Memo Code: TSV 1913

Team Code:

XIXth ALL INDIA MOOT COURT COMPETITION, 2019

FOR

ADV. T. S. VENKATESWARA IYER MEMORIAL EVER ROLLING

TROPHY

IN THE MATTER OF:

FRIENDS OF WOMEN …PETITIONER

VERSUS

UNION OF INDIA …RESPONDENT

25-27th January, 2019

HIS HIGHNESS MAHARAJAS GOVERNMENT LAW COLLEGE

Park Avenue Road, Ernakulam, Kerala- 682011

MEMORANDUM ON BEHALF OF THE RESPONDENT

 BEFORE THE HON’BLE SUPREME COURT OF INDIA
(WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA)

W.P. NO. ______/2019

FRIENDS OF WOMEN …PETITIONER

VERSUS

UNION OF INDIA …RESPONDENT

AS SUBMITTED TO THE HON’BLE CHIEF JUSTICE OF INDIA &

OTHER COMPANION JUDGES OF THE HON’BLE SUPREME COURT
OF INDIA

MEMORANDUM ON BEHALF OF THE RESPONDENT

 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

TABLE OF CONTENTS

BIBLIOGRAPHY ........................................................................................... V
INDEX OF AUTHORITIES ....................................................................... VII
LIST OF ABBREVIATIONS ....................................................................... XI
STATEMENT OF FACTS ........................................................................ XIII
STATEMENT OF JURISDICTION .............................................................. 1
QUESTIONS PRESENTED............................................................................ 2
SUMMARY OF ARGUMENTS ..................................................................... 3
ARGUMENTS ADVANCED .......................................................................... 4
I. WHETHER THE PARLIAMENT WAS COMPETENT TO ENACT THE
HINDU PLACES OF PUBLIC WORSHIP ACT, 2018? ................................................ 4
A. THE SUBJECT MATTER OF THE HINDU PLACES OF PUBLIC WORSHIP ACT FALLS WITHIN
THE LEGISLATIVE POWER OF THE PARLIAMENT ................................................................ 4

1. That the Parliament is competent to enact the Hindu Places of Public Worship
Act by virtue of power conferred under Art. 246(2) .................................................... 4
2. That the State does not have any exclusive power to enact laws over the present
subject matter ............................................................................................................ 5
3. That the Parliament is competent to enact the Hindu Places of Public Worship
Act by virtue of power conferred under Art. 25(2) ...................................................... 7
B. THE HINDU PLACES OF PUBLIC WORSHIP ACT OUGHT NOT TO BE CLASSIFIED AS

COLOURABLE LEGISLATION ............................................................................................. 8

1. That the doctrine of mala fide is inapplicable ..................................................... 8

2. That the circumstances prevailing at the time of the enactment are ought to be
considered while evaluating its validity ..................................................................... 9
C. THE IMPUGNED PROVISION HAS NOT BEEN PASSED WITH AN INTENT TO DEFEAT THE

EFFECT OF THE JUDGMENT PASSED BY THE HON’BLE SUPREME COURT ............................ 10

II. WHETHER THE SECTION 4(B) OF THE HINDU PLACES OF PUBLIC

WORSHIP ACT USURPS RIGHTS GUARANTEED UNDER THE
CONSTITUTION? ........................................................................................................ 11

III
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

A. THAT THERE IS A PRESUMPTION OF CONSTITUTIONALITY IN FAVOUR OF A STATUTE.....

............................................................................................................................ 12
B. THAT THE FUNDAMENTAL RIGHTS ARE NOT ABSOLUTE IN NATURE.......................... 12
C. THAT THE IMPUGNED PROVISION IS IN CONSONANCE WITH PART III OF THE

CONSTITUTION ............................................................................................................. 13
1. The impugned provision is in consonance with the right to equality provided
under Arts. 14 & 15 of the COI ................................................................................ 13
2. The impugned provision is in consonance with the constitutional guarantee
under Art. 17 of the COI against the practice untouchability ................................... 16
3. The impugned provision is in consonance with right to freedom and liberty
guaranteed under Arts. 19 & 21 of the COI. ............................................................ 18
D. THAT THIS HON’BLE COURT WHILE DETERMINING THE VALIDITY OF THE HINDU

PLACES OF PUBLIC WORSHIP ACT OUGHT NOT TAKE INTO ACCOUNT PROVISIONS OF PART IV

OF THE CONSTITUTION .................................................................................................. 19

1. That the provisions of Part IV are not judicially enforceable ............................ 19

2. That the impugned provision is in consonance with Part IV of the COI ............ 20
CONCLUSION .......................................................................................... XIII
PRAYER .....................................................................................................XIV

IV
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

BIBLIOGRAPHY

BOOKS
3 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, (8th ed. 2008)----- 16,17
5 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, (8th ed. 2008)--------- 18
13 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed. 2008) --------- 4
1 H.M SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4th ed. 2010) -------------------- 12,14,15,17
2 H.M SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4th ed. 2010) ------------------------------- 19
1 MP JAIN, INDIAN CONSTITUTIONAL LAW, (7th ed. 2010) --------------------------------- 9,16,19
2 MP JAIN, INDIAN CONSTITUTIONAL LAW, (7th ed. 2010) --------------------------------- 9,11,13
VI CONSTITUENT ASSEMBLY DEBATES OFFICIAL REPORT, Book no. 2 -------------------------- 17
VII CONSTITUENT ASSEMBLY DEBATES OFFICIAL REPORT, Book no. 2 ------------------------- 13
MARC GALANTER, COMPETING EQUALITIES- LAW OF BACKWARD CLASSES IN INDIA, (1984) ---
----------------------------------------------------------------------------------------------------------- 17
P.M. BAKSHI, COMMENTARY ON CONSTITUTION OF INDIA, (2nd ed. 2016) ----------------- 12,21

JOURNALS

Alexander Orakhelashvili, "Natural Law and Customary Law", Germany Law Rev. (2011) ---
----------------------------------------------------------------------------------------------------------- 11
Bodenheimer, Edgar, “Jurisprudence: The Philosophy and the Method of Law”, Harvard
University Press (1996) ------------------------------------------------------------------------------- 11
Elizabeth A. Stiles, “Legislative-Judicial Interaction: Do Court Ideologies Constrain
Legislative Action?”, State & Local Govt. Rev., (2007) ------------------------------------------ 10
Karamdeep Saini, "Relationship between International and Municipal law: A case study of
India", 3 IJARD (2018) ------------------------------------------------------------------------------- 21
M.P. Singh, “Distribution of Legislative Powers between the Union and the State", Journal of
the Indian Law Institute (1991) ----------------------------------------------------------------------- 7
Meher K. Master, “Personal Laws of Religious Communities in India” Dharmaram Journal of
Religions & Philosophies, (1986). ------------------------------------------------------------------- 20
Ranbir Singh, "Secularism in India: Challenges and its Future", IJPS (2008)------------------ 13
Sasheej Hegde, “Always Already Secular? Afterthoughts on the Secular-Communal
Question”, Economic & Political Weekly (2005)--------------------------------------------------- 7
Sir Carleton Kemp, “Law in the Making”, Oxford University Press (1964) ------------------- 10

V
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

DICTIONARIES
1. Bryan A. Garner, Black’s Law Dictionary (9th ed. 2009).
2. Daniel Greenberg, Jowitt’s Dictionary of English Law (Sweet & Maxwell, 4th ed. 2015).
3. John Jane Smith Wharton, Wharton’s Law Lexicon (Steven and Sons, 13th ed. 1925).
4. John Simpson, Oxford English Dictionary (2nd Ed. 2009).

VI
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

INDEX OF AUTHORITIES

STATUTES

The Constituion of India, 1950------------------------------------------------------------ 4, 5, 13, 21

The Merchant Shipping Act, 1958 -------------------------------------------------------------------- 5
The Religious Institutions (Prevention of Misuse) Act, 1998 ------------------------------------- 5

JUDICIAL PRECEDENTS

PRIVY COUNCIL

Vidya Varuthi Thirthia Swamigal v. Baluswami Ayyar, AIR 1922 PC 123 -------------------- 15
SUPREME COURT

9 JUDGE BENCH

K.S. Puttaswamy v. UOI, (2017) 10 SCC 1 --------------------------------------------------- 18, 19

7 JUDGE BENCH

Abiram Singh v. C.D. Commachen, AIR 2017 SC 401 -------------------------------------------- 8

STO v. Ajit Mills Ltd. (1977) 4 SCC 98 ------------------------------------------------------------- 8
UOI v. H. S. Dhillon AIR 1972 SC 1061 ------------------------------------------------------------ 6

5 JUDGE BENCH

A.K. Roy & Ors. v. UOI &Ors., AIR 1982 SC 710 ------------------------------------------------ 8
A.S. Krishna v. State of Madras, AIR 1957 SC 297 ------------------------------------------------ 4
Chameli Singh v. State of U.P, AIR 1996 SC 1051 ----------------------------------------------- 18
Chiranjit Lal v. UOI, AIR 1951 SC 41 -------------------------------------------------------------- 12
Collectors of Customs v. Nathella Sampathu Chetty, AIR 1962 SC 316 ----------------------- 13
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555----------------------------------------- 18
GVK Inds. Ltd. & Ors. v. The Income Tax Officer & Ors., (2011) 4 SCC 36 ------------------ 9
Gwalior Rayon Silk Mfg. v. The Asstt. Commissioner of Sales, AIR 1974 SC 1660 --------- 11
Ismail Paruqi v. UOI, (1994) 6 SCC 360 ----------------------------------------------------------- 18
Jamshed N. Guzdar v. State of Maharashtra & Ors., AIR 2005 SC 862 ------------------------- 4
Madhubhai Amathalal Gandhi v. UOI, (1961) 1 SCR 191 --------------------------------------- 12
Mark Netto v. Govt. of Kerela, (1979) 1 SCC 23 -------------------------------------------------- 12

VII
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

Navtej Singh Johar v. UOI AIR 2018 SC 4321 ---------------------------------------------------- 11

Official Trustee of W.B. v. CIT, Calcutta, (1974) 3 SCC 616 ----------------------------------- 16
Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority & Ors., (2011) 3 SCC 13 --
------------------------------------------------------------------------------------------------------------ 4
Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 ---------------------------------------- 20
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853 ----------------- 7
Sat Pal v. Lt. Governor of Delhi, AIR 1979 SC 1550 ---------------------------------------------- 6
Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255 ------------------------------ 17
Stainislaus v. State of M.P., (1977) 1 SCC 677 ----------------------------------------------------- 6
State (NCT of Delhi) v. UOI, (2018) 8 SCC 501 --------------------------------------------------- 9
State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640 --------------------------------------------- 9
State of Bombay v. Balsara, (1951) SCR 682 ------------------------------------------------------ 12
State of M.P. v. G.C. Mandawar, AIR 1954 SC 493 ----------------------------------------------- 4
State of Punjab v. Devans Modern Brewaries Ltd., (2004) 11 SCC 26 ---------------------- 6,12
State of Rajasthan v. G Chawla, AIR 1959 SC 544 ------------------------------------------------ 9
T. Venkata Reddy v. State of A.P., (1985) 3 SCC 198 --------------------------------------------- 8
Thangal Kunju Musaliar v. M. Venkitachalam Potti, AIR 1956 SC 246 ------------------------ 9

3 JUDGE BENCH

Association of Leasing & Financial Service Companies v. UOI, (2011) 2 SCC 352 ----------- 6
Commr. of Police & Ors. v. Acharya Jagadishwaranda Avdutha & Ors. (2004) 12 SCC 770 --
----------------------------------------------------------------------------------------------------------- 21
CST v. Radhakrishan, AIR 1979 SC 1588---------------------------------------------------------- 12
D.C. Bhatia v. UOI, (1995) 1 SCC 104 ------------------------------------------------------------ 8,9
K. Magaraj v. State of A.P., AIR 1985 SC 551 ----------------------------------------------------- 8
Kerala Hotel & Restaurant Association v. State of Kerala, (1990) 2 SCC 502 ----------------- 14
Kerala State Electricity Board v. The Indian Aluminum Co. AIR 1975 SC 1967 ------------- 11
Modern Dental College & Research Center v. State of M.P., (2016) 7 SCC 353 -------------- 18
N.D. Jayal v. UOI, (2004) 9 SCC 362--------------------------------------------------------------- 20
Nar Hari Sastri & Ors. v. Shri Badrinath Temple Committee, AIR 1952 SC 245 ------------- 15
Savitri Cairae & Ors. v. U.P. Avas Evam Vikas Parishad & Ors., AIR 2003 SC 2725 -------- 4
Sharda v. Dharmpal AIR 2003 SC 3450 ------------------------------------------------------------ 18
Sirajul Haq Khan &Ors. v. The Sunni Central Board of Waqf, U.P., AIR 1959 SC 19 -------- 5
State of Orissa & Sri Jagannath v. Chintamani Khuntia & Ors., AIR 1997 SC 3839 ---------- 7

VIII
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

State of West Bengal v. Abani Maity, (1979) 4 SCC 85 ------------------------------------------ 10

The Executive Engineer v. Seetaram Rice Mill, (2012) 2 SCC108 ------------------------------ 10
The Poohari Fakir Sadavarthy of Bondilipuram v. The Commissioner, Hindu Religious &
Charitable Endowments, AIR 1963 SC 510 -------------------------------------------------------- 15
V/O Tractor Export, Moscow v. M/S. Tarapore& Co. & Anr., (1969) 3 SCC 562 ------------ 21
Vodafone International Holdings B.V. v. UOI, (2012) 6 SCC 613 ------------------------------ 12

DIVISION BENCH

A.S. Narayana Deekshitulu v. State of A.P. & Ors., AIR 1996 SC 1765 ---------------------- 14
Akhil Bharat Goseva v. State of A.P. & Ors., (2005) 4 SCC 162 -------------------------------- 20
Authorised Officer v. S. Naganatha Ayyar, (1979) 3 SCC 466 ---------------------------------- 13
Bakhtawar Trust & Ors. v. M.D Narayan & Ors., AIR 2003 SC 2236 --------------------------- 8
Bala Shankar Mama Shankar v Charity Commissioner, Gujarat AIR 1995 SC 167------------ 7
Bihar State Board Religious Trust v. Mahant Sri Beseshwar Das, (1971) 1 SCC 574 -------- 16
Bijoe Emmanuel & Ors v. State of Kerala (1986) 3 SCC 615------------------------------------- 7
Board of Mining Examination v. Ramjee, (1977) 2 SCC 256 ------------------------------------- 9
Chairman Coal India Ltd. v. Ananta Saha & Ors. (2011) 5 SCC 142 ---------------------------- 8
Commr. of Police v. C. Anita, (2004) 7 SCC 467 -------------------------------------------------- 6
Dharmendra Kirthal v. State of U.P., (2013) 8 SCC 368 ----------------------------------------- 12
Doeki Nandan v. Murlidhar, AIR 1957 SC 133---------------------------------------------------- 15
G. Sundarrajan v. UOI, (2013) 6 SCC 620 -------------------------------------------------------- 20
G.C. Kunungo v. State of Orissa, AIR 1995 SC 1655---------------------------------------------- 8
International Tourist Corporation v. State of Haryana, (1981) 2 SCC 318 ---------------------- 6
Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360 ----------------------------------- 21
Karnatak Bank Ltd. v. State of A.P., (2008) 2 SCC 254 ------------------------------------------ 12
Lala Ram v. UOI, (2015) 5 SCC 813---------------------------------------------------------------- 20
Lily Thomas v. UOI, (2000) 6 SCC 224 ------------------------------------------------------------ 20
M.P. Gopalakrishnan Nair &Anr v. State of Kerala &Ors.,AIR 2005 SC 3053----------------- 7
Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani & Ors. AIR 1976 SC 2283 --------- 14
Municipal Committee, Hoshiarpur v. Punjab State Electricity Board (2010) 13 SCC 216 ---- 9
National Legal Services Authority v. UOI & Ors., AIR 2014 SC 1863 ------------------------- 32
N.K. Bajpai v. UOI, (2012) 4 SCC 653 ------------------------------------------------------------- 12
Petroleum & Natural Gas Regulatory Board v. Indraprastha Gas Ltd., AIR 2015 SC 2978. -- 5
Pradyut Bordoloi v. Swapan Roy, AIR 2001 SC 296 --------------------------------------------- 14

IX
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

Pritam Pal v. High Court of M.P., 1993 Supp (1) SCC 529 -------------------------------------- 20
Public Services Tribunal Bar Assn. v. State of U.P., (2003) 4 SCC 104 ------------------------ 12
Ram Jankijee Deities & Ors. v. State of Bihar, (1999) 5 SCC 50 -------------------------------- 16
Ramsharan Autyanuprasi v. UOI, AIR 1989 SC 549---------------------------------------------- 19
Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461----------------------------------------- 15
Romesh Lal Jain v. Naginder Singh Rana, (2006) 1 SCC 294 ------------------------------------ 5
S.M.D. Kiran Pasha v. Govt. of A.P., (1990) 1 SCC 328 ----------------------------------------- 19
Sarla Mudgal v. UOI, AIR 1995 SC 1531 --------------------------------------------------------- 19
Shiromanic Gurudrawa Prabandhak Committee v. Som Nath Dass, (2000) 4 SCC 146 ------ 16
Southern Petrochemicals Industries v. Electricity Inspector &Ors., AIR 2007 SC 1984------- 8
State of A.P. v. Challa Ramkrishna Reddy & Ors., (2000) 5 SCC 712 ------------------------- 10
State of U.P. v. Shah Md., AIR 1969 SC 1234 ----------------------------------------------------- 18
The General Manager, Department of Telecommunications, Thiruvananthapuram v. Jacob &
Ors., (2003) 9 SCC 662 ------------------------------------------------------------------------------- 13
UOI v. W.N. Chadha, AIR 1993 SC 1082 ---------------------------------------------------------- 18
Wali Mohammed v. Rahmat Bee & Ors. AIR 1999 SC 1136 ------------------------------------ 15

HIGH COURT

B.M. Sukumar Shetty, Managing Trustee, Kollur Mookambaika Temple & Ors. v. State by
its Secretary, Revenue Department & Anr., 2005 (5) Kar LJ 481 -------------------------------- 7
Devarajiah v. Padmanna, AIR 1958 Mys 84 ------------------------------------------------------- 16
Narayanan Pandarathil v. Vasudevan Pillai 2014 (3) KLJ 758------------------------------------ 7
Putul Rabidas v. Eastern Coalfields Limited, 2017 SCC OnLine Cal 13128 ------------------- 21

X
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

LIST OF ABBREVIATIONS

Abbreviation Full Form

& And
¶ Paragraph
§/S. Section
AIR All India Record
All LJ Allahabad Law Journal
Anr. Another
Andh LJ Andhra Pradesh Law Journal
A.P. State of Andhra Pradesh
Art./ Arts. Article/ Articles
Hindu Places The Hindu Places of Public Worship (Authorisation of Entry) Act,
of Public 2018
Worship Act
Bom Bombay
Cal Calcutta
CEDAW Convention on the Elimination of all forms of Discrimination Against
Women, 1979
Cl. Clause
COI Constitution of India, 1949
CrPC Code of Criminal Procedure, 1973
CTC Current Tamil Nadu Cases
Del Delhi
DLT Delhi Law Times
DPSP Directive Principle of State Policy
ed. Edition
Gau Gauhati
Govt. Government
Hon’ble Honourable
Id. The same
ICCPR International Covenant on Civil and Political Rights, 1966
ICESCR International Covenant on Economic, Social & Cultural Rights, 1966
i.e. That is

XI
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

Impugned Section 4(b) of the Hindu Places of Public Worship (Authorisation of

provision Entry) Act, 2018
ILR Indian Law Reporter
ITR Income Tax Reporter
J&K State of Jammu & Kashmir
Kant Karnataka
Ker Kerela
KLT Kerela Law Times
Lah Lahore
Mad Madras
M.P. State of Madhya Pradesh
No. Number
Ors. Others
PC Privy Council
Pg. Page
Re Reference
Sapthagiri Sapthagiri Prathan Temple
Temple
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Report
Supp Supplementary
Supra Above
UOI Union of India
U.P. State of Uttar Pradesh
v. Versus
Vol. Volume

XII
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

STATEMENT OF FACTS

BACKGROUND
There is a temple called Sapthagiri Prathan Temple (hereinafter referred to as “Sapthagiri
Temple”) in the State of Shanthisthan which remains open for five days every month. In the
months of November &December, a festival called Mandalakalam is celebrated wherein the
temple is open for a longer duration. A devotee who desires to visit the temple during
Mandalakalam, as a prerequisite has to follow Vratham or penance. Women usually
abstained from visiting the temple on account of the physiological grounds which did not
enable them to observe the practice of Vratham.

LEGISLATIVE HISTORY
In 1981, the Sapthagiri Temple Administration Board (hereinafter referred to as “STAB”)
issued a notification in order to codify the existing customary practice wherein entry of
women belonging to the age group of 10 to 50 years in the Sapthagiri Temple was prohibited.
only during the time period of the festival of Mandalakalam. Thereafter, the constitutional
validity of the same was challenged before the Shanthisthan High Court. The court upheld the
validity of the said notification keeping in mind the existence of this traditional customary
practice. Consequently, the Sapthagiri Temple Administration Rules, 1956 were amended to
add Rule 5A in order to implement the decision of the Hon’ble High Court. In 2012, a PIL
was filed by an organisation i.e. Friends of Women (hereinafter referred to as “Petitioner”)
before the Hon’ble Supreme Court challenging the constitutional validity of Rule 5A (supra).
The Hon’ble Supreme Court vide a judgment dated 01.10.2018, struck down Rule 5A as
unconstitutional and allowed the entry of all women into the Sapthagiri Temple.

THE DISPUTE
Thereafter, in response to the aforementioned decision, there was widespread protests,
violence and destruction of public properties in the State of Shanthisthan and this contributed
towards the enactment of the Hindu Places of Public Worship (Authorisation of Entry) Act,
2018 (hereinafter referred to as “Hindu Places of Public Worship Act”) by the Parliament
which laid down the framework for the entry of all Hindus to places of worship in India. On
24.10.18, the Petitioner filed this instant Writ Petition for challenging the validity of the S.
4(b) of the Hindu Places of Public Worship Act (hereinafter referred to as “impugned
provision”).

XIII
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

STATEMENT OF JURISDICTION

The Petitioner humbly submits to the jurisdiction of the Hon’ble Supreme Court of India in
pursuance of Article 32 of the Constitution of India on account of violation of Fundamental
Rights.

Article 32 of the Constitution of India states that;

“32. Right to Constitutional Remedies-


(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 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 for by this Constitution.”

1
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

QUESTIONS PRESENTED

I. WHETHER THE PARLIAMENT WAS COMPETENT TO ENACT THE HINDU

PLACES OF PUBLIC WORSHIP ACT, 2018?

II. WHETHER SECTION4(B) OF THE HINDU PLACES OF PUBLIC WORSHIP ACT,

2018USURPS RIGHTS GUARANTEED UNDER THE CONSTITUTION?

2
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

SUMMARY OF ARGUMENTS

I. WHETHER THE PARLIAMENT WAS COMPETENT TO ENACT THE HINDU

PLACES OF PUBLIC WORSHIP ACT, 2018?

It is humbly submitted that the Parliament was competent to enact the Hindu Places of Public
Worship (Authorization of Entry) Act, 2018 as firstly because the subject matter of the
Authorization of Entry Act falls within the legislative domain of the Parliament by the virtue
Arts. 25(2) & 246. The Parliament is empowered to legislate under Entry 97 of List I read
with Entry 28 of the List III of the Seventh schedule of the COI. Secondly, the enactment
cannot be construed as colourable legislation as the doctrine of mala fide is inapplicable and
the circumstances prevailed at the time of the enactment are ought to be taken into
consideration while adjudging upon the issue of competence. Lastly, the Parliament has
merely laid down a general framework for codifying the existing Hindu customs for all the
places of public worship. Accordingly, the impugned provision was not passed with intent to
defeat the effect of judgment passed by the Hon’ble Supreme Court which dealt only with a
particular temple.

II. WHETHER SECTION 4(B) OF THE HINDU PLACES OF PUBLIC WORSHIP ACT,

2018 USURPS RIGHTS GUARANTEED UNDER THE CONSTITUTION?

It is humbly submitted that the impugned provision is in consonance with the mandate of the
COI. This is because firstly, there is a presumption of constitutionality in favour of a statute.
Secondly, the impugned provision is in consonance with Part III of the COI as it does not
intend to make any classification, instead it merely applies the existing customs as the rule of
law equally and uniformly on all. Hence, there is no violation of the right of equality vested
under Arts. 14 & 15. Further, the said classification does not come within the ambit of the
practice of untouchability which is prohibited under Art. 17 as it is not a discrimination based
on the caste or the place of birth. Also, the rights vested under Art. 19 & 21 are not absolute
in nature and can be restricted by the legislature. Further, the places of worship along with
their devotees have their own different script, culture and identity and any unwarranted
judicial or legislative interference with the same would amount to violation of Arts. 19 & 21.
Lastly ,the obligations under Part IV are merely directory and not enforceable in nature.
Assuming arguendo, the impugned provision is in consonance with Part IV of the COI which
includes Art. 51 (c) as it takes in consideration the doctrine of lexspecialis derogate generali
and the principle of Dualism which are followed by India.

3
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

ARGUMENTS ADVANCED

I. WHETHER THE PARLIAMENT WAS COMPETENT TO ENACT THE HINDU

PLACES OF PUBLIC WORSHIP ACT, 2018?
(¶1) It is humbly submitted that the Hindu Places of Public Worship Act and the provisions
therein are valid and constitutional. 1 This is because [A] The subject matter of the Hindu
Places of Public Worship Act falls within the legislative power of the Parliament, [B] The
impugned provision cannot be classified as colourable legislation and [C]The impugned
provision has not been passed with an intent to defeat the effect of the judgment passed by
the Hon’ble Supreme Court

A. THE SUBJECT MATTER OF THE HINDU PLACES OF PUBLIC WORSHIP ACT FALLS WITHIN

THE LEGISLATIVE POWER OF THE PARLIAMENT

(¶2) It is humbly submitted that the Parliament has the competency to pass laws on the
present subject matter as [1] That the Parliament is competent by the virtue of power
conferred under Art. 246(2), [2] That the State does not have exclusive power to enact laws
on the present subject matter and [3] That the Parliament is competent by the virtue of power
conferred under Art. 25(2)
1. That the Parliament is competent to enact the Hindu Places of Public Worship Act
by virtue of power conferred under Art. 246(2)
(¶3) It is submitted that in order to determine whether a particular subject matter falls within
the purview of which legislature, the doctrine of pith and substance is to be duly taken into
account.2 Other relevant factors which must be considered to ascertain the pith and substance
of a statute are: (i) the object and purpose; (ii) the scope and; (iii) the effect of the
provisions. 3
(¶4) Keeping in mind the aforesaid considerations, it is submitted that the pith and substance
of the enactment lies within the ambit of Entry 28 of the Concurrent List of the Seventh
Schedule of the COI (hereinafter referred to as “List III”) which deals with ‘Charities and
charitable institutions, charitable and religious endowments and religious institutions.’4
(¶5)It is submitted that the enactment regulates the places of public worship which prima

1
State of M.P. v. G.C. Mandawar, AIR 1954 SC 493 (India); See also Savitri Cairae & Ors. v. U.P. Avas Evam
Vikas Parishad & Ors. AIR 2003 SC 2725 (India).
2
Jamshed N. Guzdar v. State of Maharashtra & Ors., AIR 2005 SC 862 (India).
3
Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority & Ors., (2011) 3 SCC 139 (India); See A.S.
Krishna v. State of Madras, AIR 1957 SC 297 (India).
4
INDIA CONST.List III, Sch. 7.

4
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

facie falls within the ambit of the subject matter provided under Entry 28 of List II. This is
because, a religious institution is defined as, “any institution for the promotion of any religion
and the place and premises used as a place of religious worship, by whatever name or
designation known.”5 Hence, the Parliament is deemed to have competence to enact law on
the present subject matter by virtue of power conferred under Art. 246(2) read with Entry 28
of List III as the pith and substance of the present subject matters is under the ambit of the
entries provided in List III.
2. That the State does not have any exclusive power to enact laws over the present
subject matter
a. That the State does not have power over the present subject matter under Art. 246(3)
(¶6) It is humbly submitted that it is the Parliament is competent to enact on the present
subject matter and not the State by virtue of power under Art. 246(3) as there exists no
corresponding entry, relating to the present subject matter in the State List i.e. List II of the
Seventh Schedule of the COI (hereinafter referred to as “List II”).
(¶7) This is because firstly, the present subject matter ought not to be brought under the ambit
of the State legislature under Entry 7 of the List II which provides for, “Pilgrimages, other
than pilgrimages to places outside India.”6 It is submitted that as defined by the legislature
itself, the term pilgrimage refers to, “pilgrimage to any holy place in the Hedjaz or to any
other place declared by the Central Government to be a place of pilgrimage by notification in
the Official Gazette.”7
(¶8) Accordingly, pilgrimages are specific places of public worship which as so notified by
the govt. itself. 8 Whereas, the enactment is question governs not only pilgrimages but all
places of public worship 9 and is hence wider in its ambit and scope. Hence, the subject matter
does not lie within the scope of State legislature.
(¶9) Secondly, this is not a matter relating to ‘public order’ as provided under Entry 1 of List
II. This is because the phrase ‘public order’ is synonymous with public safety and
tranquillity. 10 It is submitted that this phrase denotes presence of disorder involving breaches
of local significance in contradistinction to national upheavals, such as revolution, civil strife,

5
§2(f) Religious Institutions (Prevention of Misuse) Act, No. 41 of 1988 (1998).
6
INDIA CONST.List II, Sch. 7.
7
§3(27) Merchant Shipping Act, No. 44 of 1958 (2014).
8
Sirajul Haq Khan & Ors. v. The Sunni Central Board of Waqf, U.P. & Ors. AIR 1959 SC 198 (India); See also
Petroleum & Natural Gas Regulatory Board v. Indraprastha Gas Ltd., AIR2015SC2978 (India).
9
Moot Proposition, Pg 14.
10
Romesh Lal Jain v. Naginder Singh Rana, (2006) 1 SCC 294 (India).

5
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

war, which thereby affect the security of the State.11

(¶10) It is further submitted that every breach of the peace does not lead to public disorder.12
In the instant case, even on account of the protests that were carried out, 13 there was no such
breach of peace or public safety that would fall under the scope of public order as enumerated
in the List II. Accordingly, just because the issue at hand is remotely connected to public
order does not mean that State has power to legislate upon the same.14
(¶11) Assuming arguendo, it is further submitted that the said enactment extends to the
whole of India, except the State of J&K.15The purpose of the said enactment was fill the
existing vacuum in law and to further prevent inconsistencies among the various State
legislations on the present subject matter. Accordingly, it is only the Parliament which is
competent to enact a Central Statute for which is applicable on all the States of India.
b. That the Parliament is also competent by the virtue of its power conferred under Art. 248
(¶12) It is further submitted that in view of the aforementioned submissions, neither the
subject matter of the present enactment is specifically enumerated in List II, nor is it
enumerated in the Concurrent List i.e. List III of the Seventh Schedule of the COI
(hereinafter referred to as “List III”) as alleged by the Petitioner.
(¶13) Accordingly, assuming arguendo, it is submitted that it is the Parliament which is
entitled to enact the Hindu Places of Public Worship Actby the virtue of power vested under
Art. 248 of the COI which is framed in the widest possible terms. 16
(¶14) It is submitted that any matter which is not found in the three lists of the Seventh
Schedule of the COI comes under the ambit of exclusive jurisdiction of the Parliament 17by
the virtue of Entry 97 of the Union List i.e. List I of the Seventh Schedule of the COI
(hereinafter referred to as “List I”).18 Since, it has already been shown that the matter is not
in the List II and that the State is incompetent to legislate on the said matter, hence, the
matter ought to be part of the residuary power of the Parliament.19

11
Commr. of Police v. C. Anita, (2004) 7 SCC 467 (India).
12
Stainislaus v. State of M.P., (1977) 1 SCC 677 (India).
13
Moot Proposition, Pg 14.
14
13 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 20379 (8th ed. 2008).
15
Moot Proposition, Pg 14.
16
Sat Pal v. Lt. Governor of Delhi, AIR 1979 SC 1550 (India); See also State of Punjab v. Devans Modern
Brewaries Ltd., (2004) 11 SCC 26 (India) [hereinafter Devans Modern Brewaries].
17
UOI v. H. S. Dhillon AIR 1972 SC 1061 (India).
18
Association of Leasing & Financial Service Companies v. UOI, (2011) 2 SCC 352 (India).
19
International Tourist Corporation v. State of Haryana, (1981) 2 SCC 318 (India).

6
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

(¶15) It is submitted that the framers of the COI could not always mention and exhaust every
conceivable topic. Accordingly, in order to meet precisely such a situation, Article 248 read
with Entry 97 of List I was inserted.20
(¶16) Hence, the Parliament is empowered to pass legislations on the matter in question by
virtue of its power under Art. 248(1) and is prima facie competent to enact the Hindu Places
of Public Worship Act.
3. That the Parliament is competent to enact the Hindu Places of Public Worship Act
by virtue of power conferred under Art. 25(2)
(¶17) It is contended before the Hon’ble Court that the right claimed is that of freedom of
conscience and the right to profess their religion. 21 The invoking of this Fundamental Right is
always to be examined in the light of public order, morality and health. 22 It is also to be
examined such a practice can be associated with any secular activity. 23 The right of religion
is not absolute and unfettered and is subject to limitations imposed by the State.24
(¶18) That temple is a place used for public worship and used for Hindu community or any
section of the society for public religious worship. 25 The administration of a temple is a
secular matter.26 Moreover, the collection, maintenance and upkeep of the temples are secular
activities. 27
(¶19) According to Art. 25 (2), a State is empowered to enact laws based on secular
activity. 28Administration, management and governance of the religious institution or
endowment are secular activit1ies and the State could regulate them by appropriate
legislation. 29Access to public places is a secular activity30 as it is dependent upon control and
administration of the governing body and management. Further, the said enactment is based

20
M.P. SINGH, “Distribution of Legislative Powers between the Union and the State, JOURNAL OF THE INDIAN
LAW INSTITUTE (1991) at 284.
21
Sardar Syedna Taher Saifuddin Saheb v. State of Bombay AIR 1962 SC 853 (India); See Commr. of Police
& Ors. v. Acharya Jagadishwaranda Avdutha & Ors. (2004) 12 SCC 770 (India).
22
Bijoe Emmanuel & Ors v. State of Kerala (1986) 3 SCC 615 (India).
23
Id.
24
B.M. Sukumar Shetty, Managing Trustee, Kollur Mookambaika Temple & Ors. v. State by its Secretary,
Revenue Department &Anr., 2005 (5) Kar LJ 481 [hereinafter B.M. Sukumar].
25
Bala Shankar Mama Shankar v Charity Commissioner, Gujarat AIR 1995 SC 167 (India); See Narayanan
Pandarathil v. Vasudevan Pillai 2014 (3) KLJ 758.
26
M.P. Gopalakrishnan Nair & Anr v. State of Kerala & Ors., AIR 2005 SC 3053 (India) [hereinafter M.P.
gopalakrishna].
27
State of Orissa & Sri Jagannath v. Chintamani Khuntia & Ors., AIR 1997 SC 3839 (India).
28
M.P. Gopalakrishnan, Supra note 26.
29
B.M. Sukumar Shetty, Supra note 29.
30
SASHEEJ HEGDE, “Always Already Secular? Afterthoughts on the Secular-Communal Question”, ECONOMIC
& POLITICAL WEEKLY (2005) at 328.

7
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

on the accepted principle of non-interference of the State in religious and customary matters
of a community and in furtherance of the constitutional goal of secularism. 31
(¶20) Therefore, the Parliament can legislate on the subject matter relating to of access to
public places and it was competent to enact the Hindu Places of Public Worship Act.
B. THE HINDU PLACES OF PUBLIC WORSHIP ACT OUGHT NOT TO BE CLASSIFIED AS

COLOURABLE LEGISLATION

(¶21) It is humbly submitted keeping the aforementioned submissions in mind, the Hindu
Places of Public Worship Act ought not to be classified as colourable legislation. This is
because the Parliament was competent to pass the said enactment and there was no direct or
indirect transgression of power. Further, while adjudicating upon the validity of the
enactment, this Hon’ble Court ought to keep in mind that [1] The doctrine of mala fide is
inapplicable and [2] The circumstances prevailing at the time of the enactment are ought to
be considered.
1. That the doctrine of mala fide is inapplicable
(¶22) It is humbly submitted that the term colourable is not tainted with bad faith or evil
motive. No mala fides or motives are attributed to the legislature.32 Accordingly, it is not
permissible to suggest parliamentary incompetence on the score of alleged mala fides.33
(¶23) Assuming arguendo, it is also submitted that the motive of the legislature in passing a
statute i.e. the legislative wisdom is beyond the scrutiny of the courts.34 Nor can the courts
examine whether the legislature has applied its mind to the provisions of a statute before
passing it.35 This is because, the legislature, as a body, cannot be accused of having passed a
law for an extraneous purpose.36
(¶24) Accordingly, it is submitted that this Court ought not to rely upon this aforementioned
doctrine for the purposes of evaluating the competence of the Parliament for enacting the
Hindu Places of Public Worship Act.

31
Abiram Singh v. C.D. Commachen, AIR 2017 SC 401 (India).
32
G.C. Kunungo v. State of Orissa, AIR 1995 SC 1655 (India).
33
STO v. Ajit Mills Ltd. (1977) 4 SCC 98 (India); See Southern Petrochemicals Industries v. Electricity
Inspector & Ors., AIR 2007 SC 1984 (India).
34
D.C. Bhatia v. UOI, (1995) 1 SCC 104 (India) [hereinafter D.C. Bhatia].
35
T. Venkata Reddy v. State of A.P., (1985) 3 SCC 198 (India); See also Bakhtawar Trust &Ors. v. M.D
Narayan & Ors., AIR 2003 SC 2236 (India).
36
K. Magaraj v. State of A.P., AIR 1985 SC 551 (India); See also Chairman Coal India Ltd. v. Ananta Saha &
Ors. (2011) 5 SCC 142 (India).

8
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

2. That the circumstances prevailing at the time of the enactment are ought to be
considered while evaluating its validity
(¶25) The question of reasonability for the purposes of deciding the constitutionality must be
determined with reference to the circumstances existing at the time of the enactment. 37 It is
submitted that it is the legislature which has to decide the nature of classification having
regard to the surrounding circumstances and facts.38
(¶26) In order to determine the object and purpose of a statute, this Hon’ble court ought refer
to the circumstances which prevailed at the time and necessitated the passing of the Act. 39 In
the instant situation, there was widespread protests, violence and destruction of public
properties which necessitated the enactment of the Hindu Places of Public Worship Act in
order to pacify the situation and meet the will of the people.
(¶27) It is humbly submitted that the propriety, expediency and necessity of a legislative act
are for the determination of the legislative authority and not for determination by the courts. 40
As held by this Hon’ble Court,41 “the law is meant to serve the living and does not beat its
abstract wings in the jural void. Its fundamental fulfilment as social engineering depends on
its sensitized response to situation, subject matter and the complex of realities which require
ordered control.”
(¶28) It is submitted that the main purpose of a representative govt. is to represent the will,
perception and popular sentiment of the people. 42 These representatives act on behalf of the
people at large and remain accountable to the people. The underlined objective is to use this
form of govt. as a device to bring to fore the popular will. 43
(¶29) It is further submitted that the judiciary have to draw a fine balance between the ‘felt
necessities of time’ and ‘constitutional framework’. 44 Accordingly, the court ought to give

37
1 MP JAIN, INDIAN CONSTITUTIONAL LAW, 1221 (7th ed. 2010).
38
D.C. Bhatia, Supra note 34.
39
State of Rajasthan v. G Chawla, AIR 1959 SC 544 (India); See also Thangal Kunju Musaliar v. M.
Venkitachalam Potti, AIR 1956 SC 246 (India).
40
GVK Inds. Ltd. & Ors. v. The Income Tax Officer & Ors., (2011) 4 SCC 36 (India).
41
Board of Mining Examination v. Ramjee, (1977) 2 SCC 256 (India); See Municipal Committee, Hoshiarpur v.
Punjab State Electricity Board (2010) 13 SCC 216 (India).
42
State of Bihar v. Bal Mukund Sah, (2000) 4 SCC 640 (India).
43
State (NCT of Delhi) v. UOI, (2018) 8 SCC 501 (India) [hereinafter NCT].
44
2 MP JAIN, INDIAN CONSTITUTIONAL LAW, 2365 (7thed. 2010).

9
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

effect to the will and ambitions of the majority and not hold the Hindu Places of Public
Worship Act as unconstitutional and void in a light vein. 45

C. THE IMPUGNED PROVISION HAS NOT BEEN PASSED WITH AN INTENT TO DEFEAT THE

EFFECT OF THE JUDGMENT PASSED BY THE HON’BLE SUPREME COURT

(¶30) It is humbly submitted that this Hon’ble Court ought not adjudicate upon the validity of
Hindu Places of Public Worship Act on this ground as firstly, it does not have first-hand
information about the prevailing ground realities and secondly, this Hon’ble Court ought not
act entirely on the arguments levelled by the Petitioner as they are merely technical and
axiomatic in nature.
(¶31) It is also submitted that the Parliament by way of the impugned provision only wanted
to promulgate the long known and practiced customs which prevailed all over India. The
Parliament accordingly has enacted the Hindu Places of Public Worship Actafter going
through the ground reality which prevails in the different regions of India and to satisfy the
needs and expectation of its citizens.
(¶32) It is also submitted that this enactment cannot be construed to be a spinoff, for
overriding the judgment dated 01.10.2018 passed by this Hon’ble Court. This is because, the
was Hindu Places of Public Worship Act is a generic in its nature and merely lays down a
statutory framework for governing the entry into religious places as per the customs
prevailing all over India. Whereas, the earlier provision i.e. Rule 5A of the Sapthagiri Temple
Administration Rules, 1956 which was rendered unconstitutional was only with respect to a
specific Temple.
(¶33) Additionally, it is submitted that in a modern state like India, the judiciary and
legislation are at an equal footing. 46Accordingly, a judicial intent may not be binding on
legislative actions. 47 Further, it is also submitted that the Parliament is duty bound to enact
laws after duly taking into consideration the prevailing customs and also ought to foster
respect towards the same.48 Hence, the act of the Parliament, as a legislative body, was
merely in furtherance of this obligation towards the people it is representing.
(¶34) It is also submitted that a custom operating among sufficient members of the population

45
State of West Bengal v. Abani Maity, (1979) 4 SCC 85 (India); See also The Executive Engineer v. Seetaram
Rice Mill, (2012) 2 SCC108 (India).
46
State of A.P. v. Challa Ramkrishna Reddy & Ors., (2000) 5 SCC 712 (India).
47
ELIZABETH A. STILES, “Legislative-Judicial Interaction: Do Court Ideologies Constrain Legislative Action?”,
STATE & LOCAL GOVT. REV., (2007) at 98.
48
SIR CARLETON KEMP, “Law in the Making”, OXFORD UNIVERSITY PRESS (1964) at 111.

10
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

can establish rule of law 49 and the same needs to be incorporated in legislative policy
making.50Accordingly, the legislative decision by the Parliament is valid since it is not
specific in nature and is based on a broader aspect.51
(¶35) Assuming arguendo, it is submitted that the present enactment is in fact in furtherance
of the aforementioned judgment passed by this Hon’ble Court. It was on account of rendering
the legislation enacted by the State of Shanstisthan as void and constitutional that the
Parliament realised the need of a Central Legislature governing the present subject matter to
prevent any inconsistencies or repugnancy amongst the regional laws enacted by the States.
(¶36) Further, it is submitted that this Hon’ble Court ought to consider the difference of
opinion expressed in similar cases and the benefit of the dissenting opinion must be provided
in the instant case.52 This court has time and again relied upon the minority opinion to change
the position of law as per the needs and requirements of the people of this country.53
(¶37) It is submitted that the contentions of the Petitioner ought to be construed as flawed
because the provisions of the Hindu Places of Public Worship Actflows from prevailing
customs54which been accepted by the majority. 55 Therefore, the Parliament had power and
competence to pass the said enactmentin the greater interest of the society.

II. WHETHER THE SECTION 4(B) OF THE HINDU PLACES OF PUBLIC

WORSHIP ACT USURPS RIGHTS GUARANTEED UNDER THE
CONSTITUTION?
(¶38) It is submitted that the impugned provision of the Hindu Places of Public Worship
Actought not to be rendered unconstitutional by the virtue of power enshrined under Art. 13
as [A]That there is a presumption of constitutionality in favour of a statute, [B] That the
Fundamental Rights are not absolute in nature, [C] That the impugned provision is
inconsonance with Part III of the COI and [D] That this Hon’ble Court while determining the
validity of the Hindu Places of Public Worship Act ought not to take into account provisions
of Part IV of the COI.

49
BODENHEIMER, EDGAR, “Jurisprudence: The Philosophy and the Method of Law”, HARVARD UNIVERSITY
PRESS (1996) at 300.
50
Gwalior Rayon Silk Mfg. v. The Asstt. Commissioner of Sales, AIR 1974 SC 1660 (India); See Kerala State
Electricity Board v. The Indian Aluminum Co. AIR 1975 SC 1967 (India).
51
MP JAIN, Supra note 44 at 2369.
52
1 ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA, 856 (2nd ed. 2007).
53
Navtej Singh Johar v. UOI AIR 2018 SC 4321 (India).
54
ALEXANDER ORAKHELASHVILI, Natural Law and Customary Law, GERMANY LAW REV. (2011) at 87.
55
Moot Proposition, Pg 14.

11
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

A. THAT THERE IS A PRESUMPTION OF CONSTITUTIONALITY IN FAVOUR OF A STATUTE

(¶39) It is a settled principle of law that while doubting the constitutionality of a law, the
court must attempt to resolve it in favour of its validity. 56 This is because the statute is the
enacted by the representatives of the people. 57Accordingly, there always exists a presumption
in favour of constitutionality of an enactment 58 and all circumstances which might lead to the
statute being upheld must be presumed by the court.59
(¶40) It is submitted that to doubt the constitutionality of a law is to resolve it in favour of its
validity. 60 Hence, the impugned provision which flows from the prevalent customary
practices ought to be construed as valid. Further, it is also submitted that the burden is upon
the shoulders of the incumbent, who challenges the validity of a statute to show that there has
been a clear transgression of the constitutional principles. 61
(¶41) Assuming arguendo, it is humbly submitted that the legislature understands and
correctly appreciates the needs of the people of the country. 62 The Court must take into
consideration matters of common knowledge, history of the times and assume every state of
fact in a liberal manner to uphold the validity of the provision.63
(¶42) It is also submitted that the court is not concerned with the wisdom, justice or injustice
of the law.64 Further, drawing inference from this finding, it is submitted that this court, in
order to effectuate this principle, ought to consider itself duty bound to make such
progressive or narrow construction of the impugned statute as would sustain its constitutional
validity. 65

B. THAT THE FUNDAMENTAL RIGHTS ARE NOT ABSOLUTE IN NATURE

(¶43) It is humbly submitted that the even though fundamental rights are basic rights but they
are neither uncontrolled nor without restrictions. 66 The restriction or power to regulate the

56
1 H.M SEERVAI, CONSTITUTIONAL LAW OF INDIA, 260 (4th ed. 2010).
57
P.M. BAKSHI, COMMENTARY ON CONSTITUTION OF INDIA, 566 (2nd ed. 2016).
58
Dharmendra Kirthal v. State of U.P., (2013) 8 SCC 368 (India).
59
Madhubhai Amathalal Gandhi v. UOI, (1961) 1 SCR 191 (India).
60
Public Services Tribunal Bar Assn. v. State of U.P., (2003) 4 SCC 104 (India).
61
Chiranjit Lal v. UOI, AIR 1951 SC 41 (India); See Vodafone International Holdings B.V. v. UOI, (2012) 6
SCC 613 (India).
62
State of Bombay v. Balsara, (1951) SCR 682 (India); See Devans Modern Brewaries, Supra note 16.
63
CST v. Radhakrishan, AIR 1979 SC 1588 (India).
64
Karnatak Bank Ltd. v. State of A.P., (2008) 2 SCC 254 (India).
65
Mark Netto v. Govt. of Kerela, (1979) 1 SCC 23 (India).
66
N.K. Bajpai v. UOI, (2012) 4 SCC 653 (India).

12
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

manner of exercise on such rights would not frustrate the right. Imposition of restrictions is a
concept inbuilt into the enjoyment of fundamental rights67.
(¶44) It is also submitted that an act will not be invalid merely on the ground of the
possibilities of its abuse or misapplication. 68 In other words, the hardships to some persons
should not change the construction. 69
C. THAT THE IMPUGNED PROVISION IS IN CONSONANCE WITH PART III OF THE

CONSTITUTION

(¶45) It is submitted that while determining whether a particular law is repugnant to or

inconsistent with the Fundamental Rights is to be determined by looking at the substance of
the provisions of the Act.70 Accordingly, it is submitted that the impugned provision is
constitutional as [1] The impugned provision is in consonance with Arts. 14 & 15 of the COI,
[2] The impugned provision is in consonance with Art. 17 of the COI and [3] The impugned
provision is in consonance with Arts. 19 & 21 of the COI.
1. The impugned provision is in consonance with the right to equality provided under
Arts. 14 & 15 of the COI
(a) That the impugned provision is in consonance with Article 14
(¶46) It is humbly submitted that the Parliament does not intend to make any classification by
means of the impugned provision. The Hindu Places of Public Worship Actwas enacted by
the Parliament in exercise of its obligation to provide a legal framework for secular
matters.71It is further submitted that since India has a diverse and a pluralistic society, it is
absolutely essential to have tolerance and equal respect for the customs of all communities
and sects.72
(¶47) It is also humbly submitted that the Parliament nowhere dictates as to what constitutes
custom of any particular group, rather it only clarifies by way of this enactment that the
already prevailing customs shall prevail in the future as well.73 This is because the same are
sacred in nature and hence shall be granted with legal sanctity.

67
Id.
68
Collectors of Customs v. Nathella Sampathu Chetty, AIR 1962 SC 316 (India).
69
Authorised Officer v. S. Naganatha Ayyar, (1979) 3 SCC 466 (India) ; See The General Manager, Department
of Telecommunications, Thiruvananthapuram v. Jacob &Ors., (2003) 9 SCC 662 (India).
70
MP JAIN, Supra note 44 at 2464.
71
INDIA CONST.List III, Sch. 7; See VII CONSTITUENT ASSEMBLY DEBATES OFFICIAL REPORT, Book no. 2 at
449.
72
RANBIR SINGH, Secularism in India: Challenges and its Future, IJPS (2008) at 605.
73
A.K. Roy & Ors. v. UOI & Ors., AIR 1982 SC 710 (India).

13
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

(¶48) The sources of customs are religious texts, scriptures and age old practices which are
beyond the Parliament’s power to interpret. The impugned provision does not lay down the
basis for any custom. The impugned provision implements the existing customs without any
modifications or alterations in view of the object of ensuring protection of fundamental rights
of its citizens as guaranteed under Arts. 25, 26 or 29, as the case maybe.
(¶49) The Hindu Places of Public Worship Act, applies the existing customs as the rule of
law equally and in a uniform manner upon all Hindu individuals, irrespective of their age or
sex.74Hence, the Parliament does not create any classification between a man and a woman.
(¶50) Assuming arguendo, it is submitted that the said differentiation is based on an
intelligible differentia as it is in consonance with the concept of multi-cultural, pluralistic
society envisaged by the COI.75 Further, in the absence of any arbitrariness, the classification
is deemed to be valid.76
(¶51) The classification maybe founded on different basis under Art. 14.77 The safeguard
provided by Art. 14 of the COI can only be invoked, if the classification is made on the
grounds which are totally irrelevant to the object of the statute. 78The classification in the
Hindu Places of Public Worship Actis in furtherance of fulfilling the duty of the State in
regulating religious institutions as per the needs and requirements of the citizens of the
country.79 The reasonableness of the classification has to be decided with reference to the
realities of life and not in the abstract.80 It is the substance and not form alone which must be
seen while evaluating the validity of the impugned provision. 81
(¶52) Assuming arguendo, that if the effect of the Hindu Places of Public Worship Act is
construed in isolation and only with reference to the Sapthagiri Temple, then also
classification so prevailing by way of the customary practices referred to in the impugned
provision is only applicable only under special circumstances i.e. the festival of Mandakalam.
That such classification is not applicable throughout the year.82 Hence, such a classification is

74
Moot Proposition, Pg 15.
75
Kaur Singh v. Jaggar Singh, 63 P.L.R. 537; SEERVAI, Supra note 56 at 437.
76
Kerala Hotel & Restaurant Association v. State of Kerala, (1990) 2 SCC 502 (India) [hereinafter Kerala
Hotel].
77
SEERVAI, Supra note 56 at 455.
78
D.C. Bhatia, Supra note 34.
79
A.S. Narayana Deekshitulu v. State of A.P. & Ors., AIR 1996 SC 1765 (India).
80
Kerala Hotel, Supra note 76.
81
Madhukar G.E. Pankakar v. Jaswant Chobbildas Rajani & Ors., AIR 1976 SC 2283 (India); See Pradyut
Bordoloi v. Swapan Roy, AIR 2001 SC 296 (India).
82
Moot Proposition, Pg 13.

14
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

permissible keeping in mind the sanctity and interest of the Sapthagiri Temple and its
devotes.
(¶53) Accordingly, it is submitted that the claims made on behalf of the Petitioner aim not
only to put the Respondent in bad light but also tarnish the image and rights of an all
communities who chose to be governed by their customary law as a principle source of law.
(¶54) Hence, the impugned provision is constitutional as it merely gives effect to the existing
customary practices based on the religious faith of an individual or a group of individuals
which ought not be treated as void.83 Further a law based on permissible classification fulfils
the guarantee of equal protection of the laws and is constitutionally valid.84

(b) That the impugned provision is in consonance with Article 15

(¶55) It is submitted that the contention of the Petitioner with respect to violation of Art. 15 is
untenable. This is because there is no differentiation as even men are excluded in certain
clauses of the impugned provision. 85 Accordingly, the effect of the enactment cannot be
construed to be discriminatory in nature.
(¶56) It is also submitted that classification within an intra women group by age brackets
ought not to be construed as a gender based discrimination and hence the contention of the
Petitioner with respect to violation of Art. 15 is untenable in law. It is the duty of every
temple to observe proper customary rights of worship. 86 The Temple exists for the benefit of
the Board and its devotees87 and the same is bound to follow the customary practice which
has evolved over time. Therefore, the restrictions imposed by the Parliament taking into
account the previous customs and regulations imposed by the Temple, is valid. The
Legislation, hence, is valid and not in contravention of any right or rule available to citizens.
(¶57) It is humbly submitted that an idol of any temple is a juristic person. 88 The words
juristic person connotes recognition of an entity to be in law a person which otherwise it is
not. The question of whether a Hindu Deity can be a juristic person or not was settled in the
affirmative by the Privy Council in 1922 itself. 89Further, on account of the socio-political-

83
Riju Prasad Sarma v. State of Assam, (2015) 9 SCC 461 (India).
84
SEERVAI, Supra note 56 at 493.
85
Moot Proposition, Pg 15.
86
Nar Hari Sastri & Ors. v. Shri Badrinath Temple Committee, AIR 1952 SC 245 (India).
87
The Poohari Fakir Sadavarthy of Bondilipuram v. The Commissioner, Hindu Religious & Charitable
Endowments, AIR 1963 SC 510 (India).
88
Doeki Nandan v. Murlidhar, AIR 1957 SC 133 (India).
89
Vidya Varuthi Thirthia Swamigal v. Baluswami Ayyar AIR 1922 PC 123; See also Wali Mohammed v.
Rahmat Bee & Ors. AIR 1999 SC 1136 (India).

15
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

scientific development, evolution of a fictional personality to be a juristic person becomes

inevitable. 90
(¶58) It is also submitted that a juristic person is not roped in any defined circle. With the
changing thoughts, changing needs of the society, fresh juristic personalities are liable to be
created from time to time. Accordingly, it is now well established that a Hindu temple, mutt,
deity and mahant are juristic persons in Hindu law.91
(¶59) Accordingly, keeping in mind the aforesaid, it is further submitted that the deity has the
same rights qua the temple as a normal person has qua his ‘home’. Consequently, the deity
can regulate the right of the devotees to access his ‘home’. Hence, the same ought to be
governed as per the customs and practices of the respective places of public worship.
(¶60) Assuming arguendo, is also submitted that the prevailing customary laws in India
create a counterbalance of interests between men and women and treat them in uniformity.
This is because there exists a variety of temples wherein exclusively women devotees are
allowed and men are barred only on account of their sex from entering or worshipping at
such temples.
(¶61) Therefore, in light of the aforementioned submissions, this Hon’ble Court ought to
uphold the validity of the impugned provision to cater to the needs of the citizens and meet
the ends of justice. 92

2. The impugned provision is in consonance with the constitutional guarantee under

Art. 17 of the COI against the practice untouchability
(¶62) It is submitted that Art.17 is inapplicable to the case at hand as this Article is restricted
to prohibiting caste and religion-based untouchability. 93It is submitted that Art. 17 only refers
to discrimination founded on any social exclusion.94 Whereas, the customs referred to in the
impugned provision is based on the practises followed by the devotees and do not flow from
any practise associated with untouchability under the ambit of Art. 17.95
(¶63) Further, Art. 17 is only concerned with those regarded as untouchables in the course of

90
Official Trustee of W.B. v. CIT, Calcutta, (1974) 3 SCC 616 (India); See also Shiromanic Gurudrawa
Prabandhak Committee v. Som Nath Dass, (2000) 4 SCC 146 (India).
91
Bihar State Board Religious Trust v. Mahant Sri Beseshwar Das, (1971) 1 SCC 574 (India). ; See also Ram
Jankijee Deities &Ors. v. State of Bihar, (1999) 5 SCC 50 (India).
92
NCT of Delhi, Supra note 43.
93
Devarajiah v. Padmanna, AIR 1958 Mys 84.
94
MP JAIN, Supra note 37 at 1453.
95
3 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 379 (8th ed. 2008).

16
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

historical development.96 It has been indicated that untouchability does not include every
instance in which a person is subjected to invidious treatment because of any classification. 97
It is also submitted that the intention behind the inclusion of Art. 17 was to prohibit caste
based discrimination. 98
(¶64) This is also evident from the Art.11 of the draft COI which corresponds to Art. 17 of
the present COI which reflected that the term untouchability refers only to caste-based
discrimination faced by Harijans, and not to any other class such as women. 99Further, in
addition to the term untouchability, even though the addition of the term ‘unapproachability’
was proposed but the same was not considered to be necessary and the same has been
reiterated by this Hon’ble Court.100
(¶65) In the instant matter, the customary practices followed at any religious place of worship
is not based on any alleged impurity or disability. Further, there is no exclusion of the entire
class of women or any other group (as was historically done qua dalits), but merely an
exclusion of a certain category of women upon a direct nexus with the historical origin and
evolution of the a temple.101 Additionally, treating of persons as untouchables either
temporarily or otherwise do not fall within the ambit of practice of untouchability as provided
for under Art. 17.102
(¶66) The restriction places under the impugned provision is not a social discrimination but is
only a part of the essential spiritual discipline related to this particular pilgrimage hence the
same cannot be construed as a violation of Art. 17. This is because, excluding persons from
temples for purposes of worship on the ground that they are not objects within the benefit of
the foundation was held to be protected under Art. 26 and does not violate Art. 17. 103
(¶67) Assuming arguendo, when a person who is allegedly victimised and deprived of the
constitutional protection under Art, 17 is not a member of a Schedules Caste, that person
shall have to prove that he/ she belongs to a low caste and the disability has been imposed on
him on the ground of birth in such caste.104 This is not the situation in the present reserve of

96
Star Industries v. Commissioner of Customs (Imports) Raigad, (2016) 2 SCC 362 (India).
97
D. D. BASU, Supra note 95 at 3175; See also MARC GALANTER, COMPETING EQUALITIES- LAW OF
BACKWARD CLASSES IN INDIA, 128 (1984);
98
SEERVAI, Supra note 56 at 1381.
99
VI CONSTITUENT ASSEMBLY DEBATES OFFICIAL REPORT, Book no. 2, at 845.
100
Supra note 176 at 1179; See also Indra Sawhney v. UOI, AIR 1993 SC 477 (India).
101
Moot Proposition, Pg 12.
102
D. D. BASU, Supra note 95 at 2113.
103
Sri Venkataramana Devaru v. State of Mysore, AIR 1958 SC 255 (India).
104
D. D. BASU, Supra note 95 at 3187.

17
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

facts as the women are not subjected to discrimination on account of their birth in a particular
caste. Accordingly, the claim of the Petitioner with respect to the violation of Art. 17 is
untenable and is liable to be dismissed.

3. The impugned provision is in consonance with right to freedom and liberty

guaranteed under Arts. 19 & 21 of the COI.
(¶68) It is humbly submitted that the rights guaranteed under Arts 19 & 21 are not absolute in
nature.105 The Respondent is entitled to place necessary reasonable restrictions on the
exercise of these rights to cater to the compelling public interests.106The right to profess,
practise and propagate religion under the ambit of Art. 19 does not extend to the right of
worship at any or every place of worship so that any hindrance to worship at a particular
place per se will infringe religious freedom. 107
(¶69) In the present reserve of facts, the issue revolves around the applicability of pre-
constitutional or other traditional customs and in such a case, it is imperative that the court
appreciates the evidence of its origin, existence and its interrelationship with other customs
while adjudicating upon the same.
(¶70) Further, while deliberating upon the violation of the right to dignity and privacy, as
protected under the ambit of Art. 21, it is pertinent to note that the same can be regulated by
the procedure established by law. 108
(¶71) It is submitted that the phrase ‘procedure established by law’ in Art. 21 means the law
prescribed by Parliament at any given point of time. 109 Such a procedure must be pragmatic
and realistic to meet the requirements of any given fact situation. 110 Accordingly, since the
Act merely intends to lay down a general framework on the basis of customs which are often
the rule of law, it ought to be construed as is fair, reasonable. Further, as established above, it
also satisfies the requirement of Art. 14. Hence, it ought to be construed as within the ambit
of procedure established by law as provided under Art. 21.111

105
Sharda v. Dharmpal AIR 2003 SC 3450 (India); See also Modern Dental College & Research Center v. State
of M.P., (2016) 7 SCC 353; K.S. Puttaswamy v. UOI, (2017) 10 SCC 1 (India) [hereinafter K.S. Puttaswamy].
106
Chameli Singh v. State of U.P, AIR 1996 SC 1051 (India).
107
Ismail Paruqi v. UOI, (1994) 6 SCC 360 (India).
108
5 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA, 4075 (8th ed. 2008).
109
State of U.P. v. Shah Md., AIR 1969 SC 1234 (India).
110
UOI v. W.N. Chadha, AIR 1993 SC 1082 (India).
111
E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555 (India).

18
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

(¶72) Assuming arguendo, it is submitted that the practice of offering worship at places of
public worship is a matter of religious faith.112That the matters of entry and practice of
worshipping at a particular public place of worship are governed by religion, religious
sentiments and are purely private in nature and is an aspect of liberty. 113Accordingly, any
interference with the same would at the outset amount to a violation of Art. 21114, since
expanded idea of the right to life and liberty as envisaged under Art. 21 is inclusive of a
person’s right to its culture and heritage.115
(¶73) Further, the right to life, as guaranteed under the COI ensures protection of heritage,
tradition and culture in its full measure. 116 It is humbly submitted that matters with respect to
access to places of worship are governed by religion and are purely private in nature and
entitled to receive statutory recognition.117
(¶74) Further, the places of worship along with their devotees have their different script,
culture and identity and accordingly the right to privacy is integral to them in order to
conserve there culture.118 Hence, the legislature is obligated to protect the same from any
unwarranted intervention.
(¶75) Accordingly, in light of the aforesaid, it is submitted that this court while adjudicating
upon the instant Writ Petition ought to balance the competing rights and uphold the validity
of the impugned provision.

D. THAT THIS HON’BLE COURT WHILE DETERMINING THE VALIDITY OF THE HINDU PLACES
OF PUBLIC WORSHIP ACT OUGHT NOT TAKE INTO ACCOUNT PROVISIONS OF PART IV OF

THE CONSTITUTION

1. That the provisions of Part IV are not judicially enforceable

(¶76) It is humbly submitted that the nature and effect of Part IV is distinct from that of Part
III as the former is not judicially enforceable. 119 When it comes to matters concerning Part IV
of the COI, it has been categorically held that the Supreme Court does not have any power to
give direction for enforcement of any DPSPs. 120 This is because the same are not enforceable

112
Ramsharan Autyanuprasi v. UOI, AIR 1989 SC 549 (India).
113
K.S. Puttaswamy, Supra note 105.
114
MP JAIN, Supra note 37 at 1453.
115
S.M.D. Kiran Pasha v. Govt. of A.P., (1990) 1 SCC 328 (India).
116
Id.
117
K.S. Puttaswamy, Supra note 105.
118
Id.
119
2 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA, 1296 (4th ed. 2010).
120
Sarla Mudgal v. UOI, AIR 1995 SC 1531 (India).

19
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

in courts as they do not create justiciable rights in favour of any person. 121
(¶77) It is further submitted that it is the State which was intentionally burdened with the
prerogative to enact the DPSPs and not the judiciary and therefore the same is beyond scope
of the judicial directions. 122
(¶78) Accordingly, in furtherance of the well-established judicial restraint already established
by this Court it would be correct on its part not to interfere in this case on the basis of
submissions concerning Part IV of the COI.123

2. That the impugned provision is in consonance with Part IV of the COI

a. The impugned provision is in consonance with Art. 38 of the COI
(¶79) It is humbly submitted that the State is under an obligation under Art. 38, to secure a
social order for the promotion of welfare of the people. Further, the maxim of salus populi
(est) suprema lex i.e. the regard for public welfare is the supreme law must also be duly taken
into consideration.124 In case of any conflict, the individual must yield to collective
interest.125 It is the duty of the State to ensure that welfare is adequately promoted. This is
attributable to the concept of parens patriae theory.
(¶80) It is further submitted that the principle of greatest good of greatest number and the
benefit of all and happiness of all and the happiness of all also needs to be taken into
consideration, as a welfare state ensures happiness of the greatest number. 126
(¶81) Therefore, under commitment to the public circle, 127 the State has a duty to abide by the
customs. The law formulated taking into account the custom, is valid, and in the best interests
of the society. The Courts, accordingly, under the garb of Judicial Review cannot approve of
individual interest and redirect the legislative measures. 128
(¶82) It is also a settled law that any enactment which furthers the cause in the DPSPs cannot
be held to be unconstitutional. 129 Accordingly, this Hon’ble Court ought to uphold the
enactment as constitutional in light of the fact that the legislation was in furtherance of the
direction under Art. 38 of the COI.

121
Lily Thomas v. UOI, (2000) 6 SCC 224 (India).
122
Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549 (India).
123
Meher K. Master, “Personal Laws of Religious Communities in India” 3 DHARMARAM JOURNAL OF
RELIGIONS & PHILOSOPHIES, (1986) at 272.
124
Pritam Pal v. High Court of M.P., 1993 Supp (1) SCC 529 (India).
125
G. Sundarrajan v. UOI, (2013) 6 SCC 620 (India).
126
Lala Ram v. UOI, (2015) 5 SCC 813 (India) [hereinafter Lala Ram].
127
N.D. Jayal v. UOI, (2004) 9 SCC 362 (India) ; See Lala Ram, Supra note 127.
128
G. Sundarrajan v. UOI, (2013) 6 SCC 620 (India).
129
Akhil Bharat Goseva v. State of A.P. & Ors., (2005) 4 SCC 162, (India).

20
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

b. The impugned provision is in consonance with Art. 51(c) of the COI

(¶83) It is submitted that it is only the municipal law which binds the courts in India. 130 This
Hon’ble Court must take into account the doctrine of lex specialis derogate generali which
suggests that preference for laws governing the specific subject matter must be given over the
general laws. 131
(¶84) It must be noted that whole objective behind India being a secular, multi-cultural
country is that all persons must be governed by their own respective customs, instead of a
uniform law which attempts to intervene in their matters. Thereby, it is submitted that while
adjudicating upon instant case the municipal laws are to be given preference over
international laws.
(¶85) It is also submitted that the courts can make use of international laws to foster
commitment for India’s international obligations. However, it has been established that it is
the domestic law that prevails in case of a conflict.132 To further substantiate, the principle of
dualism, which is followed by India, also suggests that in a case of conflict between
municipal and international law, the domestic courts would apply the former. 133
(¶86) Assuming arguendo, it is also submitted that as per the COI,134 in order to enforce
conventions and treaties, an express legislation is required to be made by the Parliament for
the implementation of international law in India. 135
(¶87) It is lastly submitted that in light of the aforementioned, the unwarranted enforcement
of international conventions into the matters of religious faith and belief will result in
violation of the rights vested with any religious community.

130
Jolly George Varghese v. Bank of Cochin, (1980) 2 SCC 360, (India); See National Legal Services Authority
v. UOI & Ors., AIR 2014 SC 1863 (India).
131
P.M. BAKSHI, COMMENTARY ON CONSTITUTION OF INDIA, 446 (2nd ed. 2016).
132
V/O Tractor Export, Moscow v. M/S. Tarapore & Co. &Anr., (1969) 3 SCC 562 (India).
133
Putul Rabidas v. Eastern Coalfields Limited, 2017 SCC OnLine Cal 13128.
134
INDIA CONST. art. 253.
135
KARAMDEEP SAINI, Relationship between International and Municipal law: A case study of India, 3 IJARD
(2018) at 633.

21
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

CONCLUSION

I. WHETHER THE PARLIAMENT WAS COMPETENT TO ENACT THE HINDU

PLACES OF PUBLIC WORSHIP ACT, 2018?

In light of the aforesaid submissions, it is firmly established that the Parliament is competent
to enact the Hindu Place of Public Worship Act by virtue of power conferred under Art.
246(2). Without prejudice, it is also established that the Parliament is vested with power
under Art. 25(2) to enact laws on secular subject matters which is inclusive of governing
entry to public places. Further, it is also evident that the State Legislature has no exclusive
power under Art. 246(3). Hence, there is beyond reasonable doubt that Parliament is prima
facie competent to pass the said enactment. Therefore, the instant writ petition is liable to be
dismissed on this ground itself.

II. WHETHER SECTION 4(B) OF THE HINDU PLACES OF PUBLIC WORSHIP ACT,

2018 USURPS RIGHTS GUARANTEED UNDER THE CONSTITUTION?

In light of the aforesaid submissions, it is firmly established that there is a presumption of
constitutionality in favour of a statutory enactment. It is also evident that there is no
transgression from the constitutional provisions as no case of infringement of Fundamental
Rights has been made out. Further, the Hindu Place of Public Worship Act cannot be
construed to be overriding the effect of judgment dated 01.10.2018 passed by this Hon’ble
Court. To the contrary, the Hindu Place of Public Worship Act has been enacted in
furtherance of the obligations enshrined under Part IV of the COI. Therefore, the instant writ
petition is liable to be dismissed

XIII
-MEMORANDUM FOR RESPONDENT-
 19TH ALL INDIA MOOT COURT COMPETITION
MEMO CODE: TSV 1913

PRAYER

In the light of the facts presented, issues raised, arguments advanced and authorities cited, it
is humbly prayed that this Hon’ble Court, by way of an appropriate writ, order or pass
directions in the nature whereof, be pleased to:

1. Dismiss the instant Writ Petition;

2. Pass any other order, which the court may deem fit in the lights of justice, equity and
good conscience.

For this, the Respondents, as in duty bound shall forever humbly pray.

Date: All of which is most respectfully submitted.

Place: Counsels for the Respondents.

XIV
-MEMORANDUM FOR RESPONDENT-