SYMBIOSIS LAW SCHOOL, PUNE INTERNAL MOOT ELIMINATION – 2020-21

CODE: SME780

SYMBIOSIS LAW SCHOOL – INTERNAL MOOT ELIMINATION

2020-21

BEFORE THE HON’BLE

SUPREME COURT OF INDUS

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

IN THE MATTER OF
PLACES OF WORSHIP (SPECIAL PROVISIONS ACT), 1991
THE CONSTITUTION OF INDUS, 1950

WRIT PETITION NO: 1-2 /2020

INDUKUSH JAGRAN PEOPLE UNION FOR

MANCH (PETITIONER) V. CIVIL LIBERTIES AND ANR.
(RESPONDENT)

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS

COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDUS

MEMORIAL FOR PETITIONER

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CONTENTS

LIST OF ABBREVIATIONS .................................................................................................... IV

INDEX OF AUTHORITIES ....................................................................................................... V

STATEMENT OF JURISDICTION ...................................................................................... VIII

STATEMENT OF FACTS ......................................................................................................... IX

ISSUES RAISED......................................................................................................................... XI

SUMMARY OF ARGUMENTS ............................................................................................. XIII

ARGUMENTS ADVANCED ....................................................................................................... 1

Issue 1: Whether the Public Interest Litigation filed by the Indukush Jagran Manch is

maintainable in the Supreme Court. ....................................................................................... 1

[1.1] The petition filed by the Indukush Jagran Manch is maintainable as it is filed in

Public Interest and therefore maintainable as a Public Interest Litigation. .................... 1

[1.2] The Jurisdiction of the Supreme Court under article 32 extends to adjudicate upon

disputed questions of fact. ..................................................................................................... 4

[1.3] Existence of an alternate remedy is no bar to file a writ petition. ............................ 5

Issue 2: Whether the Places of Worship Act (Special Provisions Act), 1991 is Ultra Vires

the constitution and therefore, can it govern reconstruction of temple complex. ............... 5

[2.1] The Places of Worship Act is unconstitutional........................................................... 6

[2.2] The Places of Worship Act, is beyond the legislature’s law-making powers. ......... 8

[2.3] The Places of Worship Act is anti-secular in nature. .............................................. 10

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Issue 3: Whether the title to the temple complex be claimed on the basis of religious beliefs

................................................................................................................................................... 11

[3.1] The temple complex is of high significance to the Indukush religion. ................... 11

[3.2] The disputed premise is an archeological site. ......................................................... 14

PRAYER ...................................................................................................................................... 16

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LIST OF ABBREVIATIONS

ABBREVIATION ACTUAL TERM

A.I.R. All India Reporter

AMASR Ancient Monuments and

Archaeological sites and Remains Act
Anr. Another

Art Article

BOM Bombay

Cal Calcutta

Ed. Edition

HC High Court

IJM Indukush Jagran Manch

KER Kerala

Ors Others

PIL Public Interest Litigation

PoW Places of Worship (Special provisions

Act), 1991
PPI People’s Party of Indus

PUCL People Union for Civil Liberties

SC Supreme Court

SCC Supreme Court Cases

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INDEX OF AUTHORITIES

[A] Cases

Abhiram Singh v C.D. Commachen (1996) 3 SCC 665 ............................................................... 11

Angurbala Mullick vs Debabrata Mullick, AIR 1951 SC 293........................................................ 7

Archaeological Survey of India vs the state of M.P., AIR 2013 MP 105 ..................................... 15

BALCO Employees' Union (Regd.) v. Union of India & Others AIR 2002 SC 350 ..................... 1

Bharati Reddy v. State of Karnataka, (2018) 6 SCC 162 ............................................................... 9

Bommai v. Union of India (1994) 3 SCC 1 .................................................................................. 11

Chhetriya Pardushan Mukti Sangharsh Samiti vs State of U.P And Ors. AIR 1990 SC 2060 ....... 3

Collector Of Customs, Calcutta vs East India Commercial Co. Ltd, 1963 AIR 1124.................... 3

Dattaraj Nathuji Thaware v. State of Maharashtra & Others (2005) 1 SCC 590 ........................... 2

Dhirendra Nath Das vs Hrishikesh Mukherjee And Ors., AIR 1951 Cal 93 ................................ 10

Ebrahim Vazir Ma vat v. State of Bombay, AIR 1954 SC 229 ...................................................... 5

Firm of Soma Rajaiah v. Sales Tax Officer, Secunderabad', AIR 1954 AP 50 ............................ 10

Golak Nath vs State of Punjab 1967 AIR 1643 .............................................................................. 9

HarbansalSahnia V. Indian Oil Corporation Ltd. AIR 2003 SC 2120............................................ 6

HSB Agro Industries (P) Ltd vs State (Excise Commission) Anr, (1983) 2 SCC 433 ................... 4

Indian Young Lawyers Association & Ors v. The State of Kerala & Ors., (2018) SC 905 ......... 14

Ismail Faruqui vs Union of India AIR 1995 SC 605 ...................................................................... 8

Kavalappara Kottarathil Kochunni Moopil Nayar v. The State of Madras (1959 (S2) SCR 316,

325, 337.)................................................................................................................................. 4, 5

KC Gajapati Narayan Deo V State of Orissa, AIR 1953 Ori 185................................................. 10

Kesavananda Bharti vs State of Kerala AIR 1973 SC 1461 ..................................................... 9, 11

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Keshavan Madhava Menon vs The State of Bombay, 1951 AIR 128 ............................................ 6

Kuldip Nayar vs Union of India, AIR 1994 SC 1918 ................................................................... 11

Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282 ........................ 11

Rajeev Mankotia vs The Secretary to the President of India and Ors. 1997 AIR (SC) 2766 ....... 15

Ram Prasad Seth vs State of U.P. And Ors., AIR 1957 All 411................................................... 14

Ratilal Panachand. v. State of Bombay, AIR 1954 SC 388 ...................................................... 3, 14

Rev. Stanislaus vs State Of Madhya Pradesh & Ors, 1977 AIR 908.............................................. 3

Romesh Thappar Vs The State of Madras 1950 AIR 124 .............................................................. 5

Sardar Dayalsingh Charansing vs Tulsidas Tarachand, AIR (32) 1945 Sind 177 ........................ 13

Satinder Kumar and Ors. Vs. Union of India, 2007 AIR HP 77..................................................... 9

State Bank Of India vs Income-Tax Officer, "A" Ward, (2013) SCC 746 ..................................... 4

State of Bombay & Anr. v/s United Motors (India) Ltd. & Ors. AIR 1953 SC 252 ...................... 5

State of Bombay V. United Motors Ltd. AIR 1953 SC 252 ........................................................... 1

T. C. Basappa v. T. Nagappa (1955) 1 SCC 230 ............................................................................ 9

T.M.A. Pai Foundation vs State of Karnataka, 1994 AIR 2372 ..................................................... 8

The Commissioner, Hindu Endowments Madras vs Sri Lakshmindra Thirtha Swamiar, AIR 1952

Mad 613....................................................................................................................................... 7

Tilakayat Shri Govindalji Maharaj V. State of Rajasthan AIR (1963) SC 1638. ......................... 14

Zahid Mukhtar v State of Maharashtra, 2016 SCC Bom 2600 ....................................................... 7

[B] Constitutional Provisions

Article 12, The Indian Constitution ................................................................................................ 3

Article 13, The constitution of India ............................................................................................... 6

Article 14, The Constitution of India .............................................................................................. 6

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Article 25 of The Indian Constitution ............................................................................................. 3

Article 25, The Indian Constitution ................................................................................................ 6

Article 26 of The Indian Constitution ............................................................................................. 3

Article 26, The Indian Constitution ............................................................................................ 2, 6

Article 32, The Constitution of India .............................................................................................. 8

Article 32, The Indian Constitution ................................................................................................ 3

Article 49, The Indian Constitution .............................................................................................. 14

Article 51, The Indian Constitution ................................................................................................ 3

The Constitution of India, (Forty Second Amendment) Act, 1976 .............................................. 10

[C] Statutes

Section 145(2), The Code of Criminal Procedure, 1973 .............................................................. 10

Section 2(d), The Ancient Monuments and Archaeological sites and remains Act, 1958 ........... 14

Section 4, Places of Worship Act (Special Provision), 1991 .......................................................... 8

Section 5, The Places of Worship Act ............................................................................................ 7

Section 57, Indian Evidence Act, 1872 ......................................................................................... 11

[D] Books

A. Gledhil, "The Fundamental Rights in the Indian Constitution" London, 1955 ......................... 3

D. D. Basu, "Shorter Constitution of India”, 13th ed. Wadhwa and Company Law Publishers, New

Delhi, 2003. ............................................................................................................................... 11

[E] Declarations

Article 6, UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination

Based on religion or Belief, 1986................................................................................................ 3

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of Indus is vested with jurisdiction, to hear the present matter under

Article 32 of the Constitution of Indus.

Article 32 of the Constitution of Indus reads as:

“Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the

rights conferred by this Part is guaranteed

(2) 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 and certiorari, whichever may

be appropriate, for the enforcement of any of the rights conferred by this Part

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (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)

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for

by this Constitution.”

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STATEMENT OF FACTS

Republic of Indus is a democratic country. Indica Party and People’s Party of Indus are two rival

political parties with many other small and regional parties. 85% of the population of Indus

practices Indukush as a religion and 15% practices the Shu Ki religion. At the time of

independence, constitution granted its citizens the right to practice and propagate their religion,

while opting for a secular state. Indukush people believe that they were the original inhabitants of

Indus. They worship Lord Zeus and believe that the human race was born out of him. Ancient

rulers-built temples for worshipping him, which form a part of the rich cultural heritage of Indus.

It is considered to be a pious duty of every Indukush to visit the city of Indraprastha once in their

lifetime. The town of Indraprastha till the 16th century had a temple dedicated to Lord Zeus. People

of Shu Ki did not believe in idol worship. It was their firm belief that God cannot be depicted in

any form, and thereby did not have any artefacts in their temple. As per the religious texts and

scriptures as well as historical records of Iban-batoota (traveler who introduced Shu Ki religion to

Indus), Lord Zeus’ temple was spread over 100 acres with pillars having engravings depicting his

life. In the 16th century, Shylon a follower of Shu Ki, invaded Indus and established his capital in

Indraprastha. Eventually, over the course of years, the Lord Zeus temple was converted to a Shu

Ki temple. In 1850, Shylon dynasty was defeated by the emerging power at that time, Kylong

rulers, who were in turn defeated by the people of Indus and Indus was declared an independent

nation in 1950. In 1991, the Places of Worship Act (Special provisions) was enacted which

mandated that the religious character of holy places will be maintained as existed on the date of

independence. The idea of restoration of Indus to its previous glory was the main philosophy

behind the formation of the People’s Party of Indus. In 2018, a massive earthquake hit, with

Indraprastha at the epicenter and the Shu Ki temple was destroyed. In the rebuilding process, large

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pillars with inscriptions were unearthed from the temple complex. Indukush Jagran Manch, an

affiliate of People’s Part of Indukush filed a Public Interest Litigation before the Supreme Court

alleging the actions of the government violated their fundamental right to freedom of worship, and

that the Places of worship Act was unconstitutional. People Union for civil liberties filed another

PIL before the court claiming the title of the complex being a disputed question of facts cannot be

entertained in a writ jurisdiction. The Supreme Court issued notice to both the Petitions and

clubbed them.

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ISSUES RAISED

ISSUE 1: WHETHER THE PUBLIC INTEREST LITIGATION FILED BY THE INDUKUSH

JAGRAN MANCH IS MAINTAINABLE IN THE SUPREME COURT.

[1.1] The petition filed by the Indukush Jagran Manch is maintainable as it is filed in Public interest

and therefore, maintainable as a Public Interest Litigation.

[1.1.1] Valid Public Interest Litigation Petition

[1.1.2] Infringement of Fundamental Right

[1.2] The Writ Jurisdiction of the Supreme Court allows the court to adjudicate upon disputed

question of facts.

[1.3] Existence of an alternate remedy is no bar to file a writ petition.

ISSUE 2: WHETHER THE PLACES OF WORSHIP ACT IS ULTRA VIRES THE

CONSTITUTION AND THEREFORE, CAN IT GOVERN THE RECONSTRUCTION OF

TEMPLE COMPLEX.

. [2.1] The Places of Worship Act is unconstitutional.

[2.2] The Place of Worship Act is beyond the legislature’s law-making powers.

[2.3] The Places of Worship Act is anti-secular in nature.

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ISSUE 3: WHETHER THE TITLE TO THE TEMPLE COMPLEX CAN BE CLAIMED ON

THE BASIS OF RELIGIOUS BELIEFS.

[3.1] The temple complex is of high significance to the Indukush religion.

[3.1.1] The temple complex can be claimed on the basis of ancient scriptures.

[3.1.2] The said temple complex is a pilgrimage site for the Indukush people.

[3.2] The disputed premise is an archaeological site.

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE PUBLIC INTEREST LITIGATION FILED BY THE INDUKUSH

JAGRAN MANCH IS MAINTAINABLE IN THE SUPREME COURT.

The present petition is a Public Interest Litigation seeking to invoke the Writ jurisdiction of the

Supreme Court. The PIL filed is maintainable in the court, as there is a violation of the fundamental

rights protected under Article 14, 25, 26, and 32 of the Constitution. Even if there is a disputed

question of facts due, even then the Supreme Court has the jurisdiction to adjudicate upon this

matter. The existence of alternate remedies is no bar for filing a writ petition in the Supreme Court,

and mere non-exhaustion of such remedies cannot be held ground for not allowing the petition.

ISSUE 2: WHETHER THE PLACES OF WORSHIP ACT IS ULTRA VIRES THE

CONSTITUTION AND THEREFORE, CAN IT GOVERN THE RECONSTRUCTION OF

TEMPLE COMPLEX.

The Places of Worship (Special Provisions Act), 1991 is unconstitutional in nature. It is violative

of the petitioner’s right to freedom of religion, right to equality, and right to constitutional

remedies. It further violates the nature of the constitution which is secular by making a religion-

based Act. The legislature, by this act is transgressing its powers as the lawmakers as the said act

is amending the basic nature of the constitution which is non-amendable.

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ISSUE 3: WHETHER THE TITLE TO THE TEMPLE COMPLEX BE CLAIMED ON THE

BASIS OF RELIGIOUS BELIEFS

The title to the temple complex can be awarded based on religious beliefs. The temple complex

has been of high significance to the Indukush people, and has added to the cultural heritage and

archaeological importance to Indus. A temple is a place of worship, the claim to which should be

awarded based on religious beliefs and significance. The large pillars unearthed and the carvings

on them suggest that temple has always belonged to Lord Zeus. This belief is further strengthened

by the scriptures and historical records found. This further suggests that the temple is an

archaeological site and needs to be protected under the Ancient Monuments and Archaeological

Sites and Remains Act.

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ARGUMENTS ADVANCED

Issue 1: Whether the Public Interest Litigation filed by the Indukush Jagran Manch is

maintainable in the Supreme Court.

It is humbly contended before this Hon’ble Court by the present council for the petitioner that the

Public Interest Litigation filed (hereinafter referred to as “PIL”) is maintainable. This contention

of the Petitioner is sought in a three folds’ manner – [1.1] The petition filed by the Indukush Jagran

Manch (hereinafter referred to as “IJM”) is maintainable as it is filed in Public interest and

therefore, maintainable as a Public Interest Litigation. [1.2] The Writ Jurisdiction of the Supreme

Court allows the court to adjudicate upon disputed question of facts. [1.3] Existence of an alternate

remedy is no bar to file a writ petition.

[1.1] The petition filed by the Indukush Jagran Manch is maintainable as it is filed in

Public Interest and therefore maintainable as a Public Interest Litigation.

[1.1.1] Valid Public Interest Litigation Petition

1. The current petition has been posted in the form of a Public Interest Litigation, which, as held

in the case of State of Uttaranchal vs Balwant Singh Chauffal1 inter alia includes that the

petition and the petitioner should be bonafide2; the petitioner should have no mala fide or

private motive; and it should raise a matter of public importance3. The present petition fulfills

the conditions laid down by the above-mentioned case. The IJM has filed this petition in the

interest of the public, as the actions of the government to reconstruct the Shuon temple have

1
State of Bombay V. United Motors Ltd. AIR 1953 SC 252
2
BALCO Employees' Union (Regd.) v. Union of India & Others AIR 2002 SC 350

3
Dattaraj Nathuji Thaware v. State of Maharashtra & Others (2005) 1 SCC 590

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violated the fundamental right of the people of Indukush religion to the right of freedom of

religion4. It is an age-old practice of the people from Indukush religion to worship their lord

Zeus at the place of his birth5. According to scriptures, he was enthroned as the King in the

Sanctum Sanctorum wherein he was worshipped by his devotees.6 Constructing a Shuon

temple at a place of such high religious significance for the Indukush religion would be an

infringement of their right to worship.

2. Furthermore, the case of S.P. Gupta vs Union of India7, allows any member of the public or

social action group acting in a bonafide capacity to invoke the writ jurisdiction of the Supreme

Court seeking a recourse/redressal for the violation of a fundamental right of a person8.

Moreover, the court in multiple cases has liberalized the form of petition to be filed in the

Supreme Court9 10
. A political party, which is a political organization, registered with the

Election Commission, by reason of the mandatory requirements of being so registered is

required to be an association of public spirited and policy oriented activist persons11 12

. We

would, therefore, hold that public interest litigation in the form of the present petition, filed by

the writ petitioner-political party, is maintainable.

3. Thus, this PIL filed by the IJM party stands valid, as a Public action group, filing a petition

against the state, and the People Union for Civil Liberties (hereinafter as “PUCL”). PUCL

4
Article 26, The Indian Constitution
5
Symbiosis Law School Pune Internal Moot Elimination 2020-2021 pg.1 para. 4
6
Symbiosis Law School Pune Internal Moot Elimination 2020-2021 pg.2 para. 5
7
S.P. Gupta vs Union of India, AIR 1982 SC 149
8
Miss Veena Sethi v. State of Bihar, AIR 1983 SC 339
9
Bandhua Mukti Morcha v Union of India AIR 1984 SC 802
10
Sunil Batra v. Delhi Administration (1978) 4 SCC 409
11
Citizens for Democracy through its President v. State of Assam and Others, AIR 1996 SC 2193
12
Mumbai Kangar Sabhha v. Abdulbhai, AIR 1976 SC 1455

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falls under the ambit of “other authorities as stated in Article 12 (1) of the Indian

Constitution13.

[1.1.2] Infringement of Fundamental Right

4. Article 3214 of the Indian Constitution grants the Supreme Court the power to adjudicate upon

any matter that involves a breach of any fundamental right of an individual1516. This article

further encompasses the Supreme Court’s power to issue directions, orders and writs, in the

nature of – Habeas Corpus, Certiorari, Mandamus, Prohibition and Quo-Warranto.17

5. Article 2518 of the Indian Constitution confers upon its citizens the freedom to practice and

propagate their religion19,it further allows them to maintain and establish institutions for

religious purposes under Article 2620. Religious practices or performances of acts, in pursuance

of religious belief are as much a part of religion as faith or belief in particular doctrines.21

6. Article 6 of the Declaration on the Elimination of All Forms of Intolerance and of

Discrimination Based on Religion or Belief22 states that the right to worship or assemble in

connection with a religion or belief, and to establish and maintain places for these purposes

falls under the ambit and protection of religious freedom. Article 5123 of the Indian

Constitution that the court must interpret the language of the constitution (if not intractable) in

the light of the UN charter and the solemn declaration subscribed to it by India24.

13
Article 12, The Indian Constitution
14
Article 32, The Indian Constitution
15
Chhetriya Pardushan Mukti Sangharsh Samiti vs State of U.P And Ors. AIR 1990 SC 2060
16
A. Gledhil, "The Fundamental Rights in the Indian Constitution" London, 1955.
17
Collector of Customs, Calcutta vs East India Commercial Co. Ltd, 1963 AIR 1124
18
Article 25 of The Indian Constitution
19
Rev. Stanislaus vs State of Madhya Pradesh & Ors, 1977 AIR 908
20
Article 26 of The Indian Constitution
21
Ratilal Panachand. v. State of Bombay, AIR 1954 SC 388
22
Article 6, UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on
religion or Belief, 1986
23
Article 51, The Indian Constitution
24
State Bank of India vs Income-Tax Officer, "A" Ward, (2013) SCC 746

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7. Article 26 when read in the light of the UN declaration, grants the citizens the right to worship.

The government by attempting to reconstruct the Shuon temple, has violated the right to

worship of the people of Indukush religion. It is the fundamental right of the people to practice

and manage their religion in any manner they please, and the decision of the government is

restricting this right and violating the constitution.

[1.2] The Jurisdiction of the Supreme Court under article 32 extends to adjudicate upon

disputed questions of fact.

8. The Supreme Court in the case of Kavalappara Kottarathil Kochunni Moopil Nayar v. The

State of Madras25 has stated that it would fail in its duty as the custodian and protector of

fundamental rights if it was to decline to entertain a petition under Article 32 simply because

it involved the determination of disputed questions of fact26. Such occasions would be rare and

such rare cases should not, be regarded as a cogent reason for refusing to entertain the petition

under Article 32 on the ground that it involves disputed questions of fact27. Assuming but not

admitting, that the present case constitutes of a disputed question of fact by the intrusion of the

respondents, the Apex Court cannot deny jurisdiction on that regard. The people of the

Indukush religion have a rightful claim over the temple complex land, and any kind of dispute

brought forth by the respondents cannot be held as a ground to forgo the jurisdiction of the

Supreme Court.

25
Kavalappara Kottarathil Kochunni Moopil Nayar v. The State of Madras (1959 (S2) SCR 316, 325, 337.)
26
HSB Agro Industries (P) Ltd vs State (Excise Commission) Anr, (1983) 2 SCC 433
27
Ebrahim Vazir Ma vat v. State of Bombay, AIR 1954 SC 229

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[1.3] Existence of an alternate remedy is no bar to file a writ petition.

9. The Apex Court, in the case of State of Bombay & Anr. v. United Motors Ltd. & Ors. 28 that

the where there is an allegation of a breach of a fundamental right, alternative remedy is no bar

for entertaining a writ petition and granting relief.

10. The court would fail in its duty as the guarantor of Fundamental Rights, if it refused to entertain

a petition citing that the petitioner has other alternate and adequate legal remedy29

11. Existence of an alternate legal remedy does not rob the petitioner of his right to approach the

Apex court in the case of breach of a fundamental right. Enshrined in Part III of the

constitution, Fundamental Rights have been given supremacy over other laws, it is thus the

supreme court’s duty to ensure that this basic structure of the constitution is being upheld.30

12. In spite of availability of the alternative remedy, the court may exercise its writ jurisdiction in

at least petitions where the petitioner seeks enforcement of any of the fundamental rights 31.

Thus, the petitioner humbly submits that writ petition is maintainable as existence of

alternative remedy is not a bar.

Issue 2: Whether the Places of Worship Act (Special Provisions Act), 1991 is Ultra Vires the

constitution and therefore, can it govern reconstruction of temple complex.

It is Humbly contended before this Hon’ble court by the present council for the petitioner that the

Places of Worship (Special Provisions Act), 1991 is ultra vires the constitution and should be

quashed. This contention of the petitioner shall be proved in a three-folds’ manner. [2.1] The Places

28
State of Bombay & Anr. v/s United Motors (India) Ltd. & Ors. AIR 1953 SC 252
29
Kavalappara Kottarathil Kochunni Moopil Nayar v. The State of Madras (1959 (S2) SCR 316, 325, 337
30
Romesh Thappar Vs The State of Madras 1950 AIR 124
31
HarbansalSahnia V. Indian Oil Corporation Ltd. AIR 2003 SC 2120

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of Worship Act is unconstitutional. [2.2] The Place of Worship Act is beyond the legislature’s law-

making powers. [2.3] The Places of Worship Act is anti-secular in nature.

[2.1] The Places of Worship Act is unconstitutional.

13. Article 13 (1) of the Indian Constitution32 states that all laws in force in the territory of India

immediately before the commencement of this Constitution, in so far as they are consistent

with the provisions of Part III of the Constitution, shall, to the extent of such inconsistency, be

void33.

14. Article 2534 of the Constitution, along with Article 2635, confer upon the citizens the freedom

of religion, and the right to manage their own religious affairs.

15. It has been held in the case of The Commissioner, Hindu Endowments Madras vs Sri

Lakshmindra Thirtha Swamiar36 that a law which takes away the right of administration from

the hands of a religious sect altogether and vests it in any other authority would amount to a

violation of the right guaranteed under clause (d) of article 2637, and that particular act or its

provisions are considered to be unconstitutional, since it is in conflict with the fundamental

rights accorded to the citizens38.

16. Article 1439 of the Constitution, states that the State shall not deny to anyone equality before

law or the equal protection of laws within the territory of India.

32
Article 13, The constitution of India
33
Keshavan Madhava Menon vs The State of Bombay, 1951 AIR 128
34
Article 25, The Indian Constitution
35
Article 26, The Indian Constitution
36
The Commissioner, Hindu Endowments Madras vs Sri Lakshmindra Thirtha Swamiar, AIR 1952 Mad 613
37
Angurbala Mullick vs Debabrata Mullick, AIR 1951 SC 293
38
Zahid Mukhtar v State of Maharashtra, 2016 SCC Bom 2600
39
Article 14, The Constitution of India

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17. Section 540 of the Places of Worship (Special Provisions Act), 1991 states that “the Act does

not apply to Ram Janma Bhumi-Babri Masjid.—Nothing contained in this Act shall apply to

the place or place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated

in Ayodhya in the State of Uttar Pradesh and to any suit, appeal or other proceeding relating

to the said place or place of worship.”

18. The impugned Act allows an exemption to a similar dispute with similar facts, and the court

has permitted a change its religious character from what it was at the date of independence.

This disparity in the application of the same laws in similar situations form a ground for

inequality, adding further to the unconstitutionality of the Act.

19. In the case of Ismail Faruqui vs Union of India41, it has been emphasized that places with

special significance, that form an integral part of the religion have to be protected under Article

25 of the Constitution, a lack thereof, would result in a compromise of this fundamental right42.

20. Right to freedom to practice and propagate any religion, is one such right that the Places of

worship Act violates, as it denies the Indukush people the right to worship in their sanctum

sanctorum, which is of specific importance to them as it was formerly the temple of Lord

Zeus43, and the sanctum sanctorum was the place where he was enthroned as the King. It had

been a place of worship for their religion since the 10th Century.

21. This act has decided and made an absolute decision with regard to the status of the various

places of worship, thereby rendering all the claims made challenging the validity of any such

status, void. This provision is an undisputable violation of Article 26(d) of the Constitution

which is a right to administer religious property in accordance with law. The administerial

40
Section 5, The Places of Worship Act
41
Ismail Faruqui vs Union of India AIR 1995 SC 605
42
T.M.A. Pai Foundation vs State of Karnataka, 1994 AIR 2372
43
Symbiosis Law School Pune Internal Moot Elimination 2020-2021 pg.2 para. 5

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rights of a religious denomination are ceased by and vested in this act. Thus, making the Places

of worship Act unconstitutional.

[2.2] The Places of Worship Act, is beyond the legislature’s law-making powers.

22. Article 3244 of the Indian constitution confers upon its citizens the right to approach the court

in case of a breach of any Fundamental Right, as mentioned in Part III of the Constitution, this

right is considered to be the cornerstone of the constitution, and was even referred to as ‘the

heart and soul’ of the Constitution by Dr. B.R. Ambedkar45.

23. The Supreme Court, in the case of Golak Nath vs State of Punjab46 held the Fundamental

Rights to be an integral and immutable part of the Constitution, which could not be amended

by the parliament47.

24. Further, in the case of Kesavananda Bharti vs State of Kerala48 the court reviewed the

Constitutional Amendment Act49 in the light of the Golak Nath judgement, and held that

though the Parliament had the power to amend the Constitution, it does not have the power to

amend the ‘basic structure’ of the Constitution.

25. Section 4 of the Places of Worship Act,50 states that the religious character of a place of worship

as existing on 15th August 1947, i.e. that the date India attained independence, shall continue

44
Article 32, The Constitution of India
45
T. C. Basappa v. T. Nagappa (1955) 1 SCC 230
46
Golak Nath vs State of Punjab 1967 AIR 1643
47
Bharati Reddy v. State of Karnataka, (2018) 6 SCC 162
48
Kesavananda Bharti vs State of Kerala AIR 1973 SC 1461
49
The Constitution (First Amendment) Act, 1951
50
Section 4, Places of Worship Act (Special Provision), 1991

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to be the same51. It further states that all cases, suits or appeals, pending before any court of

law with regard to the conversion of any place of worship before the said date shall be abated.52

26. The Places of Worship Act, by abating and refusing to accept any cases with respect to a place

of worship is resigning the Supreme Court from its duty to protect and uphold the fundamental

right to freedom to practice religion of people. Furthermore, it is depriving the people of their

fundamental right to seek legal recourse and approach the court in the case of a breach of their

right, which is a blatant violation of Article 32 of the constitution.

27. This Act, as introduced by the Parliament is nothing short of a ‘piece of colorable legislation’.

The Constitution has limited the power of the Legislature by providing Fundamental Rights to

the citizens. The legislature may transgress these limits in disguised and covert manners. These

indirect acts of the legislature are referred to as colorable legislation53 i.e. what can’t be done

directly, cannot be done indirectly.54

28. The legislature, which doesn’t have the power to make laws that curb or hamper the

fundamental rights of the citizens, is infringing one of the most important rights of the Part III

under the garb of the Places of Worship Act.

29. The right to worship in a specific place has been viewed as a right to access land and water,

and is protected under section 145 and 147 of CrPC. The phrase “land and water”, as mentioned

in section 145, includes - buildings, markets, fisheries, crops or other produce of land, and the

rents or profits of any such property55. This rule, by extension, is also said to apply to temples

as well.56

51
Satinder Kumar and Ors. Vs. Union of India, 2007 AIR HP 77
52
Section 4(2), Places of Worship Act (Special Provision), 1991
53
Firm of Soma Rajaiah v. Sales Tax Officer, Secunderabad', AIR 1954 AP 50
54
KC Gajapati Narayan Deo V State of Orissa, AIR 1953 Ori 185
55
Section 145(2), The Code of Criminal Procedure, 1973
56
Dhirendra Nath Das vs Hrishikesh Mukherjee And Ors., AIR 1951 Cal 93

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30. The right to a place of worship is already decided by the people’s right to access to land and

water. Formulating another act, namely the Places of Worship Act, for deciding the same is in

contravention of the already existing code of criminal procedure.

[2.3] The Places of Worship Act is anti-secular in nature.

31. The Supreme Court, in the 42nd Constitutional Amendment57, has inserted the word ‘secular’

in the preamble which forms the basic structure of the constitution58. This term suggests that

the State, per se, has no religion59.Secularism by the virtue of being a part of the preamble,

forms a part of the basic structure of the constitution60.

32. The state, being a secular entity is not limited to being impartial towards the religion, it further

implies that the state will have nothing to do with religion61. The constitutional ethos forbids

mixing of religions or religious considerations with the secular functions of the State.

33. In the case of Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt62 the court has laid

down the distinction between a “religious matter” and a “secular matter”. It states that the

essentiality of religious practices should be decided in accordance with the religious doctrines

of each faith, it held that any regulation could only extend to religious practices and activities

which were economic, commercial or political in their character.

34. The Places of Worship act, intervenes with the religious belief and practices of the citizens by

regulating the importance and validity of their beliefs. It standardizes practices which are

neither economic, commercial or political in nature, but are more based on religious beliefs.

57
The Constitution of India, (Forty Second Amendment) Act, 1976
58
Kuldip Nayar vs Union of India, AIR 1994 SC 1918
59
Kesavananda Bharti vs State of Kerala AIR 1973 SC 1461
60
Bommai v. Union of India (1994) 3 SCC 1
61
Abhiram Singh v C.D. Commachen (1996) 3 SCC 665
62
Madras v. Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282

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35. Thus, by formulating laws that decide upon the religious practices of a religion, the legislature

is violating the secular nature of the constitution, which forms a part of the basic structure63.

36. Further it is argued that the Act breaches the religious autonomy of the individual as it

empowers the Court to decide what place of worship can and cannot exist, thereby violating

the principle of secularism embodied in the Constitution.

Issue 3: Whether the title to the temple complex be claimed on the basis of religious beliefs

It is humbly contended before this Hon’ble court, that the title to the temple complex can be

claimed on the basis of religious beliefs. The said contention shall be proved in a three folds’

manner – [3.1] The temple complex is of high significance to the Indukush religion. [3.2] The

disputed premise is an archaeological site.

[3.1] The temple complex is of high significance to the Indukush religion.

[3.1.1] The temple complex can be claimed on the basis of ancient scriptures.

37. Section 57 of the Indian Evidence Act64, allows the court to take judicial notice of the facts

instead of exhausting the category of facts of which the court may take judicial notice.

Requirement of proof is necessary, as the adjudication court without existence of any formal

proof would be an act of expediency.

38. It has been stated in the case of Sardar Dayalsingh Charansing vs Tulsidas Tarachand65 that

“the Court is entitled to refer to these documents under Section 57 of the Evidence Act, 1872,

as these documents were found to be of assistance to the Court; in order to go in to the

history and theological beliefs of that religion.”

63
D. D. Basu, "Shorter Constitution of India”, 13th ed. Wadhwa and Company Law Publishers, New Delhi, 2003.
64
Section 57, Indian Evidence Act, 1872
65
Sardar Dayalsingh Charansing vs Tulsidas Tarachand, AIR (32) 1945

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39. As per historical records, scriptures and religious texts, of traveler Iban-batoota, the temple of

Lord Zeus spread over 100 acres and had pillars engraved with the depiction of the life of Lord

Zeus. The Sanctum Sanctorum was where Lord Zeus was enthroned as the King.66

40. The scriptures, acting as admissible evidence, prove that the original ownership of the property

lied with the petitioners. The legislature, by allowing the respondents to maintain claim over

the disputed temple complex, is validating the act of invasion, vandalism and conversion,

which is how thee respondents got the claim to the property in the first place67.

[3.1.2] The said temple complex is a pilgrimage site for the Indukush people.

41. The ‘Essential religious practices test was formulated in Commissioner, Hindu Religious

Endowments, Madras V. Sri Lakshmi Thirtha Swamiar Of Sri Shiruru Mutt - Before

articulating the test, this court drew on the words “practice of religion” in Article 25(1) to hold

that the constitution protects not only the freedom of religious belief, but also acts done in

pursuance of a religion.

42. The essential practices test in its application would have to be determined by the tenets of the

religion itself. The practices and beliefs which are considered to be integral by the religious

community are to be regarded as ‘essential’ and afforded protection under Article 25. The only

way to determine the essential practices test would be with reference to the practices followed

since time immemorial. Which may have been scripted in the religious texts of the temple. If

any practice in a particular temple can be traced to antiquity, and is integral to the temple, it

must be taken to be an essential religious practice of that temple.68

66
Symbiosis Law School Pune Internal Moot Elimination 2020-2021 pg.2 para. 5
67
Symbiosis Law School Pune Internal Moot Elimination 2020-2021 pg.2 para. 6
68
Indian Young Lawyers Association & Ors v. The State of Kerala & Ors., (2018) SC 905

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43. The court held that the issue whether the practices were an integral part of the religion or not
had to be decided on the basis of evidence. The High court relied on the decision of this court
in Tilakayat Shri Govindalji Maharaj V. State of Rajasthan69 wherein it was held that the
question whether the practice is religious in character and whether it can be regarded as an
integral or an essential part of the religion, will depend upon the evidence adduced before
court, with respect to the tenets of the religion.
44. Religious practices or performances of acts, in pursuance of religious belief are as much a part

of religion as faith or belief in particular doctrines.70 Thus if the tenets of any religion lay down

that certain rites and ceremonies are to be performed at certain times and in a particular manner,

it is not open to the secular authority of the State to restrict or prohibit them in any manner

they like71.

45. Lord Zeus was believed to be born in the city of Indraprastha and was believed to have been

enthroned there as a king and ruled the entire country of Indus.72It is believed in the Indukush

religion, that it is their pious duty to visit the city of Indraprastha once in their lifetime to pay

obedience and gratitude to Lord Zeus73. Thus, the city of Indraprastha is of high importance in

the Indukush religion. Its’ significance is parallel to the importance of ‘Kushinagar’ as an

important Buddhist pilgrimage site, where Gautama Buddha attained ‘Mahaparinirvana’74. It

is regarded as a very sacred Buddhist pilgrimage destination.

46. Thus, it is contended that the claim to the temple complex lies with petitioner.

69
Tilakayat Shri Govindalji Maharaj V. State of Rajasthan AIR (1963) SC 1638.
70
Ram Prasad Seth vs State of U.P. And Ors., AIR 1957 All 411
71
Ratilal Panachand. v. State of Bombay, AIR 1954 SC 388
72
Symbiosis Law School Pune Internal Moot Elimination 2020-2021 pg.2 para. 5
73
Symbiosis Law School Pune Internal Moot Elimination 2020-2021 pg.1 para. 4
74
Historic decisions taken by Cabinet to boost infrastructure across sectors: Kushinagar Airport declared as an
'International Airport', Press Information Bureau, 2020

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[3.2] The disputed premise is an archeological site.

47. Section 2 (d) of the Ancient Monuments and Archaeological sites and remains Act75, states the

definition of archeological sites and remains to include – “any area which contains or is

reasonably believed to contain ruins or relics of historical or archaeological importance which

have been in existence for not less than one hundred years, and includes--

(i) such portion of land adjoining the area as may be required for fencing or covering in or

otherwise preserving it, and

(ii) the means of access to, and convenient inspection of the area;”76

48. It is further stated in the case of Rajeev Mankotia vs The Secretary to the President of India

and Ors.77, that –

“It would, therefore, be manifest that all ancient and historical monuments and all

archaeological sites and remains or any structure, erection or monument of any tumulus or

place of interment shall be deemed to be ancient and historical monument or archaeological

sites and remains of national importance and shall be so declared for the purpose of Ancient

Monuments Act if they have existed for a century;”

49. Article 49 of the Indian Constitution, lays down that protection of monuments, places and

objects of national importance shall be an obligation of the state.78

50. The temple complex has been in existence for centuries, and owing to the scripture, historical

records, and the unearthed pillars has been proved to have been an Indukush temple of Lord

75
Section 2(d), The Ancient Monuments and Archaeological sites and remains Act, 1958
76
Archaeological Survey of India vs the state of M.P., AIR 2013 MP 105
77
Rajeev Mankotia vs The Secretary to the President of India and Ors. 1997 AIR (SC) 2766
78
Article 49, The Indian Constitution

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Zeus originally. The temple adds to the cultural significance of Indus. Ancient temples are a

part of the rich cultural and architectural heritage of Indus79.

51. Thus, it is hereby contended that the temple complex should be awarded to the petitioner.

79
Symbiosis Law School Pune Internal Moot Elimination 2020-2021 pg.1 para. 3

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PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited may this Hon’ble

court be pleased to declare/adjudge/hold/uphold that:

1. DECLARE The Public Interest Litigation to be maintainable.

2. HOLD The Places of Worship (Special Provisions Act), 1991 to be unconstitutional

3. AWARD The title to the temple complex to the petitioners.

AND / OR

Pass any order that this Hon’ble Court may deem fit in the interest of

Justice, Equity and Good Conscience.

And for this act of kindness, the counsel for the respondent shall duty bound forever pray.

(Counsel for Petitioner)

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