Team code: OC-12

BEFORE THE HON’BLE SUPREME COURT OF INDUSLAND

UNDER ARTILCE 136 OF THE CONSTITUTION OF INDUSLAND

MEMBERS OF SARAS COMMUNITY ------------------------------------------------ PETITIONER

Vs

UNION OF INDUSLAND---------------------------------------------------------------- RESPONDENT

MEMORIAL ON BEHALF OF THE PETITIONER Page 1

 TABLE OF CONTENTS

LIST OF ABBREVATIONS ………………………………………………………………3

INDEX OF AUTHORITIES……………………………………………………………….4

 LIST OF CASES
 STATUTES
 BOOKS
 LEGAL DATABASES

STATEMENT OF JURISDICTION………………………………………………………. 7

STATEMENT OF FACTS………………………………………………………………… 8

STATEMENT OF ISSUES……………………………………………………………….. 9

SUMMARY OF ARGUMENTS………………………………………………………….. 10

ARGUMENTS ADVANCED…………………………………………………………….. 12

1.Whether The Beliefs Of The Petitioners As Contended In The Writ Petition And Pertaining To
Ankurans, Form An Essential And Integral Part Of Saras Religion……………….…….12

2.Whether The Petitioners Had Established A Fundamental Right Under Article 29 Of The
Constitution And Whether There Was Any Violation Thereof……………………….…16

3.Whether The Construction Of The Tunnel Under The Ankuran Will Desecrate The Spiritual
Sanctity Of The Ankuran And Violate The Petitioners’ Fundamental Rights Under Article 25 Of
The Constitution?......................................................................................................19

4.In The Event It Is Established That There Is A Fundamental Right Under Article 25 Of The
Constitution In The Present Case, Whether There Will Be Any Fundamental Rights Under
Article 21 Of The Constitution Or Whether The Two Fundamental Rights Can Be
Balanced?...................................................................................................................22

PRAYER…………………………………………………………………………………….26

MEMORIAL ON BEHALF OF THE PETITIONER Page 2

 LIST OF ABBREVATIONS

$ Section
A.I.R All India Reporter
Edn Edition
Mad Madras
PIL Public Interest Litigation
S.C Supreme Court
S.C.C Supreme Court Cases
Art Article
H.P Himachal Pradesh
V. Versus
Ors Others
S.C.R Supreme Court Reporter
MMRCL Meghnad Metro Rail Corporation Limited
ERP Essential Religious Practice
ILR Indian Law Reporter
J. Justice
CJI Chief Justice Of India
RTI Right To Information
WB West Bengal

MEMORIAL ON BEHALF OF THE PETITIONER Page 3

 INDEX OF AUTHORITIES

LIST OF CASES

COMMISSIONER, HINDU RELIGIOUS ENDOWMENTS, MADRAS V. SRI LAKSHMI

THIRTHA SWAMIAR OF SRI SHIRURU MUTT AIR1954SC282

TILAKAYAT SHRI GOVINDALJI MAHARAJ V. STATE OF RAJASTHAN AIR (1963)1638.

COMMISSIONER OF POLICE AND OTHERS VS. ACHARYA JAGADISHWARANANDA

AVADHUTA AND ANOTHER, (2004) 12 SCC 770.

COURT ON ITS OWN MOTION VS STATE OF H.P. & OTHERS MANU/HP/1658/2018

INDIAN YOUNG LAWYERS ASSOCIATION & ORS V. THE STATE OF KERALA & ORS.,
(2018) INDLAW SC 905

P.M.A.METROPOLITAN V. MORAN MAR MARTHOMA, AIR(1995) SC 2001

SUBRAMANIAM SWAMY V. UNION OF INDIA, MINISTRY OF LAW AIR (2016)SC 2728

RATILAL V. STATE OF BOMBAY AIR(1954)388.

SHAYARA BANO V. UNION OF INDIA MANU/SCOR/33018/2016

SUBRAMANIAN CHETTIAR V. KUMARAPPA CHETTIAR AIR (1955) Mad 144

HUR PRASAD V. SHEO DAYAL (1885) ILR 7 All 590

IN REGINA V. SECRETARY OF STATE FOR EDUCATION AND EMPLOYMENT UKHL

15 [2005] 2 A.C. 246

T.M.A PAI FOUNDATION V. STATE OF KARNATAKA (1998)9SCC477

D. A. V. COLLEGE ETC VS STATE OF PUNJAB & ORS 1971 AIR 1737

IN BAL PATIL & ANR VS UNION OF INDIA & ORS AIR2005SC3172

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SRI VENKATAMANA DEVARU VS. THE STATE OF MYSORE AND OTHERS, AIR 1958
SC 255.

JAMSHEDJI VS . SOONABAI MANU/MH/0216/1907

IN KRISHNA SINGH VS MATHURA AHIR AIR (1908) SC 707

IN WORTER KARAMLKI VS STATE OF MEGHLAYA

SARDAR SYEDNA TAHER SAIFUDDIN SAHEB VS. THE STATE OF BOMBAY

MAHANT JAGANNATH RAMANUJ DAS V. THE STATE OF ORISSA 1954 SCR 1046

SRI VENKATAMANA DEVARU V. THE STATE OF MYSORE 1958 SCR 895

DURGAH COMMITTEE, AJMER V. SYED HUSSAIN ALI AIR1959RAJ177

MAHARSHI AVADHESH VS UNION OF INDIA 1994 SCC, SUPL. (1) 713

AHMEDABAD WOMEN ACTION GROUP VS UNION OF INDIA AIR1997SC3614

THE STATE OF BOMBAY VS NARASU APPA MALI AIR 1952 BOM 84

BIJOE EMMANUEL & ORS VS STATE OF KERALA & ORS AIR(1987) 748

IN RE: THE KERALA EDUCATION BILL (1959) 1 SCR 995

JAMSHED NOSHIR SUKHADWALLA AND ORS. VS. UNION OF INDIA AND ORS.
MANU/MH/3188/2018

MEMORIAL ON BEHALF OF THE PETITIONER Page 5

STATUTES

1. The Constitution of India

BOOKS:

1. M.P Jain –Indian Constitution Law, Lexis Nexis ; (7th edition re 2016)
2. Constituent Assembly Debates. Volume. No. 7
3. Tahir Mahmood- Religion law and Society, Universal law publishing.

4. J.N.Pandey –Constitutional law of India, Central law Agency; (54th edition 2017)

5. H.M. Seervai, Constitutional law of India, 4th Edition 2002, Volume 2, Universal
Book Traders.

LEGAL DATABASES

1. Manuptra
2. Lexis Nexis
3. SCC Online

ONLINE SOURCES

Society for excellence in constitutional law and public policy – RMNLU Constitutional law and
Public Policy Blog.

MEMORIAL ON BEHALF OF THE PETITIONER Page 6

 STATEMENT OF JURISDICTION

The petitioner herein Members Of Saras Community. Under Art.136 of the Constitution
Indusland 1950, this Hon’ble Court has been vested, in its discretion, to grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India. In this case, the petitioner has
preferred an appeal against the impugned orders of the Hon’ble High Court of Aaryavarta.

The present memorandum sets forth the facts, contentions and arguments in the present case.

MEMORIAL ON BEHALF OF THE PETITIONER Page 7

 STATEMENT OF FACTS

State of Aaryavarta is the economically and industrially developed state of the Indusland.
Meghnad Metro Rail Corporation Limited (“MMRCL”) is a joint venture which propose to
construct a metro rail which is known as the Meghnad Metro Rail Project.

A part of the Meghnad Metro Line, which also runs along a stretch in South Meghnad, has been
proposed to run directly under one of the fire temples (“Ankuran”) of the highest grades for the
Saras Community in Indusland. Certain members of the Saras community got together and filed
a Writ Petition before the Aaryavarta High Court in connection with the proposed construction of
the metro tunnel directly under the Ankuran. It was submitted that the Ankuran was a 188 year
old heritage structure with special religious and spiritual significance for Saras across Indusland
and that the proposed construction directly below the Ankuran would violate the fundamental
rights of the Petitioners under Article 25 and Article 29 of the Constitution of Indusland. It was
submitted that the Petitioners had made various representations before the Government which
did not bear any result, as a result of which the Petitioners were constrained to move the Hon'ble
Aaryavarta High Court to protect their fundamental rights.

By the time the Petition was filed, the proposed construction was around 100 mtrs away from the
said Ankuran. When the Petitioners moved the Hon'ble Aaryavarta High Court, the Hon'ble High
Court appreciating the serious challenge raised by the Petitioners and considering that the issue
involved serious aspects of Constitutional law, granted an ad- interim stay on the proposed
construction, pending the hearing and final disposal of the Petition.

After a detailed hearing, the Hon'ble High Court disposed off the Writ Petition and permitted
MMRCL to continue with the construction of the tunnel under the present alignment without any
change. The Hon'ble High Court upheld the contentions of MMRCL and rejected the contentions
of the Petitioners. The Hon'ble High Court held that the Petitioners had failed to establish that
there was any violation of any fundamental right under Article 25 and Article 29 of the
Constitution.

The Petitioners have now approached the Hon'ble Supreme Court of Indusland by way of a
Special Leave Petition.

MEMORIAL ON BEHALF OF THE PETITIONER Page 8

 STATEMENT OF ISSUES

ISSUE 1

WHETHER THE BELIEFS OF THE PETITIONERS AS CONTENDED IN THE WRIT

PETITION AND PERTAINING TO ANKURANS, FROM AN “ESSENTIAL” AND
“INTEGRAL” PART OF SARAS RELIGION?

ISSUE 2

WHETHER THE PETITIONERS HAD ESTABLISHED A FUNDAMENTAL RIGHT

UNDER ARTICLE 29 OF THE CONSTITUTION AND WHETHER THERE WAS ANY
VIOLATION THEREOF?

ISSUE 3

WHETHER THE CONSTRUCTION OF THE TUNNEL UNDER THE ANKURAN WILL

DESECRATE THE SPIRITUAL SANCTITY OF THE ANKURAN AND VIOLATE THE
PETITIONERS’ FUNDAMENTAL RIGHTS UNDER ARTICLE 25 OF THE
CONSTITUTION?

ISSUE 4

IN THE EVENT IT IS ESTABLISHED THAT THERE IS A FUNDAMENTAL RIGHT

UNDER ARTICLE 25 OF THE CONSTITUTION IN THE PRESENT CASE, WHETHER
THERE WILL BE ANY FUNDAMENTAL RIGHTS UNDER ARTICLE 21 OF THE
CONSTITUTION OR WHETHER THE TWO FUNDAMENTAL RIGHTS CAN BE
BALANCED?

MEMORIAL ON BEHALF OF THE PETITIONER Page 9

 SUMMARY OF ARGUMENTS

ISSUE 1

WHETHER THE BELIEFS OF THE PETITIONERS AS CONTENDED IN THE WRIT

PETITION AND PERTAINING TO ANKURANS, FROM AN “ESSENTIAL” AND
“INTEGRAL” PART OF SARAS RELIGION?

The issue as to what falls under the ambit of Essential Religious Practices have to be determined
by the tenets of religion itself. The issue whether the practices were an integral part of the
religion, cannot be decided by the judges based on their personal views as the decision could be
biased.

ISSUE 2

WHETHER THE PETITIONERS HAD ESTABLISHED A FUNDAMENTAL RIGHT UNDER

ARTICLE 29 OF THE CONSTITUTION AND WHETHER THERE WAS ANY VOILATION
THEREOF?

The petitioners have a right under Article 29 of the constitution which talks about minority
rights. Here the petitioners can be termed as minority and because of they being minority, there
rights have been violated and this is in contravention of Article 29 of the constitution.

ISSUE 3

WHETHER THE CONSTRUCTION OF THE TUNNEL UNDER THE ANKURAN WILL

DESECRATE THE SPIRITUAL SANCTITY OF THE ANKURAN AND VOILATE THE
PETITIONERS’ FUNDAMENTAL RIGHTS UNDER ARTICLE 25 OF THE
CONSTITUTION?

Article 25 talks about the right of the citizen to profess and propogate any religion and the state
would not interfere in it unless it is against public order or health. The customs and traditions

MEMORIAL ON BEHALF OF THE PETITIONER Page 10

followed by these people are not against public order or health or morality and hence these
beliefs are protected under article 25 of the constitution.

ISSUE 4

IN THE EVENT IT IS ESTABLISHED THAT THERE IS A FUNDAMENTAL RIGHT

UNDER ARTICLE 25 OF THE CONSTITUTION IN THE PRESENT CASE, WHETHER
THERE WILL BE ANY FUNDAMENTAL RIGHTS UNDER ARTICLE 21 OF THE
CONSTITUTION OR WHETHER THE TWO FUNDAMENTAL RIGHTS CAN BE
BALANCED?

There is no violation of any fundamental rights under Article 21 of the constitution as here the
petitioners are only seeking a mere drift of alignment of the underground metro rail. This mere
drift of 5 meters will take it away from the Ankurs or barriers which are stated in the facts.

MEMORIAL ON BEHALF OF THE PETITIONER Page 11

 ARGUMENTS ADVANCED

ISSUE 1

Whether The Beliefs Of The Petitioners As Contended In The Writ Petition And Pertaining To
The Ankurans Form An Essential And Integral Part Of The Saras Religion?

What Is Religion?

1. The term ‘religion’ has not been defined in the constitution, and it is the term which is not
susceptible of any precise definition.1 Religion is a matter of faith. A religion, Has its
basis in a system of belief and doctrines which are regarded by those who profess that
religion has conducive to their spiritual well-being, but it is also something more than
merely doctrine or belief. A religion may not only lay down a code of ethical rules for its
followers to accept, but may also prescribe rituals and observances, ceremonies and
modes of worship which are regarded as integral part of that religion. Therefore, the
Constitutional guarantee regarding freedom of religion contained in Article 25(1) extends
even to rites and ceremonies associated with a religion.2

2. The ‘Essential religious practices test was formulated in COMMISSIONER, HINDU

RELIGIOUS ENDOWMENTS, MADRAS V. SRI LAKSHMI THIRTHA SWAMIAR
OF SRI SHIRURU MUTT 3- 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.

3. 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

1
M.P.Jain, Indian constitutuional law 1318(2nd edition).
2
P.M.A.Metropolitan V. Moran mar marthoma, AIR(1995) SC 2001.
3
AIR1954SC282.

MEMORIAL ON BEHALF OF THE PETITIONER Page 12

 antiquity, and is integral to the temple, it must be taken to be an essential religious
practice of that temple.4

4. 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
RAJASTHAN5 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.

5. COMMISSIONER OF POLICE AND OTHERS VS. ACHARYA

6
JAGADISHWARANANDA AVADHUTA AND ANOTHER, What is meant by "an
essential part or practices of a religion" is now the matter for elucidation. Essential part of
a religion means the core beliefs upon which a religion is founded. Essential practice
means those practices that are fundamental to follow a religious belief. It is upon the
cornerstone of essential parts or practices that the superstructure of a religion is built,
without which a religion will be no religion. Test to determine whether a part or practice
is essential to a religion is to find out whether the nature of the religion will be changed
without that part or practice. If the taking away of that part or practice could result in a
fundamental change in the character of that religion or in its belief, then such part could
be treated as an essential or integral part. There cannot be additions or subtractions to
such part because it is the very essence of that religion and alterations will change its
fundamental character. It is such permanent essential parts which are protected by the
Constitution. Nobody can say that an essential part or practice of one's religion has
changed from a particular date or by an event. Such alterable parts or practices are
definitely not the "core" of religion whereupon the belief is based and religion is founded
upon. They could only be treated as mere embellishments to the non-essential parts of
religion.

4
Indian Young Lawyers Association & Ors v. The State of Kerala & Ors., (2018) Indlaw SC 905.
5
AIR (1963) SC 1638.
6
(2004) 12 SCC 770.

MEMORIAL ON BEHALF OF THE PETITIONER Page 13

5. More recently, the Supreme Court in 2014 refused to vacate an order of the Himachal
Pradesh High Court banning animal sacrifice during the festival of Kulu Dushara and in
other religious rituals of the Kulu region of the state. Just one year later, the same
Supreme Court, while refusing to entertain a public interest litigation that wanted a ban
on the practice of killing of animals in the name of religion, held that “it cannot close its
eyes to centuries old traditions7”
6. All prominent Hindu temples in India, there had been some religious practices based on
religious beliefs, which are essential part of the Hindu religion as considered by people
for a long time. It has been submitted that the devotees could also be brought within the
ambit of religious denomination who have been following the religious practice which
has been essential part of religion. The constitutional necessity of balancing various
Fundamental Rights has also been emphasized in the decision of this court in
SUBRAMANIAM SWAMY V. UNION OF INDIA, MINISTRY OF LAW.8

7. Essential part of a religion means the core beliefs upon which a religion is founded.
Essential practice means those practices that are fundamental to follow a religious belief.
It is upon the cornerstone of essential parts or practices that the superstructure of a
religion is built, without which a religion will be no religion. Test to determine whether a
part or practice is essential to a religion is to find out whether the nature of the religion
will be changed without that part or practice. If taking away of that part of or practice
could result in a Fundamental change in the character of that religion or in its belief, then
such part could be treated as an essential or integral part. The alterations will change its
fundamental character.9

8. For the Court, therefore, “essential” marked the border between the religious and the
secular. These observations were repeated that same year in RATILAL V. STATE OF
BOMBAY10, where the Court added that “no outside authorities has any right to say that
these are not essential parts of religion and it is not open to the secular authority of the

7
Court On Its Own Motion vs State Of H.P. & Others MANU/HP/1658/2018.
8
AIR (2016)SC 2728.
9
Supra 3.
10
1954 SCR 1035.

MEMORIAL ON BEHALF OF THE PETITIONER Page 14

 State to restrict or prohibit them in any manner they like under the guise of administering
the trust estate.”
9. The judiciary in many cases has interpreted constitutional freedoms relating to religious
rights of the individuals to lay down its parameters and boundaries. a distinction has been
made in regard to what is “essential” and “non-essential” practices of religion, holding
that the constitution only protects the former. In many cases the judiciary has looked into
the beliefs of people at large to determine if an alleged religious practice is “essential” or
not, while sometimes the criterion adopted for this purpose has been how a community as
a whole generally looks at it. a crucial observation of the supreme court of India in this
regard is worth quoting here:11
10. “The rights of religion guaranteed under article 25 and 26 of the constitution are not
absolute or unfettered rights, they are subject to reform on social welfare by appropriate
legislation by the state. The court therefore while interpreting a given case, strike a
careful balance in matters which are essential for that particular religion to that of
practices which are not so essential, and thus requires the state to regulate or control in
the interest of the community.”12

11. The learned Judges of the Supreme Court in a case expressed themselves stating
"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. Thus if the tenets of the Jain or
the Parsi religion lay down that certain rites and ceremonies are to be performed at
certain times and in a particular manner, it cannot be said that these are secular activities
partaking of commercial or economic character simply because they involve expenditure
or money or employment of priests or the use of marketable commodities. No outside
authority has any right to say that these are not essential parts of religion and it is not
open to the secular authority of the State to restrict or prohibit them in any manner they
like under the guise of administering the trust estate."13

11
Tahir Mahmood, Universal law publishing, Religion law and Society at p 103.
12
Ibid .
13
1954 AIR 388.

MEMORIAL ON BEHALF OF THE PETITIONER Page 15

12. A reference to the following extracts from the judgment of Khehar, C.J.I in SHAYARA
BANO V. UNION OF INDIA14 is also instructive with respect to the role of courts in
matters concerning religious faiths and beliefs: while examining the issues falling in the
realm of religious practices or personal law, it is not for a court to make a choice of
something which it considers as forward-looking or non-fundamentalist. It is not for a
court to determine whether religious practices were prudent or progressive or regressive.
Religion and Personal law must be perceived, as it is accepted by the followers of the
faith.

13. In SUBRAMANIAN CHETTIAR V. KUMARAPPA CHETTIAR15 custom has been

defined as, “A particular rule which has existed from time immemorial and has obtained
the force of law in a particular locality.” In HUR PRASAD V. SHEO DAYAL16, custom
has been defined as “Rule which in a particular family or in a particular district or in a
particular sect, class or tribe, has from long usage obtained the force of law.”

14. The House of Lords IN REGINA V. SECRETARY OF STATE FOR EDUCATION

AND EMPLOYMENT17, held that the court ought not to embark upon an enquiry into
the validity or legitimacy of asserted beliefs on the basis of objective standards or
rationality. The relevant extract from the decision of the House of Lords is reproduced
herein below: “It is necessary first to clarify the court's role in identifying a religious
belief calling for protection under article 9. When the genuineness of a claimant's
professed belief is an issue in the proceedings the court will enquire into and decide this
issue as a question of fact. This is a limited inquiry. The Court is concerned to ensure an
assertion of religious belief is made in good faith: neither fictitious, nor capricious, and
that it is not an artifice.

ISSUE NO. 2

Whether The Petitioners Had Established A Fundamental Right Under Article 29 Of The
Constitution And Whether There Was Any Violation Thereof?

14
(2017) 9 SCC 1.
15
AIR(1955) MAD 144.
16
Tondon, M. P., “Jurisprudence (Legal Theory)”, (2010), Allahabad Law Agency, Faridabad, at p 167.
17
UKHL 15 [2005] 2 A.C. 246.

MEMORIAL ON BEHALF OF THE PETITIONER Page 16

15. The constitution uses the term ‘minority’ without defining it. Way back in 1958, the
Supreme Court inquired in the Kerala Education Bill18 reference if a minority community
is one which is numerically less than 50 percent. The Court then went on to remark that
even if that question is answered in the affirmative, another question lingers, “50 percent
of what, the entire population of India or the population of a state forming a part of the
Union?” That question was left unanswered.

16 The supreme court did not however decide this point definitively. However, it had come
to be accepted that minority is to be determined only in relation to the particular
legislation which is being challenged. Thus if a state law extending to the whole of a state
is in question, the minority must be determined with reference to the entire state
population. In such a case, any community, linguistic or religious, which is numerically,
which is numerically less than 50 percent of the entire state population, will be regarded
as a minority for purposes of art.30(1). Thus the christian community being 22 percent of
the population in kerala is a minority there.

17. The Supreme Court in T.M.A Pai Foundation v. State of Karnataka19 referred various
decisions of the Supreme Court and held-

The word minority is not defined in the constitution but literally it means a non-
dominant group. It is a relative term and is referred to, to represent the smaller of two
numbers, sections, or groups called minority. In that sense there may be political
minority, religious minority, linguistic minority etc. Hence in view of eleven- judge
bench decision of the Supreme Court in the abovementioned case there can be political as
well as religious minorities. The followers of the Jain religion though, may not from a
political minority but certainly are a religion based minority as referred to in Article 30.
The court in this case has also made it clear that the state will be the unit in relation to
which the status of religious minority is to be determined.

18. In the DAV College case of 197120, it was held that “Religious or linguistic minorities are
to be determined only in relation to the particular legislation which is sought to be

18
(1959) 1 SCR 995.
19
(1998)9SCC477.
20
D. A. V. College Etc Vs State Of Punjab & Ors 1971 AIR 1737.

MEMORIAL ON BEHALF OF THE PETITIONER Page 17

 impugned.” In other words, if a Central legislation like the National Commission for
Minorities Act is challenged, “minority” in such a case would have to be calibrated with
reference to the population of the whole of India, not any one state.

19. The 2002 judgment of the apex court in the TMA Pai case21 examined afresh the meaning
of “minority” under Article 30 and came to a curious conclusion that since the
reorganization of States in India had been on linguistic lines, religious and linguistic
minorities have to be considered state wise. Senior Advocate Fali S. Nariman, one of
India’s leading jurists, while delivering the 7th Annual lecture of the NCM in 2014,
remarked that “the decision in TMA Pai was an unmitigated disaster for the minorities.”

20. One must keep in mind through all this that minority rights are much wider than merely
the right to establish and administer minority educational institutions.

21. The Constitutional amendment bills of 2004 that would have redefined minorities were
widely opposed and allowed to lapse because it would have resulted in many anomalies
and distortions in minority rights.

22. The 2005 verdict in the Bal Patil case, treats religious minorities and linguistic minorities
differently. It agreed with TMA Pai that linguistic minorities are to be identified on the
basis of their population within a particular state of India since the states were originally
reorganized on linguistic lines. On the other hand, the Court observed that calibrating
religious minority status on the basis of their population at the state level would militate
against the integrity and secular fabric of India.

23. In Bal Patil & Anr Vs Union of India & Ors,22 the Jain community sought issuance of a
mandamus/direction to the Central Government to notify ‘Jains’ as a ‘minority’
community under section 2(c) of the National Commission for Minorities Act, 1992. In
that judgement, the Supreme Court observed thus:

24. “The eleven judge Bench in TMA Pai Foundation Case had held that claims of minorities
on both linguistic and religious basis would be each State as a unit. The country has
already been reorganized in the year 1956 under the States Reorganization Act on the

21
(1998)9SCC477.
22
AIR(2005)SC3172.

MEMORIAL ON BEHALF OF THE PETITIONER Page 18

 basis of language. Differential treatment to linguistic minorities based on language within
the state is understandable. But if the same concept for minorities on the basis of religion
is encouraged, the whole country, which is already under class and social conflicts due to
various divisive forces, will further face division on the basis of religious diversities.
Such claims to minority status based on religion would increase in the fond hope of
various sections of people getting special protections, privileges and treatment as part of
constitutional guarantee. Encouragement to such fissiparous tendencies would be a
serious jolt to the secular structure of constitutional democracy.”

ISSUE 3

Whether The Construction Of A Tunnel Under The Ankuran Will Desecrate The Spiritual
Sanctity Of The Ankuran And Violate The Petitioners Fundamental Rights Under Article 25 Of
The Constitution?

25. Religion is certainly a matter of faith with individuals or communities and it is not
necessarily theistic. There are well-known religions in India like Buddhism and
Jainism which do not believe in God or in any intelligent first cause. A religion
undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those
who profess that religion as conducive to their spiritual well-being, but it would not be
correct to say that religion is nothing else but a doctrine or belief. A religion may not only
lay down a code of ethical rules for its followers to accept, it might prescribe rituals and
observances, ceremonies and modes of worship which are regarded as integral parts of
religion, and these forms and observances might extend even to matters of food and
dress.”

26. In Ratilal panachand Gandhi Vs Bombay23 Certain provisions of the Bombay Public
Trusts Act 1950, were challenged as violating Article 25 and 26 . The case dealt with two
connected appeals. In the first , the appellant was a vahivtdar or manager of a Jain public
temple . in the second , the appellants were the trustees of the parsi panchayat. The
discussion of Article 25nand 26 was on the same lines as in the Shirur Mutt Case but as

23
(1954)S.C.R. 1055.

MEMORIAL ON BEHALF OF THE PETITIONER Page 19

 regards the tenets of the Zoroastrian religion the supreme court cited with approval the
observations of Davar .J in Jamshedji Vs . Soonabai24

“If this is the belief of the community and it is proved undoubtedly to be the belief
of the Zoroastrian community a secular judge is bound to accept that belief it is not for
him to sit in judgment on that belief . he has no right to interfere with the conscience of a
donor who makes a gift in favour of what he believes to be the advancement of his
religion and for the welfare of his community or of mankind.”25

27. The Supreme Court added that those observations afforded an indication of the measure
of protection given by article 26(b). In this case26 Chinnappa Reddy J. for himself and
Dutt J. quoted the Observations of Davar J. set out above and added:

“ we do endorse the view suggested by Davar J.’s observation that the question is
not whether the particular religious belief or practice appeals to our reason or sentiment
that whether the belief is genuinely and conscientiously held as part of the profession or
practice of religion. Our personal views and reactions are irrelevant. If the belief is
genuinely and conscientiously held It attracts the protection of Article 25 but subject, of
course , to the inhibitions contained there in.”27

28. Sri Venkatamana Devaru Vs. The State of Mysore and others,28 Construing Article
25(2)(b) The result then is that there are two provisions of equal authority, neither of
them being subject to the other. The is how the apparent conflict between them is to be
resolved , The rule of construction is well settled that when there are in an enactment two
provisions which cannot be reconciled with each other, they should be so interpreted that,
if possible effect could be given to both. This is what is known as the rule of harmonious
construction. Applying this rule, if the contention of the appellants is to be accepted , then
Article 25(2)(b) will become wholly nugatory in application to denominational temples.

24
(1909) 33 Bom. 122.
25
(1954)S.C.R. 1077.
26
(1954)S.C.R 518.
27
Bijoe Emmanuel & Ors vs State Of Kerala & Ors AIR(1987) 748.
28
AIR 1958 SC 255.

MEMORIAL ON BEHALF OF THE PETITIONER Page 20

29. On the other hand, if the contention of the respondents is accepted, then full effect can be
given to Art. 26(b) in all matters of religion, subject only to this that as regards one aspect
of them, entry into a temple for worship, the rights declared under Art. 25(2)(b) will
prevail. While, in the former case, Art. 25(2)(b) will be put wholly out of operation, in
the latter, effect can be given to both that provision and Art. 26(b). We must accordingly
hold that Art. 26(b) must be read subject to Art. 25(2) (b).

30. In Krishna singh Vs Mathura Ahir29 The Supreme Court has said that the fundamental
rights do not touch upon the personal law of the parties. Article 25 thus involves a
separation between religious activities on the one hand and secular and social activities
on the other. While the former are protected the latter are not.

31. In Worter Karamlki Vs State Of Meghlaya.30 The petitioner belonged to Seng Khasi
denomination residing at Mawlong village of Meghalaya. There were thirteen houses and
86 persons. They possessed a burial ground which was allotted by the village elders since
the time immemorial. The respondent threatened to disposes then of the aforesaid land.
The lodged several complaints but no action was taken by the concerned authorities.
They were prevented from performing the last rites and of cremating the dead bodies of
their family members belonging to their community on the said land. Ultimately, the
petitioners filed a writ petition in the high court for remedy-“The court held that the
denial of such rites and dispossessing them from cremation ground amounted the
abridgement of their fundamental right to freedom of religion. The practice of cremating
the dead bodies of their members belonging to the seng khasi faith is an integral part of
their faith. A religion is a matter of faith. A religion may not only lay a code of the ethical
rules for his followers to accept, but may also prescribe the ritual and observations,
ceremonies and codes of worship, which is regarded as an integral part of that religion. It
is the duty of this court to enforce and protect the religious rights of the petitioners. The
court directed the deputy commissioner to allow the petitioners community to utilize the
said ground as cremation ground and the entire exercise to be completed by the deputy
commissioner with in one month from the date of receipt of this judgment.”

29
AIR (1980)SC 707.
30
AIR (2010) Gau 51.

MEMORIAL ON BEHALF OF THE PETITIONER Page 21

32. Sardar Syedna Taher Saifuddin Saheb Vs. The State Of Bombay, 31 The content of
Article 25 and 26 of the Constitution came up for consideration before this Court in the
Commissioner, Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shirur Matt32; Mahant Jagannath Ramanuj Das v. The State of Orissa 33;
Sri Venkatamana Devaru v. The State of Mysore34; Durgah Committee, Ajmer v. Syed
35
Hussain Ali and several other cases and the main principles underlying these
provisions have by these decisions been placed beyond controversy. The first is that the
protection of these articles is not limited to matters of doctrine or belief, they extend also
to acts done in pursuance of religion and therefore contain a guarantee for rituals and
observances, ceremonies and modes of worship which are integral parts of religion. The
second is that what constitutes an essential part of a religious or religious practice has to
be decided by the courts with reference to the doctrine of a particular religion and include
practices which are regarded by the community as a part of its religion.

ISSUE 4

In The Event It Is Established That There Is A Fundamental Right Under Article 25 Of The
Constitution In The Present Case, Whether There Will Be Any Fundamental Rights Under
Article 21 Of The Constitution Or Whether The Two Fundamental Rights Can Be Balanced?

33. It is the case of the petitioners that to protect the holy fire from physical and spiritual
pollution, the fire is surrounded by spiritual circuits. These circuits act as a barrier and
protective ring which are known as Ankurs. Ankurs are formed around consecrated
matters and places. It is important to note and which is a matter of great debate, as
according to the Priest, the effect of the Ankurs extends throughout the entire premises of
Ankuran. TheAnkurs also extend below the ground. Any interference underground would
directly breach the effect of the Ankurs and consequently, adversely impact the spiritual

31
AIR 1962 SC 853.
32
AIR1954SC282.
33
1954 SCR 1046.
34
1958 SCR 895.
35
AIR1959RAJ177.\

MEMORIAL ON BEHALF OF THE PETITIONER Page 22

 piety of the holy fire housed in the Ankuran premises. It is therefore, submitted that the
moment the Metro tunnel encroaches underneath the Ankuran premises, circuits will be
breached. This would result in the desecration of the Ankuran and in turn, would lead to
disaster for the entire religious community in the world. These Fire temples are highly
respected all over the world. The proposed construction would be in violation of age old
customs, long standing traditions, accepted practices, beliefs, teachings and the tenets
prescribed by the religious scriptures of Religion. The other Priests and Scholars,
according to the Petitioners, have also echoed the same views and sentiments in support
of the petitioners case and contentions.36

34. That there is no need for producing the scriptures, tenets and texts in support of the
petitioners' contention that

(a) the entire Ankuran premises are consecrated one,

(b) the fire in the Ankurs extend to vibrations and circuits beneath the surface of earth
and that constant connectivity of fire is required to be maintained all throughout.

35. That the right to have a metro line cannot be termed as fundamental right under Article
21 of the Constitution of India. It is submitted that even if it is held that right to Metro is
fundamental right then said right is to be balanced with a fundamental right under Article
25. Total extinguishing of a right is not balancing. If the metro tunnel is allowed to run
only along the proposed alignment directly under the Ankuran it will lead to trampling
upon the fundamental rights. The petitioners have not remotely suggested that Mumbai
Metro project should not be proceeded with. They have simply contended that a small
shift merely by five meters more would result in shifting of tunnel outside the Ankuran
and would resolve the spiritual concerns under Article 25 raised in the petition.37

36. Therefore, the balance has to be drawn between these rights with a solution which
protects and preserves the fundamental rights and does not further one right at the cost of
another. The petitioners have at all times been proactive; and made innumerable
proposals to resolve the matter but the respondents has rejected their proposals in an

36
P 11 of facts sheet.
37
Jamshed Noshir Sukhadwalla and Ors. Vs. Union of India and Ors. MANU/MH/3188/2018.

MEMORIAL ON BEHALF OF THE PETITIONER Page 23

 arbitrary and unreasonable manner. Therefore, submission is that the realignment is
technically possible and feasible option which the Metro authorities ought to have
considered and they can consider even now as the petitioners have proposed multiple
options for carrying out realignment.

37. The right under Article 25 would be breached if Metro line is allowed to go under the
Ankuran which house the highest grade fires, the only two of eight such in India.
However, had cited a series of Supreme Court judgments to argue that “the proper
approach would require balancing the rights of petitioners against rights of rest of the
citizens.’’He said several Constitutional rights have to be considered, not just one. He
said, “Citizens have access to benefits as also to live a life of dignity, work in the
comfortable environment and partake in the wealth of the city.38

38. The state has a constitutional obligation to ensure the citizen is not deprived of these
benefits and conveniences.”Applying the ‘doctrine of proportionality’’ to aid the
“exercise of balancing seemingly conflicting rights. “There is no hierarchical order in
rights. A particular fundamental right cannot exist in isolation. On the conflict between
two fundamental rights, the CJI said the judgment in such cases should be based on facts
of the case and the fundamental structure of Constitution. The CJI said adjustment,
acceptance, compromise and settlement comes in the ‘balancing of rights’ and for
coexistence of rights “we have to balance them for the well being of mankind.”

39. Personal laws in India are codified and uncodified - existing in custom and practice. Over
the years, the Supreme Court has taken differing views on the question of precedence of
39
personal laws over the fundamental rights. In Krishna Singh v. Mathura Ahir a two
judge Bench of the Supreme Court was considering whether a shudra could become a
sanyasi. While holding that if the custom and usage permitted he could so become, the
Court held that in the absence of such usage or custom he could not be so ordained. The
High Court had held that any handicap suffered by a Shudra according to the personal
law would be in violation of Articles 14 and 15 of the Constitution. It would be violative

38
Ibid.
39
AIR 1980 SC 707.

MEMORIAL ON BEHALF OF THE PETITIONER Page 24

 of the equality clause as also it would be discrimination on the basis of caste. Frowning
upon this observation the Supreme Court stated,

40. In our opinion, the learned judge failed to appreciate that part III of the Constitution does
not touch upon the personal laws of the parties. In applying the personal laws of the
parties, he (the High Court judge) could not introduce his own concepts of modern times
but should have enforced the law as derived from recognised and authoritative sources of
Hindu laws, i.e. Smritis and commentaries referred to, as interpreted in the judgments of
various High Courts, except where such law is altered by any usage or custom or
abrogated by statute."

41. In Krishna Singh V. Mathura Ahir case40, Maharshi Avdesh case41 and Ahmedabad
Women Action Group case42, the Supreme Court held that personal laws could not be
challenged for being in contravention of the provisions of fundamental rights enshrined in
the Constitution.
42. Many believe that this interpretation of the Supreme Court has been based on a ruling of
the Bombay High Court in Narsu Appa Mali case43. In this case, the Bombay High Court
has enunciated that personal laws are not 'laws' under Article 13 of the Constitution.

40
AIR 1980 SC 707.
41
1994 SCC, SUPL. (1) 713.
42
AIR1997SC3614.
43
AIR 1954 Bom. 84.

MEMORIAL ON BEHALF OF THE PETITIONER Page 25

 PRAYER

Wherefore in light of the issues raised, arguments advanced, and authorities cited, it is prayed
that this Hon'ble SC may be pleased to hold that:

1. To declare that the practice so mentioned are essential practices of saras reigion.

2.To declare that the petitioners have a right under article 25 and 29 of the constitution and
declare the impugned judgement of high court of Aaryavarta as invalid.

3. To issue the writ of mandamus ordering MMRCL to merely the shift the proposed Alignment
by 5 meters.

And Pass Any Other Order, Direction, Or Relief That It May Deem Fit In The Best
Interests Of Justice, Fairness, Equity And Good Conscience. For This Act Of
Kindness, The Shall Forever Pray.

Sd/-

(Counsel for the Petitioner)

MEMORIAL ON BEHALF OF THE PETITIONER Page 26