THE 5TH KIIT UNIVERSITY NATIONAL MOOT COURT COMPETITION, 2017

[I NDEX OF A UTHORITIES ]
TC-137

HON’BLE LATE JUSTICE P.B SAWANT 8TH NATIONAL MOOT COURT COMPETITION 2021-22

TH TH
25 – 26 MARCH 2022

BEFORE THE HON’BLE SUPREME COURT OF DEMOCRATIQUE ARYANA

SAKEENA MOHAMMAD & ANR. (PETITIONER)

V.
UNION OF DEMOCRATIQUE ARYANA (RESPONDENT)

MEMORIAL FOR THE RESPONDENT

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TABLE OF CONTENTS

INDEX OF AUTHORITIES
 CASES
 BOOKS
STATEMENT OF JURISDICTION
STATEMENT OF FACTS
STATEMENT OF ISSUES
SUMMARY OF ARGUMENTS
ARGUMENTS ADVANCED
THE PRAYER

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INDEX OF AUTHORITIES

CASES

Commissioner, Hindu Religious Endowments, Madras vs. Shri ilakshmindar 09

Tirtha Swamiyar 1954 AIR 282, 1954 SCR 1005

Sardar Syedna Taher Saiffuddin Saheb v State of Bombay, AIR 1962 SC 09

853
Commissioner of Police v Acharya Jagadisharananda Avadhuta, (1983) 4 09
SCC 522

Muslim, No.888 (See also Nos. 884-891 and Bukhari Vol.1, Nos. 824, 832) 09

Vishaka & others vs. State of Rajasthan & others AIR 1997 SC 3011 13

Ram Krishna Dalmia vs. Justice S.R Tendolkar, AIR 1958, AIR 1958 SC 14
538

State of West Bengal vs. Anwar Ali Sarkar, AIR 1952 SCR 284 14

Electricity Board Rajasthan vs. Mohan Lal, 1967 SCR (3) 377 16

Pardeep Kumar Biswas vs. Indian Institute of Chemical Biology, (2002) 5 18

SCC 111

RD Sheety vs. International Airport Authority, 1979 SCR (3) 1014 18

All India Imam Organisation and other vs. Union of India & Others 1993 18
AIR 2086
Kesavananda Bharti vs. State Of Kerela, 1973 4 SCC 225 20

M Siddiq (D) Thr Lrs vs. Mahant Suresh Das & others, (1994) 6 SCC 360 20

Tilkayat Shri Govindlalji Maharaj V. State of Rajasthan, 1963 AIR 1638 21

Hasan Ali v. Mansoor Ali, (1948) 50 BOMLR 389 21

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Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR 21
282
SP Mittal v. Union of India, 1983 AIR, 1 1983 SCR (1) 729 22

Bijoe Emmanuel v. State of Kerala, 1987 AIR 748 22

BOOKS

Ratanlal and Dhirajlal, Lexis Nexis, The Code of Criminal Procedure as Amended by
The Criminal law (Amendment) Act 2013, 22nd edition 2017

Muslim Personal Law & other personal laws, Dr. S.R Myneni

Justice M. R. Malick, Criminal Manual (Major Acts): Code of Criminal Procedure

1973, Indian Penal Code (45 out of 1860), Indian Evidence Act 1872, 2017

Bare Act, The Protection of Human Rights Act 1933

Bare Act, The Supreme Court Rules, 2013

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STATEMENT OF JURISDICTION

THE PETITIONER HAS FILED THIS WRIT PETITION UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA FOR THE VIOLATION OF FUNDAMENTAL RIGHTS
ENUMERATED IN PART III OF THE CONSTITUTION. THE RESPONDENT
MAINTAINS THAT NO VIOLATION OF RIGHTS HAS TAKEN PLACE. THEREFORE,
THIS HON’BLE COURT NEED NOT ENTRATAIN ITS JURISDICTION IN THIS WRIT
PETITION

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STATEMENT OF FACTS

1. In February 2020, Sakeena Mohammad and her husband Mohammad wrote a letter to
the Mohmdiya Jama Masjid, Indapuria to seek permission for Sakeena to enter local
mosques to offer namaz (prayer). 
2. The Mohmdiya Jama Masjid administration responded, stating that women may not
enter mosques in Indapuria and other areas. However, they also stated that they
referred the request to Daud Kajha and Daud Ullum Devvand. After receiving no
response from either Daud, the petitioners wrote a reminder letter in March 2020. In
response, the Imam of Jama Masjid, Indapuria refused the request, but again
expressed that he would refer the matter to higher authorities, saying that he was
unsure about whether women could enter mosques.
3. Aggrieved by the vague reasons cited by the Imam, the petitioners approached the
Supreme Court by way of a Public Interest Litigation (PIL), filed on 4 May 2020.
Their PIL challenges practices prohibiting the entry of Muslim women into mosques
on the ground that they are unconstitutional. In particular, the petition argues that such
practices violate of the fundamental rights to equality, life and liberty and freedom of
religion under Articles 14, 15, 21, 25 and 29 of the Constitution. Further, the
petitioners argue that practices that prohibit Muslim women from entering mosques
stand in conflict with the Holy Quran and various Hadiths, which do not require
gender segregation.
4. The Quran does not prohibit women from offering prayers where men do. Thirdly, the
petitioners contend that customs that prohibit women from entering mosques stand in
conflict with Article 44 of the Constitution of India, which encourages the State to
secure a uniform civil code for all citizens, by eliminating discrepancies between
various personal laws currently in force in the country. In addition, the petition relies
substantially the Constitutional Bench judgment in the Swami Hindu Temple Case. 
5. In December 2019, the Supreme Court struck the Swami Hindu Temple's custom of
prohibiting menstruating women from enters its inner sanctum. In the present case,
the petitioners argue that religious customs cannot be used as cover to deny rights of
worship to women and, further, their dignity.
6. On 1 st June 2020, the Supreme Court admitted the case and issued notice to the
Central Government of Democratique Aryana, the Sunni Waqf Board and the All
Democratique Aryana Muslim Personal Law Board.

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STATEMENT OF ISSUES

1) Whether practices prohibiting the entry of women into mosques violate the
fundamental rights to equality, non-discrimination, freedom of religion, and life and
liberty under Articles 14, 15, 21 and 25 of the Constitution of Democratique Aryana?
2) Whether the fundamental right to equality of Muslim women can be enforced against
non-state actors, i.e. Mosques in this case?
3) Whether the act of preventing the females from entering mosque is violative of
Article 44 of the Constitution of Democratique Aryana, which encourages the State to
secure a uniform civil code for all citizens, by eliminating discrepancies between
various personal laws currently in force in the country?

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SUMMARY OF ARGUMENTS

ISSUE 1

Whether practices prohibiting the entry of women into mosques violate the fundamental
rights to equality, non-discrimination, freedom of religion, and life and liberty under
Articles 14, 15, 21 and 25 of the Constitution of Democratique Aryana?

The practise of prohibiting women to enter Mosque is not exercised in any Mosque instead
every person irrespective of their religion are welcomed in the Mosque. What is not allowed
is inter mixing within the sexes. They are required to pray separately as per the religious texts
of the Muslim’s holy book. Therefore there is no violation of the fundamental rights provided
under Article 14, 15, 21 & 25 of the constitution.

ISSUE 2

Whether the fundamental right to equality of Muslim women can be enforced against
non-state actors, i.e. Mosques in this case?

The respondent contends that it is unclear whether the Mosque are a private body or not. Since
the nature of its administrative and managerial authority has not been clarified in the fact
sheet so it is presumed that Mosque is a non-state actor and fundamental rights are not
available against private bodies or non-state actors.

ISSUE 3

Whether the act of preventing the females from entering mosque is violation of Article
44 of the Constitution of Democratique Aryana, which encourages the State to secure a
uniform civil code for all citizens, by eliminating discrepancies between various personal
laws currently in force in the country?

The constitution postulates equality of all faiths since it supports religious harmony. The act
of Imam is justified as it being an integral and essential practise in propagating Islam. Since
India is a secular country under constitution we have adopted secular model which provides
that every person has the right to freedom to choose and practise his or her religion. Article 44
can’t be applied in the present case as there is no violation of fundamental right of women
instead eliminating certain practises important to a religion of one personal law would cause
breach of their fundamental right to profess their religion.

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ARGUMENTS ADVANCED

ISSUE 1
Whether practices prohibiting the entry of women into mosques violate the fundamental
rights to equality, non-discrimination, freedom of religion, and life and liberty under
Articles 14, 15, 21 and 25 of the Constitution of Democratique Aryana?
The Respondent denies the allegations of the Petitioner that women aren’t allowed into the
mosque, they are allowed into mosque and not just Muslims every other person irrespective of
their religion and gender are allowed in to the mosque and one doesn’t need to seek
permission through a letter for that. A Public Interest Litigation can be filed under Article 32
of the Constitution for enforcement of Fundamental Rights1, as guaranteed by part III of the
Constitution. But there has been no violation of the fundamental rights since, the rejection
given by Imam was in furtherance of following the religious principles laid down in the
Quranic texts which every Muslim is bound to follow otherwise not following these principles
would completely alter the religion fundamentally and the very essence of praying in the
prescribed manner will be defeated. While women are free to access the mosques, they are not
permitted inside the small inner room that houses the saint’s grave. As any visitor to the
mosque will testify, this does not come in the way of women participating in other facets of
worship. Women usually sit around the round area, facing the sanctum sanctorum while
offering prayers. Applying Article 14, 15 and 21 of the Constitution in such religious matter
will eventually destroy diversity of faith, which is guaranteed under Article 25 of the
constitution. Article 25 gives an assurance to “Freedom of conscience and free profession,
practice and propagation of religion”. This assurance from the state to “practise and
propagation of religion” is all about respecting religious diversity.  It is because one can’t
practise and at the same time propagate religion, when it is tested on the basis of these
fundamental rights the essence of practising a religion with its identity will be lost. The entire
question of propagation of it would be gone in such circumstances. If the court uses Article 14
in order to strike down a practise, it will destroy the hope of the people in the secularism of
the country. The consequence would be the emergence of inherent communal identity of the
people. No change in the religion would be possible because people would feel it as a threat to
their religion if Article 25 would be tested on Article 14 frequently and irresponsibly. Every
person has the right to profess his religion as it is protected under Article 25 and so the act of
Imam cannot be termed as unfair, discriminatory and persecutory.
1.1 What are essential religious practices?
The Supreme court has laid down the “essential element of religion” doctrine to define the
essential elements of the religion but before that the supreme court had defined the term
religion, A religion may not only lay down a code of ethical rules for its followers to accept, it
might prescribe rituals and observances, ceremonies and modes of worship which are
regarded as integral parts of religion, and these forms and observances might extend even to
matters of food and dress2.

1
Article 32(1) when r/w 32(2) itself states that, Article 32 can only be invoked for enforcement of rights as
guaranteed by Part III and, for issuing writs to enforce Rights as guaranteed under Part III.
2
The Commissioner, Hindu Religious Endowments 1954:1024

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In the Commissioner, Hindu Religious Endowments, Madras vs. Shri ilakshmindar Tirtha
Swamiyar of Shri Shirur mutt3 case, a line was drawn between what were matters concerning
religion and what was not. It was held that religious opinions and the acts done in pursuance
of those opinions, are religious practices. This implies that the Supreme Court has said that the
rituals, mode of worship, and ceremonies all come under essential practices of religion. These
have to be protected to the extent that they are within the limits of Article 25 and 26 of the
Constitution of India.

1.2 Which essential religious practices are protected under the Article 25 of the
Constitution?
The essential religious practices (ERP) doctrine governs which religious practices are
protected under Arts. 25 & 26 of the Constitution the test was broadened by the Supreme
Court in the shirur mutt case further clarified in the Sardar Syedna Taher Saiffuddin Saheb v
State of Bombay, 19624 case where the Supreme Court observed that what constitutes an
essential practice is to be gathered from the texts and tenets of the religion. The legislature,
the Court added, was not permitted to reform a religion out of existence or identity.
And also further the court added another test to perform in the case of Commissioner of Police
v Acharya Jagadisharananda Avadhuta, 20045 where the Court applied the test of essential
religious practices in deciding whether the Tandava Dance was an essential rite of the Ananda
Marga Faith as held by the High Court. Though the Ananda Marga faith was founded in 1955,
the Tandava dance was introduced to its followers in 1966 and was prescribed as an essential
religious practice in the Carya Carya in 1986. Despite this scriptural injunction, the Court in
its majority opinion held that the Tandava Dance was not an essential practice of the Ananda
Marga faith. The Court observed that in order to determine whether or not a particular practice
is an essential part of religion, the test must be whether the absence of the practice itself
fundamentally alters the religion.
A. The Situation for Women’s Access and Participation in Mosques as per the
religious texts and Prophet’s saying
Islam does not forbid women from going to the mosque. In fact, it was encouraged by the
Prophet (pbuh) when he said:
“Do not prevent the female servants of Allah from going to the mosque…” (Muslim, Abu
Dawud).
The Prophet Muhammad specifically admonished the men not to keep their wives from going
to the mosques:
Ibn Umar (Abdullah bin Umar) reported what is translated as:
The Messenger of God said, "Do not prevent the maid-servants of God from going to the
mosque."6
Thus, a Muslim woman is free to enter masjid for prayers. It is her option to exercise her right
to avail such facilities as available for prayers in masjid. However, it is not obligatory on

3
Commissioner, Hindu Religious Endowments, Madras vs. Shri ilakshmindar Tirtha Swamiyar 1954 AIR 282,
1954 SCR 1005
4
Sardar Syedna Taher Saiffuddin Saheb v State of Bombay, AIR 1962 SC 853
5
Commissioner of Police v Acharya Jagadisharananda Avadhuta, (1983) 4 SCC 522
6
Muslim, No.888 (See also Nos. 884-891 and Bukhari Vol.1, Nos. 824, 832)

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women to pray in congregation. The Friday prayers, which are performed at mosques by men,
are not mandatory for women. Rather they are recommended to pray at home.
“The best place for a woman to pray (salah) is in the innermost part of her home”
(Musnad Ahmad)
The above hadith regarding women praying in the innermost part of her home, is not a
command. It’s simply describing a preference for women to pray at home.
Not just the Muslim women the Holy Quran does not even prohibit anyone from visiting a
mosque as it is a House of God that can and should be used for the worship of God by all.
According to Islam non-Muslims are even allowed in the Sacred Mosque in Makkah and
Madinah.
It is recorded that the Christians of Najran came to see the Holy Prophet Muhammad. He
arranged the meeting in his mosque at Madinah, during the meeting the Christians asked leave
from the mosque for worship. The Prophet said that the mosque in which they were was a
house of God and they were welcome to offer their prayers there. So they did offer their
prayers in the mosque of the Holy Prophet.7
The Holy Prophet said,
“There is no need for you to go out of the mosque, because the mosque is the place to
worship one God, if you want to do so, you have every freedom of worship, and holding
the services in it” (Zurqani).
There is therefore no legal impediment against Muslims or non-Muslims, whether or not they
are tourists, entering mosques as long as they wear the proper attire that does not desecrate the
sanctity of the holy premises.
Even Quran specifies that no person (men and women) including the visitors are barred from
entering in the following verse,
"As to those who have rejected, and would keep back (people) from the Way of Allah,
and from the Sacred Mosque, which We have made (open) for all people ("An-Nas" -
men and women) - equal is the dweller there and the visitor. Any whose purpose therein
is profanity or wrong-doing - We make them taste a painful punishment". (Qur'an
22:25)
Therefore, true believers are aware that Mosques are for women just as much as they are for
men. According to the Qur'an, the right to space inside the house of Allah is shared equally
between men and women, and all people regardless of their physical attributes have equal
right to occupy any given space under Allah's roof.

B. Women barred to enter the inner sanctum sanctorum of Mosque

Separation between men and women in prayers in the mosque happened in the presence, or
rather with the instruction of the Prophet. The prophet encouraged men to be in rows nearer
the Imam as possible, while women are supposed to be in rows, farther from him as possible.
The Prophet Muhammad, said in a ḥadīth reported by Imam Muslim from the narration of
Sayyidinā Abū Hurayrah, raḍiya Allāhu ‘anhu, that,
"The best of the men’s rows is the first and the worst is the last, and the best of the
women’s rows is the last and the worst in the first." Narrated by Muslim under No. 664.
This is the greatest evidence that the Law of Islam (Sharia’s) forbids meeting and mixing of
men and women. The farther the men are from the women’s rows, the better, and vice versa.

7
Ibn Hisham, I, 575-577

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In the above mentioned hadith it is said that the meeting together, mixing, and intermingling
of men and women in one place, the crowding of them together are prohibited by the Law of
Islam (Sharia’s). These acts are prohibited because they are among the causes for fitnah
(distraction, infatuation or trial which implies evil consequences) which would violate the
sanctity of the place of worship and would not let the person achieve spiritual attainment with
Allah.
If these procedures and precautions were prescribed and adhered to in a mosque, which is a
pure place of worship where people are as far away as they ever are from the arousal of desire
and temptation, then no doubt the same procedures need to be followed even more rigorously
at other places. Every Muslim person will not wilfully choose or accept mixing and crowding,
particularly in religious classes and council meetings in Islamic Centers.
The best comment I’ve seen regarding these hadith on women in the mosque comes from a
scholar who said:
“Let the men do as they have been commanded, and let the women do as they have been
commanded.”
It's fundamental in Islam, to note that Islam means total submission to the will of God. Total
submission to the will of God includes following His Prophet blindly, whether or not we
understand the wisdom behind his teachings. In Sūrah Ali ‘Imran 3:31, Allah subḥānahū wa
ta'ālā declares that we are able to attain His Love only when we follow the Prophet (blindly):
“Say [O Muhammad], “If you love Allah, then, follow me, and Allah will love you and
forgive you your sins. Allah is most forgiving, and most Merciful.” Say [O Muhammad],
“Obey Allah and the Messenger.” But if they turn away, then indeed, Allah does not like
the disbelievers.”
The requirement to submission to the will of God is mentioned in other verses from the Qur'an
as well as in some sayings of the Prophet. Allah says in Sūrah Muhammad, 47:33:
“O Believers, obey God and obey the Messenger; and do not invalidate your deeds.”
Allah also says in Sūrah Al-Ḥashr, 59:7:
“Whatever the Messenger gives you, take it; and whatever he forbids you, abstain from
it. Fear God; surely, God is severe in retribution.”
Based on the two verses above, we understand that the validity of a person’s deeds–as
Muslim, depends on the extent to which they subject them (our deeds and desires) to the
teachings of Allah and His Prophet. The teachings of the Prophet don't necessarily have to
come in verbal form. In fact, most of his teachings, came in the form of practical actions.
This includes how we pray, who leads us in prayers, and who (male or female) stands in front
or behind.
If this is understood, then it is not for court to question ‘why' pertaining to the religionIslam
discourages free mixing between men and women and the intention of the said restriction is to
keep interaction at a modest level between men and women. The respondent relies on certain
verses from Quran and Hadith in support my submission. Among then many proofs of
prohibition of meeting and mixing of men and women in the Quran and Sunnah are:
Verse no. 53 of Surat-al-Ahab, - (Interpretation of Urdu words)
“For anything ye want, ask them before a screen: that makes for greater purity for your hearts
and for their “
In explaining this verse, Ibn Kathir said-

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“Meaning, as I forbade you to enter their rooms, I forbid you to look at them at all. If one
wants to take something from them, one should do so without looking at them. If one wants to
ask a woman for something, the same has to be done from behind a screen”
The prophet enforced separation of men and women at mosque via separation of the women’s
rows from the, men’s rows; Mohammad ordered that mosque should have separate door for
women and men, so that, the men and women, should not be obliged to go and come through
the same door.
Evidence of the foregoing are;
Umm Salamah said that after Allah’s messenger said “as-salamu Alaykam wa Rahmatullah”
twice announcing the end of prayer, women would stand up and leave. He would stay for a
while before leaving.
The staying of the prophet was in order for women to be able to leave safely first before the
men who wanted to depart.
Abu Hurayrah said that the prophet said –
“The best of men’s rows is the first and worst is the last, and the best of the women’s rows is
the last and the worst is the first.”
The farther the, men are from the women’s rows, the better, and vice versa because there was
and still is several complaints that men were indulging in eve teasing and that belonging of
women were stolen. It is also recorded in many registered cases that men would come close
and touch them inappropriately and hence on the saying of prophet in the before mentioned
hadith therefore it is bit for them to be segregated to protect them.
To quote such sexual assault cases, the respondent has relied upon the news article/material
which shows the rise in sexual assault, rape in mosque.
a) 4th March, 2022, Kerala police arrested Sharfuddin who worked as an assistant in the
Madarsa for raping a 13-year-old girl inside a Madarsa.8
b) 14th February, 2022, Hyderabad Muslim cleric Shoaib Akhtar was arrested for raping a
10-year-old boy under Section 377 of IPC.9
c) 2nd June, 2021, Delhi, A 10-year-old girl was allegedly assaulted inside a mosque in
North East Delhi by a 48-year-old accused Mohammad Iliyas who is booked under IPC
Section 376 (rape) and Section 6 of POSCO Act.10
d) There has been sexual assault during Hajj as well in Macca. The Mosque Me Too
movement (#MosqueMeToo) is predominantly a Muslim women’s movement where female

8
https://www.opindia.com/2022/03/sexual-assault-by-muslim-clerics-rapes-of-minors-reported-kerala-
hyderabad-up/
9
https://m.dailyhunt.in/news/india/english/eastcoastdaily-epaper-dhd3ae2ef183494c26b6e979de47c339ca/
minor+boy+raped+while+reading+quran+in+mosque+cleric+absconding+shocking+cctv+footage+video-
newsid-n204934960
10
https://news-abplive-com.cdn.ampproject.org/v/s/news.abplive.com/news/india/delhi-cleric-arrested-for-raping-
minor-inside-harsh-vihar-mosque-1461512/amp?
amp_js_v=a6&amp_gsa=1&usqp=mq331AQKKAFQArABIIACAw%3D
%3D#aoh=16473207762133&csi=1&referrer=https%3A%2F%2Fwww.google.com&amp_tf=From
%20%251%24s&ampshare=https%3A%2F%2Fnews.abplive.com%2Fnews%2Findia%2Fdelhi-cleric-arrested-
for-raping-minor-inside-harsh-vihar-mosque-1461512

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pilgrims speak up about sexual abuse experienced on the Hajj, the Islamic pilgrimage to one
of Islam holiest place, Macca, Saudi Arabia.
e) The movement spread to Muslim women sharing sexual experiences at other Muslim
religious centers and holy places across the world such as at Jama Masjid, New Delhi, India11.
The usage of the ‘Me Too’ in the movement stems from the Me-Too movement which gain
worldwide prominence in the October 2017.
Since the justification for segregation include the safety of women, the need to avoid
distraction during prayers, although the primary reason citied is that this was the tradition
(Sunnah) of worshippers at the time of Muhammad. The direction of the Apex Court under
Vishaka guideline that sexual harassment of women should be prevented in the places of
worship, as laid down in the terms of Sexual Harassment at Workplace Act, 2013 (hereinafter
referred as POSH Act) as well in the “religious institution”.12
Since they can also be encompassed as “workplace” under Section 2, POSH Act. Since most
of these religious institutions are owned by “trust, societies etc.”, which clearly falls within
the ambit of the POSH Act. The compliance required under law to form internal committees
to take into account any complaints of sexual assault/harassment by these bodies is, therefore
a legal requirement. Furthermore, the POSH Act comprehensively mandates various
mechanisms to handle sexual harassment across the country. The Vishakha guidelines13,
though law of the land, are now superseded by the POSH Act. Although what mosques are
doing by prohibiting women is merely a prevention to protect women.
More and more girl students, women’s etc. goes to educational institutions, religious
institutions, which comes under workplace too etc. and their protection is of extreme
importance to a civilized and cultured society. The experiences of women and girl children in
overcrowded are horrendous and a painful ordeal.
If the vishaka guidelines are extended to these religious institutions, it would assist a lot in
reducing sexually related crimes under women at religious places by various religious leaders
or people taking advantages of over crowdedness.
Thus, through the means of following the Quranic principles and Allah’s messenger’s sayings,
it is of significant importance to assure the safety of women and keep them segregated from
men to let them pray fearlessly in Allah’s Darbar, let them feel protected and be away
distraction and claim their rewards by offering Namaj with complete focus also meanwhile
preserving the security and sanctity of the Mosque.
Therefore, the separation imposed by them is well within the scope of their fundamental rights
guaranteed to them under Article 25 and 26 of COI.
The ban is subjected to an exception of reasonable classification originated from Article 14 if
the Constitution.
Article 14 of the Constitution states that the state shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India. For this statement it is

11
#MosqueMeToo : women call out sexual harassment at holy places”. The Quint, retrieved 2018-02-23
12
“Religious institutions” means an institution for the promotion of any religion or persuasion, and includes any
place or premises used as a place of public religious worship, by whatever name or designation known.
13

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clear that no one is above the law of the land and the Rule of Law shall prevail as all are equal
in the eyes of law. But this rule is not absolute and is subject to many expectations.
The Rule of Law cannot prevent a certain class of person from being subject to special laws,
hence, the State has the power to make laws operating differently on different classes of
people, in a way that the principle of equality of civil rights and equal protection of law is
followed. This is being known as ‘Doctrine of Reasonable Classification’.
Article 14 doesn’t mean that every law must be general or same laws should be applied to
everyone. This is because every person is not same. There can be a difference between each
other through nature or circumstances. In present matter also there is a difference in
circumstances of the different classes. Women are surrounded by threat to their modesty.
They need to be protected from sexual assaults molestation, harassment at a sacred place as
mosque. Allowing women to intermingle with men and sit in the front row with them will ring
the alarm of safety concerns and giving such identical treatment in unequal circumstances
would amount to inequality. Hence, there should be differential treatment on the basis of
reasons and rationality. In Ram Krishna Dalmia vs. Justice S.R Tendolkar AIR 195814, the SC
held that it is now well established that while Article 14 forbids class legislation, it doesn’t
forbid reasonable classification for the purpose of legislation. It condemns discrimination not
only by a substantive law but also by a law of procedure.
Hence, Article 14 forbids the class legislation bit it doesn’t forbid reasonable classification,
however this classification must not be arbitrary, artificial or evasive.
In the case of State of West Bengal vs. Anwar Ali Sarkar15, the SC stated that twin test for
reasonable classification. The court held that for the classification pass the test, two conditions
must be fulfilled-
1) Classification must be founded o an intelligible differentia which distinguished close
that are grouped together from others.
2) The differentia must have a rational relation to the object sought to be achieved by the
act.
And as the constitution itself urges the state to take affirmation action or positive
discrimination to further the cause of women under the Article 150, state is empowered to
make any special provision for women. Thus, the Jama Masjid administration as a regulator
safety matter of women into concern especially in mosques where it is deemed necessary.
After Muhammad’s death, due to the detrimental, scary situation of women in society many of
his followers began to forbid women under their control from going to the mosque. Aisha bint
Abi Bekar, a wife of Muhammad, once said “If the prophet had lived now and if he saw what
we see of women today, he would have forbidden women to go to the mosque even as the
children of Israel forbade their women” {Tafir al-Qutubu}
The second caliph Umar also prohibited women from attending mosque specially at night
because he feared there may be occasions of eve teasing by men so he asked them to pray at

14
Ram Krishna Dalmia vs. Justice S.R Tendolkar, AIR 1958, AIR 1958 SC 538
15
State of West Bengal vs. Anwar Ali Sarkar, AIR 1952 SCR 284

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home16 as Islam spread, it became unusual for women to worship in mosque because of male
fear of immortality between sexes17.

ISSUE 2

16
Doi, Abdur Rahman I “women in society” compendium of Muslim texts. University of Southern California
17
Mattsm, Ingrid. “Women, Islam and mosque”. In encyclopedia of women and religion in North America
(Rosemary skinner Keller, Rosemary Radford Reuther, & Marie canton, Ed.) Indiana University press 2006,
P.616

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Whether the fundamental right to equality of Muslim women can be enforced against
non-state actors, i.e., Mosques in this case.

The respondent submits that whatever is outside the ambit of Article 12 is to be termed as
non-state actors, or private bodies. Typically, fundamental rights are available against the
state only and are not available against non-state actors. The state here means the state under
Article 12 of Part III of the constitution of Democratique Aryana. Which reads as follows-

“In this part unless the context otherwise requires, the state includes the government and the
parliament of Democratique Aryana and the government and the legislature of each of the
states and all local and other authorities within territory of Democratique Aryana or under the
control of the government of Democratique Aryana”

The state cannot impose unreasonable restrictions on an individual’s fundamental freedom. In

order to limit someone’s right to life and personal liberty, the state has to adopt just fair and
reasonable procedure. However, all such constitutional remedies are available against the state
action only. In other words, the fundamental rights can be enforced against the stat only. An
individual cannot enforce his fundamental rights against a private individual.

Now what qualifies as a state is explicitly mentioned in the Article itself but what is not clear
is as to what constitutes ‘other authorities’. There is no exhaustive list and only a set of
judicial cases which prescribes what comes within the term other authorities. Causa Celebre
Electricity Board Rajasthan vs. Mohan Lal18, SC held that the phrase would include all
authorities created by the constitution or statues on whom powers are conferred by law,
irrespective whether his body have sovereign or government functions or not. This implies
that non stick actors can also be accommodated under the definition of state provided they
fulfil other requirements as well. It may be considered state s long as the following criteria are
satisfied that,

1) They must be created by statutes

2) Must have the statutory powers to make binding rules regulations and directions, and
3) Subject to deep and pervasive state control
Other than the definition of the state Article 12 among other tings embraces otter authorities
too which refers to authorities other than those of local self-government, who have the power
to make rules, regulations etc having the force of law. Instrumentality agency are the two
terms which overlap to some extent in their meaning. The basic and essential distinction

18
Electricity Board Rajasthan vs. Mohan Lal, 1967 SCR (3) 377

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between an instrumentality or agency of the state and other authorities has to be borne in mind
a authority must be an authority sui juris within the meaning of expression there authorities
under Article 12. A juridical entity, though an authority may also ratify the list of being an
instrumentality or agency of the state in which even such authority may be held to be an
instrumentality or agency of state but not vice versa19

In the case of RD Sheety vs. International Airport Authority 20, the court laid down five tests to
be considered as “other authority” –

1) Entire share capital is owned or managed by the state

2) Enjoys monopoly status
3) Department of government is transferred to corporation
4) Functional character governmental in essence
5) Deep and pervasive state control
6) Object Of authorities
It is submitted in the present matter that it is not clarified in the fact sheet that whether the
mosque is under the control of private body or government. It is neither mentioned that
whether it is registered under Wakf board or not so we are not aware about the category of the
mosque and the nature of its administrative and managerial authority.

Mosque can be categorised in five categories

1) Under direct control or management of the government such as Mecca Masjid or the
Mosque situated in public garden which are not governed or regulated by Muslims
Wakf board.
2) Mosque which are under the direct management of Wakf boards
3) Mosque which are under the control Mutawallis under various Wakfs according to the
wishes of Wakf as the creator of Wakaf,
4) Mosque which are not registered with the Wakf board and are managed by local
inhabitants and are under the management of the public who offer prayers regularly in
the particular Mosque.
5) Mosque which are not managed by Mutawallis or the Muslims of the locality21
In Democratique Aryana the approach adopted by the legal system is very different from
the other countries. The Article 32 of the constitution has provided a way to sue public
bodies in case of any act and omission. However, the scope of application is very
restricted and limited in private sphere in Democratique Aryana the courts has still kept no
express division between what is private and what is public so we can say that in
Democratique Aryana there is little private liability and this is manifested in only few
19
Pardeep Kumar Biswas vs. Indian Institute of Chemical Biology, (2002) 5 SCC 111
20
RD Sheety vs. International Airport Authority, 1979 SCR (3) 1014
21
All India Imam Organisation and other vs. Union of India & Others 1993 AIR 2086

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cases. The government can be held liable for infringing the fundamental rights of the
individuals but such right can’t be exercised against the private bodes regardless of the
disproportionate power wielded by such private body.

The action of Imam was in furtherance of exercising his fundamental right to profess and
propagate religion under Article 25. He can’t be held liable for infringing Article 14 & 15
since the Quranic verses to prohibit women is a preventive measure followed from very
beginning after the prophet’s death seeing the situation of women in the society thereby
avoiding the more severe discrimination against women due to sexual harassment.
Therefore, as a private individual also the Imam can’t be held liable for violating
fundamental right under Article 15 (2) and 15(1) which says no citizen shall on grounds
only of religion race caste sex place of birth or any of them, be subject to any disability,
liability, restriction or condition with regard to

a) Access to shop and public restaurants, hotels and places of public entertainment; or
b) The use of wealth’s tanks, bathing ghats, roads and places of public resort maintained
wholly or partially out of the state funds or dedicated to the use of general public
Therefore, the fundamental right to equality of Muslim women can be enforced against
non-state actors i.e., Mosques in this case.

ISSUE 3

Whether the act of preventing the females from entering Mosque is violative of
Article 44 of the constitution of Democratique Aryana, which encourages the state to

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secure a uniform civil code for all citizens, by eliminating discrepancies between
various personal laws currently in force in the country?

The Respondents submits that Article 44 is not been violated by such segregating of females
followed by Muslim as per their personal laws. The uniform civil code resonates with one
country one rule, to be applied to all religious communities. The term uniform civil code is
explicitly mentioned in Part IV, Article 44 of the constitution which states that

“The State shall endeavour to secure for the citizens a uniform civil code throughout the
territory of Democratique Aryana”.

It means that all sections of the society irrespective of their religion shall be treated equally
according to a national civil code which shall be applicable to all uniformly. But since a
government is founded on faith therefore it is duty bound to promote a religious liberty. And
it must never put the believer at a disadvantage because of his believe. Religion is a matter of
belief or faith. The constitution of Democratique Aryana recognizes the fact that how
important the religion is in the life of people Democratique Aryana and hence provide for the
right to freedom of religion under Article 25 to Article 28.

The constitution of Democratique Aryana envisages a secular model and provides that every
person has the right and freedom to choose and practise his or her religion. In a number of
cases the Apex Court held that secularism is the basic structure of constitution, the most
important being the Kesavananda Bharti Case22. In Democratique Aryana there are religion
specific laws and the constitution supports religious harmony which means that the people of
Democratique Aryana show love and affection to different religions of the country.

In the much Ayodhaya case23 it was held by the Apex Court that the constitution postulates
equality of all faiths through tolerance and mutual co-existence. The secular commitment of
our country and its people can be nourished.

The constitution provides us with Article 25 guaranteeing freedom of religion to all persons in
Democratique Aryana. It provides that all persons in India, subject to public order, morality,
health, and other provisions are equally entitled to freedom of conscience, and have the right
to freely profess, practice and propagate religion. It further provides that this article shall not
affect any existing law and shall not prevent the state from making any law relating to:

22
Kesavananda Bharti vs. State Of Kerela, 1973 4 SCC 225
23
M Siddiq (D) Thr Lrs vs. Mahant Suresh Das & others, (1994) 6 SCC 360

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Regulation or restriction of any economic, financial, political, or any secular activity

associated with religious practice, Providing social welfare and reform, Opening of Hindu
religious institutions of public character for all the classes and sections of the Hindus. But
only in the cases where the practice is not the integral religious practice of the religion.

The Supreme Court in Tilkayat Shri Govindlalji Maharaj V. State of Rajasthan24 held that the
test to determine the question in deciding what is an integral part of a religion is whether it is
regarded as integral by the community following that religion or not.

In Hasan Ali v. Mansoor Ali25 held that Articles 25 and Article 26 not only prevents doctrines
or beliefs of religion but also the acts done in pursuance of religion. It thus guarantees
ceremonies, modes of worship, rituals, observances, etc which are an integral part of religion.
What is the essential or integral part of a religion? This has to be determined in the light of the
doctrines and practices that are regarded by the community as a part of their religion and also
must be included in them.

In present matter the segregation is a mode of worship regarded by the community as part of
their religion and it is included in their religious doctrine too.

The Supreme Court in Commissioner, Hindu Religious Endowments, Madras v. Sri

Lakshmindra Thirtha Swamiar of Sri Shirur Mutt26 ruled that there is no doubt that religion
finds its basis in the system of doctrines regarded by those who profess that religion, but it
will not be correct to say religion is nothing but a doctrine or belief.

In the case of SP Mittal v. Union of India27, the court held that Religion need not be theistic. It
is not merely an opinion, doctrine or belief but has an outward expression in the act as well.
Religion being the recognition of all our duties as divine commands and a system of beliefs
and practices by means of which a group of people struggles with the ultimate problems of
human life. They must be respected, not letting the people profess the same will harm the
unity of the people in our country. Democraiqe Aryana is a diverse country which
incorporates every religion in to it thereby promoting fraternity and secularism.

Bijoe Emmanuel v. State of Kerala28, (Popularly known as the national anthem case.) The
facts of this case were that three children belonging to a sect (Jehovah’s witness) worshipped

24
Tilkayat Shri Govindlalji Maharaj V. State of Rajasthan, 1963 AIR 1638
25
Hasan Ali v. Mansoor Ali, (1948) 50 BOMLR 389
26
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR 282
27
SP Mittal v. Union of India, 1983 AIR, 1 1983 SCR (1) 729
28
Bijoe Emmanuel v. State of Kerala, 1987 AIR 748

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only Jehovah (the creator) and refused to sing the national anthem “Jana Gana Mana”.
According to these, children singing Jana Gana Mana was against the tenets of their religious
faith which did not allow them to sing the national anthem. These children stood up
respectfully in silence daily for the national anthem but refused to sing because of their honest
belief. A Commission was appointed to enquire about the matter. In the report, the
Commission stated that these children were ‘law-abiding’ and did not show any disrespect.
However, the headmistress under the instruction of the Dy. Inspector of Schools expelled the
students. The Supreme Court held that the action of the headmistress of expelling the children
from school for not singing the national anthem was violate of their freedom of religion. The
fundamental rights guaranteed under Article 19(1) (a) and Article 25(1) has been infringed. It
further held that there is no provision of law which compels or obligates anyone to sing the
national anthem, it is also not disrespectful if a person respectfully stands but does not sing
the national anthem.

So, performing prayers behind the men’s row separately doesn’t adversely affect the rights of
others, and as it is mentioned in the Quran, therefore it is an essential religious practice its
absence would alter the Islam fundamentally. It’s mode of worshipping especially prescribed
for both the genders in a particular manner. Furthermore, it is not violating anyone’s
fundamental rights of women instead it is a preventive measure which was enshrined in the
Hadith to safeguard women and make the feel safe at a sacred place like mosque. Article 44 is
used only in the cases where it grossly violates the fundamental rights but instead in the
present case it is preventing the severe discrimination of sexual harassment against women as
lad down in the Vishakha Guideline

PRAYER

In light of the issues raised, arguments advanced and authorities cited, the Counsel for the
Respondent humbly prays that the Hon’ble Court be pleased to adjudge, hold and declare:

1. Dismiss the PIL filed in the present court.

2. Expand the ambit of ‘workplace’ under POSH Act, 2013 to include the religious
denominations in it.

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AND/OR

Pass any order that this Hon’ble court may deem fit in the interest of equity, justice and good
conscience.
And for this act of kindness, the counsel for the Appellant shall duty bound forever pray.

Sd/-

(Counsel for Respondent)

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