KASHMIR LAW COLLEGE NOWSHERA

SRINAGAR.

MOOT COURT MEMORIAL, 2024

Prepared by: Suhail Farooq

Semester: B.A.LL.B 10th Semester

Enrollment no: 18042127035
Batch: 2018-2024

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 Table of Contents

Title of the Case............................................................................

Index of Authorities......................................................................

List of Abbreviations.....................................................................

Statement of Jurisdiction..............................................................

Statement of Facts.........................................................................

Statement of Issue...........................................................................

Summary of Arguments.................................................................

Arguments Advanced.....................................................................

Prayer................................................................................................

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 BEFORE THE HON’BLE SUPREME COURT OF INDIA

WRIT PETITION No. 81 of 2023

IN THE CASE OF:

PAWAN KUMAR DAS.....................................PETITIONER

VERSUS

UNION OF INDIA….....................................RESPONDENT

IN THE MATTER OF: WRIT PETITION UNDER ARTICLE 32 OF THE

CONSTITUTION OF INDIA.

MEMORIAL ON BEHALF OF PETITONER

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 INDEX OF AUTHORITIES

Table of Cases:

 St. Xavier College v. State of Gujarat, AIR 1974 SC 1389

 S. R. Bommai v. Union of India, (1994) SCC 1
 Aruna Roy v. Union of India, AIR 2003 SC 3176
 Balaji v. State of Mysore, AIR 1963 SC 649
 A. Periakaruppan v. State of Tamil Nadu, AIR 1971 SCR 430
 TMA Pai Foundation and Ors v. State of Karnataka and Ors, (2002) 8 SCC 481
 Bal Patil vs. Union of India, (2005) 6 SCC 690
 Dayanand Anglo Vedic (DAV) College Trust and Management Society v. State of
Maharashtra, (2013) 4 SCC 14
 D.A.V. College Jullundur v. State of Punjab, AIR 1971 SC 1731
 Indra Swahany v. Union of India, (1992) Supp. 3 SCC 217

Books:

 M. P. Jain, Indian Constitutional Law, (Lexis Nexis, Haryana, 8th Edn. 2019)
 J.N. Pandey, Constitutional Law of India, (Central Law Publication,
Allahabad, 56th Edn. 2019)
 V.N. Shukla, Constitution of India, (Eastern Book Company, 13th Edn. 2017)\

Internet Sites:

http://indiankanoon.org http://www.scconline.com
http://www.casemine.com https://www.indiacode.nic.in

Statutes Referred:

The Constitution of India, 1950

The National Commission for Minorities Act, 1992

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 LIST OF ABBREVIATIONS

AIR. All India Reporter

Anr. Another

Art. Article

Const. Constitution

V. Versus

Corpn. Corporation

Edn. Edition

Govt. Government

H.C High Court

Hon‟ble Honorable

U.P Uttar Pradesh

& And

SCC Supreme Court Case

Ltd. Limited

Ors. Others

S.C. Supreme court

SCR Supreme Court Reporter

UOI Union of India

PIL Public Interest Litigation

R/W Read With

J., Justice

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SCs Scheduled Castes

SEBCs Socially and educationally backward

classes of citizens

PIL Public Interest Litigation

STs Schedule Tribes

Cl. Clause

Const. Constitution

US United States

NCM National Commission for Minorities

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 STATEMENT OF JURISDICTION

THE PETITIONER HAS APPROACHED THE HON’BLE SUPREME COURT OF INDIA UNDER
ARTICLE 32 OF THE CONSTITUTION OF INDIA

ARTICLE 32 of THE CONSTITUTION OF INDIA READS AS HEREUNDER:

32. Remedies for the enforcement of rights conferred by this Part (Part
III).―
(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 the rights conferred by this part.

(3) Without prejudice to the powers conferred on the Supreme Court by clauses (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 by
this Constitution.

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 STATEMENT OF FACTS

1. One Person namely Pawan Kumar Das has filed a Public Interest Litigation (PIL) in the
Supreme Court of India challenging the action of the Central Government in initiating
schemes and grant of Rs.4700 crores in the budget 2023 for the benefit of religious
minorities.
2. He is also challenging the constitutional validity of National Commission for Minorities
Act, 1992, inter alia on the ground that special status and grant to religious minorities
discriminates the majority Hindu community from the same benefit and they are being
deprived of equality before the law on the ground of religion only and such action is
discriminatory and violative of the provisions contained in Article 14, 15 and 27 of the
Constitution of India.
3. The PIL pleads that members of Hindu community are being discriminated merely on
the ground of religion as a number of beneficiary schemes carrying budget of Rs.4700
crores have been initiated in favour of some religious minorities even though
Constitution of India does not conceive the idea for making special provision in the
name of any religion or for making separate law and schemes for the benefit of majority
or minority community.
4. The PIL also challenges the constitutional validity of establishment of National
Minority Commission by Central Act No. 19/1992 as Parliament cannot make any law
for the benefit of minority religious groups and further that special benefit and
advantage within the sweep of Article 15(4) can be provided only to those communities
who are found “socially and educationally backward‟ classes of citizens by a
Commission established under Article 340 of the Constitution of India. The State
cannot make any distinction between majority and minority community. The State
cannot make any rule, law or regulation distinguishing religious minorities as a separate
class.
5. The PIL further argues that the State is not under any obligation to promote any
language, script or culture of minority communities, or to enable them to establish and
manage their educational institutions. Thus, the proactive actions of the state and
enacting the national minorities Commission Act establishing the National Minorities
Commission and doling out huge sums to minorities has no constitutional mandate and
may be termed as unconstitutional.
6. The Supreme Court admitted the petition and issued notice to the respondent. Upon
receiving the notice, the Union of India (UOI) filed its reply.
7. The Union of India stated that, the NCM has been established in order to preserve the
secular traditions, to promote national integration and to implement the safeguards
provided for the minorities in the Constitution. Furthermore, nowhere under National
Commission for Minorities Act 1992, the definition of minorities is restricted to
religious minorities alone, instead the definition says “Minority” means a community
notified as such by the Central Government. Therefore saying that religion alone is the
criteria for determining minority is totally wrong. The definition of “Minority” given
under the Act in section 2(c) is in fact not a definition as such but only a provision
enabling the Central Government to identify a community as a “Minority” which
in the considered opinion of the Central Government deserves special treatment and
protection of their religious, cultural and educational rights.
After hearing both sides, Supreme Court framed the following issues.

I. Whether Parliament can constitute National Commission for Minorities to perform

the functions enumerated in Section 9 of National Commission for Minorities Act,
1992?
II. Whether the concept of minority is limited to Article 30 of the Constitution of India
and the same cannot be utilized for any other purpose and no special provision can
be made for religious minorities?

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 STATEMENT OF ISSUES

Issue 1:

Whether Parliament can constitute National Commission for Minorities to perform the
functions enumerated in Section 9 of National Commission for Minorities Act, 1992?

Issue 2:

Whether the concept of minority is limited to Article 30 of the Constitution of India and the
same cannot be utilized for any other purpose and no special provision can be made for
religious minorities?

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 SUMMARY OF ARGUMENTS

It is humbly submitted before this Hon‟ble Court that the initiation of schemes and financial
assistance to religious minorities is discriminatory and violative of Articles 14, 15, 27 of the
Constitution of India as it will hamper the interest of Hindu community. The inclination of the
Central Government towards religious minorities may allure the poor and depressed class of
Hindu community to embrace another religion. Thus these impugned schemes will weaken the
Sovereignty and Integrity of India and may create chaos and unrest amongst Hindu community.
Furthermore, the Government of India has initiated these schemes for religious minorities
without laying down any financial condition and from this it is clear that financial constraints
of weaker sections of society or upliftment of economically depressed section of society are not
the consideration for providing financial assistance to religious minorities and hence the action
of the Government initiating different programs and other financial benefits to the members of
so-called religious minorities is against the Principles of Secularism.

The concept of making law to benefit particular religion or religions is alien to the
provisions of the Constitution. Under the umbrella of the fundamental rights guaranteed in Part
Third of the Constitution, every citizen is entitled for equal benefit and treatment and there can
be no departure from the constitutional mandate enshrined in Article 14, 15 and 27 of the
Constitution of India. Further, the state cannot make any distinction between majority and
minority community merely on the basis of religion. The State cannot make any rule, law or
regulation distinguishing religious minorities as a separate class.

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 ARGUMENTS ADVANCED

MAY IT PLEASE YOUR HONOUR:

1. It is most humbly submitted before this Hon‟ble Court that the Petitioner belongs to the
majority Hindu community and is invoking the jurisdiction of this Hon‟ble Court under
Article 32 of Constitution of India , challenging the action of the Central Government as
members of majority Hindu community are being discriminated merely on the ground of
religion as a number of beneficiary schemes carrying budget of Rs.4700 crores have been
initiated in favour of some religious minorities even though Constitution of India does not
conceive the idea for making special provision in the name of any religion or for making
separate law and schemes for the benefit of majority or minority community.
2. It is respectfully submitted that the Government and Parliament of India cannot promote
minoritism and cannot show inclination towards them and allure them to flourish by
initiating beneficial programs for them. Such an action will be detrimental for the
Sovereignty and Integrity of India and will give rise to separatist tendencies and may create
a situation for another division of the nation.

Right to Equality, Equal Protection of Law, Rule of Law and a Secular State are basic
pillars of Indian Constitution. The solemn declaration in the Preamble of the Constitution
reflected in Part III of the Constitution particularly in Article 14, 15 and 27 are being
flagrantly breached by the Central Government by initiating beneficial schemes „only‟ on the
basis of religion classifying a group of religions as „minorities‟, thereby discriminating and
prejudicing the interest of similarly situated persons of Hindu community which is a serious
jolt on the Constitution of India and principles of Secularism and therefore, such legislation
and executive orders in exercise of the powers under Article 32 of the Constitution of India are
liable to be quashed.
India is a secular state as is clear from the Preamble (the foundation) of the Constitution.
Secularism means a State which does not recognise any religion as a State religion. It treats all
religions equally. The concept of secularism was already implicit in the Constitution, "liberty
of..........belief, faith and worship". Articles 25 to 28 of the Constitution guarantee to every
person the freedom of conscience and the right to profess practise and propagate religion. In St.
Xavier College v. State of Gujarat,1 the Supreme Court has said, "Although the words 'secular
State' are not expressly mentioned in the Constitution but there can be no doubt that
Constitution-makers wanted to establish such a State" and accordingly Articles 25 to 28 have
been included in the Constitution. In S. R. Bommai v. Union of India,2 the Supreme Court has
held that "secularism is the basic feature of the Constitution". In Aruna Roy v. Union of
India,3 the Supreme Court has said that secularism has a positive meaning that is developing,
understanding and respect towards different religions.

In Balaji v. State of Mysore,4 the government of Mysore set up a reservation of 68% of the
total seats in Engineering and Medical colleges. These seats were reserved in the favor of
SEBCs, STs and SCs. The court held that this legislation breached the limit of reservation
which should not be more than 50% of the total seats. The court also stated that the
backwardness must be both Social and Economical. It can‟t be either social or economic alone.
It was also held by the Supreme Court in A. Periakaruppan v. State of Tamil Nadu,5 that
classifying socially and educationally backward classes on the basis of caste was in violation of
Article 15(4).

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3. It is humbly submitted before this Hon‟ble Court that a sum of Rs.4700 crores is being
spent in the current financial year on religious minorities under the schemes introduced by
the Central Government. Thus, the citizens of this country are being forced to pay taxes for
the promotion of a religious minority and such an action violates constitutional injunction
embodied in Article 27 of the Constitution of India. From tax payer money, no religion or
religious groups can be promoted and therefore, no Minority Commission can be created to
achieve the purposes enumerated in the Act as is provided in the Article 27 of the
Constitution of India which reads as under. ―

Article27. Freedom as to payment of taxes for promotion of any particular

religion.―

No person shall be compelled to pay any taxes, the proceeds of which are specifically
appropriated in payment of expenses for the promotion or maintenance of any particular
religion or religious denomination.

Article 27 ensures that individuals are not forced to contribute through taxes towards the
promotion or maintenance of any specific religion or religious denomination. It upholds the
principle of religious neutrality and prevents the use of public funds for the advancement of
a particular religious belief or institution. The aim of Article 27 is to maintain a secular
state where the government remains impartial towards all religions and does not favor or
promote any specific religion using public funds. It ensures that taxpayers' money is not
utilized to endorse or support any particular religious agenda, thus preserving the religious
freedom and equality of citizens.

According to TMA Pai,6

“The manner in which the article has been framed does not prohibit the state from enacting
a law to incur expenses for the promotion or maintenance of any particular religious
denomination, but specifies that by that law, no person can be compelled to pay any tax,
the proceeds of which are to be so utilised.
In other words, if there is a tax for the promotion or maintenance of any particular religion
or religious denomination, no person can be compelled to pay any such tax”.

4. It is respectfully submitted that Central Government is treating Minority communities

above law and the Constitution and an undue advantage is being given to them ignoring the
provisions contained in Article 14, 15 and 27 of the Constitution of India. The concept of
making law to benefit particular religion or religions is alien to the provisions of the
Constitution. Under the umbrella of the fundamental rights guaranteed in Part Third of the
Constitution, every citizen is entitled for equal benefit and treatment and there can be no
departure from the constitutional mandate enshrined in Article 14, 15 and 27 of the
Constitution of India. The Central Government has conceived this idea on political
considerations adopting appeasement policy to attract the voters belonging to notified
minority communities.

That in case of Bal Patil vs. Union of India,7 the Hon‟ble Supreme Court has deprecated the
practice of demanding minority status and has warned that such tendency will be disastrous for
the Sovereignty, Unity and Integrity of India and will give rise to separatist tendencies.

That due to action of Government giving special treatment to notified minority communities
will give rise to unrest and dissatisfaction amongst majority Hindu community. Providing
special benefit to minority community may allure a number of persons to embrace another
religion and there may be demographic changes which are bound to affect to sovereignty and

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 integrity of India and furthermore, the impugned schemes are totally wastage of public money.
It has nothing to do with the objects sought to be achieved. The tax payer money is being
utilized for the benefit of religious groups named as minority communities. Such concept is
alien to the provisions of the constitution and violates the provisions contained in Article 14,
15 and 27 of the Constitution of India. That all the Nations who have conceived the idea of
welfare State and have followed the concept of „equality before the law for the citizens‟ have
not made any special law or schemes for the benefit of religious minorities of the country.

5. It is again humbly submitted that the Constitution makers could have never thought that the
coming Government with political reasons will take a clue from the word minority occurring
in Article 30 and will initiate special programs, schemes and financial benefits for religious
minorities, as from the plethora of the judgments of the Hon‟ble Supreme Court, it has been
established that the State cannot discriminate citizens on the basis of religion since the
Government is bound to follow the Principles of Secularism.

That it is well established that in a secular State Government cannot show any inclination or
favor to any religious group and cannot do anything for development and promotion of any
religion or religious groups. That initiation of schemes and financial assistance to religious
minorities will hamper the interest of Hindu community. The Hindus are being put to
disadvantageous position simply because of their religion.

6. That the petitioner further respectfully submits before this Hon‟ble Court that the Parliament
cannot make any law for the benefit of any minority religious groups and further that special
benefit and advantage within the sweep of Article 15(4) can be provided only to those
communities who are found “socially and educationally backward” classes of citizens by a
Commission established under Article 340 of the Constitution of India. It is relevant to
mention here that none of the notified minority community (in favor of whom the schemes
and grants have been initiated) have been declared as socially, educationally backward class
or economically depressed class of the citizens. Therefore, there is no constitutional sanction
for initiating and implementing the impugned schemes as the only criteria laid down is being
the members of minority religious community.
7. Again, it is submitted before this Hon‟ble Court that the State cannot make any distinction
between majority and minority community. The State cannot make any rule, law or
regulation distinguishing religious minorities as a separate class. The State cannot make any
law in the name of minorities beyond the scope of Article 30 of the Constitution of India as
Article 30 of the Constitution of India reads as under:
30. Right of minorities to establish and administer educational institutions.―

1. All minorities, whether based on religion or language, shall have the right to establish and
administer educational institutions of their choice.

(1A). In making any law providing for the compulsory acquisition of any property of an
educational institution established and administered by a minority, referred to in clause (1),
the State shall ensure that the amount fixed by or determined under such law for the
acquisition of such property is such as would not restrict or abrogate the right guaranteed
under that clause.

2. The state shall not, in granting aid to educational institutions, discriminate against any
educational institution on the ground that it is under the management of a minority, whether
based on religion or language.

Article 30 of the Indian Constitution guarantees the right of minorities to establish and
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administer educational institutions of their choice. All minorities, whether based on religion or
language, have the right to establish and administer educational institutions of their choice.
This includes the right to determine the type of institution, its affiliation, and the right to
appoint staff. The state cannot discriminate against any educational institution on the grounds of
its minority status while granting aid. Minority institutions should receive the same treatment
and protection as institutions established by the majority. While minorities have the right to
establish and administer educational institutions, they must still adhere to reasonable regulations
that the state may impose in the interest of maintaining standards of education, ensuring
welfare, or preventing mal-administration. The purpose of Article 30 is to protect the
educational rights of religious and linguistic minorities, allowing them to preserve and promote
their distinct culture, language, and religious identity through educational institutions of their
choice. It recognizes the importance of minority communities in the nation's diversity and
provides them with the freedom to establish and manage educational institutions that cater to
their specific needs and aspirations.
In St. Xavier's College v. State of Gujarat,8 the Supreme Court clarified that minority
educational institutions have the right to admit students belonging to their own community and
can give preference to them while making admissions, as long as the admission process is fair
and transparent.

In the case of Dayanand Anglo Vedic (DAV) College Trust and Management Society vs. State
of Maharashtra,9 the Hon‟ble Court has held that the word
„Establishment‟ means bringing into being of an institution and it must be by minority
community.

In D.A.V. College, Jullundur v. State of Punjab,10 the Supreme Court held that minority
institutions have the right to appoint teachers of their choice, subject to their qualifications and
suitability. It emphasized the importance of preserving the minority character of such
institutions.

In the landmark case TMA Pai Foundation and Ors v. State of Karnataka and Ors,11 the
Supreme Court dealt with the autonomy of minority educational institutions and their right to
establish and administer institutions of their choice. The Supreme Court held that minority
institutions have the right to administer their affairs, including the right to appoint staff, but they
must still operate within certain reasonable regulations imposed by the state.

However in the present case, the Union of India is stretching the scope of Article 30 and
taking a clue from the word „Minority‟ for political reasons. There are number of persons living
below poverty line belonging to Hindu community and their economic condition is worst in
comparison to these religious minority communities. The irony of fate is that despite the poor
financial condition, the Hindus are being deprived of the benefit of the scheme i.e. on the ground
„only‟ of religion and the members of minorities are being benefitted and promoted from the tax
payer money in violation of Article 27 of the Constitution of India.

It is relevant to mention here that religious and linguistic minorities have been given
fundamental right under Article 30 of the Constitution of India to establish an administer
educational institutions of their choice. Apart from this, Article 29 empowers any section of
the citizens having a distinct language script or culture to conserve the same. That religious
minorities have been given sufficient protection under Article 29 and 30 of the Constitution of
India but it is not for the Government to promote their religion and sponsor schemes in their
favour in order to promote their interest.

9. That the Petitioner is also challenging the Constitutional validity of National Commission for
Minorities Act, 1992 (Parliament Act No.19 of 1992, (hereinafter referred to as NCM Act).

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 Because no purpose enshrined in Article 15(4), 29 and30 of the Constitution of India can be
achieved by establishing a separate commission for religious minorities.

It is relevant to mention that by way of 102nd Amendment Act, 2018 (published in official
gazette on 11.08.2018). Article 338B has been substituted in the Constitution thereby making
provision for establishing a commission for socially and educationally backward classes known
as “National Commission for Backward Classes”. Under Article 338B (5) it is the duty of the
Commission to submit reports and make recommendation as to the measures that should be taken
by the Union or any State for the effective implementation of the safeguards available to such
class and measures for protection welfare and socially economic development of socially and
educationally backward classes. That in view of these above provision it is clear that there is a
Commission to find out the conditions of backward classes. Therefore, there is no scope for the
Minority Commission to judge the conditions of religious minorities separately.

That in view of the above constitutional mandate the Parliament has no power to establish any
commission for religious minorities. That the impugned NCM Act is ultra vires to article
14,15and 27 of the Constitution of India and is liable to be struck down.

It is most respectfully submitted that the Petitioners further declare that they have not filed any
other petition before any court or in this Hon‟ble Court in respect of the subject matter of this
petition.

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 PRAYER

IN THE LIGHT OF THE ISSUE RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, MAY THIS HON’BLE COURT BE PLEASED:

TO HOLD

 That Parliament has no power to constitute National Commission for Minorities to

perform the functions enumerated in Section 9 of National Commission for Minorities
Act, 1992.
 And the concept of Minority is limited to Article 30 of Constitution of India and same
cannot be utilized for any other purpose and no special provision can be made for
religious minorities.

AND/OR

Pass any order as it deems fit in the interest of Equity, Justice and Good Conscience, And
for this, the Petitioner as in duty bound, shall humbly pray.

S/d-

Counsel on behalf of Petitioner

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