006 P (1)

TC-006
FAIRFIELD- FIMT- SCHOOL OF LAW, GGSIP

UNIVERSITY
2ND FIMT NATIONAL MOOT COURT COMPETITION,
2023.
IN THE HON’BLE SUPREME COURT OF ARYAVARTA
PUBLIC INTEREST LITIGATION
WRIT PETITION NO. 2119 OF 2023
UNDER ARTICLE 32 OF THE CONSTITUTION OF ARYAVARTA
In The Matter Between
ALL ARYAVARTA TEMPLE ASSOCIATION ….....Petitioner
V.
UNION OF ARYAVARTA ……..Respondent
UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF ARYAVARTA
-MEMORANDUM ON BEHALF OF THE PETITIONER

2ND FIMT NATIONAL MOOT COURT COMPETITION, 2023.
TABLE OF CONTENTS
Sl. No. Topic Title Page No.

1. CAUSE TITLE (COVER PAGE) 1
2. TABLE OF CONTENTS 2
3. LIST OF ABBREVIATIONS 3
4. INDEX OF AUTHORITIES
5. STATEMENT OF JURISDICTION
6. STATEMENT OF FACTS
7. ISSUES RAISED
8. SUMMARY OF ARGUMENTS
9. ARGUMENTS ADVANCED
ISSUE 01: WHETHER THE WRIT PETITION BROUGHT

BEFORE THE HON’BLE COURT IN THE FORM OF
PUBLIC INTEREST LITIGATION IS MAINTAINABLE?
ISSUE 02: WHETHER THE INSTANT CASE NEEDS TO

BE REFERRED TO A LARGER BENCH?
ISSUE 03: WHETHER ERP STANDS THE TEST OF TIME

OR IT HAS LED TO BE A GATEWAY FOR STATE
INTERFERENCE IN RELIGION?
ISSUE 04: WHETHER THE STATE LAWS/ORDERS

REGULATING AFFAIRS OF RELIGIOUS INSTITUTIONS
AMOUNT TO INTERFERENCE IN THE RIGHT TO
RELIGION PROVIDED BY THE CONSTITUTION?
10. PRAYER
3|Page
-Memorandum filed on behalf of the Petitioner-
LIST OF ABBREVIATIONS
Sl.No. Abbreviation Description

1. AIR All India Reporter
2. Art. Article
3. ed. Edition
4. ERP Essential Religious Practices Test.
5. Etc Etcetera
6. Govt Government
7. HC High Court
8. Hon’ble Honourable
9. No Number
10. Ors Others
11. PIL Public Interest Litigation
12. p. Page number
13. Sec./ § Section
14. SC Supreme Court
15. SCC Supreme Court Cases
16. SCR Supreme Court Reporter
17. UOI Union of India
18. Vol. Volume
19. Vs Versus
20. W.P. Writ Petition
4|Page
INDEX OF AUTHORITIES
BIBLIOGRAPHICAL INFORMATION
I. CASES CITED:
Sl.No Case Name Equivalent Citation(s)
.
1. Acharya Jagdishwaranand Avadhuta v. Commr. of Police, (1983) 4 SCC 522.
2. Adi Saiva Sivachariyargal Nala Sangam v. State of T.N., (2016) 2 SCC 725.
3. Aishat Shifa v. State of Karnataka, 2022 SCC OnLine SC 1833.
4. Ashok Kumar Pandey v. State of W.B., (2004) 3 SCC 349.
5. Assam Sanmilta Mahasangha & Ors. v. Union of India & (2015) 3 SCC 1.
Ors.,
6. Babu Lal v. Hazari Lal Kishori Lal, (1982) 1 SCC 525.
7. Bandhu Mukti Morcha v. Union of India, AIR 1984 SC 802.
8. Central Bank of India v. Workmen, AIR 1960 SC 12.
9. Commr., Hindu Religious Endowments v. Sri 1954 SCR 1005.

Lakshmindra Thirtha Swamiar of Sri Shirur Mutt,
10. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579.
11. Daryao v. State of U.P., (1962) 1 SCR 574.
12. Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406.
13. Durgah Committee v. Syed Hussain Ali, AIR 1961 SC 1402.
14. Fertilizer Corporation Kamgar Union v Union of India, AIR 1981 SC 844.
15. Golak Nath case,
16. Hussainara Khatoon & Ors. v. Home Secretary, State of AIR 1979 SC 1369.
Bihar,
17. Indian Banks' Association, Bombay v. Devkala AIR 1967 SC 1643.
Consultancy Service and Ors., 2004 (4) SC 587.
18. Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. (2019) 11 SCC 1.
State of Kerala,
19. Indian Young Lawyers Assn. v. State of Kerala, (2017) 10 SCC 689.
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20. Indian Young Lawyers Association v. State of Kerala, 2018 SCC SC 1690.
21. Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217.
22. Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305.
23. K.K. Kouchunni v. State of Madras, AIR 1959 SC 725.
24. K.S. Puttaswamy v. Union of India, (2015) 8 SCC 735.
25. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 641.
26. Kakinanda Annadana Samajam v. Commr. of Hindu (1970) 3 SCC 359.

Religious and Charitable Endowments,
27. Kantaru Rajeevaru v. Indian Young Lawyers Assn., (2020) 9 SCC 121.
28. Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.
29. Khajamian Wakf Estates v. State of Madras, (1970) 3 SCC 894.
30. Kharak Singh vs. State of Uttar Pradesh, AIR 1963 SC 1295.
31. Krishnan v. Guruvayoor Devaswom, 1979 Ker LT 350.
32. Krishnankutty v. State of Kerala, 1985 Ker LT 289.
33. Lokesh Katara v. High Court of Gujarat, (2017) 2 SCC 427.
34. M. Ismail Faruqui (Dr) v. Union of India, (1994) 6 SCC 360.
35. M. Janardhan Rao v. Joint Commissioner of Income Tax, (2005) 2 SCC 324.
36. M. Siddiq v. Suresh Das, (2020) 1 SCC 1.
37. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
38. Meor Atiqulrahman Ishak v. Fatimah Sihi, 2006 SCC OnLine MYFC
25.
39. Mohd. Hanif Quareshi v. State of Bihar, 1959 SCR 629.
40. Mohd. Zubair Corporal v. Union of India, 2016 SCC OnLine SC 1472.
41. Moïse Amselem v. Syndicat Northcrest, 2004 SCC OnLine Can SC

47.
42. Monica Kumar v. State of U.P., (2008) 8 SCC 781.
43. P.V. Surender Babu vs Prohibition And Excise, 1998 (5) ALT 640.
6|Page
44. Prem Chand Garg v Excise Commissioner, UP, AIR 1963 SC 996.
45. Ratilal Panachand Gandhi v. State of Bombay, 1954 SCR 1055.
46. Romesh Thapar v. State of Madras, AIR 1950 SC 124.
47. S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595.
48. S.P. Gupta v. President of India, AIR 1982 SC 149.
49. Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya, (1966) 3 SCR 242.
50. Shayara Bano v. Union of India, (2017) 9 SCC 1.
51. SP Gupta v. Union of India, [1982]AIR 149.
52. SP Mittal v. Union of India, (1983) 1 SCR 729.
53. Sri Venkataramana Devaru v. State of Mysore, 1958 SCR 895.
54. State of Madras v. V.G. Row, AIR 1952 SC 196.
55. Subramanian Swamy v. State of T.N., (2014) 5 SCC 75.
56. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
57. Upendra Baxi v. State of Uttar Pradesh, AIR 1987 SC 191.
II. STATUTES REFERRED:
Sl. No. Statute Name

1.
The Constitution of India, 1950.
2. The Religious Endowments Act, 1863.
III. DICTIONARIES AND BOOKS/JOURNALS REFERRED:
1. A.R KHAN, THE CONSTITUTION OF INDIA (2d ed. 2014).
2. DD BASU, CONSTITUTIONAL OF INDIA, (7h ed. 1998).
7|Page
3. DD BASU, SHORTER CONSTITUTION OF INDIA, (13h ed. 2001).
4. HM SEERVAI, CONSTITUTIONAL LAW OF INDIA, (4h ed. 1996).
5. M P JAIN, INDIAN CONSTITUTIONAL LAW (7h ed. 2014).
6. P.M. BAKSHI, THE CONSTITUTION OF INDIA (14h ed. 2017).
IV. ELECTRONIC/ONLINE SOURCES:
1. http://supremecourtofindia.nic.in
2. http://www.advocatekhoj.com
3. http://www.barcouncilofindia.org
4. http://www.legalservicesindia.com/
5. http://www.manupatrafast.com/
6. https://indiankanoon.org/
7. https://www.lawteacher.net
8. www.Casemine.com
9. www.JSTOR.com
10. www.Livelaw.com
11. www.SCCOnline.com
8|Page
STATEMENT OF JURISDICTION
It is humbly submitted that this Hon’ble Supreme Court has jurisdiction to entertain matters
under Article 32 of the Constitution of Aryavarta, 1950, which reads as under:
“32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part
(3) Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution.”1
The present memorandum sets forth the facts, contentions and arguments in the present case.
The petitioner humbly submits to the jurisdiction of this Honourable Court.
1
Article 32 Part III Constitution of Aryavarta pari materia to the Constitution of India, 1950.
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STATEMENT OF FACTS
INTRODUCTION/BACKGROUND:
1. Republic of Aryavarta is a country situated in South Asia with a diverse civilisational
history. It had obtained independence in the 20th century. Post-independence, the Constituent
Assembly of Republic of Aryavarta drafted and enacted a Constitution which was based on
principles of Liberty, Equality and Fraternity. Socialism and Secularism were important
features of the Constitution.
2. The Constitution provided its people with Fundamental rights which are to be ensured
by the State. Constitution of Aryavarta, under Articles 25 to 28 provides for the right to
freedom of religion to all the people. These rights were, however, subject to certain
limitations, as expressly laid down in these provisions.
3. Supreme Court of Aryavarta is the Apex court of the country and has the duty to
interpret and uphold the Constitution. The Court recognised Secularism to be a part of ‘Basic
structure’ of the Constitution in one of the leading cases. Prior to this, a constitution bench of
the Court had recognised the power of the state to regulate secular aspects of a religion by
introducing the ‘Essential Religious Practices Test’. Those religious aspects which were out
of the purview of ERP are considered to be secular functions associated with religion since
then.
4. Courts have adjudicated in several cases relating to questions of affairs of religions and
religious institutions thereafter. Such cases include administration of temples, financial
management, regulating the offerings in temples etc. The decisions of the courts have not
been limited to a single religion, but to all the religions. But since the articles of the
constitution expressly refer to Hindu religious institutions, and it is the religion followed by
the largest number of people, therefore, the rulings are more on various aspects of this
religion.
5. The courts’ decisions and state legislations have led to wide scale reforms within and
outside the religious domain. But they have also received discontent from the society. There
have been allegations of courts overreaching into the domain especially fixed for theologists
or for those having specialised knowledge of religion and its practices. Critiques argue that
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courts can’t take the role of clergy to determine what constitutes an essential part of religion
as it results into unnecessary interference by the State and its institutions in religion.
SERIES OF EVENTS:
6. In the year 2018, a constitution bench of the Court, in a PIL for allowing entry of
women in the Swarappa temple ruled that morality in article 25 was to be read as
constitutional morality. The dissenting minority judgement, however, opined that courts can’t
rationalise religion beyond a certain extent. An earlier decision of the Court in 2014 had also
recognised that the state could take control of temples only to remove a malpractice/evil. It
held that the same must be handed over to the person concerned immediately after the evil
stands remedied. Continuation thereafter would tantamount to usurpation of their proprietary
rights or violation of the fundamental rights guaranteed by the Constitution in favour of the
persons deprived. In July 2020, the Court recognised the right of the Royal family of
Travanpuram to manage the Travanpuri temple based on continued practice and custom.
7. Dakshin Province is the southernmost state of the country. The government of Dakshin
Province in June 2022, through an ‘Office Order’ which aimed to take over complete control
of all temples situated in the state and vest them in a Board formed by the State. This Order
was, therefore, seen as a final blow to the autonomy of temples.
8. All Aryavarta Temples Association is a body of prominent religious leaders from

temples and Akhadas, who are said to represent more than 50,000 renowned temples situated
in different states. The Association called for a meeting of its Central Working Committee
where other such temple associations from the country were also invited where they decided
to file a Writ petition.
EMERGENCE OF ISSUES:
9. The Association subsequently filed the Writ Petition in the form of PIL challenging the
Office Order and other laws that lead to state interference in affairs of religious institutions;
and to do away with the ERP test in order to restrict the state’s power to make such laws in
future.
10. When the case came up for hearing before a 3 Judge bench of the Court, it was argued
on behalf of the Petitioners that since the questions in the case were relating to substantial
questions of law relating to interpretation of the constitution, it was mandatory as per the
constitutional provisions that the matter be heard by a constitution bench. The issues also
involved some of the propositions that have already been decided in earlier cases. The
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Petitioners, however, claimed that they require a fresh consideration because the states have
stretched their ratios in order to deny fundamental rights of the Petitioners and people at
large.
ISSUES RAISED
I. WHETHER THE WRIT PETITION BROUGHT BEFORE THE HON’BLE

COURT IN THE FORM OF PUBLIC INTEREST LITIGATION IS
MAINTAINABLE?
II. WHETHER THE INSTANT CASE NEEDS TO BE REFERRED TO A LARGER

BENCH?
III. WHETHER ERP STANDS THE TEST OF TIME OR IT HAS LED TO BE A

GATEWAY FOR STATE INTERFERENCE IN RELIGION?
IV. WHETHER THE STATE LAWS/ORDERS REGULATING AFFAIRS OF

RELIGIOUS INSTITUTIONS AMOUNT TO INTERFERENCE IN THE RIGHT
TO RELIGION PROVIDED BY THE CONSTITUTION?
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SUMMARY OF ARGUMENTS

MAINTAINABLE?
The petitioner most humbly submits that the PIL filed by ‘All Aryavarta Temples
Association’ is maintainable. Ordinarily, the PIL may be entertained on any subject of vital
public importance under Art 32 of the Constitution. The petition is maintainable on the
grounds that, Firstly, that the laws which leads to state interference in affairs of Religious
Institutions and secondly that the "Office order” by the Government of Dakshin Province
where it decided to take over complete control of all temples situated in the state and vest
them in a Board formed by the State grossly violates the right to Freedom of religion under
Article 25 and 26.
II. WHETHER THE INSTANT CASE NEEDS TO BE REFERRED TO A

LARGER BENCH?
It is humbly submitted before this Hon’ble Court that the regulations under Article 25 has
been misunderstood as takeover by state and therefore the case is suitable for reference to
larger bench according to Article 145 (3) of the Constitution, which provides that at least five
judges need to hear cases that involve ‘a substantial question of law as to the interpretation’
of the Constitution.

It is humbly submitted before this hon’ble court that the ERP test finds no mention under the
Indian Constitution. The test in fact adopts a very narrow approach of protecting only those
practices that constitute an essential part of the religion. The test thus proves to be
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irreconcilable with and antithetical to the concept of right to freedom of religion envisaged
under our Constitution. The test severely curtails the right to freedom of religion by
categorizing religious practices into two groups-those which constitute essential part of
religion and the others which do not. Only those practices which come under the former
category are awarded constitutional protection.
It is humbly submitted before the Hon’ble court that the ‘Essential Religious Practice Test’
does not stands the test of time and it has led to be a gateway for state interference in religion.

RELIGIOUS INSTITUTIONS AMOUNT TO INTERFERENCE IN THE
RIGHT TO RELIGION PROVIDED BY THE CONSTITUTION?
It is humbly submitted before the Hon’ble Court that the state laws\orders regulating affairs
of religious institutions amounts to interference in the right to religion provided by the
Constitution. The expropriator order requires to be considered strictly as it infringes the
fundamental rights of citizens and would amount to divesting them of their legitimate rights
to manage and administer the temple. It is not permissible for State\statutory authorities to
supersede the administration by adopting any oblique method. It is not permissible for the
authorities to pass any order regarding administration of temple and thus all orders passed in
this regard are liable to be held unenforceable.
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ARGUMENTS ADVANCED

MAINTAINABLE?
1. The petitioner most humbly submits that the PIL filed by ‘All Aryavarta Temples
Association’ is maintainable. Ordinarily, the PIL may be entertained on any subject of vital
public importance under Art 32 of the Constitution. The petition is maintainable on the
grounds that, Firstly, that the laws which leads to state interference in affairs of Religious
Institutions and secondly that the "Office order” by the Government of Dakshin Province
where it decided to take over complete control of all temples situated in the state and vest
them in a Board formed by the State grossly violates the right to Freedom of religion under
Article 25 and 26.
2. A Public Interest Litigation is filed by on behalf of a section of the society which

complains of violation of fundamental rights is maintainable2 in their bona fide interest for
judicial redressal.3 It is humbly submitted before the Hon'ble Supreme Court that the present
petition filed before the bench is maintainable on the grounds that the Petitioner has requisite
Locus Standi and interest [A] Hon'ble Court is a “sentinel on the qui vive”. [B] The instant
matter involves substantial questions of law [C] for which there is no alternate and
efficacious remedy available. [D]
[A]. THE PETITIONER HAS LOCUS STANDI AND SUFFICIENT INTEREST
3. It is most humbly submitted that this Hon'ble Court has held that a writ petition
under Article 32 as a Public Interest Litigation by a public-spirited person on behalf of a
section of the society which complains of violation of fundamental rights is maintainable.4
2
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : AIR 1984 SC 802.
3
Janata Dal v. H.S. Choudhary, (1992) 4 SCC 305 : AIR 1993 SC 892.
4
Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161 : AIR 1984 SC 802.
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4. It is to be noted that a petitioner has sufficient standing to file a writ petition, if his
fundamental right is infringed. Justice P. N. Bhagwati in S. P. Gupta v. Union of India5,
articulated the concept of PIL as follows, "any member of public can maintain an application
for an appropriate direction, order or writ in the High Court under Article 226 and in case any
breach of fundamental rights of such persons or determinate class of persons, in this court
under Article 32 seeking judicial redress for the legal wrong or legal injury caused to such
person or determinate class of persons." Therefore, since any member of the public or
organization may bring it for judicial scrutiny 6, the petitioner has the standing to file the
petition.
5. It was made clear in Janata Dal v HS. Chaudhary7 that only a person acting bona
fide8 and having sufficient public interest in the proceeding of public interest litigation will
have alone the locus standi but not a person for personal gain or political motive or any
oblique consideration. It is respectfully submitted that the Petitioner has no personal interest,
individual gain, private motive or oblique reasons in filing this writ petition. It is not guided
for gain of any other individual person, institution or body.
6. In the case of Ashok Kumar Pandey v. State of W.B9., it was held that “The role of
locus standi have been relaxed and a person acting bonafide and having sufficient interest in
the proceeding of Public Interest Litigation will alone have a locus standi and can approach
the court to wipe out violation of fundamental rights and genuine infraction of statutory
provisions, but not for personal gain or private profit or political motive or any oblique
consideration.”
7. Supreme Court in Indian Banks' Association, Bombay v. Devkala Consultancy

Service and Ors10., held that “In an appropriate case, where the petitioner might have moved
a court in her private interest and for redressal of the personal grievance, the court in
furtherance of Public Interest may treat it a necessity to enquire into the state of affairs of the
subject of litigation in the interest of justice. Thus, a private interest case can also be treated
as public interest case”.
5
SP Gupta v. Union of India,[1982]AIR 149.
6
Bandhu Mukti Morcha v. Union of India, AIR 1984 SC 802.
7
Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305.
8
Fertilizer Corporation Kamgar Union v Union of India, AIR 1981 SC 844.
9
Ashok Kumar Pandey v. State of W.B., (2004) 3 SCC 349.
10
Indian Banks' Association, Bombay v. Devkala Consultancy Service and Ors., 2004 (4) SC 587.
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8. All Aryavarta Temples Association, a body of prominent religious leaders from

temples and Akhadas, who reprent more than 50,000 renowned temples having roots across
different states11 has the requisite locus standi to approach this court in the present
matter. Locus Standi means the right to bring an action, to be heard in court, or to address the
court on a matter before it.12 In other words, the term “locus standi” can be understood as
legal capacity to challenge legislation, an order or a decision.13
9. Furthermore, a petitioner will be deemed to have sufficient interest to maintain a

petition under Article 32 as a member of the public because it is the right of the public to be
governed by laws made in accordance with the Constitution and not laws made by the
legislature in violation of the constitutional provisions.14 It is submitted that the right to
freedom of religion of the citizens of Aryavarta guaranteed under Articles 25 to 28 have been
infringed by the impugned order and other laws that lead to State interference in affairs of
Religious Institutions15. Detailed arguments with respect to the same have been dealt with in
the subsequent issues16 in the written submissions.
10. In the instant case, it is observed that the petitioner, All Aryavarta Temples
Association is filing the aforesaid PIL for the pro bono interest17 of the general public and
general welfare of the people of Aryavarta in general. Therefore, in light of this, each and
every citizen has the right to question the same and therefore, All All Aryavarta Temples
Association who are said to represent more than 50,000 renowned temples, in general have
the requisite locus standi and public interest in the present case.
[B]. THE HON'BLE COURT IS A “SENTINEL ON THE QUI VIVE”
11. This Hon'ble Court has repeatedly assumed the role of the “sentinel on the qui
vive”18 to enforce fundamental rights of the people. It is humbly submitted that in light of the
prevailing circumstances, which are continuously depriving a large section of the
population of their fundamental rights, the Court has the constitutional duty and
obligation19 to entertain this petition. The Right to Freedom of religion provided under the
11
Para 9, Moot proposition.
12
S.P. Gupta v. President of India, 1981 Supp SCC 87 : AIR 1982 SC 149.
13
V.G. Ramchandran, Law of Writs, 26 (6th ed., 2006).
14
D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378 : AIR 1987 SC 579.
15
Para 10, Moot proposition.
16
Memorandum on behalf of the Petitioner.
17
Upendra Baxi v. State of Uttar Pradesh, (1986) 4 SCC 106 : AIR 1987 SC 191.
18
State of Madras v. V.G. Row, AIR 1952 SC 196.
19
Hussainara Khatoon & Ors. v. Home Secretary, State of Bihar, (1980) 1 SCC 98 : AIR 1979 SC 1369.
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constitution is a fundamental right. It is the duty of the Courts to examine the merits of each
case with respect to the prevailing situation, looking at the fundamental rights violations
alleged, and make a decision in view of the changing notions of life and personal
liberty of humans.20
[C]. THERE ARE SUBSTANTIAL QUESTIONS OF LAW INVOLVED
12. The facts and the circumstances of the case must disclose a substantial question of law
for a petition to be maintainable.21 In the present case, substantial questions of law have been
framed to be decided by this Hon'ble Court. 22 Adjudication on these pertinent issues
necessitates the admission of the petition.
13. The Hon’ble Supreme Court in the case of People's Union for Democratic
Rights v. Union of India7 recognized that a “third party” may approach the court in
the interest of the aggrieved; the only conditions are that there must be a substantial question
of law or there must be violation of fundamental rights and the petition must be in
the public spirit.
[D]. NO ALTERNATE AND EFFICACIOUS REMEDY IS AVAILABLE TO THE

PETITIONER
14. In the present case, there is no alternative efficacious remedy available in terms of the
prayers sought in this writ petition and thus, there is no requirement to approach any
government authority for the reliefs sought herein. Moreover, this Hon'ble Court has on
multiple occasions expressly rejected an argument that called for exhaustion of local
remedies.23
15. It has been held that availability of an alternative remedy is one of such considerations
which the Supreme Court may take into account to refuse to exercise its jurisdiction, but this
principle does not apply to the enforcement of Fundamental Rights either under Article 32 or
under 226 of the Constitution.24
20
Assam Sanmilta Mahasangha & Ors. v. Union of India & Ors., (2015) 3 SCC 1.
21
M. Janardhan Rao v. Joint Commissioner of Income Tax, (2005) 2 SCC 324.
22
Memorandum on behalf of the Petitioner.
23
Kharak Singh vs. State of Uttar Pradesh, AIR 1963 SC 1295; Romesh Thappar vs. The State of Madras, AIR
1950 SC 124.
24
P.V. Surender Babu vs Prohibition And Excise, 1998 (5) ALD 549, 1998 (5) ALT 640.
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16. In the Fertilizer Corporation case25 & Lokesh Katara v High Court of Gujarat 26 it
was held that Article 32 confers one of the ‘highly cherished rights’, and that the right of
access to the Supreme Court under Article 32 is a Fundamental Right itself.
17. It is unnecessary to first approach the High Court and exhaust the remedy
under Article 226 before approaching the Supreme Court.27
18. Hence, it was held before this Hon'ble court that mere existence of an adequate
alternative legal remedy cannot be per se be a good and sufficient ground for dismissing a
petition under Article 32.28
19. In Romesh Thappar v State of Madras29 , the Court emphasised that “this Court is
thus constituted the protector and guarantor of the Fundamental Rights, and it cannot
consistently with the responsibility so laid upon it, refuse to entertain applications seeking
protection against infringement of such rights.”
20. The Supreme Court has described the significance of Article 32 in the following
words in Prem Chand Garg v Excise Commissioner, UP30 (Per Gajendragadkar J.):
“The Fundamental Right to move this Court can therefore be appropriately described as the
cornerstone of the democratic edifice raised by the Constitution. That is why it is natural that
this Court should regard itself ‘as the protector and guarantor of Fundamental Rights’… In
discharging the duties assigned to it, this Court has to play the role of a ‘sentinel on the qui
vive’ and it must always regard it as its solemn duty to protect the said Fundamental Rights
‘zealously and vigilantly’.”
21. In Daryo v State of Uttar Pradesh31 it was held that, when once the Court is satisfied
that the petitioner’s Fundamental Right has been infringed, it is not only its right but also its
duty to afford relief to the petitioner, and he need not establish either that he has no other
adequate remedy, or that he has exhausted all remedies provided by law, but has not obtained
proper redress.
25
Fertilizer Corpn. Kamgar Union v. Union of India, (1981) 1 SCC 568.
26
Lokesh Katara v. High Court of Gujarat, (2017) 2 SCC 427.
27
Romesh Thapar v. State of Madras, AIR 1950 SC 124.
28
K.K. Kouchunni v. State of Madras, AIR 1959 SC 725.
29
Romesh Thappar v State of Madras, AIR 1950 SC 124.
30
Prem Chand Garg v Excise Commissioner, UP, AIR 1963 SC 996.
31
Daryao v. State of U.P., (1962) 1 SCR 574.
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22. It was also held in this case that When a petitioner establishes infringement of his
Fundamental Right, the Court has no discretion but to issue an appropriate writ in his favour.
23. By the reason of the above holdings, the present petition stands maintainable in the
absence of an alternate and efficacious remedy.
II. WHETHER THE INSTANT CASE NEEDS TO BE REFERRED TO A

LARGER BENCH?
1. It is humbly submitted before this Hon’ble Court that the regulations under Article 25
has been misunderstood as takeover by state and therefore the case is suitable for reference to
larger bench according to Article 145 (3) of the Constitution, which provides that at least five
judges need to hear cases that involve ‘a substantial question of law as to the interpretation’
of the Constitution.32
2. In the instant case, it is humbly submitted that since the questions in the case are
relating to substantial questions of law relating to interpretation of the constitution, it was
mandatory as per the constitutional provisions that the matter be heard by a constitution
bench and the counsel for Petitioners claim that since this case evolves some of the
propositions that have already been decided in earlier cases. But it is submitted that there
should be fresh consideration because the States have stretched their ratios in order to deny
fundamental rights of people at large, so the matter should be heard by appropriate strength of
constitution bench.
3. In the case of Indian Young Lawyers Association v. State of Kerala33, it was held that
reference to a larger bench can be made on any cause or appeal as well as other proceedings.
It is the widest freedom given to the court to do complete justice with the parties. Supreme
Court is an apex court that has jurisdiction in every matter and hence the reference in the
given case cannot be challenged on the ground of lack of jurisdiction and in the case of the
correctness of Golak Nath case34and the validity of the Constitution (Twenty-fourth
Amendment) Act, 1971 was considered by a larger Bench of thirteen Judges in Kesavananda
32
Article 145(3) Constitution of India.
33
Indian Young Lawyers Association v. State of Kerala, 2018 SCC SC 1690
34
Golak Nath case, AIR 1967 SC 1643
21 | P a g e
Bharati v. State of Kerala35, wherein Golak Nath case was overruled and the doctrine of
basic structure was propounded.
4. A nine-Judge Bench judgment reported as K.S. Puttaswamy v. Union of India36,

wherein this Court held: “When a substantial question as to the interpretation of the
Constitution arises, it is this Court and this Court alone under Article 145(3) that is to decide
what the interpretation of the Constitution shall be, and for this purpose, the Constitution
entrusts this task to a minimum of five Judges of this Court.”
5. Even in the case of Indian Young Lawyers Assn. v. State of Kerala 37, Indian Young
Lawyers Association filed Writ Petition challenging the validity of Rule 3(b) of the Kerala
Hindu Places of Public Worship (Authorisation of Entry) Rules, 1965. A further direction to
the respondents therein to permit female devotees between the ages of 10 to 50 years to enter
the Sabarimala Temple without any restrictions was sought in the writ petition. By an order, a
three-Judge Bench of this Court referred the matter to a larger Bench for resolution of the
questions raised in the writ petition. The writ petition was placed before a Constitution Bench
consisting of five Judges.
6. In the case of Kantaru Rajeevaru v. Indian Young Lawyers Assn.38, Ranjan Gogoi,
C.J. and A.M. Khanwilkar and Indu Malhotra, JJ. were of the opinion that the scope of the
freedom of religion guaranteed under Articles 25 and 26 of the Constitution needs an
authoritative pronouncement by a larger Bench of not less than seven Judges. The contours of
judicial review in matters pertaining to essential religious practices was another issue which
was identified to be adjudicated upon by a larger Bench.
7. In this case it was also observed that the determination of the questions of law referred
to a larger Bench would have a bearing on pending writ petitions relating to entry of Muslim
women in durgahs/mosques, the entry of Parsi women married to non-Parsis into the holy
fireplace of Agyari and the challenge to the practice of female genital mutilation in Dawoodi
Bohra community. In such view, certain questions of law were referred to a larger Bench.
According to the reference, the conflict of opinion between the judgments in Commr. v. Sri
Lakshmindra Thirtha Swamiar of Sri Shirur Matt 39, and Durgah Committee v. Syed
35
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
36
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 1.
37
Indian Young Lawyers Assn. v. State of Kerala, (2017) 10 SCC 689.
38
Kantaru Rajeevaru v. Indian Young Lawyers Assn, (2020) 2 SCC 1.
39
Commr. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt, AIR 1954 SC 282.
22 | P a g e
Hussain Ali40, pertaining to the role of the Court in matters which are essential religious
practices had to be resolved.
8. By placing reliance on a judgement of this Hon’ble Court in the case of Central Bank
of India v. Workmen41, it is submitted that this Court should not give speculative opinions or
answer hypothetical questions. The reference of questions of law pertaining to the scope of
Articles 25 and 26 of the Constitution of India are of utmost importance requiring an
authoritative pronouncement by a larger Bench, especially in light of the view of the
reference Bench that there is a conflict between the Court's judgments in Shirur Mutt42and
Durgah Committee43 . An objection similar to the one in this case was taken in Indra
Sawhney v. Union of India44, which was rejected on the ground that the reference in that case
was made to finally settle the legal position relating to reservations. Therefore, the reference
in this case cannot be said to be suffering from any jurisdictional error.
9. In the case of Kantaru Rajeevaru v. Indian Young Lawyers Assn45., regarding the
contention that pure questions of law cannot be referred to a larger Bench, it was argued that
it is not possible for the Court to decide the reference without any facts of a particular case
before it. But the Court did not agree with this contention. The Court held that it is not
necessary to refer to facts to decide pure questions of law, especially those pertaining to the
interpretation of the provisions of the Constitution. In fact, reference of pure questions of law
have been answered by this Court earlier. One such instance was when this Court was
convinced that a larger Bench has to discern the true scope and interpretation of Article 30(1)
of the Constitution of India. An eleven-Judge Bench was constituted for the purpose and
eleven questions of law were framed and answered in T.M.A. Pai Foundation v. State of
Karnataka 46. Yet another case where there was a reference of pure questions of law for the
larger Bench needs mention.
10. Finding a conflict between the judgments of this Court in M.P. Sharma v. Satish
Chandra47, and Kharak Singh v. State of U.P.,48 a three-Judge Bench of this Court referred
40
Durgah Committee v. Syed Hussain Ali, AIR 1961 SC 1402.
41
Central Bank of India v. Workmen, AIR 1960 SC 12
42
Commr. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt, AIR 1954 SC 282
43
Durgah Committee v. Syed Hussain Ali, AIR 1961 SC 1402.
44
Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217
45
Kantaru Rajeevaru v. Indian Young Lawyers Assn., (2020) 9 SCC 121
46
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 : 2 SCEC 1
47
M.P. Sharma v. Satish Chandra, AIR 1954 SC 300
48
Kharak Singh v. State of U.P., AIR 1963 SC 1295
23 | P a g e
K.S. Puttaswamy v. Union of India49, the matter to a larger Bench of five-Judge Constitution
Bench, which referred K.S. Puttaswamy v. Union of India50, the issue relating to the
existence of the fundamental right to privacy in Article 21 of the Constitution of India to a
nine-Judge Bench. The question whether there is a constitutionally protected right to privacy
was decided by a nine-Judge Bench of this Court in K.S. Puttaswamy (Privacy-9 J.) v.
Union of India51, without reference to any facts. As stated above, determination of the scope
of Articles 25 and 26 is of paramount importance. To adjudicate the reference, there is no
requirement to refer to any disputed facts by this Court.
11. In the case of Monica Kumar v. State of U.P.52, it was observed that, the reference can
be supported by adverting to Article 142 of the Constitution of India which enables this Court
to make any order as is necessary for doing complete justice in any cause or matter pending
before it. The expression “cause or matter” would include any proceeding pending in Court
and it would cover almost every kind of proceeding pending in this Court including civil or
criminal proceedings. As such, the expression “cause or matter” surely covers the instant
petition without any doubt. Therefore, it is well within the province of this Court to refer
questions of law in the present petition.
12. Order LV Rule 6 makes it crystal clear that the inherent power of this Court to make
such orders as may be necessary for the ends of justice shall not be limited by the Rules. In S.
Nagaraj v. State of Karnataka53, it was observed that even when there was no statutory
provision and no rules were framed by the highest court indicating the circumstances in
which it could rectify its orders, the courts culled out such power to avoid abuse of process or
miscarriage of justice. It was further held that this Court is not precluded from recalling or
reviewing its own order if it is satisfied that it is necessary to do so for the sake of justice.
The logical extension to the above is that reference of questions of law can be made in any
pending proceeding before this Court, including the instant petition, to meet the ends of
justice.
13. Reference to a larger Bench can be made in any cause or appeal as well as in any
“other proceeding”. The term “proceeding” is a very comprehensive term and generally
speaking, means a prescribed course of action for enforcing a legal right. It is a term giving
49
K.S. Puttaswamy v. Union of India, (2015) 8 SCC 735
50
K.S. Puttaswamy v. Union of India, (2017) 10 SCC 641
51
K.S. Puttaswamy (Privacy-9 J.) v. Union of India, (2017) 10 SCC 1
52
Monica Kumar v. State of U.P., (2008) 8 SCC 781
53
S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595
24 | P a g e
the widest freedom to a court of law so that it may do justice to the parties in the case 54. There
cannot be any doubt that the instant petition falls within the purview of the expression “other
proceeding”.
14. It is humbly submitted that the provision in the Supreme Court Rules, 2013
pertaining to reference to a larger Bench is Order VI Rule 2 which reads as:
“2. Where in the course of the hearing of any cause, appeal or other proceedings, the
Bench considers that the matter should be dealt with by a larger Bench, it shall refer
the matter to the Chief Justice, who shall thereupon constitute such a Bench for the
hearing of it.”
15. In addition, there is no fetter on the exercise of discretion of this Court in referring
questions of law to a larger Bench in review petitions. Being a superior court of record, it is
for this Court to consider whether any matter falls within its jurisdiction or not. Unlike a
court of limited jurisdiction, the superior court of record is entitled to determine for itself
questions about its own jurisdiction.55
16. In the case of Delhi Judicial Service Assn. v. State of Gujarat56, it was observed that
“No matter is beyond the jurisdiction of a superior court of record unless it is expressly
shown to be so, under the provisions of the Constitution. In the absence of any express
provision in the Constitution, this Court being a superior court of record has jurisdiction in
every matter and if there is any doubt, the Court has power to determine its jurisdiction.
17. Undoubtedly there is no bar on the exercise of jurisdiction for referring questions of
law in the instant petition. Therefore, the reference cannot be said to be vitiated for lack of
jurisdiction.
18. Therefore, it is humbly submitted that the matter be referred to a constitutional bench
of appropriate strength as the questions in the case are relating to substantial questions of law
relating to interpretation of the Constitution.

54
Babu Lal v. Hazari Lal Kishori Lal, (1982) 1 SCC 525
55
Powers, Privileges & Immunities of State Legislatures (Special Reference No. 1 of 1964), In re, (1965) 1 SCR
413. See also Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1
56
Delhi Judicial Service Assn. v. State of Gujarat, (1991) 4 SCC 406
25 | P a g e
1. It is humbly submitted before the Hon’ble court that the ‘Essential Religious Practice
Test’ does not stands the test of time and it has led to be a gateway for state interference in
religion.
[A]. THE ERP TEST CURTAILS THE RIGHT TO FREEDOM OF

RELIGION.
2. It is humbly submitted that the ERP test finds no mention under the Indian
Constitution. The test in fact adopts a very narrow approach of protecting only those practices
that constitute an essential part of the religion. The test thus proves to be irreconcilable with
and antithetical to the concept of right to freedom of religion envisaged under our
Constitution. The test severely curtails the right to freedom of religion by
categorizing religious practices into two groups-those which constitute essential part of
religion and the others which do not. Only those practices which come under the former
category are awarded constitutional protection.
3. In the case of Adi Saiva Sivachariyargal Nala Sangam v. State of T.N.57,it was, for
the first time, that the Court has acknowledged the concerns raised against the “essential part
of religion test”. it was observed in this case that
“Any apprehension that the determination by the court of

an essential religious practice itself negatives the freedoms guaranteed by Articles 25 and
26 will have to be dispelled on the touchstone of constitutional necessity.”
4. It is most humbly submitted that the freedom of religion under the Constitution of
India is provided for under Articles 25 and 26. Article 25 entitles all persons to freedom of
conscience, and the right to freely practice, profess and propagate their religion. This right is
however subject to certain restrictions. The right can be restricted in favour of public order,
morality and health. This Article further restricts this right by subjecting it to the other
fundamental rights. Article 25(2)(a) empowers the State to regulate and restrict any
economic, financial, political or other secular activity which may be associated
with religious practice. Thus, the intention of the framers of the Constitution is clear. They
wanted to protect only the practices that are religious as distinguished from secular practices
associated with religion. Article 25(2)(b) further curtails this freedom by granting
Government the power to make laws providing for social reform, even though it might
derogate the right to freedom of religion.
57
Adi Saiva Sivachariyargal Nala Sangam v. State of T.N., (2016) 2 SCC 725.
26 | P a g e
5. Article 26 provides for the right of religious denominations to establish and

maintain religious institutions. The Article under sub-clause (b) is clear that
the religious denominations can manage its own affairs as so far as in the matters of religion.
The religious denominations have no power to manage secular affairs. This is illustrated
under sub section (d) which provides that the religious denomination is subject to the laws
made by Government in matters of administering property.
6. An analysis of Article 25 and Article 26 shows that the makers of the Constitution
intended to draw a distinction between religious practices and secular practices that may be
associated with the religion. They wanted to accord protection only to those practices that
are religious while allowing the Parliament to govern secular acts associated with religion.
7. In Ratilal Panachand Gandhi v. State of Bombay58, the Supreme Court held that it
was not open to the secular authority of state to say what is essential part of religion and what
is not. The State had no power to restrict or prohibit any religious practice under the guise of
its power to administer secular practices. It was also held in this case that religious practices
or performances of acts in pursuance of religious belief are as much a part of religion as faith
or belief in particular doctrines and the distinction between matters of religion and those of
secular administration of religious properties may, at times, appear to be a thin one. But in
cases of doubt, the court should take a common-sense view and be actuated by considerations
of practical necessity.
9. In this case of Mohd. Ismail Faruqui v. Union of India59 , the Constitutional bench of
the Supreme Court held that a mosque which does not form an essential part of Muslim
religion can be acquired by the State under its sovereign powers in the interest of public
safety because, it does not fall under the ambit of ‘essential practice of the religion’, covered
under Article 25 of the Indian Constitution. It is humbly submitted that this tends to
prejudicially affect the ‘Right to belief in one's own religion’.
10. It is submitted that Article 25 of the Constitution which protects ones ‘Right to
belief’ cannot be hampered by State's action or by judicial activism. The question is not
whether a particular religious belief or practice appeals to our reason or sentiment, but
whether the belief is genuinely and conscientiously held as part of the profession
or practice of religion. ‘Our personal views and reactions are irrelevant. If belief is genuinely
and conscientiously held, it attracts the protection of Article 25’.
58
Ratilal Panachand Gandhi v. State of Bombay, 1954 SCR 1055.
59
M. Ismail Faruqui (Dr) v. Union of India, (1994) 6 SCC 360.
27 | P a g e
11. It is pertinent to note that in the Ismail Faruqui case,60 the evidence produced before
the court was not Islamic scriptures. The declaration that mosques do not form an integral
part of Islam cannot be truly accepted as this deduction was based on the Indian Limitation
Act, 1908 rather than a Mahomedan Law. This clearly infringes the basic test for
determination of ‘essential practices’ as laid down in the landmark case of Shirur Mutt.61 In
this case it was held that what constitutes an essential religious practice must be ascertained
with reference to the doctrines of the religion in the question itself. But it was not the case
here because the Islamic scriptures were not studied for the deduction of
‘essential religious practices’.
[B]. IT AFFECTS RELIGIOUS FREEDOM AS PROVIDED UNDER THE

CONSTITUTION AND ALLOWS THE STATE TO HAVE UNFETTERED
CONTROL OVER RELIGIOUS MATTERS.
12. In light of India's commitment to reformative secularism, both implicitly and

explicitly, the essential religious practices test evolved by the Supreme Court, is problematic.
It allows the State unfettered control over any kind of practice that courts consider not to be
‘essential’. In application, ‘essentiality’ of a practice to a religion is decided inconsistently,
and total State control over ‘non-essential’ practices is allowed.
13. The Supreme Court formulated the essential religious practices test in Shirur Mutt
case62 noting that freedom of religion in the Constitution was not confined to religious beliefs
only, rather it is extended to religious practices and subjected to the restrictions laid down in
the Constitution. Despite its ambiguity, the test relies on a court-made determination of
essentiality. It was also held in this case that “What constitutes the essential part of a religion
is primarily to be ascertained with reference to the doctrines of that religion itself. If the
tenets of any religious sect of the Hindus prescribe that offerings of food should be given to
the idol at particular hours of the day … all these would be regarded as parts of religion and
the mere fact that they involve expenditure of money or employment of priests and servants
or the use of marketable commodities would not make them secular activities partaking of a
commercial or economic character; all of them are religious practices and should be
regarded as matters of religion within the meaning of Article 26(b).”.
60
Ibid.
61
Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR
1005.
62
Ibid.
28 | P a g e
14. It is humbly submitted that the test is problematic for several reasons, such as, it is
judge-centric, it denies individuals/groups self-determination, and it assigns the courts the
rather thankless duty of defining what does or does not form an essential religious practice.
15. In Sri Venkataramana Devaru v. State of Mysore,63 the Supreme Court itself
determined whether the practice of religious exclusion of Dalits from a denominational
temple founded for the Gowda Saraswath Brahmins was essential instead of permitting the
religious denomination to do so. Effectively, the Court established that although it would take
into account the views of a religious community in determining essentiality, such views
would not be determinative. This established a precedent which was followed for decades.
16. The predicament with the Supreme Court deciding what is ‘religious’ or ‘essential’
is that it impinges upon the subjectivity and self-determination of a religious community. The
Court must only determine whether a religious practice or belief can be restrained under the
Constitution.
17. In Durgah Committee, Ajmer v. Syed Hussain Ali64, while hearing a challenge to
the Durgah Khawaja Saheb Act, 1955, which barred the Khadims of the Soofi
Chishtia religious order from managing the Durgah, the Court observed that when religious
practices arose from superstitious beliefs, they did not merit the protection of Article 26, as
they were not essential and integral to the religion itself. This shifted the focus of the
Supreme Court from analysing religious scriptures to scrutinizing the practice to see if it was
based on some superstition. This has been observed to be antonymous to Shrirur Mutt, and
substitutes the view of the Court for that of the denomination on a matter of religion. After
all, ‘superstition’ to one section may well be a matter of fundamental religious belief to
another.2
18. In the case of Indian Young Lawyers Association v. The State of Kerala65, the
ERP test was used to determine if barring the entry of women into the Sabarimala temple
dedicated to Lord Ayappa was integral to the practice of the religion. The Supreme Court
suggested that the ERP test instilled certain limitations in order to balance competing rights
and interests. Further, in her dissent, Justice Malhotra returned to the initial exposition of the
essential religious practices doctrine in Shirur Mutt, finding that the determination of
63
Sri Venkataramana Devaru v. State of Mysore, 1958 SCR 895.
64
Durgah Committee v. Syed Hussain Ali, (1962) 1 SCR 383.
65
Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1.
29 | P a g e
essentiality of the religious practice of excluding women must be left to the religious
community itself.
19. It is also submitted that the Supreme Court in the case of Hanif Quareshi v. State
of Bihar66, adopted the same approach by using the word essential to qualify the importance
of a given religious practice. The Court held that, “we have no material on the record before
us which will enable us to say, in the face of the foregoing facts, that the sacrifice of a cow on
that day is an obligatory overt act for a Mussalman to exhibit his religious belief and idea.”
Since it was not obligatory or important, the court accorded no protection to the given
practice. The application of essential part of religion test was not required and the law
providing for prohibition of cow slaughter could have been saved under the health restriction
prefacing Article 25(2)(b) since the judgment basically emphasized how preservation of
cattle was essential for public health.
20. Similarly, in Dr. M. Ismail Faruqui v. Union of India67, the Supreme Court held
that a mosque was not an essential aspect of religious aspect in Islam, as the namaz or prayer
could be offered from anywhere, and not necessarily from a mosque. The Court held that
while prayer in itself was an essential religious practice, its offering at every location could
not be considered essential unless the place in itself held special significance for that
religion.68 This view of optionality, however, is unsustainable in a religiously pluralistic
society like India. A large number of religious practices across faiths would be precluded
from constitutional protection if this formula were to be universally applied. In fact, where
the reasoning of the Court were to be turned on its head, then in that case a Hindu's right to
visit a temple during Diwali, or the reverence towards the cow, is also optional, and thus is
not subject to constitutional protection.
21. It is humbly submitted that the lack of a clear and an holistic definition of an
essential religious practice and what it might possibly encompass, has led to a fluctuating
standard in determining essentiality of a religious practice. Until 1984, the Supreme Court
had not considered recency of a religious practice to be a criterion for essentiality. But,
in Acharya Jagdishwaranand Avadhuta v. Comm. Of Police Calcutta69., while holding that
the Tandava dance could not be considered an essential religious practice for the Ananda
Margis, the Court reasoned that it was only introduced as a religious rite in 1966, whereas
66
Mohd. Hanif Quareshi v. State of Bihar, 1959 SCR 629.
67
M. Ismail Faruqui (Dr) v. Union of India, (1994) 6 SCC 360.
68
Ibid
69
Acharya Jagdishwaranand Avadhuta v. Commr. of Police, (1983) 4 SCC 522.
30 | P a g e
the Ananda Margis order itself was established in 1955. Thus, the Court introduced the
recency of a religious practice as an aspect of the ERP test. When the case came before the
Supreme Court again, Justice Lakshmanan dissented with the inclusion of recency in the fold
of the ERP test, by declaring that if such practices have been accepted by the followers of a
religion as a method of achieving their spiritual upliftment, the mere fact that the practice was
recently introduced, could not make it any less a matter of religion.70
22. The opacity of the essential religious practices test has led to contradictory strains
of legal thought within Indian jurisprudence. In Shayara Bano v. Union of India,71 the
Supreme Court, by a narrow 3: 2 split, found the practice of triple talaq to be legally invalid.
Justice Kurien Joseph, in his majority opinion, has noted that the freedom of religion in India
is absolute in nature, except to the extent it was restricted by Article 25. However, he did not
find triple talaq to be a practice integral to the religion, stating that, “merely because a
practice has continued for long, that by itself cannot make it valid if it has been expressly
declared to be impermissible”.72 This runs somewhat counter to the rationale of the Court
in Avadhutha case, wherein a religious practice was denied protection under Article 25
because it was too recent. In Shayara Bano, the time period for which a practice ran added
no weight to the final determination of its essentiality.
23. Despite the path the ERP test has traversed over the years, perhaps its’ time is up.
Justice Chandrachud in his concurring opinion, vocalized the need for a test better suited than
the essential religious practices test. He observed that the Court lacked both the legitimacy
and the competence to decide the essentiality of a religious practice, and that in doing so, it
imposed an external point of view which was inconsistent with the autonomy of faith and
belief as envisioned by
24. Justice Iacobucci of the Canadian Supreme Court while pronouncing his judgment
in Syndicat Northcrest v. Amselem73, observed that “the State is no position to be, nor
should it become, the arbiter of religious dogma.” The basic premise of this idea is that it
would be very dangerous for the State to start telling a religious community what their main
beliefs are as per their religion or whether their entire faith is correct at all. This may lead to a
secular ideology dictating terms to religious one. It would become quite simple for the State
to dismiss various beliefs by putting them through strict constitutional tests of equality and
70
The Commr. of Police v. Acharya Jagdishwaranand Avadutha, (2004) 12 SCC 770 (India), ¶ 793.
71
Shayara Bano v. Union of India, (2017) 9 SCC 1.
72
ibid
73
Moïse Amselem v. Syndicat Northcrest, 2004 SCC OnLine Can SC 47.
31 | P a g e
liberty. However, what must be understood is that religion does not function like any other
law where strict constitutional standards can be applied. the Constitution.
25. The Federal Court of Malaysia reviewed the Indian ERP test in Meor
Atiqulrahman bin Ishak v. Fatimah bte Sihi74 and pointed out that it led to one of two
extreme outcomes - if a practice is found to be integral to a religion, any restriction or
limitation, even regulatory, can be deemed unconstitutional, but if the practice is not found to
be integral, it can be prohibited completely.
26. In the case of Aishat Shifa v. The State of Karnataka & Ors75, Sudhanshu Dhulia
explained as to why the Courts should be slow in the matters of determining as to what is an
ERP. He opined that Courts are not the forums to solve theological questions. Courts are not
well equipped to do that for various reasons, but most importantly because there will always
be more than one viewpoint on a particular religious matter, and therefore nothing gives the
authority to the Court to pick one over the other. The Courts, however, must interfere when
the boundaries set by the Constitution are broken, or where unjustified restrictions are
imposed.
27. In M. Siddiq v. Suresh Das76, popularly known as the Ram Janmabhoomi case this
Court had cautioned not to venture into areas of theology with which the courts are not well
equipped. There may be diversity of views within a religion and to choose one over others,
may not be correct. Courts should steer clear from interpreting religious scriptures.

RELIGIOUS INSTITUTIONS AMOUNT TO INTERFERENCE IN THE
RIGHT TO RELIGION PROVIDED BY THE CONSTITUTION?
1. It is humbly submitted before the Hon’ble Court that the state laws\orders
regulating affairs of religious institutions amounts to interference in the right to religion
provided by the Constitution. The expropriator order requires to be considered strictly as
it infringes the fundamental rights of citizens and would amount to divesting them of their
legitimate rights to manage and administer the temple. It is not permissible for State\
statutory authorities to supersede the administration by adopting any oblique method. It is
74
Meor Atiqulrahman Ishak v. Fatimah Sihi, 2006 SCC OnLine MYFC 25.
75
Aishat Shifa v. State of Karnataka, 2022 SCC OnLine SC 1833.
76
M. Siddiq v. Suresh Das, (2020) 1 SCC 1.
32 | P a g e
not permissible for the authorities to pass any order administration of temple and thus all
orders passed in this regard are liable to be held unenforceable.
2. In the instant case, Dakshin Province government sent ‘office order’ 77 stating that
they have decided to take over all the temples situated in the state and proposed to train
and appoint priests to those temples which directly involves administration and
management of temples, this order has to be held unenforceable which violates
fundamental rights guaranteed under article 26.
[A]. STATE INTERFERENCE AMOUNTS TO VIOLATION OF RIGHT TO

RELIGION PROVIDED BY THE CONSTITUTION
3. Article 26 of the Indian Constitution gives power to the religious denomination

or any section to establish religious institution and charitable purposes; administer and
maintain its own affairs regarding religious; own and acquire movable or immovable
property and administer in accordance with law78.
4. In case of Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha

Swamiar of Sri Shirur Mutt,79, the Court held that it is the fundamental right of a
religious denomination or its representative to administer its properties in accordance
with law; and the law, therefore, must leave the right of administration to the religious
denomination itself subject to such restrictions and regulations as it might choose to
impose. A law which takes away the right of administration from the hands of a religious
denomination altogether and vests it in any other authority would amount to a violation of
the right guaranteed under clause (d) of Article 26.
5. In the case of Khajamian Wakf Estates v. State of Madras80, the constitutional

bench urged that by acquiring the properties belonging to religious denominations, the
Legislature violated Article 26(c) and (d) which provide that religious denominations
shall have the right to own and acquire movable and immovable property and administer
such property in accordance with law. Article 26 does not interfere with the right of the
State to acquire property.
77
Para 8, Moot Proposition.
78
Article 26. Freedom to manage religious affairs
79
Commr., Hindu Religious Endowments v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 SCR
1005
80
Khajamian Wakf Estates v. State of Madras, (1970) 3 SCC 894
33 | P a g e
6. In the case of Kakinada Annadana Samajam v. Commissioner of Hindu

Religious and Charitable Endowments81, the Court held that mathadhipathi is entitle to
maintain all the properties of the math or the specific endowment and allowed power to
manage or administer the properties endowed to the math or specific endowment.
7. In the case of Subramanian Swamy v. State of T.N.82, the Court held that the
State could take control of temples only to remove a malpractice and the same must be
handed over to the person concerned immediately after remedied. Continuation would
amount to violation of fundamental rights and tantamount to usurpation of their
proprietary rights.
8. In the instant case, Dakshin Province government decided to take over complete
control of all temples leads to intervention of State to religious affairs which violates
Article 26(c) of the Aryavarta constitution which empowers religious denomination to
own and acquire movable or immovable property. Once the State acquire the property as
a result of acquisition, denominators cease to own that property. Thereafter their right to
administer that property ceases because it is no longer their property and also there is no
mention of evil practices in religious institution of Aryavarta to provide the remedy. This
acquisition will take over the rights of religious leaders and it definitely will be the end of
autonomy of temples.
9. In the case of Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State

of Kerala 83, in her dissenting judgement, Justice Indu Malhotra observed that in a secular
polity, ‘It is not for the courts to determine which of these practises of a faith are to be
struck down, except if they are pernicious, oppressive, or a social evil, like Sati’.
10. In the case of Commr., Hindu Religious Endowments v. Sri Lakshmindra

Thirtha Swamiar of Sri Shirur Mutt 84, a religious denomination or organization enjoys
complete autonomy in the matter of deciding as to what rites and ceremonies are essential
according to the tenets of the religion they hold and no outside authority has any
jurisdiction to interfere with their decision in such matters.
81
Kakinanda Annadana Samajam v. Commr. of Hindu Religious and Charitable Endowments, (1970) 3 SCC
359
82
Subramanian Swamy v. State of T.N., (2014) 5 SCC 75.
83
Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1
84
Commr. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Matt, AIR 1954 SC 282
34 | P a g e
11. In the case of Krishnan v. Guruvayoor Devasom 85, the full bench of the Kerala
High Court held the Guruvayoor Act, 1971 and 1972 as unconstitutional on the ground
that it was violative of article 14 and 26 of the Constitution. The right to administer the
temple being vested in the denomination, any statutory provision which completely
ignores, the denomination in the matter of setting up the committee to administer the
religious institution belonging to the denomination will necessarily be violative of Article
26 of the Constitution”.
12. In India, on multiple occasions, the courts have tried to interpret religions to suit
their own whims. In Shastri Yagnapurushdasji v. Muldas,86 a group claimed recognition
as an independent denomination following the teachings of Swaminarayan. The court, in
this case, stated that this claim was “founded on superstition, ignorance and a complete
misunderstanding of the true teachings of the Hindu religion and of the real significance
of the tenets and philosophy taught by Swaminarayan himself.” It was held that No matter
how misguided the followers were, it is not within the scope of the court's authority to
grant or restrict any person's beliefs unless it contradicts the requirements of Article 25.
13. There have been numerous instances where the courts have decided matters in a
similar fashion, whether it be the essential practice of keeping the beard for a Muslim
man87 or whether the Tandava dance merits protection88. The court in such cases attempts
to dictate to a group of people what their religion in reality propagates. The real problem
is with the courts explaining whether one should believe in something or not, rather than
protecting those beliefs, thus defeating the entire purpose of incorporating Article 25 in
the Constitution of India.
14. Justice Indu Malhotra rightly points out in her opinion in the case of Indian
Young Lawyers Assn. v. State of Kerala 89—
“Constitutional morality in a pluralistic society and secular polity would reflect that
the followers of various sects have the freedom to practise their faith in accordance
with the tenets of their religion. It is irrelevant whether the practice is rational or
logical. Notions of rationality cannot be invoked in matters of religion by courts.”
85
Krishnan v. Guruvayoor Devaswom, 1979 Ker LT 350: (AIR 1978 Kerala 68).
86
Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya, (1966) 3 SCR 242
87
Mohd. Zubair Corporal v. Union of India, 2016 SCC OnLine SC 1472
88
SP Mittal v. Union of India, (1983) 1 SCR 729
89
Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1
35 | P a g e
15. In the case of Krishnankutty v. State of Kerala90, the Full Bench considered
that for the purpose of Art. 26(d) of the Constitution Hindu public having belief in God
and faith in temple worship is a religious denomination. Prejudice and peril would be
caused if the management of temple is entrusted to persons who have no faith in temple
worship and constitution of a committee with those unbelievers in God and temple
worship will not be a representation of the denomination.
16. In the instant case, the government of Dakshin Province is not only taking all the
temples under their control and vesting them in a Board but it is also about to provide
training and recruit the priests which definitely violates the fundamental rights given to
the religious denominations under Article 26(b) of the Aryavarta constitution which
speaks about managing its own affairs in matter of religion 91 and it even violates the
Article 21 of the constitution that is right to livelihood, where there are many priests who
have already been well-versed with rituals and practices in such temples and have
believed that their earnings will be by performing the poojas and rituals but the proposal
by state that providing training and appointing other priests is unnecessary intervention by
the State with a sole purpose to directly involve in administration and management of the
temples and exclude the religious denomination from managing it, which results to the
final blow of autonomy of temples.
17. Hence it is humbly submitted before this Hon’ble Court the office order which
curbs the fundamental rights given under Article 26 to religious denomination should be
declared as unenforceable and should not give any permissible chance to interfere into the
religious institution to take away their rights.
18. It is also submitted before the Hon’ble Court that the state laws\orders
regulating affairs of religious institutions amounts to interference in the right to religion
provided by the Constitution.
PRAYER
90
Krishnankutty v. State of Kerala, 1985 Ker LT 289: (AIR 1985 Kerala 148)
91
PART 3 — FUNDAMENTAL RIGHTS: Right to Freedom of Religion
36 | P a g e
Wherefore in the light of the facts stated, issues raised, arguments advanced and authorities
cited, the Petitioners most humbly and respectfully plead the Hon’ble Supreme Court to:
1. Allow the Writ Petition.

2. Declare that
3.
AND/OR
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
THE PARTIES SHALL ACCEPT THE JUDGMENT OF THE COURT AS FINAL AND
BINDING FOR THEM AND SHALL EXECUTE IN IT ENTIRETY AND IN GOOD
FAITH.
For this act of kindness, the petitioner shall duly bound forever pray.
Most respectfully submitted,
TC- 006
[THE COUNSEL FOR PETITIONER]
37 | P a g e

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TC-006

FAIRFIELD- FIMT- SCHOOL OF LAW, GGSIP

IN THE HON’BLE SUPREME COURT OF ARYAVARTA

PUBLIC INTEREST LITIGATION

WRIT PETITION NO. 2119 OF 2023

UNDER ARTICLE 32 OF THE CONSTITUTION OF ARYAVARTA

In The Matter Between

ALL ARYAVARTA TEMPLE ASSOCIATION ….....Petitioner

UNION OF ARYAVARTA ……..Respondent

UPON SUBMISSION TO THE HON’BLE SUPREME COURT OF ARYAVARTA

-MEMORANDUM ON BEHALF OF THE PETITIONER

Sl. No. Topic Title Page No.

ISSUE 01: WHETHER THE WRIT PETITION BROUGHT

ISSUE 02: WHETHER THE INSTANT CASE NEEDS TO

ISSUE 03: WHETHER ERP STANDS THE TEST OF TIME

ISSUE 04: WHETHER THE STATE LAWS/ORDERS

Sl.No. Abbreviation Description

4. ERP Essential Religious Practices Test.

10. Ors Others

11. PIL Public Interest Litigation

12. p. Page number

13. Sec./ § Section

14. SC Supreme Court

15. SCC Supreme Court Cases

16. SCR Supreme Court Reporter

17. UOI Union of India

18. Vol. Volume

20. W.P. Writ Petition

3. Aishat Shifa v. State of Karnataka, 2022 SCC OnLine SC 1833.

4. Ashok Kumar Pandey v. State of W.B., (2004) 3 SCC 349.

7. Bandhu Mukti Morcha v. Union of India, AIR 1984 SC 802.

8. Central Bank of India v. Workmen, AIR 1960 SC 12.

9. Commr., Hindu Religious Endowments v. Sri 1954 SCR 1005.

11. Daryao v. State of U.P., (1962) 1 SCR 574.

13. Durgah Committee v. Syed Hussain Ali, AIR 1961 SC 1402.

15. Golak Nath case,

22. Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305.

23. K.K. Kouchunni v. State of Madras, AIR 1959 SC 725.

24. K.S. Puttaswamy v. Union of India, (2015) 8 SCC 735.

25. K.S. Puttaswamy v. Union of India, (2017) 10 SCC 641.

26. Kakinanda Annadana Samajam v. Commr. of Hindu (1970) 3 SCC 359.

28. Kesavananda Bharati v. State of Kerala (1973) 4 SCC 225.

29. Khajamian Wakf Estates v. State of Madras, (1970) 3 SCC 894.

31. Krishnan v. Guruvayoor Devaswom, 1979 Ker LT 350.

32. Krishnankutty v. State of Kerala, 1985 Ker LT 289.

33. Lokesh Katara v. High Court of Gujarat, (2017) 2 SCC 427.

34. M. Ismail Faruqui (Dr) v. Union of India, (1994) 6 SCC 360.

36. M. Siddiq v. Suresh Das, (2020) 1 SCC 1.

37. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.

41. Moïse Amselem v. Syndicat Northcrest, 2004 SCC OnLine Can SC

45. Ratilal Panachand Gandhi v. State of Bombay, 1954 SCR 1055.

46. Romesh Thapar v. State of Madras, AIR 1950 SC 124.

47. S. Nagaraj v. State of Karnataka, 1993 Supp (4) SCC 595.

48. S.P. Gupta v. President of India, AIR 1982 SC 149.

49. Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya, (1966) 3 SCR 242.

50. Shayara Bano v. Union of India, (2017) 9 SCC 1.

51. SP Gupta v. Union of India, [1982]AIR 149.

52. SP Mittal v. Union of India, (1983) 1 SCR 729.

53. Sri Venkataramana Devaru v. State of Mysore, 1958 SCR 895.

54. State of Madras v. V.G. Row, AIR 1952 SC 196.

55. Subramanian Swamy v. State of T.N., (2014) 5 SCC 75.

56. T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.

57. Upendra Baxi v. State of Uttar Pradesh, AIR 1987 SC 191.

II. STATUTES REFERRED: