Moot memorial on shabirimala issue, Assignments of Law

Download Moot memorial on shabirimala issue and more Assignments Law in PDF only on Docsity! BHARATA MATA SCHOOL OF LEGAL STUDIES BHARATA MATA SCHOOL OF LEGAL STUDIES MOOT COURT - 2024 BEFORE THE HONOURABLE SUPREME COURT OF INDIANA W.P. NO. /2024 THE INDIANA YONG LAWYERS ASSOCIATION VS THE STATE OF TENJIKU AND ORS. ABOBVE MENTIONED PETITION IS CLUBBED ON FUNDAMENTAL RIGHTS OF HON’BLE SUPREME COURT OF INDIANA MEMORIAL ON BEHALF OF RESPONDENTS BHARATA MATA SCHOOL OF LEGAL STUDIES TABLE OF CONTENT 1. LIST OF CASES 2. STATEMENT OF JURISDICTION 3. STATEMENT OF FACTS 4. ISSUES RAISED 5. SUMMARY OF ARGUMENT 6. ARGUMENT IN ADVANCE 7. PRAYER BHARATA MATA SCHOOL OF LEGAL STUDIES STATEMENT OF JURISDICTION WRIT PETITON It is most humbly submitted that the petitioner has approached the honorable supreme court of Indiana under Article 32 of the constitution for the violation of the fundamental rights guaranteed under the constitution of Indiana by filing a public interest litigation. BHARATA MATA SCHOOL OF LEGAL STUDIES STATEMENT OF FACTS 1. The Himaya Temple, located in Tenjiku (a city in the Union of Indiana), is a renowned religious spot for most of the people residing in Tenjiku. Lakhs of pilgrims visit the place every year and complete mountainous trek to reach the shrine. The temple nestles at a height of 1260 meters above sea level. The Himaya Temple is one of the few temples in Tenjiku that welcomes men and women of every caste. Devotees dress uniformly in black. The colour signifies a renunciation of all worldly pleasures, but it also means that everyone is equal before Tenji, irrespective of caste. 2. The temple is also prominent for another reason — the selective ban on women entering it. Women aged between 10 and 50, that is those who are in menstruating age, are barred from entering the temple. Although there are numerous Tenji Temple in Indiana, the Himaya Temple depicts Lord Tenji as a ‘Naistika Brahmcharya’ i.e., his powers derive specifically from abstention from sexual activities. 3. It is believed that Lord Tenji’s powers derives from his ascetism, in particular from his being celibate. Celibacy is a practice adopted by the pilgrims before and during the pilgrimage. The pilgrims have to follow a strict vow over a period of forty one days, which lays down a set of practice. The said set of practice also includes maintaining hygiene including taking bath twice a day and also taking one meal a day. 4. As per the religious text Tenji was born to destroy a female demon who, thanks to a boon, could only be vanquished by a child born of both Shiva and Vishnu (the form of Mohini). When Tenji fulfils his destiny by killing her, a beautiful woman emerges from the body. She had been cursed to live as a demon, but her killing reversed the BHARATA MATA SCHOOL OF LEGAL STUDIES curse. Now free, she asks Tenji to marry her. He refuses, explaining to her that his mission is to go to Tenjiku where he would answer the prayers of his devotees. However, he assures her, he will marry her when kanni-swamis stop coming to Himaya. She now sits and waits for him at a neighbouring shrine near the main temple and is also worshipped as Masma. And that is why women do not go to Tenji. It is partly out of empathy for Masma and her eternal wait and it’s also out of respect for Tenji's commitment to answer the prayers of his devotees. 5. The Indiana Young Lawyers Association and five women lawyers approached the Supreme Court of Indiana seeking a direction to allow entry of women into the temple without age restrictions. Another group of women, part of the "Happy Mensuration" campaign, has also sought the court's direction on whether society should continue to Bear with “menstrual discrimination." 6. Their petition contended that discrimination in matters of entry into temples was neither a ritual nor a ceremony associated with the religious text and beliefs. Such discrimination was totally anti-Hindu. The religious denomination could only restrict entry into the sanctum sanctorum and could not ban entry into the temple, making discrimination on the basis of sex. 7. The Tenji Board, which maintains the temple, had replied that the ban was in accordance with centuries-old tradition. Lord Ayyapa, being a Naishtika Brahmmachari (one who has vowed to remain celibate). Another argument put forth by the temple authorities is that since the deity inside the temple is in the form of a ‘Naistika Brahmcharya’, therefore the women of certain age group are not allowed inside the temple since they are not in a position to observe penance for 41 days due to physiological reasons. 8. The on-going matter in the Supreme Court has also put the spotlight on a 1991 Tenjiku High Court judgment, wherein the division bench BHARATA MATA SCHOOL OF LEGAL STUDIES SUMMARY OF ARGUMENTS 1. Whether the petitioner and the subsequent interveners have the locus to file the present Writ Petition? It is humbly submitted that the petitioner and subsequent interveners did not have the locus to file the present writ petition. They do not have any bonafide interest to file the Public interest litigation. 2. Whether the Hon’ble Supreme Court has the jurisdiction in defining the boundaries of religion in public spaces? It is humbly submitted that Freedom of religion has been infringed a lot by judicial interference that led to a series of litigation and arose a new question before the judiciary, how far is it correct to apply judicial mind and constitutional adjudication in the matter of religion by the courts. 3.Whether the said restriction imposed on the women and children of certain age amounts to violation of their Fundamental Rights as enshrined in the Constitution, specifically violation of Articles 14, 15(3) and 17 in light of Rule 3(b) of Tenjiku Hindu Places of Public Worship (Authorization of Entry) Rules*? It is humbly submitted that exclusion of women was an essential practice in their religion. The exclusion was not against all women, but only women between 10-50 years of age. Considering the celibate nature of the deity, this exclusion was reasonable. So, in this case the interpretation made here is between menstruating and non-menstruating women to be a reasonable classification. The objective of menstruating women is disallowed because they are seen as “incapable of being celibate” or “impure”. BHARATA MATA SCHOOL OF LEGAL STUDIES 4.Whether the practice of excluding such women constitutes an "essential religious practice" under Article 25 and whether a religious institution can assert a claim in that regard under the umbrella of right to manage its own affairs in the matters of religion? It is humbly submitted that practice is continuing since time immemorial without any interruption, so it become usage and custom which is pre- constitutional. According to Article 13(3)(a) law includes custom and usage, so it does not violate Article 25 of Indiana Constitution. The religious institution can assert claim under the umbrella of right to manage its own affairs in matter of religion. This statement is supported by Article 26(b) of the Constitution of India, which grants religious denominations the autonomy to regulate various aspects of religious practice, including access to places of worship and participation in religious rituals. BHARATA MATA SCHOOL OF LEGAL STUDIES 2.WHETHER THE HON’BLE SUPREME COURT HAS THE JURISDICTION IN DEFINING THE BOUNDARIES OF RELIGION IN PUBLIC SPACES? 2.1 It humbly submitted that, The Freedom of conscience and the right to freely profess, practice and propagate religion is one of our fundamental rights guaranteed by the constitution of India under Article 26. This Article of the Indian constitution provides religious freedom to all of its people and provides them rights. • To establish and maintain institutions for religious and charitable purposes; •To manage its affairs in matters of religion; •To own and acquire movable and immovable property; and •To administer such property in accordance with the law. Freedom of religion has been infringed a lot by judicial interference that led to a series of litigation and arose a new question before the judiciary, how far is it correct to apply judicial mind and constitutional adjudication in the matter of religion by the courts. 2.2 The judgement of the Supreme Court in the matter of Sabarimala temple, Indian Young Lawyers Association & Ors. V. The State of Kerala & Ors1 is the typical instance of interference of the judiciary in the matter of faith and beliefs. This was the case in which five-judge bench of the Supreme court with the ratio of 4:1 lifted the ban from religious customs of Ayyappa Temple, on the ground of untouchability and violation of article 14 (3) as it prevented women of age group between 10 to 50 from entering into the temple. Argument of K. Parasaran who clearly said that: “Religious beliefs cannot be tested on the touchstone of Art. 14 or rationality. The right to equality in religious matters has to be judged amongst worshippers. To recognise marked differences that exist in fact is living law, to disregard practical differences and concentrate on some 1 AIR 2028 SC 243 BHARATA MATA SCHOOL OF LEGAL STUDIES contacts to canvass for cases and thereby bring the profession into disrepute and also pollute the minds of young fresh entrants to the profession. 3.2 The Tenjiku is a religious denomination and was protected under Article 26 of the Constitution. Article 26 of the Constitution guarantees a religious denomination the right to manage its own internal religious affairs. Women who are not by custom and usage allowed to enter a place of public worship shall not be entitled to enter or offer worship in any place of public worship. That amounts to a reasonable restriction and the entry in Tenjiku temple is prohibited only in respect of women of a particular age group and not women as a class. So, it was not violating article 14 of the constitution. 3.3 Article 15 (3) Article 15 of the constitution only prohibits the state from discriminating against any citizen on the grounds of religion, race, caste, sex and place of birth, on the ground stated above subject to any disability, liability, restriction or condition made on the, 1-Assess to shop, public restaurant, hotel and place of public entertainment 2-The use of well, tank, bathing ghats, road and places of public resort maintained wholly or partly out of state fund or dedicated to the use of general public With regards to the above stated provision the Article 15(3) says that ‘Nothing in this article shall prevent the state from making any special provision for women and children. The state government does not make any special provision for women and children with regard to this matter, so we can clearly say that there is no violation of article 15(3) in this case. 3.4 There is no restriction made in this case while accessing or using wells, tanks, bathing ghats, roads and places of public resort maintained wholly or partly out of state funds or dedicated to the use of the general public. BHARATA MATA SCHOOL OF LEGAL STUDIES In ‘Anjali Roy v. State of West Bengal5 The court held that Article 15(3) provides for only special provision for the benefits of women and children and it does not require that absolutely identical treatment as those enjoyed by males in similar matters must be afforded to them. 3.5 Article 17 Article 17 abolishes ‘untouchability’ and forbids its practice in any form. The enforcement of any disability arising out of untouchability is to be an offence punishable in accordance with law. The term 'untouchability' is not defined in the constitution. So, it is not understood in its literal or grammatical sense but to be understood as the practices as it had developed historically. In this case the term untouchability is used either temporally or otherwise for various reasons such as suffering from infectious diseases or on account of social boycott resulting from castes or other disputes. 3.6 The practices of tenjiku temples are purely based on tribal practices. So, the law is also giving some constitutional protection to the tribal peoples. ‘Govt. of A.P vs. Smt. Dasari Subbayamma & Anr ‘it was held by the court that “belonging to a tribe is a matter of birth; not of choice — nor a matter of law. 3.7 The Scheduled Tribes do not necessarily identify with any form of organised religion in the country. Their religious concepts, terminologies and practices are varied among the hundreds of tribes across the country. Religious concepts are intricately entwined with ideas about nature and interaction with local ecological systems as well as spiritual rituals and customs. One of the tribal groups, Santhal, has their own way of life and maintaining all privileges in matters connected with marriage and succession as per their customary tribal faith. Article 42 deals with the promotion of educational and economic interests of the Scheduled Castes, Scheduled Tribes and other weaker sections of society 5 AIR1952 Cal 825 BHARATA MATA SCHOOL OF LEGAL STUDIES 3.8 Religious freedom guaranteed to Scheduled Tribes (STs) and the Traditional Forest Dwellers (TFDs) under Articles 25 and 26 of the Constitution is intended to be a guide to a community of life and social demands, so the above mentioned Articles guarantee them the right to practise and propagate not only matters of faith or belief, but all those rituals and observations which are regarded as integral part of their religion. Their right to worship the deity Niyam-Raja has, therefore, to be protected and preserved”. In this case the various religious disabilities like preventing any person from entering any place of public worship or from worshipping or any other social disabilities is only for temporary period to such class person and not a fully prohibition it only restricting the women who are in the age between 10 to 50, and not prohibiting the entire age group of women. This practice is fully based on the tribal religious practices and on their custom. 4. WHETHER THE PRACTICE OF EXCLUDING SUCH WOMEN CONSTITUTES AN "ESSENTIAL RELIGIOUS PRACTICE" UNDER ARTICLE 25 AND WHETHER A RELIGIOUS INSTITUTION CAN ASSERT A CLAIM IN THAT REGARD UNDER THE UMBRELLA OF RIGHT TO MANAGE ITS OWN AFFAIRS IN THE MATTERS OF RELIGION? 4.1 It is humbly submitted that Custom is an important means of controlling social behaviour. The importance of customs in society cannot be minimized. They regulate social life especially among illiterate people to a great extent and are essential to the life of a society. Custom serves as the repository of our social heritage. It preserves our culture and transmits it to the succeeding generations, bring people together and develops social relationships among them. According to Salmond, “Custom is the the embodiment of those principles which have commended themselves to the national conscience as principles of justice and utility”. BHARATA MATA SCHOOL OF LEGAL STUDIES It is submitted that in the case of Ranjit Udeshi v. State of Maharashtra (1965)11, the Supreme Court considered the validity of a law that prohibited the exhibition and distribution of obscene materials. The court held that the term "laws in force" under Article 13(3)(b) encompassed not only enacted statutes but also customs and usages that had the force of law. Therefore, the court recognized the authority of the state to regulate activities that contravened established customs and public morality, even in the absence of specific legislation. It is humbly stated that the practice is continuing since time immemorial without any interruption, so it become usage and custom which is preconstitutional. So, it does not violate Article 25 of the Constitution of Indiana12 which gives freedom of conscience and free profession, practice and propagation of religion. So hence excluding such women from the age of 10 to 50 years is an essential religious practice under Article 25 of Constitution of Indiana. It is submitted that in the case of Commissioner of Police & Ors vs. Acharya Jagadishwarananda Avadhuta & Anr13, the Supreme Court reiterated that customs and usages which are integral to a religion and have been practiced since time immemorial are protected under Article 25. The Court held that such customs and usages cannot be interfered with by the State unless they are found to be contrary to public order, morality, or health. 4.4 Article 26 of the Constitution of Indiana14 guarantees the freedom to manage religious affairs subject to public order, morality, and health. This means that religious denominations have the right to manage their own affairs without interference from the state, as long as their actions do not disrupt public order, morality, or health. 11 1965 AIR 881 1965 SCR (1) 65 12 Article 25 of the Constitution of India. 13 AIR 1990 (Calcutta 336 at 352). 14 Article 26 of the Constitution of India. BHARATA MATA SCHOOL OF LEGAL STUDIES Articles 14 and 15 of the Indiana Constitution15, which ensure the right to equality and prohibit discrimination on various grounds including religion. However, it is important to note that Article 26 carves out an exception. The fundamental right of religious denominations to manage their own affairs is not subject to the principles of equality and non-discrimination as outlined in Articles 14 and 15. This means that the rights conferred under Article 26 can, to some extent, is an exception to the principles of equality and non-discrimination in certain religious matters. It is submitted that in the case of Sardar Syedna Taher Saifuddin Saheb vs. State of Bombay (1962)16, the Supreme Court considered whether the Bombay Prevention of Excommunication Act, 1949, infringed upon the fundamental rights guaranteed under Article 26. The Court held that while the state can regulate religious practices to ensure public order, morality, and health, it cannot interfere with matters of religious doctrine or belief. 4.5 Article 26(b) of the Constitution of Indiana17 empowers religious denominations to manage their own affairs in matters of religion. This provision grants them the authority to regulate various aspects of religious practice, including determining access to places of worship and participation in religious ritual. It is submitted that in the case of Durgah Committee, Ajmer v. Syed Hussain Ali (1961)18, the Supreme Court reaffirmed the autonomy of religious denominations in the administration of religious institutions. The court held that the management and administration of religious endowments, including the regulation of access to durgahs and participation in religious 15 Articles 14 and 15 of Constitution of India 16 1962 AIR 853. 17 Article 26(b) of the Constitution of India. 18 1961 AIR 1402. BHARATA MATA SCHOOL OF LEGAL STUDIES ceremonies, are matters that fall within the exclusive domain of the religious denomination, as protected under Article 26(b). It is further submitted that in the case of S. P. Mittal v. Union of India (1983)19, the Supreme Court highlights the right of religious denominations to manage their own affairs without interference from external authorities. The court held that the administration of religious properties and finances, as well as the regulation of religious practices, are internal matters that are subject to the autonomy granted by Article 26(b). This decision underscored the authority of religious denominations to regulate various aspects of religious practice according to their own beliefs and traditions. It is submitted that Rule 3(b) of the Tenjiku Hindu Places of Public Worship (Authorization of Entry) Rules20 can be viewed as an exercise of the right which is ensured under Article 26(b) by the concerned religious denomination to preserve and uphold its religious practices and beliefs. It is humbly submitted that the religious institution can assert claim under the umbrella of right to manage its own affairs in matter of religion. This statement is supported by Article 26(b) of the Constitution of Indiana, which grants religious denominations the autonomy to regulate various aspects of religious practice, including access to places of worship and participation in religious rituals. 19 (1983) SCR (1) 729. 20 Rule 3(b) Of The Kerala Hindu Places Of Public Worship Authorization Of Entry) Rules