkar,30 a classification created through legislation must satisfy a two-pronged
test–

(i) It should be founded on an intelligible differentia, which distinguishes those that are
grouped together from those that have been excluded; &

(ii) The differentia must have a rational nexus with the object that the statute seeks to
achieve.

The difficulty lies in applying the tests under Article 14 to religious practises which are also
protected as Fundamental Rights under our Constitution. The right to equality claimed by the
Petitioners under Article 14 conflicts with the rights of the worshippers of the shrine which is
also a Fundamental Right 29 guaranteed by Articles 25, and 26 of the Constitution. It would
compel the Court to undertake judicial review under Article 14 to delineate the rationality of
the religious beliefs or practises, which would be outside the ken of the Courts. It is not for
the courts to determine which of these practises of a faith are to be struck down, except if
they are pernicious, oppressive, or a social evil, like Sati.

It is humbly submitted that the present case only deals with the right of the devotees of this
denomination or section to practise their religion in accordance with the tenets and beliefs,
which are considered to be “essential” religious practises of the shrine.

(2.2) THE PROTECTION GUARANTEED UNDER ARTICLE 25.

It is humbly submitted that the role of Courts in matters concerning religion and religious
practises under our secular Constitutional set up is to afford protection under Article 25(1) to
those practises which are regarded as “essential” or “integral” by the devotees, or the
religious community itself.

In Bijoe Emmanuel & Ors. v. State of Kerala & Ors. 31, the Court noted that the personal
views of judges are irrelevant in ascertaining whether a particular religious belief or practise
must receive the protection guaranteed under Article 25(1).

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. 32 In order that the practises in
30
State of West Bengal v. Anwar Ali, AIR 1952 SC 75 (India).
31
Bijoe Emmanuel & Ors. v. State of Kerala & Ors (1986) 3 SCC 615.
32
Ratilal Panachand Gandhi v. The State of Bombay & Ors (1954) SCR 1055 : AIR 1954 SC 388.

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question should be treated as a part of religion they must be regarded by the said religion as
its essential and integral part. 33A given religious practise is whether 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.34

Gods have distinct forms ascribed to them, and their worship at home, and in temples, is
ordained as certain means of salvation.35 The right to worship under Article 25 cannot be
claimed in the 65 absence of the deity in the particular form in which he has manifested
himself. In the case of the S&M Temple, the manifestation is in the form of a ‘Naistika
Brahmcharya’.36 The belief in a deity and the form in which he has manifested himself is a
fundamental right protected by Article 25(1) of the Constitution.

Hence it is submitted that the practise of restricting entry of women between the age group of
10 to 50 years is an essential religious practise of the devotees of Lord Jindi at the S&M
Temple being followed since time immemorial. The right to worship in the S&M Temple
under Article 25(1) is in accordance with their beliefs and practises as per the tenets of their
religion. These practises are considered to be essential or integral to that Temple. Any
interference with the same would conflict with their right guaranteed by Article 25(1) to
worship Lord Jindi in the form of a ‘Naistika Brahmacharya’.

(2.3) CONSTITUTIONAL MORALITY IN MATTERS OF RELIGION

Kendia is a country comprising of diverse religions, creeds, sects each of which have their
faiths, beliefs, and distinctive practises. Constitutional democracy is both a structure of
governance & a way of providing an ideological perspective on governance. 37 In a
constitutional democracy, the Constitution is the “Supreme law of the land”. It describes who
will make national laws, who will enforce them, & who will interpret them.

Article 2638 guarantees the freedom to every religious denomination, or any sect thereof, the
right to establish and maintain institutions for religious purposes, manage its own affairs in
matters of religion, own and acquire movable and immovable property, and to administer

33
Durgah Committee, Ajmer & Anr. v. Syed Hussain Ali & Ors (1962) 1 SCR 383 : AIR 1961 SC 1402.
34
Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan & Ors. (1964) 1 SCR 561 at 582 : AIR 1963 SC
1638.
35
Venkataramana Devaru & Ors. v. State of Mysore & Ors. 1958 SCR 895 : AIR 1958 SC 255.
36
Para 2 of the Moot proposition.
37
Constitutional democracy in India, 1st Edition by Bidyut Chakrabarty.
38
Article 26 of the Constitution of Kendia.

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such property in accordance with law. This right is subject to public order, morality and
health. The right under Article 26 is not subject to Part III of the Constitution.

It is humbly submitted that equality and non-discrimination are certainly one facet of
Constitutional Morality. However, the concept of equality and non-discrimination in matters
of religion cannot be viewed in isolation. Under our Constitutional scheme, a balance is
required to be struck between the principles of equality and non-discrimination on the one
hand, and the protection of the cherished liberties of faith, belief, and worship guaranteed by
Articles 25 and 26 to persons belonging to all religions in a secular polity, on the other hand.
Constitutional morality requires the harmonisation or balancing of all such rights, to ensure
that the religious beliefs of none are obliterated or undermined.

At the outset, it may be stated that Supreme Court is not only the sentinel of the fundamental
rights but also a balancing wheel between the rights, subject to social control…under our
Constitution no right in Part III is absolute. 39 The Constitutional necessity of balancing
various Fundamental Rights has also been emphasised in the decision of this Court in
Subramaniam Swamy v. Union of India, Ministry of Law & Ors. 40 In Acharya Maharajshri
Narendra Prasadji Anandprasadji Maharaj & Ors. v. The State of Gujarat & Ors. 41 it has been
noted that it is a duty of this Court to strike a balance, and ensure that Fundamental Rights of
one person co-exist in harmony with the exercise of Fundamental Rights of others. Hence it is
submitted that it is the Constitutional duty of the Court to harmonise the rights of all persons,
religious denominations or sects thereof, to practise their religion according to their beliefs
and practises.

In S.P. Mittal v. Union of India & Ors.42, the Court held that 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 satisfy three
conditions:

(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

39
Sahara India Real Estate Corporation Limited & Ors. v. Securities and Exchange Board of India & Anr.
(2012) 10 SCC 603.
40
Subramaniam Swamy v. Union of India, Ministry of Law & Ors. (2016) 7 SCC 221.
41
Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj & Ors. v. The State of Gujarat & Ors. (1975)
1 SCC 11.
42
S.P. Mittal v. Union of India & Ors (1983) 1 SCC 51.

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 HUMAN HANDS TOGETHER EDUCATION

(2) Common organisation

(3) Designation by a distinctive name

It is hereby submitted that the worshippers of the S&M Temple have the attributes of a
religious denomination as the worshippers are designated with a distinctive name “Jidnini”
and they dress themselves uniformly in ‘black’.43 The pilgrims adopt the practice of
“Celibacy” and follow a strict vow over a period of 51 days. The devotees follow an
identifiable set of beliefs, customs and usages, and code of conduct which are being practised
since time immemorial, and are founded in a common faith. The religious practises being
followed in this Temple are founded on the belief that the Lord has manifested himself in the
form of a ‘Naistika Brahmcharya’. It is because of this belief, women between the ages of 10
to 50 years, are not permitted to enter the temple.44

It is further submitted that the Constitution ensures a place for diverse religions, creeds,
denominations and sects thereof to co-exist in a secular society. It is necessary that the term
‘religious denomination’ should receive an interpretation which is in furtherance of the
Constitutional object of a pluralistic society.

PRAYER
43
Para 1 of the moot proposition.
44
Para 2 of the moot proposition.

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 HUMAN HANDS TOGETHER EDUCATION

In light of the issues raised, arguments advanced and authorities cited, the counsel for the
Respondent humbly prays that the Hon’ble Supreme Court be pleased to adjudge, hold and
declare that:

 The Writ Petition under Article 32 does not deserve to be entertained for want of
standing.

Also,

 The equality doctrine enshrined under Article 14 does not override the
Fundamental Right guaranteed by Article 25.
 Constitutional Morality in a secular polity would imply the harmonisation of the
Fundamental Rights of every individual.

Pass any such order that this Hon’ble Court deems fit in the interest of justice, equity and
good Conscience.

All of which is most respectfully submitted.

(Counsel for the Respondent)

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