Team code: BIL05R

BHARATH INSTITUTE OF LAW MEMORIAL DRAFTING COMPETITION

BEFORE THE HON’BLE

SUPREME COURT OF HILLWOOD

UNDER ARTICLE 32 OF THE CONSTITUTION

OF HILLWOOD

IN THE MATTERS OF

NGO (PEACE) .........................................................................................................PETITIONER

v.

STATE OF HILLWOOD........................................................................................RESPONDENTS

MEMORANDUM ON BEHALF OF THE RESPONDENTS

1
 TABLE OF CONTENTS

Table of Contents….........................................................................................................................2

List of Abbreviations.......................................................................................................................3

Index of Authorities….....................................................................................................................4

Statement of Jurisdiction..................................................................................................................7

Statement of Facts…………………………………………………………………………………8

Question presented………….……………………………………………………………………….10

Summary of Pleadings…...............................................................................................................11

Pleadings........................................................................................................................................12

2
 LIST OF ABBREVIATION

Para Paragraph
Mad Madras
AIR All India Reporter
Art. Article
Ano. Another
Hon’ble Honorable
ed. Editor
& And
Corp. Corporation
v. Versus
IPC Indian Penal Code
BOM Bombay
& And
J. Justice
Ltd. Limited
UOI Union Of India
Anr Another

Ors. Others
HC High Court
SC Supreme Court

SCC Supreme Court Cases

SCR Supreme Court Reporter
Supl. Supplementary
Art. Article

3
 INDEX OF AUTHORITIES

LEGISLATIONS REFERRED

1. THE CONSTITUTION OF INDIA, 1950

2. INDIAN PENAL CODE, 1860

BOOKS REFERRED

1. FUNDAMENTAL RIGHTS AND THEIR ENFORCEMENT [UDAI RAJ RAI]

2. CONSTITUTION OF INDIA M.P. SINGH, V.N. SHUKLA’S [11TH ED.2008]
3. THE INDIAN PENAL CODE [T.BHATTACHARYYA]
4. A.SABITHA, PUBLIC HEALTH: ENFORCEMENT AND LAW [1ST ED. 2008]
5. ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA [2D ED.2007]
6. DARREN J O BYRNE, HUMAN RIGHTS: AN INTRODUCTION [1ST ED.2003]
7. DR.L.M.SINGHVI, FUNDAMENTAL RIGHTS AND CONSTITUTIONAL AMENDMENTS
[1SED.1971]
8. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA [8TH ED 2007]
9. DURGA DAS BASU, HUMAN RIGHTS IN CONSTITUTIONAL LAW [3RD ED. 2008]
10. JAYANT CHAUDARY, HANDBOOK OF HUMAN RIGHTS [1ST ED. 2012]
11. H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA[4TH ED. 2008]
12. M. HIDYATULLAH, CONSTITUTIONAL LAW OF INDIA [1ST ED. 1984]

TREATIES AND CONVENTION

1. UNIVERSAL DECLARATION OF HUMAN RIGHTS [UN], 1948

2. AMERICAN DECLARATION OF RIGHTS AND DUTIES OF MAN [OAS], 1948
3. COMMITTEE ON THE ELIMINATION OF DISCRIMINATION AGAINST WOMEN
[CEDAW]
4. COMMITTEE AGAINST TORTURE[CAT]
4
5. COMMITTEE ON THE RIGHTS OF THE CHILD [CRC]
6. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
HUMAN RIGHTS COMMITTEE

WEBSITES REFERRED

1. www.manuoatra.com
2. www.indiankanoon.com
3. www.lexisnexis.com/in/legal
4. www.scconline.co.in
5. www.oxforddictionaries.com

CASES REFFERED

1. Maneka Gandhi V. Union of India, 1978 AIR 597, 1978 SCR (2) 621
2. Ramesh thappar v. The State of Madras, 1950 AIR 124,1950 SCR 594
3. Sunil batra v. Delhi Administration, 1980 AIR 1579, 1980 SCR (2)557
4. Bandhua mukti morcha v. Union of India, 1984 AIR 802, 1984 SCR (2) 67
5. Peoples’s Union for Democratic Rights V. Union of India AIR 1982 SC 1473
6. Sri Venkataramana a devaruand v. The State of Mysore, 1958 AIR 255,1958 SCR 895
7. Sheela barse v. state of Maharashtra, 1983 AIR 378, 1983 SCR (2) 337
8. A.S. Narayana deekshitulu v. state of Andhra Pradesh. 1996 AIR 1765 JT 1996 (3) 482
9. Pannalal Bansilal Patil v. The State of A.P, AIR 1996 SC 1023
10. Indian Young Lawyers Association v. State of kerala,[2018(8) SCJ 609]
11. Madras v. Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt 1954 AIR 282, 1954 SCR 1005
12. Bramchari Sidheshwar Bhai v. State of West Bengal, 1995 AIR 2089,1995 SCC(4) 646
13. Acharaj Singh v. State of Bihar, AIR 1967 Pat 114
14. Shayara bano v. Union of India, [(2016) 2 SS 725]
15. Sardar Syedna v. State of Bombay,[AIR 1962 SC 853]
16. Manoj narula v. Union of India, (2005) 7 SCC 52
17. Chief Justice Sunil Ambwani and Justice v. Siradhana,
18. S.P. Gupta v. Union of India, AIR 1982 SC 149, 1981 SUPP (1) SCC87, 1982 2SCR 365
19. Yasmeen zuber ahmad peerzade & Anr petitioner v. Union of India & Ors
5
20. Shayara bano v. UOI, (2016) 2SS 725
21. Sardar syedna v. State of Bombay, (AIR 1962 SC 853)
22. C.R.H.Readymoney ltd. And Anr v. state of Bombay, AIR 1958 BOM 181,(1957) 59 BOMLR
786, 1958 CrilJ 607,ILR 1958 BOM 128
23. K.P.Hussain Reddy and Ors. V. Executive Engineer, 2003 (1) ALD 43, 2003 (3) ALT 143
24. State of Gujarat v. Govindbhai Jakhubhai and Anr, 2000ACJ 1305, AIR 1999 Guj 316,(2000) 2
GLR 1085
25. Basheshar Nath v. The Commissioner, 1959 SCR SUPL. (1) 528
26. A.K.Roy, etc v. UOI and Anr, 1982 AIR 710, 1982 SCR (2) 272
27. A.G.Kazi and Ors. V. C.V. Jethwani,AIR 1967 Bom 235,(1966) 68 BOMLR 529
28. Kharak Singh v. State of U.P. and others, AIR 1963 SC 1295
29. Vithalrao Udhaorao Uttarwar and v. The State of Maharashtra, AIR 1977 BOM 99.
30. Narayan v. State of Andhra Pradesh, AIR 1996 SC 1765

6
 STATEMENT OF JURISDICTION

THE PETITIONER HUMBLY SUBMITS TO THE JURISDICTION OF THIS

HONOURABLE COURT UNDER ARTICLE 32 OF THE CONSTITUTION. THE
PETITIONER HAS APPROACHED THIS HONOURABLE COURT IN APPREHENSION OF
THE VIOLATION OF FUNDAMENTAL RIGHTS ENUMERATED IN PART III OF THE
CONSTITUTION. THE RESPONDENT MAINTAINS THAT NO VIOLATION OF
FUNDAMENTAL RIGHTS HAS TAKEN PLACE. THEREFORE, THIS HON’BLE COURT
NEED NOT ENTERTAIN IT’S JURISDICTION IN THIS PUBLIC INTEREST LITIGATION.

7
 STATEMENT OF FACTS

1. Hillwood is a nation with the population of 10 million, 20% of which practices/belongs to the
religion Zensufi. Zensufi religion further has two classifications/categories/sections, zen and
Gen. Aerith is a 13 year old school going girl who lives in the state of Brussels of Hillwood. She
celebrated her 13th birthday on 14-10-2-22 by inviting all her friend to her home, and everyone
had a god time. After a week post all these events, her teachers came to know that she was
subjected to a religious practice called “ANTAHK” by her family members. Antakh which
means circumcision is a barbaric process which involves the removal of either parts of or the
entire gentalia of a woman. Zen community to which Aerith belongs has been practicing this
ritual as a part of their religion for a long period of time. The practice aims to ‘regulate female
sexuality and moderate sexual desires’.

2. Ramgarh is a small town in the State of Rajputanagarh in the northern part of Hillwood.
Ramgarh is also known for the Sufi movement which demonstrates cultural practices which
were heavily criticized by the society at that time but it still continues to thrive. It is the belief of
the followers that it is only through these practices that nearness to the Almighty can be
attained. Mr. Mahadev is a devout follower of Ahinsaism and is greatly influenced by the
teachings contained in the Book of Ahinsa. One of the most essential legal practices of
Ahinsaism is ‘Manatana’ according to which the followers after completing the age of 50 decide
to let go of all the worldly pleasures including food and hence end their lives to attain moksha.

3. Mahadev is also an employee of a multinational company. He often made complaints to the

management that his company indulged in practices which resulted in environmental
destruction. The long working hours at his office disturbed his psychological wellbeing and he
had to take the assistance of a psychiatrist because of that. And was into depression. One day
decided to opt for ‘Manatana’ which according to him was the pathway to God, for the purpose
of saving his life, a complaint was filed to the police against Mr. Mahadev But the police
officers refused to file the FIR under section 309 of IPC because ‘Manatana’ is regarded as an
essential religious practice of Ahinsaism. Hillwood has a state called Saakar in which there is a
district known as Narina. The district is popularly known for their “FIREWALKING” and
8
 “LANCE PIERCING” ritual which will be conducted once in a year with enormous population
and they believe. Veera is a 42-year-old man and has 2 children Zaara [15 years] and Aaditya
[17 years] were living in slum area at Narina. Veera never failed to attend the “Firewalking” and
Lance piercing” ceremony. This year Veera planned to make Zaara and Aaditya participate in
the “Firewalking” and Lance piercing” ceremony. Aaditya tried to convince his father that he
has an upcoming competition in 15 days and this will severely injure his feet and Zaara was
worried about her exams.

4. On 30th January 2022 at 11:00AM the ceremony was ready to get started, Veera is making sure
of the procedures and gave a head start of the “Firewalking” ceremony and “Lance piercing”
followed by him Aaditya started his walk but suddenly a person behind Aaditiya made a run and
tripped his foot and fell down by grabbing Aaditya. Aaditya as a result of his fall got burnt
particles stuck into his eyes and lost his vision and suffered severe ligament tear in his knees
and ankle. On the other hand Zaara after Lance piercing she was unable to eat. Further, she got
admitted in the hospital and found to be anemic. Thus, she was unable to attend her
examination.

5. Now, these four religious practice (Antahk, Manatana, Firewalking and Lance piercing) followed
across the country became a sensational news in the social media and magazines by a slogan of
#cruel religious practice. ‘PEACE’ is a NGO which has been continuously working for more
than twenty years against superstitious belief and religious practices which are cruel to mankind
that is followed by the Hillwood’s citizens. This NGO filed a PIL before the Hon’ble Supreme
Court under Article 32 of Constitution of Hillwood against various religious practices such as
Antahk, Manatana, Firewalking and Lance piercing followed by people of various religions all
around the country which are cruel to mankind and violating several fundamental rights of the
followers. The petition has been filed before the Hon’ble Supreme Court of Hillwood.

9
 QUESTIONS PRESENTED

1. Whether the PIL petition filed by the petitioner is maintainable before this apex court?

2. Whether customary law of Antahk, Fire walking and Lance piercing violates the
fundamental right of an individual and protected as an essential religious practice?

3. Whether the practice of Antahk discriminates against women and girls and violates
Articles 14 and 15 of the Constitution?

4. Whether Manatana is an ‘essential legal practice’ of Ahinsaism and contradicts Section 309
of IPC

10
 SUMMARY OF PLEADINGS

1. Whether the PIL petition filed by the petitioner is maintainable before this apex court?

The respondents contend that there has been no violation of fundamental right in the present case. A
petition can be filed under Art. 32 of the constitution only when the fundamental right is violated. But in
this present case of Hillwood, the respondent contend there has been no violation of fundamental rights.
Thus, the public interest litigation is not maintainable before this Hon’ble Apex Court.

2. Whether customary law of Antahk, Fire walking and Lance piercing violates the
fundamental right of an individual and protected as an essential religious practice
The respondent humbly submitted before the Hon’ble court that the customary law of Antahk,
fire walking, and lance piercing does not violate the fundamental rights of the individual as they
are practiced as a freedom of religion. and it is the fundamental right of an individual to practice
these ritual according to article 25 and 26 of the constitution. Every person has the right to
freedom of conscience and the right to freely profess, practice and propagate their own religion.
Hence, the customary law of these rituals does not violate the fundamental rights of the
individual of the Hillwood region.

3. W h e t h e r t h e p r a c t i c e o f A n t a h k d i s c r i m i n a t e s a g a i n s t w o m e n a n d
girls and violates Articles 14 and 15 of the Constitution?
It is humbly submitted before the Hon’ble Court that, Article 14 and Article 15 of the
Constitution have not been violated and the practice of Antahk ritual is just a part of the religious
ceremony. As this practice of ritual is done to women it does not mean, this ritual of Antahk
discriminates women. It is the fundamental right of the individual to practice these rituals and
follow their own religion as freedom of religion under Article 25 and 26 of the constitution.

4. Whether Manatana is an essential legal practice of Ahinsaism and contradicts section 309
of IPC?
It is humbly submitted before the Hon’ble Court that, Manatana of Ahinsaism is an essential
legal practice as all religions are treated alike and enjoy equal constitutional protection without
any favour or discrimination. People of Hillwood who are practicing these rituals are granted
their fundamental freedom of religion.
11
 PLEADINGS

1. Whether the PIL petition filed by the petitioner is maintainable before this apex court?

The respondent humbly submitted before the Hon’ble court 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. In the present case of Hillwood, there has been no
violation of the fundamental rights since, the people of Hillwood are only involved in the
practice such ritual as a freedom of religion. The PIL petition filed before the apex court cannot
be maintainable before the apex court. The respondent contend that there has been no violation
of fundamental right in the present case. Since, the action taken by the state was in furtherance
of the principle of economic and social justice. A petition can be filed under Art. 32 of the
constitution only when the fundamental right is violated. Thus, the public interest litigation
petition is not maintainable.

1.1. Religion according to the Indian Constitution

The German philosopher Immanuel Kant defines religion as “Religion is the recognition of all
our duties as divine commands”. Milton Yinger, American sociologist defines religion as “a
system of beliefs and practices by means of which a group of people struggles with the ultimate
problems of human life”. The constitution does not define the term ‘religion’ and ‘matters of
religion’. Hence, It is left to the Supreme Court to determine the judicial meaning of these terms.

A.S. Narayan v. State of Andhra Pradesh, AIR 1996 SC 1765 2 in this case, Justice Hansaria
observed that “our constitution makers had used the word “religion” in these two articles
(Articles 25 and 26) in the sense conveyed by the word ‘dharma’.” He further explained the
difference between religion and dharma as “religion is enriched by visionary methodology and
theology, whereas dharma blooms in the realm of direct experience. Religion contributes to the
changing phases of a culture; dharma enhances the beauty of spirituality. Religion may inspire
one to build a fragile, mortal home for God; dharma helps one to recognize the immortal shrine
in the heart.” Article 25 in The Constitution of India 1949 states the following3,

1
Article 32 of the Indian constitution 1949
2
A.S. Narayan v. State of Andhra Pradesh, AIR 1996 SC 1765
3
Article 25 and 26 if the constitution
Art.25. Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality and health and to the other provisions of this Part, all
persons are equally entitled to freedom of conscience and the right freely to profess, practice and
propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from
making any law
(a) Regulating or restricting any economic, financial, political or other secular activity which
may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions
of a public character to all classes and sections of Hindus Explanation I The wearing and
carrying of kirpans shall be deemed to be included in the profession of the Sikh religion
Explanation II In sub clause (b) of clause reference to Hindus shall be construed as including a
reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu
religious institutions shall be construed accordingly.

As per the law, it is explicit that freedom of professing a religion is fundamental human rights.
Hence the people of Hillwood region are not violating the fundamental rights hence they are
involved in practicing their religious ritual as a human right. Being a secular country it does not
have its own religion and every citizen has the right to choose, practice, propagate and even
change his or her religion.

Art.26. Freedom to manage religious affairs

Article 26 (subject to public order, morality, and health) confers a right on every religious
denomination or any section of such religious denomination of:
 Establishing and maintaining institutions for religious and charitable purposes;
 Managing its affair with regard to religion;
 Owing and acquiring property (movable and immovable);
 Administering the property in accordance with the law.
 Religious denomination

The word ‘religious denomination’ is not defined in the constitution. The word ‘denomination’
13
 came to be considered by the Supreme Court in the case of Commissioner, Hindu Religious
endowment Madras v. Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt 4. In this case,
the meaning of ‘Denomination’ was culled out from the Oxford dictionary, “A collection of
individuals classed together under the same name, a religious sect or body having a common
faith and organization designated by a distinctive name”.

Bramchari Sidheshwar Bhai v. State of West Bengal 5In this case, The Ram Krishna Mission
wanted to declare itself as a non- Hindu minority where its members were to be treated as
Hindus in the matter of marriage and inheritance but in the religious sense to be recognized as
non-Hindus. This would certainly mean that they are given the status of legal Hindus but
religious non- Hindus, similar to Sikhs and Buddhists. To this, the Supreme Court ruled that it
cannot be claimed by the followers of Ram Krishna that they belong to the minority of the Ram
Krishna Religion. Ram Krishna Religion is not distinct and separate from the Hindu religion. It
is not a minority based upon religion. Hence, it cannot claim the fundamental right under Article
30 (1) to establish and administer institutions of education by Ram Krishna Mission.

Right to manage its own affairs in the ‘Matters of Religion’

Matter of religion includes religious practices, rituals, observances, ceremonies, mode and
manner of worship, etc., regarded as the essential and integral part of the religion. For instance,
in Acharaj Singh v. State of Bihar 6it was held that, if Bhog offered to the deity is a well-
established practice of that religious institution, such a practice should be regarded as a part of
that religion.

1.2. PIL Petition in the matters is non-maintainable at the behest of strangers.

It is noteworthy that there are numerous cases where the religious practices or matters relating to a
religion are questioned in the petition, but the same is primarily attached to academic objections by
non-devotees, seeking rights not vested in them; and hence, not maintainable. it can be suggested
that the loosening of standing rules [through the institution of PIL] was intended to ensure the
representation of those who could not represent themselves, and not to transform the Court into a
super-legislature, where any social question might be agitated by any person, even if being a total
stranger to the case.
4
Madras v. Shri Laxmindra Thirtha Swamiar of Shri Shirur Mutt
5
Bramchari Sidheshwar Bhai v. State of West Bengal
6
Acharaj Singh v. State of Bihar
14
 And, thereby, in such cases petitioners, or subsequent interveners, who are totally, stranger to the
cause cannot maintain the petition under A/32 of the Constitution of India in as much as no right
affecting the public at large is involved. The question involved is purely relating to a particular
Religion or religious practices. It is also of seminal value to note that such kind of petitions are also
not maintainable without impleading a worshipper/ believer/ devotee of the Religion or practice in
question; at least in a representative capacity.
Thus, the court must take all of this into regard while deciding on religious questions at the behest
of association/interveners who are “involved in social developmental activities, especially activities
related to the upliftment of women and helping them become aware of their rights”, and who do not
actually subscribe to the faith, as the same does not satisfy the condition to move the Supreme
Court under Article 32 even if the same might be glossed as being a PIL aimed at serving the larger
public good. And there is no violation of fundamental rights, the people of Hillwood are only
involved in the practice of rituals due to their faith and they are forced by no other people the right
to practice a ritual comes along with the right to freedom.
While A/14 permits a reasonable classification having a rational nexus to the objective sought to be
achieved, it does not permit the power to pick and choose arbitrarily out of several persons falling
in the same category. The right to equality under A/14 in matters of religion and religious beliefs
has to be viewed differently 7. It has to be adjudged amongst the worshippers of a particular religion
or shrine, who are aggrieved by certain practices which are found to be oppressive or pernicious;
and can be invoked only by persons who are similarly situated, that is, persons belonging to the
same faith, creed, or sect.
Furthermore, any petitioner that challenges a religious tradition must establish locus standi in a
personal context so as to balance the rights of those that have a personal stake in tradition against
others that do not; else, by permitting PILs in religious matters at the behest of non-practitioners,
the Supreme Court will be allowing interlopers to question religious beliefs and practices. A person
concerned with the private or personal rights of the other would lack the locus standi to file PIL.
The right to religion and right to worship must be based on the affirmation of a belief in the
particular manifestation of the deity; and since, the matters of conscience, religious belief, and
religious practice, are among the deepest and most personal issues for the individual, there seems to
be something rather strange in one person agitating for the religious rights of a completely different
person. Moreover, it is essential to note that, in matters of religion, a PIL at the hands of strangers
cannot subsist for the very fact that they do not verify the “sufficient interest test”; and thereby, in
7
Article 14 of the Indian constitution, 1949
15
 these cases, only those who are actually aggrieved by the state action can file the petition, either in
private or in representative manner.
Thus, in the cases where the devotees of faith, belief or Religion have not challenged the practices
followed therein, based on the essential characteristics of the Religious practice or even the Deity; it
is not for the courts to normally delve into issues of religious practices, especially in the absence of
an aggrieved person from that particular religious faith, or sect.

Thereby, the petitioners would not have the locus standi to file a P.I.L., in case they are neither the
aggrieved devotees, nor any scholars in the Religion. The same should be the fate of a petition
where neither any necessary party is impleaded, nor does the petition disclose any cause of action.
In this regard, they must appear to be mere busy bodies or meddlesome interlopers. The respondent
contend that there has been no violation of fundamental right in the present case. Since, the action
taken by the state was in furtherance of the principle of economic and social justice. A petition can
be filed under Art. 32 of the constitution only when the fundamental right is violated 8. Thus, the
public interest litigation petition is not maintainable.

1.2.1. PIL : The basis on which PIL can be rejected by the court of law

The concept of Public interest litigation in India was propounded by the Supreme Court in an
important Judgement in the Judge’s transfer’s case. Since then, it has become one of the important
weapons in the hands of higher judiciary to enforce the legal and constitutional obligation of
executive and legislature towards the interest of the public at large. The concept of PIL has
emanated from the power of judicial review enjoyed by the higher courts in India. Again if on
hearing the petition, the court finds that no fundamental right of the person of the group is violated,
it can reject the Public Interest Litigation. Thus , in this present case of Hillwood no rights of the
individual of that region have been violated and thus this petition can be rejected by the court of
law.

8
Article 32 of the Indian constitution, 1949
16
 2.Whether customary law of Antahk, Fire walking and Lance piercing violates the
fundamental right of an individual and protected as an essential religious practice?

The respondent humbly submitted before the Hon’ble court that, the customary law of Antahk,
Fire walking and Lance piercing does not violate the fundamental right of an individual
because they are protected as an essential religious practice, every person has the right to
freedom of conscience and the right to freely profess, practice and propagate their own religion.
Hence, the customary law of these rituals does not violate the fundamental rights of the
individual of the Hillwood region.

2.1 .Rights to practice their religious rituals of Antahk, fire walking and Lance piercing as a
Fundamental rights
2.1.1. Antahk as a religious ritual

The people of Hillwood argue that ‘ANTAHK’ (female circumcision) is a religious practice and
hence is protected under Articles 25 and 26 of the Constitution as their fundamental rights. The
people of Hillwood disagree with the claim that their practice is discriminatory against women.
Both women and men in the community are required to be circumcised. Antahk that is female
circumcision to describe the Hillwood community’s practice. People of Hillwood claim that
female circumcision is practiced in a safe and non-mutilating manner by the peopleof Hillwood
and it is their fundamental right as a freedom of religion. Therefore Antahk (female
circumcision) is an essential religious practice of the Hillwood region.

In the case of Sunita Tiwari v. Union of India 9. The majority of Dawoodi Bohras are opposed
to a ban. They argue that circumcision is a religious practice and hence is protected under
Articles 25 and 26 of the Constitution 10. They disagree with the claim that their practice is
discriminatory against women. Both women and men in the community are required to be
circumcised. Mr. A.M. Singhvi, a lawyer representing members of the community, argues
against using ‘female genital mutilation’ to describe the community’s practice. He claims that
female circumcision is practiced in a safe and non-mutilating manner by Dawoodi Bohras. Mr.
Singhvi questions the relevance of the WHO’s report, given that it pertains to FGM, not
9
Sunita Tiwari v. Union of India
10
Article 25 and 26 of the constitution, 1949.
 circumcision.

On September 24th, 2018, the Division Bench referred the case to a Constitution Bench. The
Division Bench held that the case necessitates an assessment of whether female circumcision is
an essential religious practice. DBWRF said SC allowed it to become "party to the PIL to voice
its opinion as this would have serious consequences on the religious and cultural beliefs and
practices of the women of the community, Since the day DBWRF was formed, we have
maintained that FGM and FC are two different procedures, and we are committed to working
towards raising awareness of about fact."

According to this case law it is clear that, female circumcision is an essential religious ritual of
the Hillwood people. And this religious ritual of Hillwood is protected under articles 25 and 26
of the constitution of India11

2.1.2. Ritual and Religious faith of the Hillwood people on fire walking and lance piercing

Ritual is a religious service which involves a series of actions performed in a fixed order. In
other words, a ritual is a way of behaving as per prescribed or established form of religious
ceremony. It is observance of a set form or system of rites as a part of public/private worship.
Rituals are practices, services or procedures done as rite, especially at regular intervals in set
precise manner. Religious rituals reinforce the basic tenets of religion. When rituals make people
feel good, they reinforce the belief that their religion in the correct one. Religions have their own
rituals attached to their beliefs. Some rituals across religions (like fasting) that is manatana, fire
walking, lance piercing etc. they are specific to one religion while others are practiced
throughout. Ritual gives shape to emotions and helps humans come to terms with the major
events of life. They have generally been seen as indispensable in deepening spiritual insight. The
These Rituals of Hillwood people motivate and move us. Our ancient ancestors used the bond of
rituals to create ties of kinship necessary for survival in a world full of dangers.

Ritual is often described as a symbolic expression of actual social relations, status or the role of
individuals in the society, and it is the right of every individual in the Hillwood region to
practice the ritual which they like to follow as they are very religious people. Their religious
rituals performed at times to please gods and overcome their displeasure with supplications and
offerings by doing this kind of rituals.

Right to freedom of Religion of Hillwood people

11
Article 26 of the constitution, 1949.
18
 The concept of religious freedom has been considered as one of the most controversial topics
upon which the highest court of appeal is silent. The Preamble of the Indian constitution declares
India to be a “Secular State”[1] which explains that the state does not recognize any religion as a
state religion and that it treats all religions, equally and with equal respect without in any manner
interfering with their individual rights of religion, faith and worship. Article 25 to 28 seeks to
protect religion and religious practices from the Sate interferences. India has no preferred
religion or State religion, as such; all religions are treated alike and enjoy equal constitutional
protection without any favour or discrimination. The state has no religion of its own. It should
treat all religion equally. The 42nd Amendment Act of 1976 which has inserted the word
“secular” in the Preamble gives a new impetus to the citizens of India to have freedom of
religion. The right of worship was granted by God for man to worship as he is pleased. There
can be no compulsion in the law of any creed or practice of any form of worship.

In S.R. Bommai V. Union of India 12, The Supreme Court has held that “Secularism is a basic
feature of the Indian Constitution”. The State shall treat equally all religions and religious
denominations. Religion is a matter of individual faith and cannot be mixed with secular
activities. Secular activities can be regulated by the state by enacting the law. Justice
Ramaswami observed that secularism is not Anti- God. In the Indian context secularism is a
positive concept. Thus, the Indian context embodies the positive concept of secularism and has
not accepted the American doctrine of secularism that is the concept of erecting “a wall of
separation between Religion and State”. The concept of positive secularism separates
spiritualism from individual faith. The state is neither anti-religion nor pro-religion. In matters of
religion, the state is neutral and treats every religion equally.

In Lily Thomas v. Union of India13, the Supreme Court explained that religion was a matter of
faith stemming from the depth of the heart and mind and that religion, faith or devotion was not
easily interchangeable. [7:56 pm, 21/11/2022] angel: Right to Freedom of religion under Indian
Constitution. The right to “Freedom of religion” is embodied under articles 25 to 28 of the
constitution of India. Various rights which constitute the rights to have religious freedom are-

Freedom of conscience and the right to freely profess, practice and propagate religion
(Article 25).

Freedom of Conscience and the right to profess practice and propagate religion (Article 25) that

12
S.R. Bommai V. Union of India
13
Lily Thomas v. Union of India
19
 is, Clause (1) of Article 25 provides; “Subject to public order, morality and health and to the
other provision of this Part, all the person are equally entitled to freedom of conscience and the
right freely to profess, practice and propagate religion”. This article secures to every person.

 Freedom of conscience

 The right to profess religion, practice religion and propagate religion.

Freedom of conscience

The expression “freedom of conscience” means the inner freedom of the person to choose any
religion of his choice. It also means the inner freedom of the person to mold his relations with
his/ her god in whatever manner he likes. It connotes a person’s right to entertain his beliefs and
doctrines, concerning matters which are regarded by him to be conducive to his spiritual
wellbeing. It means to believe in one religion or another or none. Thus, every person in India,
therefore, has the freedom to have faith and belief in the religious tenets of any sect or
community. Freedom of conscience as mentioned above means the freedom to hold or to
entertain religious beliefs. Any belief which is genuinely and conscientiously held or any
religious belief, as may be approved by his /her judgement or conscience, attracts the protection
of Article 25(1). It simply means the freedom of religious opinions. Until this inner belief is
expressed in any outward form, it is merely the “freedom of conscience”.

Right to profess religion

Article 25(1) guarantees the right to profess religion. To “profess” means “to avow publicity; to
make an open declaration of; to declare one’s belief in; as to profess Christ: to accept into
religious order14. Thus, to profess a religion means to declare openly and freely his/her faith
towards one religion. When the inner “freedom of conscience” becomes articulate and expressed
in an outward form, it amounts to profession of religion. It is to declare one’s belief in such a
way that it would be known to those whom it may concern.

Right to Practice Religion

To practice any religion means performing religious obligations, duties, rites, ceremonies and
rituals. The expression “practice of religion” means acts done in pursuance of religious beliefs.
Religious practices which are included under Article 25(1) refer and include practices which are
an integral part of the religion itself that is the beliefs and doctrines which are regarded by those

14
Article 25(1) of the constitution, 1949.
20
 who profess religion, to be conducive to their spiritual well- being.

Rights of the Hillwood people to practice Fire walking and Lance piercing

The ritual of walking on the fire is known as fire walking. People of Hillwood are often involved
in the practice of fire walking to prove their believes towards god. Lance piercing is also a
religious ritual the people follow inorder to prove their spirituality. And people of Hillwood are
having their fundamental rights to follow their religion and ritual process.

Lance piercing by the people of Hillwood as a religious ritual is usually done by the people of
that region. They believe that by practicing such ritual will gain them success and take away
their worries. Hence, there is nothing wrong in believing their religion and the rituals. People
have different religious beliefs and everyone as an individual has the right to practice such rituals
as mentioned in their religion. The Article 25 to 28 seeks to protect religion and religious
practices from the Sate interferences. India has no preferred religion or State religion, as such; all
religions are treated alike and enjoy equal constitutional protection without any favour or
discrimination15. The state has no religion of its own. It should treat all religion equally.
Worshipping God should be according to the dictates of one’s own conscience.

Right to the propagation of religion

Propagation simply means to spread and publicize one’s religious views. Holding public
meetings by persons for propagating their religion is held to guarantee under Article (1). But to
“propagate religion” indicates the persuasion and exposition without any element of coercion. It
does not include the right to insult the religion of others. The right to propagate one’s religion
does not give any right to others to convert other people into their religion. What article 25 (1)
guarantees is the right to practice, profess and propagate and does not provide any right to
convert another person to one’s own religion, but to transmit or spread one’s religion by an
exposition of its tenets. Article 25 guarantees “freedom of conscience” to every citizen, and not
merely to the followers of one particular religion. It, therefore, postulate that there is no
fundamental right to convert another person to one’s own religion because if person purposely
undertakes to the conversion of another person to his religion as distinguished from his efforts to
transmit or spread the tenets of his religion that would impinge on the “Freedom of Conscience”,
guaranteed to all citizens of the country alike. Hence it is the fundamental rights of the citizen to
practice, profess and follow their religion

15
Article 28 of the Indian constitution, 1949.
21
 3. Whether the practice of Antahk discriminates against women and girls and violates
Articles 14 and 15 of the Constitution?

The respondent humbly submitted before the Hon’ble court that, the practice of Antahk does not
discriminate against women and girls and does not violate the article 14 and 15 of the Indian
constitution. The practice of religious ritual by the people of Hillwood is one among their
fundamental rights. And thus practicing of such ritual will not discriminate women and girls and
there is no violation of their fundamental rights.

3.1. Antahk does not violate Article 14 and 15 of the constitution

The practice of Antahk does not discriminate against women and girls and does not violate the
article 14 and 15 of the Indian constitution. The practice of religious ritual by the people of
Hillwood is one among their fundamental rights. And thus practicing of such ritual will not
discriminate women and girls and there is no violation of their fundamental rights. Every person
has the right to practice the ritual and religion which they believe and it is one among the
fundamental rights of the individual to profess, practice and follow the rituals of their choice.

The practice of Antahk is not a practice which discriminates women and girls, the practice of
Antahk is just a part of their religious ceremony and it is the right of the individual to practice
such rituals. The people of Hillwood are very religious people who involve in such practices.
Hence there is no violation of fundamental rights.

In the case of the people of Hillwood argue that ‘ANTAHK’ (female circumcision) is a religious
practice and hence is protected under Articles 25 and 26 of the Constitution as their fundamental
rights. The people of Hillwood disagree with the claim that their practice is discriminatory
against women. Both women and men in the community are required to be circumcised. Antahk
that is female circumcision to describe the Hillwood community’s practice. People of Hillwood
claim that female circumcision is practiced in a safe and non-mutilating manner by the peopleof
Hillwood and it is their fundamental right as a freedom of religion. Therefore Antahk (female
circumcision) is an essential religious practice of the Hillwood region.

In the case of Sunita Tiwari v. Union of India16. The majority of Dawoodi Bohras are opposed

16
Sunita Tiwari v. Union of India
22
 to a ban. They argue that circumcision is a religious practice and hence is protected under
Articles 25 and 26 of the Constitution. They disagree with the claim that their practice is
discriminatory against women. Both women and men in the community are required to be
circumcised. Mr. A.M. Singhvi, a lawyer representing members of the community, argues
against using ‘female genital mutilation’ to describe the community’s practice. He claims that
female circumcision is practiced in a safe and non-mutilating manner by Dawoodi Bohras. Mr.
Singhvi questions the relevance of the WHO’s report, given that it pertains to FGM, not
circumcision. On September 24th, 2018, the Division Bench referred the case to a Constitution
Bench. The Division Bench held that the case necessitates an assessment of whether female
circumcision is an essential religious practice. DBWRF said SC allowed it to become "party to
the PIL to voice its opinion as this would have serious consequences on the religious and cultural
beliefs and practices of the women of the community, Since the day DBWRF was formed, we
have maintained that FGM and FC are two different procedures, and we are committed to
working towards raising awareness of about fact." Hence, through this case law as a reference, it
is explicit that there is no violation of fundamental rights under Article 14 and 15 of the
constitution. And this is a total religious ritual that particular Zen community people practice, so
there is also no discrimination against women and girls.

3.2. There is no violation of Article 14 and 15 of the Constitution

According to this case law it is clear that, female circumcision is an essential religious ritual of
the Hillwood people. And this religious ritual of Hillwood is protected under articles 25 and 26
of the constitution of India. The practice of Antahk by the people of Hillwood are practicing this
ritual as a religious ritual. people of Hillwood have the right to manage its own affairs in the
‘Matters of Religion’

Matter of religion

Matter of religion includes religious practices, rituals, observances, ceremonies, mode and
manner of worship, etc., regarded as the essential and integral part of the religion. For instance,
in Acharaj Singh v. State of Bihar 17it was held that, if Bhog offered to the deity is a well-
established practice of that religious institution, such a practice should be regarded as a part of
that religion. Hillwood being a secular country it does not have its own religion and every citizen
has the right to choose, practice, propagate and even change his or her religion. However, these
rights are not absolute but subject to certain restrictions provided by the constitution, but in this
17
Acharaj Singh v. State of Bihar
23
 case of matter it is ever persons own choice to practice such rituals as they believe.

Violation of Articles 25 and 26 of constitution

Every there has been a violation of Articles 25 and 26 of the constitution. Because by these facts
are violating the fundamental rights of an individual, every person has the right to follow,
worship, practice, according to their belief. Hence, by interfering in one’s personal belief there is
a violation of the fundamental rights. According to Article 25 and 26 of the Indian constitution
no one’s right to profess or practice any religious ritual can be violated. Hence, there is a
violation of fundamental rights by no allowing an individual to practice the rituals of Hillwood
people.

In Hasan Ali v. Mansoor Ali 18the Bombay High Court 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. In the case of SP Mittal v. Union of India 19, 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.

A.S. Narayan v. State of Andhra Pradesh, AIR 1996 SC 1765 20, In this case, Justice Hansaria
observed that “our constitution makers had used the word “religion” in these two articles
(Articles 25 and 26) in the sense conveyed by the word ‘dharma’.” He further explained the
difference between religion and dharma as “religion is enriched by visionary methodology and
theology, whereas dharma blooms in the realm of direct experience. Religion contributes to the
changing phases of a culture; dharma enhances the beauty of spirituality. Religion may inspire
one to build a fragile, mortal home for God; dharma helps one to recognize the immortal shrine
in the heart.” Hence these case laws prove that, violation of freedom of religion is a serious
offence and in this present matter of Hillwood it is notable that there has been violation of
fundamental rights of the people of Hillwood but not allowing them to follow their religious
rituals, thus by violating the Article 25 and 26 of the constitution.

Article 14 in the Constitution of India 1949

Article 14 of the constitution of India states that, Equality before law The State shall not deny to
any person equality before the law or the equal protection of the laws within the territory of India
18
Hasan Ali v. Mansoor Ali
19
SP Mittal v. Union of India
20
A.S. Narayan v. State of Andhra Pradesh, AIR 1996 SC 1765
24
 Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth.

According to Article 14 the Indian constitution, there is no violation of equality before law. And
there is no violation of Article 14 of the constitution, as the people of Hillwood are only
involved in process of practicing their religion and there is no need for violation of such rights
based on discrimination against women. This practice of Antahk is only for religious purpose as
it is their belief which they follow up for years.

Hence, by the practice of Antahk there is no discrimination against women or girls and there is
no violation of Article 14 of the constitution as this ritual of Antahk is only a form of their belief.

Article 15 in the Constitution of India 1949

Article 15 of the constitution states that, Prohibition of discrimination on grounds of religion,

race, caste, sex or place of birth.

(1) The State shall not discriminate against any citizen on grounds only of religion, race, caste,
sex, and place of birth or any of them

(2) 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 shops, public restaurants, hotels and palaces of public entertainment; or

(b) The use of 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

(3) Nothing in this article shall prevent the State from making any special provision for women
and children

(4) Nothing in this article or in clause ( 2 ) of Article 29 shall prevent the State from making any
special provision for the advancement of any socially and educationally backward classes of
citizens or for the Scheduled Castes and the Scheduled Tribes. This Article 15 states about the
discrimination against any citizen. The religious rituals of Hillwood people have not affected the
Article 14 and 15 of the Indian constitution 21, as there is no discrimination against the women
and girls of Hillwood region. The people are not discriminating the women and there has been
no discrimination against women. This practice of Antahk is an old religious ritual which has
been following up for years. If such practice of ritual is done for women it does not simply
means discriminating women. Hence, these rituals do not discriminate against women and
21
Article 14 and 15 if the Indian constitution, 1949.
25
 Article 14 and 15 of the constitution has not been violated.

4. Whether Manatana is an ‘essential legal practice’ of Ahinsaism and contradicts Section 309

Manatana of Ahinsaism is an essential legal practice as all religions are treated alike and enjoy
equal constitutional protection without any favour or discrimination. It is a religious ritual of
Hillwood people and it will be not punishable under section 309 of IPC. So Manatana is an
essential legal practice, and it cannot be compared to suicide as of section 309 of Indian Penal
Code. Every person as an individual has the right to practice the religious ritual as a freedom of religion
under fundamental rights.

Fasting death which is similar to MANATANA

"It's another extreme, which has not allowed this religion to flourish in a manner that it could
have and therefore it's time that we look at it and try and put a stop to this," Jain says. Nothing in
the Supreme Court's order temporarily lifting the ban on fasting to death indicates how the bench
will ultimately rule. For his part, Retired Justice Katju says that "no freedom is absolute" —
including the right to freely practice one's religion. And that "no religious custom can violate"
statutory law, by which he means the penal code criminalizing suicide. In a 2011 case involving
the termination of a patient's life support, Katju cited court precedent that the constitutional
"right to life does not include the right to die." Writing for the court, Katju did permit the right to
die in the instance of withdrawing life support but only in very limited and stringent
circumstances. Retired Supreme Court Justice Gyan Sudha Misra was the other half of that two-
judge bench. She told NPR that, "We attach absolute sanctity to the importance of life, even the
remotest sign of life — because after all, no human is god." But Dharamchand Shastri says,

Fasting until death is "the last great act of life"

that Jains have been choosing for centuries. The people of Hillwood are involved in the practice
of Manatana as a practice of religious ritual which the people of that region follow till today.

26
 And the right to practice such religion is an individual’s right as stated under Article 25 and 26 of
the constitution22. It is the right of the individual to profess, follow, practice what their religion
teaches.

Practice of Manatana as an essential legal practice

The followers of Manatana after completing the age of 50 decide to let go all the worldly
pleasures including food and hence end their lives to attain moksha. This is not only an essential
religious ritual of those followers, but also this religion and practices reflect the constitutional
mandate of preserving the environment and promoting ecologically sustainable practices.

4.1.Right to Life – Manatana will not be punishable under section 309

John Locke, among other philosopher stated that persons have the right to their life, liberty and
property and by that logic, arguments arise that if one has the absolute right to life, then they
must also be given the right to decide if they want to die or if they want to end their life. This
states that, every person in this world has the right to life and personal liberty and has the right to
live according to their choices. Hence, the follower of Manatana has their right to life and choose
what suits them as a fundamental right.

“For those who are facing a terminal illness, who are in irremediable pain and suffering, and
wish to exercise their right to die with dignity, a system should be available to them”.

In this case of Hillwood, Mahadev as a religious ritual followed the practice of Manatana but
also psychologically not well. He was found to be having signs of depression and because of the
overstress. So it is clear by the facts that mahadev was mentally ill. The sanctity of human life
does not imply the forced continuation of existence in pain and suffering. Given that a person has
the right to lead a dignified existence, he cannot be forced to live to his detriment. If a person
suffers from an incurable disease, it would be inhumane to compel him to live a painful life. A
terminally ill person should be permitted to terminate his pain and suffering by choosing to do
so. Therefore, if he chooses his life to death he can as construed in the fundamental rights of an
individual as a right to life.

The history of the legality of right to die in India starts from the case of State v. Sanjay Kumar
22
Article 25 and 26 of the constitution, 1949.
27
 Bhatia23 where the Delhi High Court criticized section 309 of IPC as an ‘anachronism and a
paradox’ and then is followed by varied views of different High Courts on section 309 of IPC.

In fact, these are not cases of extinguishing life but only of accelerating the process of natural
death, which has already commenced. The proposition merely is that the legislation must provide
for an alternative, if the terminally ill patient so desires, having complied with the requisite
conditions, to substitute his slow and painful death with a quick and painless one.

Medical science is progressing in India as in the rest of the world, and hence currently we have
techniques that can prolong life by artificial means. This may indirectly prolong terminal
suffering and may also prove to be very costly for the families of the subject in question. Hence,
end-of-life issues are becoming major ethical considerations in the modern-day medical science
in India. Allowing euthanasia exclusively in the case of terminally ill patients is desirable.

The landmark Supreme Court judgment in 2018 has provided a major boost to pro-euthanasia
activists though it is a long way to go before it becomes a law in the parliament. Moreover,
concerns for its misuse remain a major issue which ought to be addressed before it becomes a
law in our country. The ultimate outcome of this debate remains uncertain. It must, however, be
remembered that an acrobatic argument that acknowledges technological advances but dismisses
the evolving ethical issues which pose uncomfortable and disturbing questions is unfair to the
community of patients.

Manatana – A Religious Ritual

Manatana is a religious ritual by the people of Hillwood to let go of all worldly pleasures in order
to attain moksha. It is the fundamental rights of an individual to profess, practice and follow such
rituals as a freedom of religion. Every religion has its own unique religious rituals to please god,
and it is their fundamental duty to follow their religion as mentioned in Article 25 and 26 of the
constitution. Hence. This is not only an essential religious ritual of those followers, but also this
religion and practices reflect the constitutional mandate of preserving the environment and
promoting ecologically sustainable practices. So it is explicit that the religious ritual of
Manatana is not similar to suicide and Manatana will not be punishable under section 309 of
IPC.

23
State v. Sanjay Kumar Bhatia
28
 1.1 Prayer

In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble court

to be pleased:

1. To declare the customary law of Antahk does not discriminates women and girls, Fire
walking and Lance piercing does not violate the fundamental rights of the individual and are
protected as an essential religious practice.

2. To declare the ritual ‘ Manatana’ is not punishable under section 309 of IPC

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.

Counsel on behalf of the respondents.

29
30