Memo

26th M.C.
CHAGLA MEMORIAL GLC MOOT COURT COMPETITION, 2019
TEAM CODE: ‘A’
26th M. C. CHAGLA MEMORIAL GOVERNMENT LAW COLLEGE
NATIONAL MOOT COURT COMPETITION, 2019
IN THE SUPREME COURT OF DHARMASTHAAN
W.P. No. (Civil) ___/2019
IN THE MATTER OF
TARKHA BHOLENATH & ORS. .………Petitioner
VERSUS
UNION OF DHARMASTHAAN & ORS. .………Respondent
As submitted to the Chief Justice & other companion Judges of the
Hon’ble Supreme Court of Dharmasthaan
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-W R I T T E N S U B M I S S I O N ON BEHALF OF PETITIONERS -
26th M.C. CHAGLA MEMORIAL GLC MOOT COURT COMPETITION, 2019
INDEX
LIST OF ABBREVIATIONS.........................................................................................................IV
INDEX OF AUTHORITIES ........................................................................................................... V
STATEMENT OF JURISDICTION ............................................................................................. XIV
SYNOPSIS OF FACTS ............................................................................................................... XV
SUMMARY OF ARGUMENTS ................................................................................................ XVII
BODY OF ARGUMENTS ............................................................................................................... 1
[I] WHETHER THE EXCLUSIONARY PRACTICE EMANATING FROM THE NOTIFICATION OF 1968
USURPS THE FUNDAMENTAL RIGHTS GUARANTEED BY THE CONSTITUTION .......................... 1
[1.1] THE IMPUGNED PRACTICE IS NOT PROTECTED BY ARTICLE 26.................................. 1
[1.1.1] THE ISSUE OF TEMPLE ENTRY IS NOT ‘ESSENTIALLY RELIGIOUS’ IN NATURE ............ 2
[1.1.2] THE IMPUGNED PRACTICE IS HIT BY THE LIMITATION OF MORALITY. ....................... 3
[1.2] THE IMPUGNED PRACTICE IS IN VIOLATION OF RIGHT TO EQUALITY UNDER ARTICLE
14 & 15................................................................................................................................... 4
[1.2.1] THE CLASSIFICATION IS BASED ON IMPERMISSIBLE INTELLIGIBLE DIFFERENTIA ...... 5
[1.2.2] THE CLASSIFICATION IS VOID OF A CONSTITUTIONAL OBJECT ................................. 5
[1.2.3] THE EXCLUSIONARY PRACTICE IS MANIFESTLY ARBITRARY .................................... 6
[1.2.4] THE IMPUGNED PRACTICE VIOLATES ARTICLE 15. ................................................... 6
[1.3] THE IMPUGNED PRACTICE IS A FORM OF UNTOUCHABILITY PROHIBITED UNDER
ARTICLE 17. .......................................................................................................................... 7
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[1.4] THE STATE IS UNDER A CONSTITUTIONAL OBLIGATION TO EXTEND EQUAL
PROTECTION OF LAWS TO THE PETITIONERS ...................................................................... 10
[II] WHETHER THE SHORYU MAHABHAKTISM RELIGIOUS RULES, 1967 ARE
CONSTITUTIONALLY VALID? .................................................................................................. 10
[2.1] THE 1967 RULES VIOLATE THE RIGHT TO FREEDOM UNDER ARTICLE 19............... 11
[2.1.1] FREEDOM OF CONSCIENCE AND RIGHT TO WORSHIP ARE AN INTEGRAL PART OF
EXPRESSION ...................................................................................................................... 11
[2.1.2] IMPUGNED PROVISIONS VIOLATE FREEDOM OF MOVEMENT UNDER ARTICLE 19 .. 12
[2.2] THE 1967 RULES VIOLATE THE RIGHT TO LIFE AND PERSONAL LIBERTY UNDER
ARTICLE 21 ......................................................................................................................... 13
[2.3] THE 1967 RULES IMPOSE UNREASONABLE RESTRICTIONS OVER THE FUNDAMENTAL
RIGHTS OF THE CITIZENS..................................................................................................... 13
[2.3.1] THE ENTRY SOUGHT TO BE PREVENTED HAS GOT NO PROXIMATE CONNECTION WITH
MAINTENANCE OF PUBLIC ORDER ...................................................................................... 14
[2.3.2] DEGREE OF RESTRICTION IMPOSED IS MORE THAN WHAT IS NECESSARY TO MEET THE
EVIL .................................................................................................................................. 14
[2.3.3] THE MEANS ADOPTED IS ARBITRARY ..................................................................... 15
[2.4] THE 1967 RULES VIOLATE THE PRINCIPLES OF SECULARISM ................................... 16
[2.5] LAW IS AN INSTRUMENT FOR SOCIAL CHANGE. ......................................................... 17
[III] WHETHER NOTIFICATION OF 2016 IS IN VIOLATION OF FUNDAMENTAL RIGHTS OF THE
CITIZENS ENSHRINED UNDER CONSTITUTION OF INDIA. ......................................................... 17
[3.1] THAT THE NOTIFICATION OF 2016 IS IN VIOLATION OF ARTICLE 19 OF
CONSTITUTION .................................................................................................................... 18
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[3.1.1] THAT THERE HAS BEEN A RESTRICTION IMPOSED UPON THE CITIZENS ................... 18
[3.1.2] THAT THE RESTRICTION THUS IMPOSED IS NOT REASONABLE IN NATURE .............. 19
[3.2] THE NOTIFICATION OF 2016 IS IN VIOLATION OF THE FUNDAMENTAL RIGHT TO
PRIVACY UNDER ARTICLE 21 OF THE CONSTITUTION ...................................................... 21
[3.2.1] THAT THE TEST OF REASONABLE EXPECTATION OF PRIVACY HAS BEEN VIOLATED 21
[3.2.2] THE NOTIFICATION OF 2016 DOES NOT PASS THE TEST OF PROPORTIONALITY ....... 23
PRAYER ....................................................................................................................................IX
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LIST OF ABBREVIATIONS
ABBREVIATIONS MEANING
& And
§ Section
¶ Paragraph
A.P. Andhra Pradesh
AIR All India Reporter
Art. Article
CLR Commonwealth Law Reports
Ed. Edition
Hon’ble Honorable
IJPS Indian Journal of Politics and Law
JILI Journal of Indian Law Institute
Ltd. Limited
Mad LJ Madras Law Journal
MLJ Madras Law Journal
N.Y.U.L. Rev. New York University Law Review
NCT National Capital Territory
No. Number
Ori Orissa
Ors. Others
Pat Patna
SC Supreme Court
SCC Supreme Court Cases
SCR Supreme Court Reports
U. Chi. L. Rev. University of Chicago Law Review
U.P. Uttar Pradesh
UKHL UK House of Lords
v. Versus
YALE L.J. Yale Law Journal
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INDEX OF AUTHORITIES
CASES
SUPREME COURT
13 JUDGE BENCH
1. Keshavananda Bharti v. State of Kerala, (1973) 4 SCC 225 ............................................. 28
9 JUDGE BENCH
2. Indira Sawhney v. Union of India, AIR 1993 SC 477 ....................................................... 16
3. K. S. Puttaswamy and Anr. v. Union of India and Ors., (2017) 10 SCC 1................. passim
4. Supdt. And Remembrancer of Legal Affairs v. Corporation of Calcutta, AIR 1967 SC 997
.......................................................................................................................................... ..29
7 JUDGE BENCH
5. Anwar Ali Sarkar v. Union of India, AIR 1952 SC 75 ...................................................... 16
6. Bhudhan Choudhary v. State of Bihar, AIR 1955 SC 191 ................................................ 17
7. Bidi Supply co. v. Union of India, AIR 1956 SC 479 ....................................................... 17
8. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirta
Swamiar, (1954) 1 SCR 1005 ............................................................................................ 13
9. Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123 ......................................... 19
10. Kharak Singh v. Union of India, (1964) 1 SCR 332 .......................................................... 30
11. Madhu Limaye v. D.M., AIR 1971 SC 2486 ..................................................................... 26
12. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 ..................................................... 18
13. Ramlila Maidan Incident, In Re, (2012) 5 SCC 1........................................................ 26, 32
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5 JUDGE BENCH
14. Ajay Hasia etc. v. Khalid Mujib Sehravardi & Ors, (1981) 1 SCC 722 ............................ 18
15. Anant Mills Co. Ltd v. State of Gujarat, (1975) 2 SCC 175.............................................. 16
16. Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1................................................. 32
17. Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106.......................................... 26
18. Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41 ......................................... 17
19. Chintamanrao v. State of M.P., (1950) SCJ 571 ................................................................ 26
20. E.P. Royappa v. State of T.N., (1974) 4 SCC 3 ................................................................. 18
21. Ghosh v. Joseph, AIR 1962 SC 812 ............................................................................ 26, 32
22. Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671 ............................................. 34
23. Indian Young Lawyers Association v. State of Kerala, (2016) 16 SCC 810..................... 15
24. Joseph Shine v. Union of India, (2019) 3 SCC 39 ....................................................... 16, 35
25. Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404....................................... 16
26. Khare v. State of Delhi, (1950) SCR 519 .......................................................................... 24
27. Kihota Hollohon v. Zachillu, AIR 1993 SC 412 ............................................................... 24
28. M. Nagaraj v. Union of India, AIR 2007 SC 1 .................................................................. 16
29. M.P. Sharma v. Satish Chandra, 1954 SCR 1077 .............................................................. 33
30. Manoj Narula v. Union of India, (2014) 9 SCC 1 ............................................................. 15
31. Mohd. Arif v. Supreme Court, (2014) 9 SCC 737 ............................................................. 37
32. Natural Resources Allocation, In re, (2012) 10 SCC 1...................................................... 18
33. Navtej Singh Johar v. Union of India, (2018) 10 SCC 1 ....................................... 16, 17, 35
34. P. Rathinam v. Union of India, (1993) 1 SCC 645 ............................................................ 25
35. Ram Krishna Dalmia v. Justice S.R. Tendolker, AIR 1958 SC 538.................................. 18
36. Ratilal Panichand v. State of Bombay, (1954) 1 SCR 1055 .............................................. 14
37. Romesh Thappar v. State of Madras, (1950) SCR 594 (602) ............................................ 31
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38. Sakal Papers v. Union of India, AIR 1962 SC 305 ............................................................ 32
39. Sarojini Ramaswami v. Union of India, (1992) 4 SCC 506 .............................................. 36
40. Sastri Yagnapurushadji and Ors. v. Muldas Bhudardas Vaishya and Anr., (1996) 3 SCR
242...................................................................................................................................... 15
41. Shayara Bano v. Union of India, (2017) 9 SCC 1 ............................................................. 18
42. Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr., AIR 1975 SC 2299 .................... 32
43. Sri Venkatramana Devaru v. State of Mysore, (1958) SCR 895 ....................................... 14
44. State of Bihar v. Kameswar Maharajadhiraja Sir Kameswar Singh of Dharbhanga, AIR
1952 SC 252....................................................................................................................... 31
45. State of Bihar v. Shailabala, AIR 1952 SC 329 ................................................................. 26
46. State of M.P. v. Bharat Singh, AIR 1967 SC 1170 ............................................................ 24
47. State of Madras v. V.G. Row, AIR 1952 SC 196 .............................................................. 27
48. State of Tamil Nadu and Ors. v. State of Kerala and Ors., AIR 2014 SC 2407 ................ 32
49. Superintendent, Central Prison, Fatehgarh and Anr v. Dr. Ram Manohar Lohia, AIR 1960
SC 633................................................................................................................................ 26
3 JUDGE BENCH
50. Air India v. Nargesh Meerza, (1982) 1 SCR 438 .............................................................. 19
51. Aruna Roy v. Union of India, (2002) 7 SCC 368 .............................................................. 28
52. Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34 .................................................. 16
53. Bal Patil v. Union of India, (2005) 6 SCC 690 .................................................................. 28
54. C. Masilamani Mudaliar & Ors. v. The Idol of Sri Swaminathaswami Thirukoli & Ors.,
(1996) 8 SCC 525 .............................................................................................................. 29
55. Dr. D.C. Saxena v. Hon’ble the Chief Justice of India, (1996) 5 SCC 216 ....................... 31
56. Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133 ................................. 31
57. Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148 ................................................... 33
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58. Haji Ali Dargah Trust v. Noorjehan Safia Niaz, (2016) 16 SCC 788 ............................... 17
59. Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 ..... 18
60. Kalpana Mehta v. Union of India, (2018) 7 SCC 1 ........................................................... 16
61. Medha Kotwal Lele & Ors v. Union of India & Ors, (2013) 1 SCC 297 .......................... 22
62. Prabodh Verma v. State of Uttar Pradesh, (1984) 4 SCC 251 ........................................... 16
63. S. Rangarajan v. P. Jagjevan Ram, (1989) 2 SCC 574 ...................................................... 24
64. S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 ....................................................... 31
65. Shafin Jahan v. Asokan K.M. & Others, (2018) 16 SCC 368 ........................................... 25
66. Sodhi Shamsher v. State of Pepsu, AIR 1954 SC 276 ....................................................... 32
67. State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 .............................................. 16
68. T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., (2002) 8 SCC 481 ....... 28
69. Union of India and Ors. v. Motion Picture Association and Ors., (1999) 6 SCC 150 ....... 31
70. Vishakha & Ors v. State of Rajasthan & Ors, (1997) 6 SCC 241 ..................................... 22
71. Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17 ......... 28
DIVISION BENCH
72. A.S. Narayana Deekshitulu v. State of A.P., (1996) 9 SCC 548 ....................................... 27
73. Adi Saiva Sivachariyargal Nala Sangam v. State of T.N., (2016) 2 SCC 725 .................. 14
74. Anuj Garg v. Hotel Association, (2008) 3 SCC 1.............................................................. 18
75. Bijoe Emmanuel & Ors. v. State of Kerala & Ors, (1986) 3 SCC 615.............................. 23
76. Charu Khurana v. Union of India, (2015) 1 SCC 192 ....................................................... 18
77. Deepak Sibal v. Punjab University, (1989) 2 SCC 145 ............................................... 15, 17
78. Indian Medical Association v. Union of India, (2011) 7 SCC 179.................................... 21
79. National Legal Services Authority v. Union of India, (2014) 5 SCC 438 ......................... 14
80. Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1............................................ 26
81. Sarla Mugdal v. Union of India, (1995) 3 SCC 635 .......................................................... 23
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82. Shanti Bhushan v. Supreme Court of India, (2018) 8 SCC 396 ........................................ 15
83. State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600............................................ 36
84. State of Karnataka v. Appu Balu Ingale, AIR 1993 SC 1126............................................ 19
85. Subramanian Swamy v. Union of India & Ors., (2016) 7 SCC 221 .................................. 15
HIGH COURT
1. Ajmal Khan & Ors. v. Election Commission of India & Ors. 2017 (3) ALJ 261 ............. 24
2. Binod Rao v. Minocher Rustom Masani, 1976 (78) BomLR 125 ..................................... 22
3. Dalip Kumar Jha and Ors. v. State of Punjab and Ors., 2014 SCC OnLine P&H 20822 .. 22
4. Naz Foundation v. Government of NCT of Delhi and Ors., (2009) 160 DLT 277 (DB) .. 33
5. State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2008) 5 SCC 534 .................. 14
6. Tiger Muthiah v. State of Tamil Nadu, 2000 (1) CTC 1 ................................................... 30
7. Walter Alfred Baid v. Union of India AIR 1976 Del 302 ................................................. 18
FOREIGN JUDGEMENTS
1. Andrews v. Law Society of British Columbia (1989) 1 SCR 143 ..................................... 18
2. Boy Scouts of America v. Dale, 530 U.S. 640 (2000) ....................................................... 21
3. G v. B, MAHGB-000291014 ............................................................................................. 18
4. Gould v. Yukon Order of Pioneers, (1996) 1 S.C.R 571 ................................................... 21
5. Hirabayashi v. United States, 320 U.S. 81 (1943) ............................................................. 26
6. Katz v. United States, 1967 SCC OnLine US SC 248 ....................................................... 32
7. Klass and Ors. v. Germany, (1978) 2 EHRR 214 .............................................................. 29
8. M.G. v. Time Warner Inc., 89 Cal. App. 4th 626 .............................................................. 32
9. Mmusi v. Presiding Officer (2012) MAHLB-00836-10 .................................................... 18
10. NAACP v. Alabama, 357 U.S. 449 (1958) ........................................................................ 30
11. Palko v. Connecticut, 302 U.S. 319 (1937) ....................................................................... 30
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12. R v. Duarte, [1990] 1 S.C.R. 30 ......................................................................................... 33
13. R v. Jeffries, [1994] (1) NZLR 290 ................................................................................... 32
14. R v. LeBeau, (1988), 25 O.A.C. 1 ..................................................................................... 33
15. R. v. Dean of the State Asaph, (1784) 3 TR 428 ............................................................... 22
16. Speiser v. Randall, 357 US 513 (1958).............................................................................. 22
17. Stanley v. Georgia, 22 L Ed 2d 542 ................................................................................... 32
18. Stromberg v. California, 283 US 359 (1931)..................................................................... 26
19. Thornhill v. Alabama, 310 US 88 (1940) .......................................................................... 26
20. United States v. Miller, 1976 SCC OnLine US SC 70 ...................................................... 32
JOURNALS
1. A.M. SHAH, Purity, Impurity, Untouchability: Then and Now, SOCIOLOGICAL BULLETIN,
(2007) at 359 ...................................................................................................................... 18
2. Alfred G. Kililea, Standards for Expanding Freedom of Conscience, 34 U. Pitt. L. Rev.
531,556 (1972) ................................................................................................................... 22
3. Catherine Albertyn, Substantive Equality and Transformation in South Africa, 23 S. Afr.
J. on Hum. Rts. 253 255 (2007) ......................................................................................... 12
4. Farrah Ahmed, Personal Autonomy and the Option of Religious Law, 24 Int’l J. L. Pol’y
& Fam. 222 (2010) ............................................................................................................. 13
5. Hugh Collins, Discrimination, Equality and Social Inclusion, 66 Mod. L. Rev. 16 (2003).
............................................................................................................................................ 12
6. Joan W Scott, Gender: A Useful Category of Historical Analysis, 91(5) The American
Historical Review 1053-1075 (1986)................................................................................. 17
7. Joseph Tussman and Jacobus tenBroek, The Equal Protection of the Laws, 37 CALIF. L.
REV. (1949) ................................................................................................................. 25, 32
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8. Wendy W. Williams, The Equality Crisis: Some Reflections on Courts, Culture and
Feminism, 7 Women’s Rts. L. Rep. 175 (1982). ............................................................... 17
COLLECTION OF WORKS
9. Akeel Bilgrami, Secularism, Nationalism and Modernity, in SECULARISM AND IT CRITICS
497 (Rajeev Bhargava ed. 1st ed. 2014) ............................................................................ 13
10. Comments and Suggestions on the Draft Constitution, in B. SHIVA RAO, 4 THE FRAMING
OF INDIA’S CONSTITUTION, 3,33 (2d ed. 1967) .................................................................. 18
11. Gautam Bhatia, Religious Freedom and Group Identity: Saifuddin and the Anti-Exclusion
Principle, in GAUTAM BHATIA, THE TRANSFORMATIVE CONSTITUTION 159 (1st ed. 2019)
............................................................................................................................................ 13
12. Partha Chatterjee, Secularism and Tolerance, in SECULARISM AND ITS CRITICS at 380,405
(Rajeev Bhargava ed. 1st ed. 2014) ................................................................................... 13
13. Rajeev Bhargava, What is Secularism for?, in Secularism and its Critics at 486-542
(Rajeev Bhargava ed. 1st ed. 2014) ................................................................................... 13
14. Ronojoy Sen, Secularism in Religious Freedom, in THE OXFORD HANDBOOK OF THE
INDIAN CONSTITUTION 885 (Sujit Choudhry et al. eds. 1st ed. 2016) ................................ 11
15. T.N. Madan, Secularism in its Place, in SECULARISM AND ITS CRITICS 297-320 (Rajeev
Bhargava ed. 1st ed. 2014) ................................................................................................. 12
STATUTES
1. § 2, The Protection of Civil Rights Act, No. 22 of 1955 ................................................... 19
2. § 2, The Untouchability Offences Act, No. 22 of 1955 ..................................................... 19
3. §. 69(1), Information and Technology Act, No. 21 of 2000, INDIA CODE (2000) ......... 28
4. Rule 4, Information Technology (Procedures and Safeguards for Interception, Monitoring
and Decryption of Information) Rules, 2009, G.S.R. 780 (E) (India) ............................... 28
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CONSTITUENT ASSEMBLY DEBATES
1. VI CONSTITUENT ASSEMBLY DEBATES OFFICIAL REPORT, Book no. 1 at 412-413 ........... 18
2. VII CONSTITUENT ASSEMBLY DEBATES OFFICIAL REPORT, Book no. 2 at 781-783 .......... 12
3. XI CONSTITUENT ASSEMBLY DEBATES OFFICIAL REPORT, Book no. 5 at 843-845 ........... 18
BOOKS REFERRED
1. ARVIND DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA, 285 (2d ed. 2010). ...... 17
2. H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 691 (4th ed. 1999) ................................ 18
3. DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 2077 (8th ed. 2014) . 19
4. HALSBURY’S LAWS OF ENGLAND, (4th ed. 2009); ............................................................. 24
5. ANDREW MURRAY, INFORMATION TECHNOLOGY LAW 594-595 (3d ed. 2013) ................. 30
6. ANUPAMA RAO, THE CASTE QUESTION: DALITS AND THE POLITICS OF MODERN INDIA 79
(1st ed. 2009). .................................................................................................................... 12
7. ANUPAMA ROY, GENDERED CITIZENSHIP: HISTORICAL AND CONCEPTUAL EXPLORATIONS
117 (1st ed. 2013) .............................................................................................................. 17
8. B. SHIVA RAO, THE FRAMING OF INDIA’S CONSTITUTION, INDIAN INSTITUTE OF PUBLIC
ADMINISTRATION 202 (2d ed. 1967) .................................................................................. 19
9. B. SHIVA RAO, THE FRAMING OF INDIA’S CONSTITUTION, INDIAN INSTITUTE OF PUBLIC
ADMINISTRATION 75 (2d ed. 1967) .................................................................................... 31
10. BHUSHAN VIDYA AND SACHDEVA, AN INTRODUCTION TO SOCIOLOGY, 645 (32d ed.1999)
............................................................................................................................................ 27
11. G. BHATIA, TRANSFORMATIVE CONSTITUTION 142 (1st ed. 2019)...................................... 14
12. GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 12-13
(1999) ................................................................................................................................. 18
13. IAN J. LLOYD, INFORMATION TECHNOLOGY LAW 105-107 (8th ed. 2017) ......................... 34
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14. M.P JAIN, INDIAN CONSTITUTIONAL LAW, 1343 (7th ed. 2010) ................................... 14, 15
15. POLITICS AND ETHICS OF THE INDIAN CONSTITUTION 15 (Rajeev Bhagava ed. 1st ed. 2008)
............................................................................................................................................ 18
16. RISHIKA TANEJA & SIDHANT KUMAR, PRIVACY LAW 42-44 (1st ed. 2014)....................... 30
17. SHAILESH K. SINGH & SANJEEV K. CHADHA, NATIONAL SECURITY LAWS IN INDIAN
SCENARIO 124 (1st ed. 2012). ............................................................................................ 35
18. TARUNABH KHAITAN, A THEORY OF DISCRIMINATION LAW 129 (1st ed. 2015)................ 12
INTERNET SOURCES
1. Arunima Bhattacharya, In A First Indian Court Upholds The ‘Right To Be Forgotten’... 31
2. B.R. Ambedkar, The Untouchables: Who Were They and Why They Became
Untouchables, A DALIT-BAHUJAN MEDIA ......................................................................... 18
3. Farrah Ahmed, ‘Religious Freedom under the Personal Law System,OXFORD UNIVERSITY
PRESS (May 9, 2016) .......................................................................................................... 13
4. Jimena Suarez Ibarrola & Gautam Bhatia, Gender Discrimination, OXFORD
CONSTITUTIONAL LAW (Oct. 2016).................................................................................... 17
5. Mari Mikkola, Feminist Perspectives on Sex and Gender, STANFORD ENCYCLOPAEDIA OF
PHILOSOPHY ....................................................................................................................... 17
COMMITTEE REPORTS
Justice A.P Shah et al, Report of the Group of Experts on Privacy, PLANNING COMMISSION OF
INDIA (Oct. 16, 2010) ..................................................................................................... 28, 35
Committee of Experts under the Chairmanship of Justice B. N. Sri Krishna, A free and fair
digital economy: protecting privacy, empowering Indians. .......................................... 28, 33
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STATEMENT OF JURISDICTION
The Petitioners humbly submit to the jurisdiction of the Hon’ble Supreme Court of
Dharmasthaan in pursuance of Article 32 of the Constitution of Dharmasthaan.
“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.”
All of which is most respectfully submitted
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SYNOPSIS OF FACTS
THE ISLAND NATION OF DHARMASTHAAN AND MANNATH SHRINE
The island nation of Dharmasthaan has very limited access to the outside world and its internet
facilities are monitored and filtered by the agencies of the Central Government. A special police
force known as ‘Unsullied’ enforces and implements religious practices in the country. There
are two prominent religions in Dharmasthaan, ‘Hinduism’ and ‘Mahabhaktism’, which are said
to share a similar trajectory. One of the most visited sites by the citizens is a shrine devoted
Lord Kadamba known as Mannath. One could enter the shrine only upon completing Karvatam,
over a period of 100 days. Karvatam applied to both men and women equally.
THE DIRECTIVES OF 1966 & 1968
In 1966, the Association governing the Mannath Shrine passed a formal directive stating that
Mahabhakts could obtain the permission to enter the Shrine only after following and observing
Karvatam. Subsequently in 1968, the Association notified that women between the ages of 12-
60 are prohibited from entering the shrine.
SHORYU MAHABHAKTISM RELIGIOUS RULES, 1967
In 1966, the Association governing the Mannath Shrine passed a formal directive stating that
Mahabhakts could obtain the permission to enter the Shrine only after following and observing
Karvatam. Subsequently in 1968, the Association notified that women between the ages of 12-
60 are prohibited from entering the shrine.
THE BANDIT WOMEN
By the early 2000’s, a group of bandit women with the assistance of gender activists in
Dharamasthaan discovered a method of submitting information for those individuals otherwise
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prohibited from entering the shrine. In 2015, it was found that the number of ‘Mahabhakts’
entering the shrine was significantly higher than the number of Mahabhkats in Dharmasthaan.
PROTESTS AND VIOLENCE IN SHORYU
In 2015, a number of protests were carried out in different parts of Dharmasthaan, which on
several instances turned violent. All the high-ranking members of the Unsullied were found
dead while attending a closed-door meeting. A curfew was then imposed in the province of
Shoryu, during which, two persons carrying hand-held rocket launchers were intercepted 250
meters away from the gates of the shrine.
NOTIFICATION OF 2016
To put an end to these violent events, the Government of Dharmasthaan passed a Notification
of 2016 under Section 69(1) of the IT Act, 2000 read with Rule 4 of the IT Rules, 2009,
authorizing the Unsullied to decrypt, monitor and intercept any information generated,
transmitted or stored in any computer source by any citizen of Dharmasthaan.
Due to the implementation of 2016 Notification, the Unsullied arrested over two hundred
individuals, including Mahabhakts and a bandit woman. During their arrest, they found several
automatic and semi-automatic weapons and plans to construct a biological weapon.
WRIT PETITIONS IN SUPREME COURT
After unsuccessful representations made to respondents, the current petitions were filed under
Article 32 of the Constitution challenging the exclusionary practice; the 1968 Notification by
the Association; the State Rules of 1967 and the Notification of 2016. Both the petitions are
now listed for final hearing before a bench comprising seven judges.
-MEMORIAL ON BEHALF OF PETITIONERS- PAGE | XVI

SUMMARY OF ARGUMENTS
[I] THE EXCLUSIONARY PRACTICE IS VIOLATIVE OF CONSTITUTIONAL PRINCIPLES AND
SHOULD BE STRUCK DOWN
It is humbly contended that the exclusionary practice being followed at the Mannath Shrine
should be declared unconstitutional because the impugned practice is not a matter of religion
and thus, not protected under Article 26 of the Constitution. The impugned practice is also ex-
facie discriminatory and runs afoul of Right to Equality under Article 14 & 15. Further, the
exclusionary practice is based on notions of purity which amounts to ‘Untouchability’ under
Article 17. Therefore, the State is under a positive Constitutional obligation to ensure that there
exists no gender discrimination to the detriment of the petitioners.
[II] THE SHORYU MAHABHAKTISM RELIGIOUS RULES, 1967 ARE UNCONSTITUTIONAL AND
SHOULD BE STRUCK DOWN
It is humbly contended that the Shoryu Mahabhaktism Religious Rules, 1967 impose an
unreasonable restriction on Right to Freedom of Expression and Freedom of Movement of the
petitioners. Moreover, the impugned rules deprive the petitioners of their Right to Life and
Personal Liberty without a just, fair and reasonable procedure established by law. Further, by
regulating the tenets of a religion, the rules violate the principle of Secularism. Therefore, the
law acts as a bottleneck for social change in the society and should be struck down as
Unconstitutional.
[III] THE NOTIFICATION OF 2016 IS UNCONSTITUTIONAL AND SHOULD BE NULLIFIED
It is humbly contended before the Hon’ble Court that the Notification of 2016 is in direct
violation of the rights of the citizens, as enshrined under the Constitution of Dharmasthaan.
There is a violation of Article 19, as there is an imposition of an unreasonable form of
-MEMORIAL ON BEHALF OF PETITIONERS- PAGE | XVII

restriction upon the citizens. Due to this restriction placed on the Liberty of the citizens due to
the surveillance regime thus established, there is a violation of the Right to Privacy as enshrined
under Article 21 of the Constitution, as it also fails the test of ‘reasonable expectation of
privacy’ and the test of ‘proportionality’, thus making it unconstitutional in nature.
-MEMORIAL ON BEHALF OF PETITIONERS- PAGE | XVIII

BODY OF ARGUMENTS
[I] WHETHER THE EXCLUSIONARY PRACTICE EMANATING FROM THE NOTIFICATION OF
1968 USURPS THE FUNDAMENTAL RIGHTS GUARANTEED BY THE CONSTITUTION
1. It is respectfully submitted before the Hon’ble Supreme Court that the practices followed
at the Mannath Shrine1 by virtue of the Directive passed by the Association,2 doesn’t allow
women between the age of 12-60 and non-Mahabhakts to enter the shrine, should be held
unconstitutional because, firstly, the impugned practice is not protected by Article 26 [1.1];
secondly, the impugned practice is in violation of Right to Equality under Article 14 & 15
[1.2]; thirdly, exclusionary practice is based on notions of purity, which amounts to
‘Untouchability’ under Article 17 [1.3]; and lastly, the State is under a constitutional
obligation to ensure that there exists no gender discrimination to the detriment of the
petitioners. [1.4]
[1.1] THAT THE IMPUGNED PRACTICE IS NOT PROTECTED BY ARTICLE 26
2. It is humbly submitted that Article 26 guarantees religious denominations the right to
manage their own affairs in ‘matters of religion’3 subject to the limitation of ‘morality’.4
However, such protection cannot be extended to the worshippers of Mannath Shrine as
temple-entry is not ‘essentially religious’ in nature [1.1.1] and the impugned practice is hit
by the limitation of morality [1.1.2].
1
¶4, Page 2, MOOT PROPOSITION, 26th M.C. Chagla Memorial Moot Court, 2019.
2
3
Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirta Swamiar, (1954) 1 SCR 1005
(India).
4
Ronojoy Sen, Secularism in Religious Freedom, in THE OXFORD HANDBOOK OF THE INDIAN CONSTITUTION 885
(Sujit Choudhry et al. eds. 1st ed. 2016).
-MEMORIAL OF BEHALF OF THE PETITIONERS- PAGE | 1

[1.1.1] THE ISSUE OF TEMPLE ENTRY IS NOT ‘ESSENTIALLY RELIGIOUS’ IN NATURE
3. It is humbly contended that the scheme of religious freedom under the Indian Constitution
itself draws a distinction between the religious and the secular.5 It is important to demarcate
the matters which are essentially religious and matters which may touch the religious
institutions at several points, but which are not intimately linked with the religion.6 Only
the former would be protected by Article 26(b).7
4. It is contended that the matter at hand is not simply a case involving the right to worship,
which is an internal dispute within a religious community, rather is a matter about defining
the religious boundaries with respect to access to public spaces The impugned practices
implemented by the association is a testimony to the fact that discrimination is not limited
to State action, or even hostile individual action, but that it also flows from institutional
design.8
5. Religion in Dharmasthaan plays a prominent role in day to day life9 making places of
worship necessary social institutions,10 and because of which, the impact upon the lives of
the people they touch is not merely a private matter.11 Essentially, the impact of the
impugned practice is not limited to the boundaries of religion but its impact goes far into
the domain of accessing ‘public spaces.’12
6. Further, in Dharmasthaan temple-entry movements have a long history, and have always
been framed in the language of civil rights, and access to public spaces.13 Therefore, it is
5
INDIA CONST. art. 25(2)(a).
6
VII CONSTITUENT ASSEMBLY DEBATES OFFICIAL REPORT, Book no. 2 at 781-783; see also T.N. Madan,
Secularism in its Place, in SECULARISM AND ITS CRITICS 297-320 (Rajeev Bhargava ed. 1st ed. 2014).
7
Ratilal Panichand v. State of Bombay, (1954) 1 SCR 1055 (India).
8
Catherine Albertyn, Substantive Equality and Transformation in South Africa, 23 S. Afr. J. on Hum. Rts. 253
255 (2007).
9
¶1, Page 1, MOOT PROPOSITION, The M.C. Chagla Memorial Moot Court, 2019.
10
ANUPAMA RAO, THE CASTE QUESTION: DALITS AND THE POLITICS OF MODERN INDIA 79 (1st ed. 2009).
11
TARUNABH KHAITAN, A THEORY OF DISCRIMINATION LAW 129 (1st ed. 2015).
12
Hugh Collins, Discrimination, Equality and Social Inclusion, 66 Mod. L. Rev. 16 (2003).
13
Sri Venkatramana Devaru v. State of Mysore, (1958) SCR 895 (India); see also, Rao, supra note 10 at 81, 85.

asserted that the “thick” character of religious life in Dharmasthaan implies that one cannot
simply wall it off from the rest of the social life.14
7. Therefore, this practice of exclusion is nested in an entire social and institutional order that
is characterised by hierarchy, subordination, and exclusion.15 The practice is not limited to
worship at Mannath Shrine but is about what exclusion means in a broader context and
thus, is not a matter of religion over which the denomination can exercise its autonomy.16
[1.1.2] THE IMPUGNED PRACTICE IS HIT BY THE LIMITATION OF MORALITY.
8. It is humbly contended that the operation of Article 26(b) is barred by the “morality” clause.
The term ‘morality’ used in Article 25 or Article 26 is not an individualised or sectionalized
sense of morality,17 subject to varying practices and ideals of every religion.18 It is morality
informed by the constitutional vision.19 It is grounded in the constitutional text, tempered
by Articles 14, 15, 17, 21. 20
9. Furthermore, a claim for this exclusionary practice from religious worship, even if it be
founded in the religious text, is subordinate to the constitutional values of liberty, dignity
and equality.21 Therefore, even if the exclusionary practice is essential to the religion, this
test of essentiality should be subject to necessary limitations, that are grouped in
constitutional morality.22 As is submitted further that the impugned practice is in derogation
14
Akeel Bilgrami, Secularism, Nationalism and Modernity, in supra note 6 at 497; see also Rajeev Bhargava,
what is Secularism For?, in supra note 6 at 486-542.
15
Gautam Bhatia, Religious Freedom and Group Identity: Saifuddin and the Anti-Exclusion Principle, in GAUTAM
BHATIA, THE TRANSFORMATIVE CONSTITUTION 159 (1st ed. 2019); see also, Partha Chatterjee, Secularism and
Tolerance, in supra note 6 at 380,405; see also, Farrah Ahmed, ‘Religious Freedom under the Personal Law
System,OXFORD UNIVERSITY PRESS (May 9, 2016) http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2777337;
see also, Farrah Ahmed, Personal Autonomy and the Option of Religious Law, 24 Int’l J. L. Pol’y & Fam. 222
(2010).
16
Sastri Yagnapurushadji and Ors. v. Muldas Bhudardas Vaishya and Anr., (1996) 3 SCR 242 (India).
17
Manoj Narula v. Union of India, (2014) 9 SCC 1 (India).
18
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat, (2008) 5 SCC 534 (India).
19
National Legal Services Authority v. Union of India, (2014) 5 SCC 438 (India).
20
Adi Saiva Sivachariyargal Nala Sangam v. State of T.N., (2016) 2 SCC 725 (India).
21
Indian Young Lawyers Association v. State of Kerala, (2016) 16 SCC 810 (India).
22
Id..; see also State (NCT of Delhi) v. Union of India, (2018) 8 SCC 501 (India); see also Navtej Singh Johar v.
Union of India, (2018) 10 SCC 1 (India); see also Shanti Bhushan v. Supreme Court of India, (2018) 8 SCC 396
(India); see also Joseph Shine v. Union of India, (2019) 3 SCC 39 (India).

to the rights of the women under Article 14, 15,23 1724 and 21,25 it can be said that the
impugned practice is hit by the limitation founded in constitutional morality and hence
should be struck down.26
[1.2] THAT THE IMPUGNED PRACTICE IS IN VIOLATION OF RIGHT TO EQUALITY UNDER
ARTICLE 14 & 15
10. It is humbly contended that the Constitution guarantees the Right to Equality under Article
14 to 18. Equality has always been the most magnificent corner-stone of this democracy27
as it is a necessary corollary of Rule of Law which pervades the Indian Constitution.28 Right
to Equality is also a tool of transformative constitutionalism as it places those who were
denuded of their human rights before the advent of the Constitution - whether in the veneer
of caste, patriarchy or otherwise, in control of their own destinies by the assurance of the
equal protection of law.29
11. It is submitted that it is a well settled law that the basic threshold under Article 14 that any
law must meet in order to survive a constitutional challenge, is the existence of an
intelligible differentia,30 and that intelligible which bears a rational nexus to the object
sought to be achieved.31
23
See Infra section [1.2] at p. 4.
24
25
26
Kalpana Mehta v. Union of India, (2018) 7 SCC 1 (India).
27
Ashutosh Gupta v. State of Rajasthan, (2002) 4 SCC 34 (India); see M. Nagaraj v. Union of India, AIR 2007
SC 1 (India); see, M.P JAIN, INDIAN CONSTITUTIONAL LAW, 1343 (7th ed. 2010).
28
Indira Sawhney v. Union of India, AIR 1993 SC 477 (India); see also, Subramanian Swamy v. Union of India
& Ors., (2016) 7 SCC 221 (India).
29
G. BHATIA, TRANSFORMATIVE CONSTITUTION 142 (1st ed. 2019).
30
Anant Mills Co. Ltd v. State of Gujarat, (1975) 2 SCC 175 (India); see also Anwar Ali Sarkar v. Union of India,
AIR 1952 SC 75 (India).
31
Prabodh Verma v. State of Uttar Pradesh, (1984) 4 SCC 251 (India); see also Kedar Nath Bajoria v. State of
West Bengal, AIR 1953 SC 404 (India); see also Deepak Sibal v. Punjab University, (1989) 2 SCC 145 (India).

[1.2.1] THE CLASSIFICATION IS BASED ON IMPERMISSIBLE INTELLIGIBLE DIFFERENTIA
12. It is humbly submitted before this Hon’ble Court that Article 14 be conjointly read with
Article 15(1). The combined effect of the Article 14 and 15 is not that the inequality must
be based on some reasonable ground and that, due to Article 15(1), religion, caste, sex, or
place of birth alone cannot be, a reasonable ground for discrimination.32 Therefore, not
allowing women of age 12-60 along with Non-Mahabhakts to enter temple is ex-facie
discrimination based on gender and religion.33 This classification is axiomatic as it is solely
based upon biological or physiological attributes and hence, ought not be construed as a
legitimate and a reasonable classification so as to pass the test of constitutionality,34
[1.2.2] THE CLASSIFICATION IS VOID OF A CONSTITUTIONAL OBJECT
13. It is submitted that the exclusion of women of ages between 12 and 60 from entry into the
Mannath Shrine is based on certain characteristics attributable exclusively to women.35 To
suggest that women cannot keep the Karvatam is to stigmatise them and stereotype them
as being weak and lesser human beings. It is submitted that the said object goes contrary to
the constitutional ethos of ‘justice, liberty, equality, fraternity assuring the dignity of the
individual’ as Stated in the Preamble and therefore it cannot be considered to be a valid
object.36
14. Also, the alleged justification for this discrimination that the deity is a celibate cannot be
construed to be rational. The assumption in such a claim is that a deviation from the
celibacy and austerity observed by the followers would be caused by the presence of
women. The underlying assumption cannot withstand the Constitutional scrutiny. Its effect
32
Jain, supra note 27 at 933.
33
MOOT PROPOSITION supra note 2.
34
Navtej Singh Johar supra note 22; Charanjit Lal Chowdhury v. Union of India, AIR 1951 SC 41 (India); see
also Bhudhan Choudhary v. State of Bihar, AIR 1955 SC 191 (India); see also Bidi Supply co. v. Union of India,
AIR 1956 SC 479 (India);
35
36
Haji Ali Dargah Trust v. Noorjehan Safia Niaz, (2016) 16 SCC 788 (India).

is to impose the burden of a man’s celibacy on a woman and construct her as a cause for
deviation from celibacy. This is then employed to deny women access to public spaces to
which they are equally entitled.37
15. Therefore, the law is well settled on the point that if the objective is devoid of any logic,
unfair and unjust, necessarily the classification will have to be unreasonable.38
[1.2.3] THE EXCLUSIONARY PRACTICE IS MANIFESTLY ARBITRARY
16. It is submitted that the impugned exclusionary practice is ‘manifestly arbitrary’39 as the
same is based entirely on a physiological factor40 bearing no nexus to the object of
worship41 at the temple. Furthermore, the practice is unreasonable42 as the Association has
failed to establish important link as to why women can’t undergo strict sacrifice of 100
days, also, their notions of ‘impurity’ are based on several assumptions and inferences.43
17. Therefore, it is submitted that exclusionary practice per se violates equality of women44
and is ‘manifestly arbitrary.’45 Therefore, this court must refuse to recognize such claims.46
[1.2.4] THE IMPUGNED PRACTICE VIOLATES ARTICLE 15.
18. It is humbly contended that the exclusionary practice in the present case, whether couched
as regulation or restriction, results in discrimination against women as a “class”. The
discrimination is also based grounds of “sex”,47 because the purported reason for exclusion
37
Indian Young Lawyers Association & Ors v. The State of Kerala & Ors, 2018 SCC OnLine 1690 (India).
38
Deepak Sibal, supra note 31; see also, Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985)
1 SCC 641 (India).
39
Shayara Bano v. Union of India, (2017) 9 SCC 1 (India).
40
41
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 (India).
42
E.P. Royappa v. State of T.N., (1974) 4 SCC 3 (India).
43
44
Ram Krishna Dalmia v. Justice S.R. Tendolker, AIR 1958 SC 538 (India); See also INDIA CONST. art. 14.
45
Natural Resources Allocation, In re, (2012) 10 SCC 1 (India).
46
Ajay Hasia etc. v. Khalid Mujib Sehravardi & Ors, (1981) 1 SCC 722 (India).
47
Joan W Scott, Gender: A Useful Category of Historical Analysis, 91(5) The American Historical Review 1053-
1075 (1986); See also , Mari Mikkola, Feminist Perspectives on Sex and Gender, STANFORD ENCYCLOPAEDIA
OF PHILOSOPHY, https://plato.stanford.edu/entries/feminism-gender; See also G v. B, MAHGB-000291014.

is a feature that is attributable only to women48. It is respectfully submitted that if the
additional factor emanates from the characteristics of that particular sex, then the additional
factor only reinforces the discrimination on the ground of sex and therefore becomes
discrimination on the ground of only sex.49
19. Furthermore, the Impugned practice and the Impugned Notifications perpetuate gender
stereotypes which is a form of discrimination based on sex.50 One such stereotype
perpetuated is that women are incapable of observing the Karvatam, while another
stereotype is that women are only meant to take care of domestic needs. Perpetuating
stereotypes such as above institutionalise discrimination and end up victimizing its subject
in name of protection.51
20. Therefore, it is for the court to review that the majoritarian impulses rooted in moralistic
tradition do not infringe upon individual autonomy.52 This institutionalised discrimination
is a clear violation of the fundamental rights of gender justice53 and hence should be struck
down as unconstitutional.
[1.3] THAT THE IMPUGNED PRACTICE IS A FORM OF UNTOUCHABILITY PROHIBITED UNDER
ARTICLE 17.
21. It is submitted that one of the most fundamental provisions of the Constitution of
Dharmasthaan is Article 17 as it applies to both State and non-State actors.54 The use of
48
1 ARVIND DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA, 285 (2d ed. 2010).
49
Air India v. Nargesh Meerza, (1982) 1 SCR 438 (India); see also Walter Alfred Baid v. Union of India AIR
1976 Del 302 (India).
50
Anuj Garg v. Hotel Association, (2008) 3 SCC 1 (India); see also Jimena Suarez Ibarrola & Gautam Bhatia,
Gender Discrimination, OXFORD CONSTITUTIONAL LAW (Oct. 2016),
http://oxcon.ouplaw.com/view/10.1093/law-mpeccol/law-mpeccol-e127; see also Kathi Raning Rawat v. State of
Saurashtra, AIR 1952 SC 123 (India).
51
Andrews v. Law Society of British Columbia (1989) 1 SCR 143 (Can.); see also Mmusi v. Presiding Officer
(2012) MAHLB-00836-10; see also Charu Khurana v. Union of India, (2015) 1 SCC 192 (India).
52
Wendy W. Williams, The Equality Crisis: Some Reflections on Courts, Culture and Feminism, 7 Women’s Rts.
L. Rep. 175 (1982).
53
ANUPAMA ROY, GENDERED CITIZENSHIP: HISTORICAL AND CONCEPTUAL EXPLORATIONS 117 (1st ed. 2013).
54
POLITICS AND ETHICS OF THE INDIAN CONSTITUTION 15 (Rajeev Bhagava ed. 1st ed. 2008); see also State of
Karnataka v. Appu Balu Ingale, AIR 1993 SC 1126 (India).

the expression “in any form” includes untouchability based on social factors and is wide
enough to cover discrimination based on impurity of mind, body and soul.55
22. The constitutional intent in keeping the understanding of untouchability in Article 17 open-
textured56 was to abolish all practices based on the notion of purity and pollution.57 This
Article proscribes untouchability ‘in any form’.58 The exclusion of women on notions of
impurity from religious spaces and practices is no less a form of discrimination than the
exclusion of oppressed castes.59
23. Th term “untouchability” has been understood60 to be inclusive of the notions of defilement,
pollution, contamination,61 Consequently, this term has been understood to be inclusive of
any consequent denial of social religion, equality, refusal of admittance or access to public
places including the places of worship.62
24. Further, even the Legislature has refrained from having a straitjacket definition of
untouchability in the Protection of Civil Rights Act, 195563 and the Untouchability
(Offence) Act, 195564 to promote liberal interpretation of the same65.
55
B.R. Ambedkar, The Untouchables: Who Were They and Why They Became Untouchables, A DALIT-BAHUJAN
MEDIA, www.ambedkar.org/ambcd/39A.untoUchables%20PART%20I.htm; see ¶10, Page 4, MOOT
PROPOSITION, 26th M.C. Chagla Memorial Moot Court, 2019.
56
CONSTITUENT ASSEMBLY DEBATES OFFICIAL REPORT, supra note 6 at 660-662; see also CONSTITUENT
ASSEMBLY DEBATES OFFICIAL REPORT, supra note 6 at 665; see also VI CONSTITUENT ASSEMBLY DEBATES
OFFICIAL REPORT, Book no. 1 at 412-413; see also Id. at 413; see also CONSTITUENT ASSEMBLY DEBATES
OFFICIAL REPORT, supra note 6 at 682-684; see also 3 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION
OF INDIA, 3178 (8th ed. 2008).
57
Comments and Suggestions on the Draft Constitution, in B. SHIVA RAO, 4 THE FRAMING OF INDIA’S
CONSTITUTION, 3,33 (2d ed. 1967).
58
1 H. M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 691 (4th ed. 1999); see also Jain, supra note 27 at 1411.
59
GRANVILLE AUSTIN, THE INDIAN CONSTITUTION: CORNERSTONE OF A NATION 12-13 (1999).
60
CONSTITUENT ASSEMBLY DEBATES OFFICIAL REPORT, supra note 56 at 341.
61
Appu Balu Ingale, supra note 54.
62
CONSTITUENT ASSEMBLY DEBATES OFFICIAL REPORT, supra note 56 at 427.; see also CONSTITUENT ASSEMBLY
DEBATES OFFICIAL REPORT, supra note 56 at 481-483; see also XI CONSTITUENT ASSEMBLY DEBATES OFFICIAL
REPORT, Book no. 5 at 843-845; see also CONSTITUENT ASSEMBLY DEBATES OFFICIAL REPORT, supra note 6 at
666-667; see also Id. at 805-809; see also A.M. SHAH, Purity, Impurity, Untouchability: Then and Now,
SOCIOLOGICAL BULLETIN, (2007) at 359.
63
§ 2, The Protection of Civil Rights Act, No. 22 of 1955 (1955).
64
§ 2, The Untouchability Offences Act, No. 22 of 1955 (1976).
65
2 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 2077 (8th ed. 2014).

25. It is submitted that Article 17 read with Civil Rights Act and Untouchability (Offence)
Act66 provides for punishment for enforcing religious disability on the ground of
untouchability. The phrase “equally entitled to” in Article 25(1)67 finds resonance in §
3(a) of the Civil Rights Act which criminalizes exclusion of people to those places which
are open to other persons professing the same religion, or any section thereof.68 Therefore,
Mahabhakt women are a section of the Mahabhakts and should be equally entitled to enter
the temple like any other Mahabhakt.
26. Notably, ‘place of public worship’ is defined under § 2(d) of the Act to mean, inter alia, a
place “by whatever name known belonging to any religious denomination or any section
thereof, for the performance of any religious service…”.69 Therefore, it has already been
demonstrated that the Temple is a public temple, and irrespective of its denominational
character, it cannot prevent the entry of any devotee aspiring to enter and worship.
27. It is contended that the exclusionary practice has also subjected Non-Mahabhakts to the
skewed notions of impurity of mind, body and soul and thus, are not allowed to enter the
Mannath Shrine. However, the scope of untouchability in India is so comprehensive in
nature that it abolishes untouchability in all forms – whether it is untouchability within the
community or between various communities.70 Notions of “purity and pollution”, which
stigmatize individuals, can have no place in a constitutional regime and should be hence
struck down.
66
Supra note 63 at § 3.
67
INDIA CONST. art. 25(1).
68
Supra note 66 at §3(a).
69
Id. at §2(d).
70
B. SHIVA RAO, THE FRAMING OF INDIA’S CONSTITUTION, INDIAN INSTITUTE OF PUBLIC ADMINISTRATION 202
(2d ed. 1967).

[1.4] THAT THE STATE IS UNDER A CONSTITUTIONAL OBLIGATION TO EXTEND EQUAL
PROTECTION OF LAWS TO THE PETITIONERS
28. It is humbly submitted that the State cannot deprive its citizens of the Constitutional Rights
guaranteed under Article 14 & 15. It would be the constitutional responsibility of the State
to ensure that the principles enshrined in Article 14 & 15 of the Constitution be upheld.71
Article 14 of the Constitution guarantees that the State shall not deny any person equality
before the law or the equal protection of the law within the territory of India72 and Article
15 guarantees that the State shall not discriminate against any citizen on grounds only of
religion, race, caste, sex, place of birth or any of them.73
29. The State would be under a Constitutional Obligation to extent equal protection of law to
the petitioners to the extend, that it will have to ensure that there is no gender
discrimination.74 Therefore, the State should take necessary action in order that the
petitioners may vindicate their fundamental rights.
[II] WHETHER THE SHORYU MAHABHAKTISM RELIGIOUS RULES, 1967 ARE
CONSTITUTIONALLY VALID?
1. It is humbly contended that the practice of exclusion under the Shoryu Mahabhaktism
Religious Rules, 1967 (hereinafter, “The 1967 rules”) has resulted in the violation of firstly,
Right to Freedom under Article 19 [2.1]; secondly, Right to Life and Personal Liberty
under Article 21 [2.2]; thirdly, it is an unreasonable restriction [2.3]; fourthly, it is in
71
Medha Kotwal Lele & Ors v. Union of India & Ors, (2013) 1 SCC 297 (India). see also Boy Scouts of America
v. Dale, 530 U.S. 640 (2000) (U.S); see also Gould v. Yukon Order of Pioneers, (1996) 1 S.C.R 571 (Can.).
72
INDIA CONST., supra note 44.
73
INDIA CONST. art. 15.
74
Vishakha & Ors v. State of Rajasthan & Ors, (1997) 6 SCC 241 (India). see also Indian Medical Association v.
Union of India, (2011) 7 SCC 179. See also Khaitan supra note 11.

violation of principles of Secularism enshrined under the Constitution [2.4]; and lastly, law
is an instrument for social change. [2.5]
[2.1] THAT THE 1967 RULES VIOLATE THE RIGHT TO FREEDOM UNDER ARTICLE 19.
2. It is humbly contended that there has been a violation of Article 19 due to the restriction
imposed upon the Petitioners, as firstly, freedom of conscience and right to worship are an
integral part of Article 19(1)(a); and secondly, there has been a violation of Freedom of
movement under Article 19(1)(d).
[2.1.1] FREEDOM OF CONSCIENCE AND RIGHT TO WORSHIP ARE AN INTEGRAL PART OF
EXPRESSION
3. It is humbly submitted that freedom of speech and expression under Article 19(1)(a) has
been described as the touchstone of personal liberty.75 The Constitution of India protects
the liberty of all subjects guaranteeing the freedom of conscience, specially guaranteed
under Article 19(1)(a), and the freedom of conscience is a form of freedom of belief or
faith in any religion falling within the zone of purely private thought process, and is an
aspect of liberty.76 Rather, the freedom of conscience is a form of liberty established under
Article 19(1)(a) and 21 of the Constitution.77 This has been a right under the Common Law
of England which has been recognised and enforced by the Courts in India prior to the
coming into force of the Constitution, and it has been continued by the Constitution.78
4. Further, Article 19(1)(a) has over time come to mean the right to express one’s opinion by
any manner and would also include the freedom of communication and the right to
propagate or publish opinion.79 The court also expanded religious liberty to practices and
75
Speiser v. Randall, 357 US 513 (1958); see also R. v. Dean of the State Asaph, (1784) 3 TR 428.
76
K. S. Puttaswamy and Anr. v. Union of India and Ors., (2017) 10 SCC 1 (India).
77
Dalip Kumar Jha and Ors. v. State of Punjab and Ors., 2014 SCC OnLine P&H 20822 (India).
78
Binod Rao v. Minocher Rustom Masani, 1976 (78) BomLR 125 (India).
79
S. Rangarajan v. P. Jagjevan Ram, (1989) 2 SCC 574 (India); see also Kihota Hollohon v. Zachillu, AIR 1993
SC 412 (India).

even eternal overt acts of the individual.80 The right to freely “profess, practice and even
propagate religion” is a facet of free speech guaranteed under the Article .81 By means of
these rules, the right to express their religion by means of overt practices of performing
their rituals and ceremonies has been taken away despite their genuine, conscientious
religious objection clearly contravene the right guaranteed by Article 19(1)(a).82
5. Also, in the instant case, the right to freedom of conscience of the Non- Mahabhakts has
also been curtailed, as those Non- Mahabhakts who are agnostic by faith have been
restricted of their right to enter the shrine, as in its modern form, the right to freedom of
conscience includes the freedom from conformity to religious dogma.83
[2.1.2] IMPUGNED PROVISIONS VIOLATE FREEDOM OF MOVEMENT UNDER ARTICLE 19
6. It is humbly submitted that the freedom of movement under Article 19(1)(d) under the
Constitution which is infringed not only by expelling or removing84 a person from one part
of India, but also requiring him not to move out of a particular area.85
7. In the present matter, the right of the petitioners of movement throughout the territory of
Dharmasthaan has been curtailed due to the restriction imposed under the impugned rules,86
due to which their Fundamental Right under Article 19(1)(d) has been violated, alongside
Article 19(1)(a), as stated above. This restriction entails to the same imposed on travellers,
historians, archaeologists etc., considering the historical prevalence of the shrine in the
State of Dharmasthaan, which can also be said to be causing a hinderance to their right to
freedom of profession.87
80
Sarla Mugdal v. Union of India, (1995) 3 SCC 635 (India).
81
Justice K.S. Puttaswamy & Ors. v. Union of India & Ors., (2018) 1 SCC 809 (India).
82
Bijoe Emmanuel & Ors. v. State of Kerala & Ors, (1986) 3 SCC 615 (India).
83
Alfred G. Kililea, Standards for Expanding Freedom of Conscience, 34 U. Pitt. L. Rev. 531,556 (1972).
84
Khare v. State of Delhi, (1950) SCR 519 (India).
85
State of M.P. v. Bharat Singh, AIR 1967 SC 1170 (India).
86
Annexure I, Page 10, MOOT PROPOSITION, 26th M.C. Chagla Memorial Moot Court, 2019.
87
INDIA CONST. art. 19(1)(g).

[2.2] THE 1967 RULES VIOLATE THE RIGHT TO LIFE AND PERSONAL LIBERTY UNDER
ARTICLE 21
8. It is humbly submitted that the right to live with human dignity has taken within its fold the
process of civilization which makes life worth living and expanded concept of life would
mean the tradition, culture, and the heritage of the person concerned. 88 The expression
personal liberty includes privacy which is an essential aspect of dignity and recognizes an
inviolable right to determine how freedom shall be exercised.89
9. Further, the ability to take decisions on aspect which define one’ personhood and identity
is an integral part of liberty and autonomy which inheres in each individual.90 It is submitted
that religion is a matter of individual preferences and choices.91 Not only this, religion is a
matter of faith and is a matter within one’s mind. Therefore, subjecting petitioners to
detailed forms forcing them, to give personal details and also a written examination to prove
one’s religion is a direct attack on the personal dignity of the citizens. Enactment of these
rules have infringed upon the right of the petitioners to worship or not worship in a place
of public worship, outrightly rejecting their claim to worship.
[2.3] THAT THE 1967 RULES IMPOSE UNREASONABLE RESTRICTIONS OVER THE
FUNDAMENTAL RIGHTS OF THE CITIZENS.
10. It is humbly submitted that the current rules cannot be upheld as reasonable as the entry
which is sought to be prevented has got no real, proximate and reasonable connection with
88
P. Rathinam v. Union of India, (1993) 1 SCC 645 (India).
89
Puttaswamy supra note 81.
90
Shafin Jahan v. Asokan K.M. & Others, (2018) 16 SCC 368 (India).
91
Ajmal Khan & Ors. v. Election Commission of India & Ors. 2017 (3) ALJ 261 (India); see also International
Covenant on Civil and Political Rights art.18, Dec. 16, 1966, 999 UNTS 171, 1057 UNTS 407.

the maintenance of public order92 [2.3.1]; degree of restriction imposed is more than what
is necessary to meet the evil93 [2.3.2] and means adopted is arbitrary.94 [2.3.3]
[2.3.1] THE ENTRY SOUGHT TO BE PREVENTED HAS GOT NO PROXIMATE CONNECTION WITH
MAINTENANCE OF PUBLIC ORDER
11. It is humbly submitted a restriction cannot be said to be reasonable where its connection
with the ground of restriction is only remote. It is pertinent to note that there has been no
instance of communal disharmony in relation to Mannath Shrine. It is therefore based on
hypothetical and imaginary considerations of the Government that public disorder might
be created. However, there is no proximate or even foreseeable connection between such
restriction and the public order sought to be protected under this section.95 Therefore, in
case of mere apprehension, without any material facts to indicate that the apprehension is
imminent and genuine, it may not be proper for the State to place such a restriction upon
the rights of the citizens.96 there is no ‘Proximate relationship’ to the achievement of public
order and cannot be said to be a reasonable restriction in the interest of public order.97
[2.3.2] DEGREE OF RESTRICTION IMPOSED IS MORE THAN WHAT IS NECESSARY TO MEET THE
EVIL98
12. It is humbly submitted a restriction may also be unreasonable, if it sweeps within its ambit
activities which constitute a legitimate exercise of the freedom of speech and expression.99
92
Superintendent, Central Prison, Fatehgarh and Anr v. Dr. Ram Manohar Lohia, AIR 1960 SC 633 (India).
93
Chintamanrao v. State of M.P., (1950) SCJ 571 (India).
94
Khare, supra note 84.
95
Ram Manohar, supra note 92; see also Madhu Limaye v. D.M., AIR 1971 SC 2486 (India); see also Ghosh v.
Joseph, AIR 1962 SC 812 (India).
96
Ramlila Maidan Incident, In Re, (2012) 5 SCC 1 (India).
97
Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106 (India); see also State of Bihar v. Shailabala, AIR
1952 SC 329 (India); see also Indian Express Newspaper (Bombay) Pvt. Ltd. v. Union of India, AIR 1986 SC
515 (India).
98
4 HALSBURY’S LAWS OF ENGLAND, (4th ed. 2009); see also Brind v. Secretary of State, (1991) 1 ALL ER 720
(UK).
99
Thornhill v. Alabama, 310 US 88 (1940); see also Stromberg v. California, 283 US 359 (1931); see also Carlson
v. California, 310 US 106 (1940).

In the instant case, because the State has apprehension of some elements causing mischief,
the State has denied all Non-Mahabhakts to enter the shrine. This is what Joseph Tussman,
a renowned American Jurist, acknowledges as ‘over-inclusive’ classification100 and calls
such classification as prima-facie departure from the ideal standards of classification.
13. Further, in the landmark case of Hirabayashi v. United States101 where the classification of
American citizens of Japanese ancestry for the purpose of meeting dangers of sabotage was
challenged on the grounds of over- inclusive classification, stating that mere apprehension
regarding the loyalty of the said citizens were not reasonable to cause discrimination
between the two classes.102 Similarly in the instant case the classification made is
disproportionate to the evil sought to be remedied.103
[2.3.3] THE MEANS ADOPTED IS ARBITRARY
14. It is humbly contended that the means adopted by the State to restrict entry of women and
non-Mahabhakts are disproportionate, excessive and manifestly unreasonable.104 To be
permitted to enter into the shrine, every citizen is required to submit a detailed form
containing personal details.105 This leads to women being forced to disclose their age and
other personal details which have no reasonable connection with their entry into the temple.
15. Further, every citizen is required to undergo a written examination to prove that each person
entering the shrine was in fact a Mahabhakt.106 However, the State fails to acknowledge
that religion is all about faith and is a matter within one’s mind. Hence one’s faith cannot
be tested on a piece of paper.
100
Joseph Tussman and Jacobus tenBroek, The Equal Protection of the Laws, 37 CALIF. L. REV. (1949).
101
Hirabayashi v. United States, 320 U.S. 81 (1943).
102
Id.
103
State of Madras v. V.G. Row, AIR 1952 SC 196 (India).
104
Shayara Bano, supra note 39; see also Nikesh Tarachand Shah v. Union of India, (2018) 11 SCC 1 (India).
105
106
Id.

16. Therefore, both of these methods form part of security requirements and are prima-facie
unreasonable and manifestly arbitrary.
[2.4] THAT THE 1967 RULES VIOLATE THE PRINCIPLES OF SECULARISM
17. It is humbly submitted that the principle of secularism is the basic structure as envisaged in
the Indian Constitution.107 While Indian secularism recognizes and preserves diverse
language and beliefs,108 it also permits ‘principled State intervention in all religion.’109
Secularism in India is built upon the foundation of right to religion as envisaged under
Article 25 to 28 of Constitution of India.110
18. It is humbly contended that the impugned Rules of 1967 explicitly restrains the non-
Mahabhakts from offering worship, bathe, use the water of the sacred tank, well, spring or
water course appurtenant to the said sacred premises.111 This violates the basic structure of
the Constitution, as the State Government cannot interfere with the matters of the religion
and thus violate the fundamental rights of the citizens.112
19. The Directives passed by the Association of Mannath Shrine do not expressly intend to
forbid the entry of the Non- Mahabhakts from entering the shrine, it merely wants to
‘promote the entry of the Mahabhakts’.113 Promotion of one religion does not mean
prohibition of the other religion/s from doing certain thing. When the words of a statute are
clear, plain and unambiguous, i.e. they are reasonably susceptible of only one meaning, the
Courts are bound to give effect to that meaning, irrespective of consequences. 114 This
107
Keshavananda Bharti v. State of Kerala, (1973) 4 SCC 225 (India).
108
T.M.A Pai Foundation v. State of Karnataka, (1995) 4 SCC 1(India); see also Ziyauddin Burhanuddin Bukhari
v. Brijmohan Ramdass Mehra, (1976) 2 SCC 17 (India); see also Aruna Roy v. Union of India, (2002) 7 SCC 368
(India); see also Bal Patil v. Union of India, (2005) 6 SCC 690 (India); see also A.S. Narayana Deekshitulu v.
State of A.P., (1996) 9 SCC 548 (India).
109
Id.
110
Sarla Mudgal v. Union of India, (1995) 3 SCC 635 (India).
111
Moot Proposition, Annexure I, Page 10. SUPRA
112
T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., (2002) 8 SCC 481 (India).
113
114
Supdt. And Remembrancer of Legal Affairs v. Corporation of Calcutta, AIR 1967 SC 997 (India).

clearly shows that the State initiated the prohibition of non- Mahabhakts from entering the
premises of the Mannath Shrine, thus violating the ideal of secularism.
[2.5] THAT LAW IS AN INSTRUMENT FOR SOCIAL CHANGE.
20. It is respectfully submitted that law needs to adapt itself to the changing needs of society
and maintains stability when the rapid alterations disturb the relations in society. Law
works as advanced instrument of social change on a national as well as international level
by influencing the social frame work in which relations take place.115 Law, which is in
harmony with the processes of change, accelerates and institutionalizes changes.”116.
21. While in a country which facilitates transformative Constitutionalism, laws should aim at
eliminating structures of oppression and domination which excludes identities from
participation in an equal life. Laws like Shoryu Mahabhaktism Religious Rules, 1967 fail
to acknowledge that an indispensable facet of an equal life, is the equal participation of
women in all spheres of social activity. Consequently, Shoryu Mahahbhaktism Religious
Rules, 1967 should be struck down as invading the rule of law in the country.
[III] WHETHER NOTIFICATION OF 2016 IS IN VIOLATION OF FUNDAMENTAL RIGHTS OF THE
CITIZENS ENSHRINED UNDER CONSTITUTION OF INDIA.
1. It is humbly contended before the Hon’ble Supreme Court that Notification passed by the
Government of Dharmasthaan in the year 2016 (hereinafter, “2016 Notification”) under
Section 69(1) of the Information & Technology Act, 2000117 read with Rule 4 of the
Information Technology (Procedure and Safeguards for Interception, Monitoring and
115
C. Masilamani Mudaliar & Ors. v. The Idol of Sri Swaminathaswami Thirukoli & Ors., (1996) 8 SCC 525
(India).
116
BHUSHAN VIDYA AND SACHDEVA, AN INTRODUCTION TO SOCIOLOGY, 645 (32d ed.1999).
117
§. 69(1), Information and Technology Act, No. 21 of 2000, INDIA CODE (2000); hereinafter referred to as
the “IT Act, 2000”.

Decryption of Information) Rules, 2009118 has given rise to a ‘surveillance based
regime’,119 which has loopholes in its procedural safeguards,120 as it is invasive of the
individual’s privacy at every stage.121 This leads to infringement upon the Constitutional
principles of Dharmasthaan, as it is violative of Right to Protection of Life and Personal
Liberty122 and infringes upon the Right to Equality.123 Therefore, it is humbly contended
that the 2016 Notification is in manifest violation of firstly, Article 19, due to the violation
of Article 19(1)(a) and 19(1)(d) [3.1.]; and secondly, Article 21, due to the violation of the
right to privacy ensured to the citizens of Dharmasthaan [3.2.].
[3.1] THAT THE NOTIFICATION OF 2016 IS IN VIOLATION OF ARTICLE 19 OF
CONSTITUTION
2. It is humbly submitted that the act of surveillance, taken on its own, infringes fundamental
rights under Articles 19(1)(a),124 which has occurred in the present matter as there has been
an imposition of a restriction upon the citizens of Dharmasthaan [3.1.1.]; and the said
restriction is not a reasonable form of restriction [3.1.2.].
[3.1.1] THERE HAS BEEN A RESTRICTION IMPOSED UPON THE FUNDAMENTAL RIGHTS OF THE
CITIZENS
3. It is humbly submitted that due to the Notification of 2016,125 the right of the citizens of
Dharmasthaan under Article 19(1)(a) has been violated. The right to freedom of speech and
expression has been described as the touchstone of individual liberty;126 it is the foundation
118
Rule 4, Information Technology (Procedures and Safeguards for Interception, Monitoring and Decryption of
Information) Rules, 2009, G.S.R. 780 (E) (India); hereinafter referred to as the “IT Rules, 2009”.
119
Committee of Experts under the Chairmanship of Justice B. N. Sri Krishna, A free and fair digital economy:
protecting privacy, empowering Indians.
120
Klass and Ors. v. Germany, (1978) 2 EHRR 214.
121
Justice A.P Shah et al, Report of the Group of Experts on Privacy, PLANNING COMMISSION OF INDIA (Oct. 16,
2010), http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf.
122
INDIA CONST. art. 21.
123
124
Puttaswamy, supra note 76; see also Kharak Singh v. Union of India, (1964) 1 SCR 332 (India).
125
126
Palko v. Connecticut, 302 U.S. 319 (1937).

of a democratic society;127 free exchange of ideas,128 dissemination of information without
restraints,129 dissemination of knowledge,130 debating and forming one’s own viewpoints
and expressing them, 131 which the basis of democracy132 due to free exchange of ideas
among the people.133 It also includes the right to acquire information and to disseminate
it.134 A restriction has also been imposed on the freedom of movement of the citizens135
due to the surveillance regime introduced through this Notification.136
4. It is humbly submitted that due to the restriction imposed on the citizens through this 2016
Notification, there has been a restriction imposed on their freedom of speech and expression
in every form of electronic communication possible, 137 due to the apprehension of being
tracked at every point of time, thus violating their freedom of speech and expression under
Article 19(1)(a).138
[3.1.2] THE RESTRICTION THUS IMPOSED IS NOT REASONABLE IN NATURE
5. It is humbly submitted that the fundamental right under this Article can only be restricted
under the restrictive clauses (2)- (6), which are exhaustive139 and are to be strictly
construed;140 this right cannot be curtailed on any ground outside Clauses (2)- (6) of Article
19.141 It is humbly contended that in order to adjudge ‘reasonableness’ of a restriction,
factors like the duration and extent of the restriction, circumstances, manner of imposition
127
Dr. D.C. Saxena v. Hon’ble the Chief Justice of India, (1996) 5 SCC 216 (India).
128
Union of India and Ors. v. Motion Picture Association and Ors., (1999) 6 SCC 150 (India).
129
Express Newspapers (P) Ltd. v. Union of India, (1986) 1 SCC 133 (India).
130
Id.
131
Tiger Muthiah v. State of Tamil Nadu, 2000 (1) CTC 1 (India).
132
Romesh Thappar v. State of Madras, (1950) SCR 594 (602) (India).
133
S. Rangarajan v. P. Jagjivan Ram, (1989) 2 SCC 574 (India).
134
Secretary, Ministry of Information and Broadcasting, Govt. of India v. Cricket Association of Bengal, AIR
1995 SC 1236 (India).
135
NAACP v. Alabama, 357 U.S. 449 (1958).
136
Kharak Singh, supra note 124; see also Puttaswamy, supra note 76.
137
MOOT PROPOSITION, supra note 125.
138
Art. 19, G.A. Res. 217 (III) A, Universal Declaration of Human Rights (Dec. 10, 1948).
139
State of Bihar v. Kameswar Maharajadhiraja Sir Kameswar Singh of Dharbhanga, AIR 1952 SC 252 (India).
140
Sakal Papers v. Union of India, AIR 1962 SC 305 (India).
141
Ghosh v. Joseph, supra note 95.

etc.142 have to be taken into consideration.143 A valid restriction must have material relation
with the grounds at which the Legislature is entitled to impose restriction.144 Not only
should the restriction relate to any of the grounds mentioned in the clauses,145 but the
relationship between the impugned legislation and any of the relevant specified grounds
must be rational146 or proximate.147
6. It is humbly submitted that under the said provision, there is an absence of parliamentary
or judicial oversight, due to which such electronic surveillance gives the executive wing
extreme amount of power, which would impact the horizontal separation of power between
the executive, legislature and judiciary,148 an entrenched principle in the Constitution.149
This impugned provision has led to concentration of disproportionate power with the
Unsullied. It has been held by the Hon’ble Court in a catena of judgments that it is the
existence of concentrated and centralized State Power that leads to the restraint on the
freedom of the individuals under Article 19(1)(a) and 19(1)(g).150 Therefore, it is humbly
contended that this Surveillance regime is in violation of the liberty of the citizens,
subsequently leading to the violation of the Right to Privacy enshrined under Article 21 of
the Constitution.151
142
RISHIKA TANEJA & SIDHANT KUMAR, PRIVACY LAW 42-44 (1st ed. 2014).
143
Ramlila Maidan Incident, supra note 96.
144
Superintendent District Jail v. Lohia, AIR 1960 SC 633 (India).
145
ANDREW MURRAY, INFORMATION TECHNOLOGY LAW 594-595 (3d ed. 2013).
146
Ghosh v. Joseph, supra note 95.
147
Sodhi Shamsher v. State of Pepsu, AIR 1954 SC 276 (India).
148
Ashok Kumar Thakur v. Union of India, (2008) 6 SCC 1 (India).
149
State of Tamil Nadu and Ors. v. State of Kerala and Ors., AIR 2014 SC 2407 (India).
150
Smt. Indira Nehru Gandhi v. Shri Raj Narain and Anr., AIR 1975 SC 2299 (India).
151
Puttaswamy, supra note 76; see also Justice K.S Puttaswamy (Retd.) and Anr. v. Union of India and Ors.,
(2018) 1 SCC 809 (India).

[3.2] THAT THE NOTIFICATION OF 2016 IS IN VIOLATION OF THE FUNDAMENTAL RIGHT TO
PRIVACY UNDER ARTICLE 21 OF THE CONSTITUTION
7. It is humbly submitted that the issue of privacy has been intensely litigated before, in this
Hon’ble Court.152 It embodies the moral fact that a person belongs to himself and not to
others nor to the society as a whole.153 This Court has upheld the right to privacy ensured
even to a habitual criminal.154 The Right to Privacy is a primordial and therefore a natural
right,155 and any form of exploitation amounts to violation of the Fundamental Rights of
the citizen.156 The standard for assessing any such restriction has been established under
two tests.157 It is humbly submitted that the Test of Reasonable Expectation of Privacy has
been violated [3.2.1.]; and there has been a violation of the Proportionality Test [3.2.2.].
[3.2.1] THE TEST OF REASONABLE EXPECTATION OF PRIVACY HAS BEEN VIOLATED
8. It is humbly contended that the “Reasonable Expectation of Privacy” test158 laid down
through the decisions of the United States Supreme Court159 and later by this Hon’ble
Court, evaluates the right to privacy subject to the conditions, which state that the individual
has showcased his expectation of keeping something private160 and the individual’s
expectation is reasonable in nature.161 It is humbly submitted that under this right, citizens
also have to right to be left alone162 or forgotten.163 This is a juggle between the individual’s
protection in the private zone and the restriction imposed by the State for maintaining
152
M.P. Sharma v. Satish Chandra, 1954 SCR 1077 (India).
153
Thornburgh v. American College of O and G, 476 U.S. 747 (1986).
154
Gobind v. State of Madhya Pradesh, (1975) 2 SCC 148 (India).
155
Puttaswamy, supra note 76.
156
B. SHIVA RAO, THE FRAMING OF INDIA’S CONSTITUTION, INDIAN INSTITUTE OF PUBLIC ADMINISTRATION 75
(2d ed. 1967).
157
Id., Part Q (Substantive Due Process), ¶ 165.
158
Hereinafter referred to as the “Privacy Test”.
159
Katz v. United States, 1967 SCC OnLine US SC 248; see also Stanley v. Georgia, 22 L Ed 2d 542.
160
United States v. Miller, 1976 SCC OnLine US SC 70.
161
R v. Jeffries, [1994] (1) NZLR 290 (N.Z.).
162
Puttaswamy, supra note 76; see also M.G. v. Time Warner Inc., 89 Cal. App. 4th 626.
163
Arunima Bhattacharya, In A First Indian Court Upholds The ‘Right To Be Forgotten’, LIVELAW (Feb. 3, 2017,
10:50 AM), https://www.livelaw.in/first-indian-court-upholds-right-forgotten-read-order/.

Public Order.164 It is humbly contended that the Privacy test has been violated because the
impugned Notification fails the Privacy test.
[3.2.1.1] That the citizens of Dharmasthaan have an expectation for protection of their privacy
9. It is humbly submitted that under the Privacy test anyone’s privacy cannot be invaded
unless the individual has a reasonable expectation of privacy; whether such individual
will/will not have such an expectation ought to depend on what the position of law is.165 A
person’s privacy is intruded on in an unreasonable manner when the State, without prior
showing of a just cause before a neutral judicial officer, abrogates to itself the right
surreptitiously to record communications.166 While the State cannot invade the private
space of the citizen, the State may do so in public sphere due to no expectation of privacy.167
Therefore, interception of the data of any form, irrespective of its existence in the public or
private sphere, vests disproportionate power to the Unsullied, which has led to violation of
the Right to Privacy for the citizens of Dharmasthaan.168
10. It is humbly submitted that in the present case there is an imposition of a blanket provision
with application throughout the territory of Dharmasthaan; and there is no rationale behind
such implementation when the threat only pertains to the province of Shoryu.169 This is a
form of unreasonable classification under Article 14;170 as defined by Mr. Joseph Tussman
and Jacobus tenBroek as ‘over-inclusive’ type of classification,171 which has been declared
unconstitutional due to its failure under the strict scrutiny test.172
164
Bhattacharya, supra note 163.
165
166
R v. Duarte, [1990] 1 S.C.R. 30 (Can.).
167
R v. LeBeau, (1988), 25 O.A.C. 1 (Can. Ont. C.A.).
168
Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671 (India).
169
¶14-18, Page 4, MOOT PROPOSITION, The M.C. Chagla Memorial Moot Court, 2019.
170
171
Joseph Tussman & Jacobus tenBroek, The Equal Protection of the Laws, 37 CALIF. L. REV. 341,381 (1949).
172
Naz Foundation v. Government of NCT of Delhi and Ors., (2009) 160 DLT 277 (DB) (India).

[3.2.1.2] That this expectation of the citizens is reasonable in nature
11. It is humbly submitted that this right of the citizens of Dharmasthaan is being violated due
to the restriction imposed on them in their private sphere as well,173 by virtue of the power
given to the Unsullied under the impugned Provision.174 Assuming arguendo, if it is
considered that the restriction imposed is effective only in the public sphere, it shall be
unconstitutional as it is important to underscore that privacy is not lost or surrendered
merely because the individual is in a public place.175 This regime leads to the violation of
transparency and due process of law in the conduct of surveillance, especially due to their
manifestation of judicial oversight.176
12. It is humbly submitted that the European Union Regulation of 2016 on the Protection of
Natural persons177 with regard to the processing of personal data and on the free movement
of such data provide useful guidance in this regard. 178 The State of Dharmasthaan did not
take consent from the citizens while they conducted surveillance over their citizens, which
led to 200 arrests, thus affecting the due process of law as there has been violation of the
fundamental rights of the citizens of Dharmasthaan.179
[3.2.2] THE NOTIFICATION OF 2016 DOES NOT PASS THE TEST OF PROPORTIONALITY
13. It is humbly submitted before that the impugned Notification fails the Test of
Proportionality, the substantive contents of which have been articulated in K. S.
Puttaswamy v. Union of India180 and K. S. Puttaswamy (Retd.) and Anr. v. Union of India
and Anr.181 It is humbly submitted that the a restriction in this case can only be imposed
173
Joseph Shine, supra note 22.
174
175
Navtej Singh Johar, supra note 22.
176
Justice B. N. Srikrishna, supra note 119.
177
Council Directive 2002/58, art. 1, 2002 O.J. (L 201) 42,43 (EC).
178
Id.
179
180
181

if:182 firstly, the restriction is imposed by a law in existence; secondly, the legislation must
be passed with a Legitimate State Aim and thirdly, the means adopted by the Legislature
are proportional to the object sought to be fulfilled.183 While the law in existence is a form
of law passed under Sec. 69(1) of the IT Act, 2000 and Rule 4 of the IT Rules, 2009 as
form of delegated legislation, the other two requirements have been violated through the
enforcement of the impugned Notification.184
[3.2.2.1] That the Notification has not been passed with a Legitimate State Aim
14. It is humbly contended that the 2016 Notification has not been passed in lieu of Legitimate
State Aim, as it is in violation of the procedure established by law.185 The surveillance
regime leads to curtailing of the freedom of the citizens under Article 19, thus affecting
their right to life, as stated by Justice Subba Rao.186 The imposition of the impugned
Notification has led to absence of any judicial or independent oversight.187 There has also
been an effective exclusion of Articles 32 and 226, as the decision of the Executive on
whether fundamental rights have been validly infringed, is final, and cannot be initiated
unless there is information in hand, which shall not be revealed in any circumstances. This
shall lead to the violation of Principles of Natural Justice.188
15. It is also humbly contended that the processing of personal data by the State on non-
consensual grounds must be strictly confined to necessity,189 and should not collect data
more than what is necessary190 which has not been met in the present matter. It is humbly
contended that this Hon’ble Court has held that a law would be amenable to challenge under
182
183
184
185
186
Puttaswamy, supra note 76; see also Kharak Singh, supra note 124.
187
§ 69(1), IT Act read with Rules 3, 7, 22 of IT Rules, 2009.
188
Sarojini Ramaswami v. Union of India, (1992) 4 SCC 506 (India).
189
IAN J. LLOYD, INFORMATION TECHNOLOGY LAW 105-107 (8th ed. 2017).
190
Justice B. N. Srikrishna, supra note 119.

Article 21 also on the grounds that the substantive provisions of the law violate the
substantive due process.191
[3.2.2.2] That the Notification is highly disproportionate in nature
16. It is humbly contended that the impugned provision has led to violation of Article
19(1)(a)192 and 19(1)(d)193. This is due to the concentration of disproportionate amount of
power with the Unsullied,194 which has been vested with unguided discretion to justify
surveillance.195 This has been imposed for ‘defence of India’, which has neither been
defined under the IT Act196 nor recognised under Article 19(2),197 and thus enables the State
to conduct perpetual, untargeted and mass surveillance of her citizens, under the pretext for
‘investigation of any offence’, which is a violation of their rights198 as they are not made
aware of the investigation against them.199 This leads to the violation of the principle of
lawfulness, fairness and transparency.200 In the present case, due to this disproportionate
amount of power vested with the Unsullied under this Notification, the impugned
notification fails the Proportionality test.201
191
Mohd. Arif v. Supreme Court, (2014) 9 SCC 737 (India); see also Puttaswamy, supra note 76.
192
INDIA CONST. art. 19(1)(a).
193
INDIA CONST. art. 19(1)(d).
194
195
196
Justice A.P Shah , supra note 121.
197
Dr. D. C. Saxena v. Hon’ble the Chief Justice of India, (1996) 5 SCC 216 (India).
198
SHAILESH K. SINGH & SANJEEV K. CHADHA, NATIONAL SECURITY LAWS IN INDIAN SCENARIO 124 (1st ed.
2012).
199
State (NCT of Delhi) v. Navjot Sandhu, (2005) 11 SCC 600 (India).
200
Council Directive 2016/679, art. 12 2016 O.J. (L 119) 39,40 (EC).
201
Puttaswamy, supra note 76; see also Puttaswamy, supra note 81.

PRAYER
In light of the issues raised, arguments advanced, and authorities cited, may this Hon’ble
Court may be pleased to adjudge, hold, direct and declare that:
1. The practice of prohibiting women and non-Mahabhakts from entering Mannath Shrine
as violative of the Constitutional Principles;
2. The Shoryu Mahabhaktism Religious Rules, 1967 as unconstitutional; and
3. The Notification of 2016 issued by the Government of Dharmasthaan under IT Act, 2000
as unconstitutional.
AND/ OR
Pass any other relief that this Hon’ble Court may be pleased to grant in the interest of justice,
equity and good conscience.
And for this act of kindness, the petitioners shall forever be duty bound.
Date: **
Place:
Sd/-
COUNSEL ON BEHALF OF PETITIONERS
-MEMORIAL OF BEHALF OF THE PETITIONERS- PAGE | IX

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26th M.C.

CHAGLA MEMORIAL GLC MOOT COURT COMPETITION, 2019

TEAM CODE: ‘A’

26th M. C. CHAGLA MEMORIAL GOVERNMENT LAW COLLEGE

NATIONAL MOOT COURT COMPETITION, 2019

IN THE SUPREME COURT OF DHARMASTHAAN

W.P. No. (Civil) ___/2019

TARKHA BHOLENATH & ORS. .………Petitioner

UNION OF DHARMASTHAAN & ORS. .………Respondent

As submitted to the Chief Justice & other companion Judges of the

Hon’ble Supreme Court of Dharmasthaan

-MEMORIAL ON BEHALF OF PETITIONERS- PAGE | I

INDEX OF AUTHORITIES ........................................................................................................... V

STATEMENT OF JURISDICTION ............................................................................................. XIV

SYNOPSIS OF FACTS ............................................................................................................... XV

SUMMARY OF ARGUMENTS ................................................................................................ XVII

BODY OF ARGUMENTS ............................................................................................................... 1

USURPS THE FUNDAMENTAL RIGHTS GUARANTEED BY THE CONSTITUTION .......................... 1

[1.1] THE IMPUGNED PRACTICE IS NOT PROTECTED BY ARTICLE 26.................................. 1

[1.1.2] THE IMPUGNED PRACTICE IS HIT BY THE LIMITATION OF MORALITY. ....................... 3

[1.2] THE IMPUGNED PRACTICE IS IN VIOLATION OF RIGHT TO EQUALITY UNDER ARTICLE

[1.2.1] THE CLASSIFICATION IS BASED ON IMPERMISSIBLE INTELLIGIBLE DIFFERENTIA ...... 5

[1.2.2] THE CLASSIFICATION IS VOID OF A CONSTITUTIONAL OBJECT ................................. 5

[1.2.3] THE EXCLUSIONARY PRACTICE IS MANIFESTLY ARBITRARY .................................... 6

[1.2.4] THE IMPUGNED PRACTICE VIOLATES ARTICLE 15. ................................................... 6

[1.3] THE IMPUGNED PRACTICE IS A FORM OF UNTOUCHABILITY PROHIBITED UNDER

ARTICLE 17. .......................................................................................................................... 7

-MEMORIAL ON BEHALF OF PETITIONERS- PAGE | I

[1.4] THE STATE IS UNDER A CONSTITUTIONAL OBLIGATION TO EXTEND EQUAL

PROTECTION OF LAWS TO THE PETITIONERS ...................................................................... 10

[II] WHETHER THE SHORYU MAHABHAKTISM RELIGIOUS RULES, 1967 ARE

CONSTITUTIONALLY VALID? .................................................................................................. 10

[2.1.1] FREEDOM OF CONSCIENCE AND RIGHT TO WORSHIP ARE AN INTEGRAL PART OF

[2.1.2] IMPUGNED PROVISIONS VIOLATE FREEDOM OF MOVEMENT UNDER ARTICLE 19 .. 12

RIGHTS OF THE CITIZENS..................................................................................................... 13

MAINTENANCE OF PUBLIC ORDER ...................................................................................... 14

[2.3.3] THE MEANS ADOPTED IS ARBITRARY ..................................................................... 15

[2.4] THE 1967 RULES VIOLATE THE PRINCIPLES OF SECULARISM ................................... 16

[2.5] LAW IS AN INSTRUMENT FOR SOCIAL CHANGE. ......................................................... 17

[III] WHETHER NOTIFICATION OF 2016 IS IN VIOLATION OF FUNDAMENTAL RIGHTS OF THE

CITIZENS ENSHRINED UNDER CONSTITUTION OF INDIA. ......................................................... 17

[3.1] THAT THE NOTIFICATION OF 2016 IS IN VIOLATION OF ARTICLE 19 OF

-MEMORIAL ON BEHALF OF PETITIONERS- PAGE | II

[3.2] THE NOTIFICATION OF 2016 IS IN VIOLATION OF THE FUNDAMENTAL RIGHT TO

PRIVACY UNDER ARTICLE 21 OF THE CONSTITUTION ...................................................... 21

-MEMORIAL ON BEHALF OF PETITIONERS- PAGE | III

-MEMORIAL ON BEHALF OF PETITIONERS- PAGE | IV

1. Keshavananda Bharti v. State of Kerala, (1973) 4 SCC 225 ............................................. 28

2. Indira Sawhney v. Union of India, AIR 1993 SC 477 ....................................................... 16

5. Anwar Ali Sarkar v. Union of India, AIR 1952 SC 75 ...................................................... 16

6. Bhudhan Choudhary v. State of Bihar, AIR 1955 SC 191 ................................................ 17

7. Bidi Supply co. v. Union of India, AIR 1956 SC 479 ....................................................... 17

8. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirta

Swamiar, (1954) 1 SCR 1005 ............................................................................................ 13

9. Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123 ......................................... 19

10. Kharak Singh v. Union of India, (1964) 1 SCR 332 .......................................................... 30

11. Madhu Limaye v. D.M., AIR 1971 SC 2486 ..................................................................... 26

12. Maneka Gandhi v. Union of India, (1978) 1 SCC 248 ..................................................... 18