R714

714

THE 7TH KIIT NATIONAL MOOT COURT COMPETITION, 2019

IN THE HON’BLE SUPREME COURT OF INDUSLAND

SPECIAL LEAVE PETITION SLP (Civ) No.___/2019

IN THE MATTER OF ARTICLE 21, 25, 29 OF THE CONSTITUTION

R. MANEKSHAW V. UNION OF INDUSLAND

(PETITIONER) (RESPONDENTS)

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDUSLAND

MEMORANDUM ON BEHALF OF THE RESPONDENTS

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TABLE OF CONTENTS

TABLE OF CONTENTS _____________________________________________________ 2

INDEX OF AUTHORITIES __________________________________________________ 4
STATEMENT OF JURISDICTION ____________________________________________ 7
STATEMENT OF FACTS ___________________________________________________ 8
ISSUES RAISED __________________________________________________________ 10
SUMMARY OF ARGUMENTS ______________________________________________ 11
ARGUMENTS ADVANCED_________________________________________________ 13
ISSUE 1: WHETHER THE BELIEFS OF THE PETITIONERS AS CONTENDED IN
THE WRIT PETITION AND PERTAINING TO THE ANKURANS, FORM AN
“ESSENTIAL” AND “INTEGRAL” PART OF SARAS RELIGION?______________ 13

[I.A.] THE BELIEFS OF THE PETITIONER CANNOT BE REGARDED AS AN

ESSENTIAL PART OF THE SARAS RELIGION. _________________________ 13

[I.B.] PETITIONERS HAVE FAILED TO DISCHARGE THE BURDEN ______ 15

ISSUE 2: WHETHER THE CONSTRUCTION/ OF A TUNNEL UNDER THE

ANKURAN WILL DESECRATE THE SPIRITUAL SANCTITY OF THE ANKURAN
AND VIOLATE THE PETITIONERS’ FUNDAMENTAL RIGHTS UNDER ARTICLE
25 OF THE CONSTITUTION? ___________________________________________ 17

[II.A.] THERE IS NO VIOLATION OF ARTICLE 25 17

[II.A.1] BELIEF OF THE PETITIONERS LIE OUTSIDE THE SCOPE OF
ART. 25. 17
[II.A.2] RIGHT TO WORSHIP DOES NOT INCLUDE RIGHT TO WORSHIP
AT A PARTICULAR LAND. 18
[II.B.] THE ACT OF THE PETITIONERS IS SUBJECTED TO RESTRICTIONS
MENTIONED IN ART. 25 19
ISSUE 3: WHETHER THERE WILL BE ANY CONFLICT BETWEEN ARTICLE 25 AND
ARTICLE 21 OF THE CONSTITUTION OR WHETHER THE TWO FUNDAMENTAL
RIGHTS CAN BE BALANCED? 20
[III.A.] ARTICLE 25 OF THE PETITIONERS CONFLICT WITH ART. 21 OF THE
CITIZENS. 20
[III.B.] BOTH THE FUNDAMENTAL RIGHTS CAN NOT BE BALANCED. 21

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ISSUE 4: WHETHER THE PETITIONERS HAD ESTABLISHED A FUNDAMENTAL

RIGHT UNDER ARTICLE 29 OF THE CONSTITUTION AND WHETHER THERE WAS
ANY VIOLATION THEREOF? 23
[IV.A.] PETITIONERS HAVE NOT ESTABLISHED THEIR RIGHT UNDER
ARTICLE 29. 23
[IV.2]: THERE IS NO VIOLATION OF THE PETITIONERS’ FUNDAMENTAL
RIGHTS UNDER ARTICLE 29 CLAUSE (1) OF THE CONSTITUTION. 25

PRAYER _________________________________________________________________ 26

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INDEX OF AUTHORITIES

Acharya Jagadishwarananda Avadhuta 13

v Commissioner of Police, (1983) 4 SCC
522 (India).
Animal Welfare Board of India v. A. 24
Nagaraja & Ors, (2014) 7 SCC 547.
Commissioner, Hindu religious 13
Endownments v. Lakshmindra Swamiar,
AIR 1954 SC 282.
Commissioner of Police and others v. 14
Acharya Jagadishwarananda Avadhuta
and others, (2004) 12 SCC 770.
Dr. Noorjehan Safia Niaz and Anr. v. 13
State of Maharashtra & Others, (2016)
SCC OnLine Bom 5394.
Durgah Committee, Ajmer and Anr. v. 13
Syed Hussain Ali and Ors. (1962) 1 SCR
383 (India).
Govindlalji v. State of Rajasthan, AIR 13
1963 SC 1638 (India).
G. gurunadha Reddy v. A.P. Road 10
Transport Corporation, AIR 1999 AP
179.
Indian Young Lawyers Association v. 8
The State of Kerala, 2016 SCC OnLine
SC 1783.
Indian Young Lawyers Association and 8
Ors. v. State of Kerala and Others, (2018)
SCC OnLine SC 1690.
Jamshed Noshir Sukhadwalla and Ors. v. 15, 16, 24, 26
Union of India and Others, 2018 SCC
OnLine Bom 14769.

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Mahamaya v. Haridas, I.L.R. 42 Cal. 455 14

at p. 475.
M. Ismail Faruqui (Dr) v. Union of India, 18
(1994) 6 SCC 360.
Narayana Deekshitulu v. State of A.P. 13
and others, (1996) 9 SCC 548.
N. Adithayan v. Travancore Devaswom 7
Board, (2002) 8 SCC 106 (India).
Qureshi v. State of Bihar, (1996) 9 SCC 15
548.
Ramsharan Autyanuprasi and Anr. v. 10
Union of India and Anr., 1989 Supp 1
SCC 251.
Sardar Syedna Taher Saifuddin Saheb v. 15
State of Bombay, AIR 1962 SC 853.
S. Mahendran v. The Secretary, 14
Travancore Devaswom Board,
Thiruvananthpuram, AIR 1993 Kerala
42.
Shri Venkataramana Devaru v. State of 2
Mysore A.I.R. 1958 S.C. 255.
Sri Adi Visheshwara of Kashi 4
Vishwanath Temple v. State of U.P.,
(1997) 4 SCC 606.
State of West Bengal v. Ashutosh, (1995) 15
1 SCC 189
The Commissioner Hindu Religious 6
Endowments, Madras v. Shri
Lakshmindra Thritha Swaminar of Sri
Shirur Mutt, AIR 1954 SC 282.
Tilkayat Shri Govindlalji v. The State Of 18
Rajasthan, 1963 AIR 1638

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Union of India v. State of Gujarat, (2011) 9

14 SCC 62.

[B.] BOOKS
 3 BASU D.D., COMMENTARY ON THE CONSTITUTION OF INDIA, [8th Ed.
Kamal Law House, 2009]
 JAIN M. P., INDIAN CONSTITUTIONAL LAW, [7th Ed. Lexis Nexis, 2016].
 SEERVAI H.M., CONSTITUTIONAL LAW OF INDIA, [4th Ed. Universal Law House, 2012].
 SHUKLA, V. N., & SINGH, M. P. V.N. Shukla's Constitution of India. [12th Ed.
Lucknow, Eastern Book Co, 1990].
 SINGH AVTAR, LAW OF CONTRACT AND SPECIFIC RELIEF 233 (Eastern
Book Company, 2002).

[C.] STATUTE
 The Constitution of India, 1950

[D.] ONLINE RESOURCES

 Manupatra Online Resources, http://www.manupatra.com.
 Lexis Nexis Academica, http://www.lexisnexis.com/academica.
 Lexis Nexis Legal, http://www.lexisnexis.com/in/legal.
 SCC Online, http://www.scconline.co.in.

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STATEMENT OF JURISDICTION

It is submitted that the petitioner approached the Hon’ble Supreme Court of India under
Article 136 of the Constitution of India.
Article 136 of the Constitution of India reads as:
“136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its
discretion, grant special leave to appeal from any judgment, decree, determination,
sentence or order in any cause or matter passed or made by any court or tribunal in
the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, sentence or
order passed or made by any court or tribunal constituted by or under any law
relating to the Armed Forces”

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STATEMENT OF FACTS

The Country Indusland bears an economically and industrially developing State, Aryavarta.
The Union Government of Indusland and the State Government of Aryavarta, established a
Joint Venture Metro Rail Corporation, The Meghnad Metro Rail Corporation Limited
(“MMRCL”).

THE METRO PROJECT

 The MMRCL, proposed to construct a metro rail which is known as the Meghnad Metro
Rail Project. The Project was to be completed in various Phases, where the project will
be implemented underground. A part of the Meghnad Metro Line, which also runs along
a stretch in South Meghnad, has been proposed to run directly under one of the fire
temples (“Ankuran”) of a religious community, the Saras.

THE ANKURAN FIRE TEMPLE’S

 The Saras is a minority Zoroastrian community of the Indusland, and essentially believe
in the Divine Ever-Burning Fire, without which no ritual ceremonies could be
completed. Ankurans/fire temples represent the divinity presiding over the fire and
consecrated physical forms of ever-burning fires that are installed in the respective
Ankurans/fire temples.
 The Ankuran was a 188 year old heritage structure with special religious and spiritual
significance for Saras across Indusland. There are only 8 such Ankurans in Indusland,
the last Ankuran was consecrated over 122 years ago. Thereafter, there has never been
a consecration of any Ankurans in Indusland or in the world. During the process of
consecration and enthronement, the holy fire is connected spiritually to the Mother
Earth from which it draws sustenance.

THE WRIT PETITION

 The Saras Community hearing about this move, felt this project would lead to a spiritual
desecration, creating an obstruction in the connection between Mother Earth and the

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Holy Fire in the Ankuran. They initially made various representations to the
Government against this project but no fruitful response was provided. Therefore,
certain members of the Saras community got together and filed a Writ Petition before
the Aaryavarta High Court in connection with the proposed construction of the metro
tunnel directly under the Ankuran. The petition was backed by the affidavits of the 5
High Priest of the Saras Community.
 By the time the Petition was filed, the proposed construction was around 100 metres
away from the said Ankuran. When the Petitioners moved the Hon'ble Aaryavarta High
Court, the Hon'ble High Court appreciating the serious challenge raised by the
Petitioners and considering that the issue involved serious aspects of Constitutional law,
granted an ad- interim stay on the proposed construction, pending the hearing and final
disposal of the Petition.
 The Petition was thereafter heard by the Hon'ble Aaryavarta High Court over a period
of 1 (one) month, where arguments on establishing the fundamental right under Article
25 and Article 29 of the Constitution were put forth. The Petitioners prayed that the
MMRCL should be directed to shift the proposed alignment of the metro tunnel by
merely 5 meters, which would result in the tunnel presently proposed directly under the
Ankuran ceasing to run under the said Ankuran and, consequently, the right under the
Article 25 of the Constitution would be preserved.
 After a detailed hearing, the Hon'ble High Court disposed-off the Writ Petition and
permitted MMRCL to continue with the construction of the tunnel under the present
alignment without any change. The Hon'ble High Court upheld the contentions of
MMRCL and rejected the contentions of the Petitioners. The Hon'ble High Court held
that the Petitioners had failed to establish that there was any violation of any
fundamental right under Article 25 and Article 29 of the Constitution.

THE SPECIAL LEAVE PETITION

 The Petitioners therefore, have approached the Hon'ble Supreme Court of Indusland by
way of a Special Leave Petition. The leave was granted. The Supreme Court has also
granted an injunction on the proposed construction pending the hearing and final
disposal of the case.

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ISSUES RAISED

ISSUE 1: WHETHER THE BELIEFS OF THE PETITIONERS AS CONTENDED IN

THE WRIT PETITION AND PERTAINING TO THE ANKURANS, FORM AN
“ESSENTIAL” AND “INTEGRAL” PART OF SARAS RELIGION?

ISSUE 2: WHETHER THE CONSTRUCTION/ OF A TUNNEL UNDER THE ANKURAN

WILL DESECRATE THE SPIRITUAL SANCTITY OF THE ANKURAN AND VIOLATE
THE PETITIONERS’ FUNDAMENTAL RIGHTS UNDER ARTICLE 25 OF THE
CONSTITUTION?

ISSUE 3: WHETHER THERE WILL BE ANY CONFLICT BETWEEN ARTICLE 25 AND

ARTICLE 21 OF THE CONSTITUTION OR WHETHER THE TWO FUNDAMENTAL
RIGHTS CAN BE BALANCED?

ISSUE 4: WHETHER THE PETITIONERS HAD ESTABLISHED A FUNDAMENTAL

RIGHT UNDER ARTICLE 29 OF THE CONSTITUTION AND WHETHER THERE WAS
ANY VIOLATION THEREOF?

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SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER THE BELIEFS OF THE PETITIONERS AS CONTENDED IN THE

WRIT PETITION AND PERTAINING TO THE ANKURANS, FORM AN “ESSENTIAL”
AND “INTEGRAL” PART OF SARAS RELIGION?

1. The beliefs of the petitioner as contended in the Writ petition cannot be regarded as
essential and integral part of the religion, because it’s the discretion of the court to decide
what forms as an essential part of the religion and since petitioners have not produced any
cogent evidence to support the essentiality of their religion, that is to say that petitioners’
claims have no merits and court has no reason to believe that their beliefs forms an essential
part of their religion. Moreover, the construction of the tunnel will neither destroy the
character of fire nor it will destroy the sanctity of the fire. Further, in such an event it will
not tarnish the identity of the religion.

ISSUE 2: WHETHER THE CONSTRUCTION/ OF A TUNNEL UNDER THE ANKURAN

WILL DESECRATE THE SPIRITUAL SANCTITY OF THE ANKURAN AND VIOLATE
THE PETITIONERS’ FUNDAMENTAL RIGHTS UNDER ARTICLE 25 OF THE
CONSTITUTION?

2. Prima facie, the beliefs of the petitioners lie outside the scope of Art. 25, because according
to the said Article it is necessary to practice the beliefs but in the present scenario the
petitioners have neither produced doctrinal and scriptural evidence nor verbal testimonies
or any other cogent evidence to support the fact that they actually practice those beliefs
consistently and without any interference. Art. 25 does not cover the right to worship at a
particular place, hence petitioners have failed to satisfy their right under Art. 25 of the
constitution. Moreover, ‘freedom of conscience’ is subjected to restrictions such as
activities which disturb public order by violating the basic inalienable human rights such
as right to development.

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ISSUE 3: WHETHER THERE WILL BE ANY CONFLICT BETWEEN ARTICLE 25 AND

ARTICLE 21 OF THE CONSTITUTION OR WHETHER THE TWO FUNDAMENTAL
RIGHTS CAN BE BALANCED?

3. In an event where Art. 25 of the petitions is satisfied, it will be in a conflict with Art. 21 of
the citizens which includes right to health i.e. right to live in a clean, safe and hygienic
environment, it is fair to assume that it is the duty of the government of ‘Aaryavartha’ to
implement policies which favor public interest and ensure healthy and safe environment.
As the act of the respondents forms the basis of the human rights, both the fundamental
rights cannot be balanced because as stated in the Sabarimala judgment; “when a conflict
arises, the quest for human dignity, liberty and equality must prevail.” Moreover, balancing
both the fundamental rights will require the reconstruction of the whole route, which will
be a burden on the state exchequer.

ISSUE 4: WHETHER THE PETITIONERS HAD ESTABLISHED A FUNDAMENTAL

RIGHT UNDER ARTICLE 29 OF THE CONSTITUTION AND WHETHER THERE WAS
ANY VIOLATION THEREOF?

4. The petitioners have failed to establish their right under Art. 29 of the constitution, Art. 29
is not absolute and the pedestal of the word ‘conserve’ only intends to protect those cultures
which are essential to the community, in the present case the Petitioners have
misrepresented certain practices that are not inherently a part of their culture and have thus
cried violation under Article 29 so as to conserve these non- essential practices as a distinct
identity of the community. Alternatively, there is no violation of the petitioners’
fundamental rights under Art. 29 of the constitution, because the facts clearly speak of no
signs of damage, it is a mere presumptive threat to the Ankuran and no actual or even signs
of destruction have occurred, and therefore, there arises no ground of halting the Metro
Tunnel Process.

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ARGUMENTS ADVANCED

ISSUE 1: WHETHER THE BELIEFS OF THE PETITIONERS AS CONTENDED IN THE

WRIT PETITION AND PERTAINING TO THE ANKURANS, FORM AN “ESSENTIAL”
AND “INTEGRAL” PART OF SARAS RELIGION?

It is submitted before this Hon’ble court that [I.A.] prima facie the beliefs of the petitioners
cannot be regarded as an essential and integral part of Saras religion ; [I.B.] petitioners have
failed to discharge the burden to prove their beliefs as essential part of their religion.

[I.A.] THE BELIEFS OF THE PETITIONERS CANNOT BE REGARDED AS AN

ESSENTIAL PART OF THE SARAS RELIGION.
5. It is a well settled law that since no fundamental right can be absolute in a modern state,
the freedom of religion cannot be absolute.1 It is held that the courts have all the powers
to determine whether a particular religious doctrine is essential or not.2
6. The legal position of Article 25(1) is that it extends a guarantee for protection to only
essential practices and beliefs of a religion and no other, as the Courts may decide. 3 On
establishing the doctrine of essential practice, the court observed in Shirur Mutt4: “In the
first place, what constitutes the essential part of a religion is primarily to be ascertained
with reference to the doctrines of that religion itself…..” Moreover, the approach to
construe the protection of religion or matters of religion or religious practices guaranteed
by Articles 25 should be defined with lens of pragmatism.5
7. Durgah Committee6 established that the court would ‘carefully scrutinize’ claims to deny
constitutional protection to those claims which are religious but spring from superstitious
beliefs and are not essential to religion.’7 Test to determine whether a part or practice is

1
Govindlalji v. State of Rajasthan, AIR 1963 SC 1638 (India).
2
Acharya Jagadishwarananda Avadhuta v Commissioner of Police, (1983) 4 SCC 522 (India).
3
N. Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106 (India). ; Durgah Committee, Ajmer and Anr.
v. Syed Hussain Ali and Ors. (1962) 1 SCR 383 (India).
4
The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt, AIR 1954 SC 282. (Emphasis added); Dr. Noorjehan Safia Niaz and Anr. v. State of Maharashtra &
Others, (2016) SCC OnLine Bom 5394.
5
Narayana Deekshitulu v. State of A.P. and others, (1996) 9 SCC 548.
6
Durgah Committee, Ajmer and Anr. v. Syed Hussain Ali and Ors. (1962) 1 SCR 383.
7
Indian Young Lawyers Association and Ors. v. State of Kerala and Others, (2018) SCC OnLine SC 1690.

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essential to a religion is to find out whether the nature of the religion will be changed
without that part or practice and only the core of the religion from which such practice
emanates are deemed essential and those which do not are merely non-essential
embellishments.8 Merely establishing a usage will not afford it constitutional protection as
an essential religious practice, it must be proved that the practice is 'essential' to religion
and inextricably connected with its fundamental character.9

8. It is submitted that in an event where the tunnel is passed below the temple, (1) it will
neither destroy the character of fire nor it will destroy the sanctity of the fire. (2) Further,
in such an event it will not tarnish the identity of the religion.

9. The Saras community has its religious believes and scriptures in Pari Materia with that of
the Parsi sect.10 They essentially believe in the divinity presiding over the fire and
consecrated physical forms of ever-burning fires (Zoroastrianism), installed in the
respective Ankurans/fire temples. In the case of the Saras religion, it would be least
pragmatic to even consider that a tunnel that is proposed to be built 100 meters below,
having no interference with the divinity of the fire would be a danger to any of the
Zoroastrian rituals associated with it. Similarly, the core of the Saras as per the petitioner
would be the Consecration of the Ankuran as well as the worship of fire.

10. Thus, the mere passage of the metro line or a tunnel would in no manner alter the very
identity of the Saras sect nor would it completely stop the devotees or the priests performing
any kind of rituals or completely disallow them from offering prayers in the place of
Ankuran at present or in future. The tunnel that is proposed to be created is merely an
extraneous activity that in no case would either destroy or alter the presence of the fire
installed in the Ankuran.

11. Petitioners claim that if a tunnel is made to pass directly under the spiritual circuits of the
Ankuran, it would leave certain elevation under the spiritual circuits thereby breaking the
fire’s direct connection to the Mother Earth. In the present case the practice of consecration
of Ankurans in direct connection to the Mother Earth without any obstruction or elevation

8
Commissioner of Police and others v. Acharya Jagadishwarananda Avadhuta and others, (2004) 12 SCC 770.
9
S. Mahendran v. The Secretary, Travancore Devaswom Board, Thiruvananthpuram, AIR 1993 Kerala 42.
10
Clarification 6th.

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below cannot be mandatory, and hence cannot be regarded as essential.11 This is because
the purpose of the consecrating temple is the worship of the divine Fire, the rituals so
associated are the core of the religion, however, and the claim of spiritual circuits is merely
an extraneous and non-central requirement for the conduct of these rituals. Merely because
there exists a certain type of abstract and Meta belief of elevation due to a tunnel, will not
physically and practically harm the rituals so conducted or the presence of ever-burning
Fire in the Ankuran, such a belief will not mandatorily cease any more rituals conducted in
the impugned establishment.

[IB.] PETITIONERS HAVE FAILED TO DISCHARGE THE BURDEN.

12. To ‘ascertain what is “essential” to a religion “according to its own tenets” required scrutiny
of its religious texts.’12 The test of adducing evidence in proving essentiality, through
several judgments, has been to check whether the original scriptures and texts that are core
to the religion, talk about the essentiality of such practice.13 Reference is required to be
made to the doctrines and tenets of a religion, its historical background, and the scriptural
texts to ascertain the ‘essentiality’ of religious practices, and in absence of scriptures,
reference can be drawn from the antiquity of the practice.14
13. It is important to place reliance on the Jamshed Noshir Judgement15 in which the court
categorically dealt with the essential practices in Zoroastrian religion, wherein it observed
that (1) Only the belief in the ever burning fire and the allied rituals associated to it could
be considered an essential practice, (2) there is a need of adducing scriptural evidence to
prove the belief that there must be an uninterrupted connection between the ever burning
fire and the core of the earth, and in the absence of which essentiality of the belief cannot
be proven, and (3) the affidavits put forth by the High Priests cannot be a conducive proof
of a long and uninterrupted and widely practiced belief as neither of them have provided
any scriptural or documental evidence as to how do they derive this practice.16

11
Qureshi v. State of Bihar, (1996) 9 SCC 548. ; State of West Bengal v. Ashutosh, (1995) 1 SCC 189. It was that
the notion of essentiality depends on what is shown to be mandatory to the religion and not an optional practice
12
Supra note 6. ; Sardar Syedna Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853.
13
Supra note 13. ; Supra note 12. ; Indian Young Lawyers Association and Ors. v. State of Kerala and Others,
2018 SCC OnLine SC 1690.
14
Ibid.,
15
Jamshed Noshir Sukhadwalla and Ors. v. Union of India and Others, 2018 SCC OnLine Bom 14769.
16
Ibid.,

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14. In the present case the Sect of the Parsi, a Zoroastrian religion is Pari Materia to the Saras
religion,17 that is to argue that, the fundamental believes and doctrines of the Parsi could be
construed similar to the Saras sect. The petitioners have neither presented any documentary
evidence or religious scriptures that talk about the unobstructed connection between the
Holy Fire presiding in the Ankuran and the core of the earth, nor have they produced any
ancient scriptural evidence that even remotely suggests the above-mentioned practice as an
essential belief of Zoroastrianism. The contention of the respondents is not whether the
Divinity of the Fire is essential or not, rather the contention is that, even if the religion
places fire is essential, the belief of connecting fire to the mother earth is not supported by
any religious texts not documented evidence.
15. Even if, the Saras does not have an official scripts that denote such believes, the petitioners
have in no manner produced a cogent evidence of their non-interrupted practice, in fact it
is not even proven if the practice at all is a prevalent practice of the community as a whole.
The petitioners had an overt burden of proving their religion essential so as to claim
protection under Article 25, this burden was to be disposed by the petitioners by placing
any reliable documented or scriptural evidence that proves their long and uninterrupted
practice. In the course of submissions before the High Court, the petitioners failed to
discharge their burden of providing evidence and therefore, are not entitled for protection
of essential practice.18
16. The 5 (five) High Priests of the Ankurans in the Indusland, have presented affidavits and
various Saras associations and institutions across Indusland had sent support letters
supporting the stand of the Petitioners.19 In the present scenario, it is important to deal with
the circumstances of the case and submissions by the petitioners which are not corroborated,
and hence, holds no credibility in this court of law, it is thus fair to conclude their activities
even though religious but might have sprung from superstitious beliefs, therefore cannot be
regarded as essential and integral part of the religion.

17
Supra note 10.,
18
Jamshed Noshir Sukhadwalla and Ors. v. Union of India and Others, 2018 SCC OnLine Bom 14769.
19
Factual matrix, ¶5.

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ISSUE 2: WHETHER THE CONSTRUCTION/ OF A TUNNEL UNDER THE ANKURAN

WILL DESECRATE THE SPIRITUAL SANCTITY OF THE ANKURAN AND VIOLATE
THE PETITIONERS’ FUNDAMENTAL RIGHTS UNDER ARTICLE 25 OF THE
CONSTITUTION?

1. It is contended before this Hon’ble Court that the construction of a tunnel [II.A.] will
not violate the petitioners’ fundamental rights under article 25 clause (1) of the
constitution, [II.B.] the act of the respondents is protected by the virtue of the restrictions
mentioned in Art. 25 of the constitution.

[II.A.] THERE IS NO VIOLATION OF ARTICLE 25

1. It is submitted that Article 25 of the petitioners is not violated because [II.A.1] the act
of the petitioners lie outside the scope of Article 25 [II.A.2] Alternatively, right to
worship does not include right to worship at a particular land.

[II.A.1] BELIEFS OF THE PETITIONERS LIE OUTSIDE THE SCOPE OF ART. 25

1. It is extremely significant to take note of Art. 25(1) which reads as: “subject to public
order…. The right freely to profess, practice, and propagate religion. “Here it is
important to deal with the purposive interpretation of Art. 25 which prima facie implies
that in order to establish rights under Art. 25 either one of the prerequisites must be
fulfilled, i.e. profess, practice or propagate. It is now important to place reliance on
Shri Venkataramana Devaru v. State of Mysore,20 where the court held that if there is
an absence of a scriptural evidence, there must be proof of long and uninterrupted use
as cogent evidence for the presence of that custom.”
2. In the present scenario, petitioners have stated that over the course of history they lost
the scriptural and doctrinal evidence of their religious beliefs,21 it therefore now falls
upon the court to decide on the basis of evidence adduced before them concerning the
community beliefs.22 To that effect, reliance must be placed on the material fact that
the priests and the petitioners have neither produced doctrinal and scriptural evidence
nor verbal testimonies or any other cogent evidence to support the fact that they actually

20
Shri Venkataramana Devaru v. State of Mysore A.I.R. 1958 S.C. 255.
21
Factual Matrix ¶ 11.
22
Commissioner, Hindu religious Endownments v. Lakshmindra Swamiar, AIR 1954 SC 282.

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practice those beliefs consistently and without any interference. the word practice
denotes the overt performance of religious rites, rituals, forms and ceremonies,
including participation in religious processions and assemblies, worship. 23
3. In light of the judicial precedents and material facts, it can be fairly concluded that
their case is outside the ambit of Article 25 and petitioners have failed to show that the
people of the Saras community, practice those beliefs.

[II.A.2] RIGHT TO WORSHIP DOES NOT INCLUDE RIGHT TO WORSHIP AT A

PARTICULAR LAND.
4. It is contended by the respondent that exercise of right to freedom of religion under Art.
25 is not absolute24 , to that effect it is further submitted that while the right to observe
and practice rituals and right to manage in matters of religion are protected under these
Articles, the right to manage the Temple or endowment is not integral to religion or
religious practice or religion as such which is amenable to statutory control. 25
5. Reliance should also be placed on M. Ismail Faruqui v. Union of India26 where in the
courts held that “the right to practice, profess and propagate religion guaranteed under
article 25 of the constitution does not necessarily include the right to acquire or own
possess property, similarly this right does not extend to the right of worship at any and
every place of worship so that any hindrance to worship at a particular place per se may
infringe the religious freedom.”
6. In light of the judicial precedents and material facts it can be concluded that right to
worship at a particular place in itself is not necessary, in the instant case petitioners’
argument relies on the right to worship at a particular place and it is important to
mention the fact that their right is being construed from merely a superstition.
Therefore, it is now just to say that prima facie, they have the right to protect their
beliefs but not the right to manage their temple, thus, Article 25 of the petitioners is not
satisfied.

23
The Commissioner Hindu Religious Endowments, Madras v. Shri Lakshmindra Thritha Swaminar of Sri Shirur
Mutt, AIR 1954 SC 282.
24
Tilkayat Shri Govindlalji v. The State Of Rajasthan, 1963 AIR 1638
25
Sri Adi Visheshwara of Kashi Vishwanath Temple v. State of U.P., (1997) 4 SCC 606.
26
M. Ismail Faruqui (Dr) v. Union of India, (1994) 6 SCC 360.

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[II.B.] THE ACT OF THE PETITIONERS IS SUBJECTED TO RESTRICTIONS

MENTIONED IN ART. 25
1. It is submitted that there is no express provision in the constitution which restricts the
right to freedom of religion by guaranteeing fundamental rights and freedom of
others, but it is important to note the plain language of Art. 25 (1) which denotes that
the aforesaid freedom of religion is subjected to ‘public order, morality, health.’ This
Court, in N. Adithayan v. Thravancore Dewaswom Board and Others 27while
examining the scope of Articles 25(1), 2(a), 26(b), held as follows:

“Any custom or usage irrespective of even any proof of their existence in pre-
constitutional days cannot be countenanced as a source of law to claim any
rights when it is found to violate human rights, dignity, social equality and
the specific mandate of the Constitution and law made by Parliament. No
usage which is found to be pernicious and considered to be in derogation of
the law of the land or opposed to public policy or social decency can be
accepted or upheld by courts in the country.”

2. Reliance must also be placed on Art.29 (2) of the universal declaration and Art. 12 (3)
of the international covenant, which also explains that any custom or religion
prejudicial to public order or social welfare is not protected by law.
3. It is also important to place reliance on Somatha vs. State of A.P.28, which is generally
understood to use right to development as an integral part of fundamental rights
guaranteed under part 3 of the constitution. In the aforesaid mentioned case, the courts
relied on the declaration of “right to development convention” 29 and held that right to
development is an inalienable human right, it was further noted that it is the
responsibility of the citizens to take an active role in the development, Art. 2 of the
declaration imparted that state have the right and the duty to formulate appropriate
national developmental policies that act as an improvement in life of a human being.
4. In light of the judicial precedents and conventions, it is therefore concluded that the
construction of the metro which is substantially incontestable is a public welfare policy
and benefits arising from such construction of metro will form the basis of the

27
N. Adithayan v. Travancore Devaswom Board, (2002) 8 SCC 106.
28
(1997) 8 SCC 191.
29
UN General Assembly, Declaration on the Right to Development (4 December 1986)

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inalienable human rights such as right to development. Therefore, practices of Saras

religion which are non-essential in nature are therefore subjected to the restrictions
mentioned in Art. 25 (1) and (2).

ISSUE 3: WHETHER THERE WILL BE ANY CONFLICT BETWEEN ARTICLE 25 AND

ARTICLE 21 OF THE CONSTITUTION OR WHETHER THE TWO FUNDAMENTAL
RIGHTS CAN BE BALANCED?

1. It is humbly submitted before this Hon’ble court that in the event if it is established
that Article 25 exists, [III.A.] it will be in a conflict with Article 21; [III.B.] and both
the fundamental rights cannot be balanced.

[III.A.] ARTICLE 25 OF THE PETITIONERS CONFLICT WITH ART. 21 OF THE

CITIZENS
2. Exercise of article 21, i.e. protection of life and liberty, in other words the state has the
duty to form laws and regulations that guarantees the citizens their right to life, a life
with dignity and honour.30 It is pertinent to point out at this stage that our constitution
does not explicitly recognise right to development as a fundamental right under Art.
21, while at the same time it is important to understand the purposive interpretation of
Right to health which extends to right to live in clean, hygienic and safe environment.31
3. To that effect, it is submitted that it is the duty of the state to protect such right and
guarantee the citizens a pollution free environment. ‘In an era of industrialisation,
public health has been given the utmost importance over the years because it is
considered to be an essential factor which leads to urban growth. Places where
presence of slums, congestion, and disorder can be witnessed, were referred to as
environmental threats. The government implemented regulatory laws in order to curb
them and restore the area back to safe and healthy environment.32 Such laws included
a fleet in the number of public transport, as well.’33

30
G. gurunadha Reddy v. A.P. Road Transport Corporation, AIR 1999 AP 179.
31
Virendar Gaur v. State of Harayana, (1995) 2 SCC 577.
32
The Public Health Act, 1848, Acts of Parliament, 1848 (UK)
33
Susan S. Fainstein, Urban planning, ENCYCLOPEDIA BRITANNICA (May 12,
2016), https://www.britannica.com/topic/urban-planning

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4. It’s important to place reliance on “right to development” convention34 which states

that ‘right to development is an inalienable human right and provides that the state
have the authority and the duty to formulate appropriate national development policies
that specifically aims at the constant improvement of the individuals, the paramount
importance in such policies is given to the collective interest of the society.’ The SC
in the landmark judgement of M. C. Mehta v. Union of India35 directed the NCT of
Delhi to augment the city bus fleet which also included electrical buses in order to
reduce pollution.
5. On facts and circumstances of the present case, it is pertinent to mention that
“Aaryavarta” is an economically and industrially developed state,36 where it is fair to
conclude that it will be a necessity for the government to create law and policies which
include a fleet in public transport. To that effect, creation of the proposed metro line
by the government will truly represent the basic needs and interest of the community
at large. Reliance must be placed on a recent report of the Environment Pollution
(Prevention and Control) Authority (EPCA)37 where it was specifically highlighted
that in order to meet air quality targets, there ought to be an increase in supply of public
transport which included the phase 4 of Delhi metro to expedite the process.
6. Therefore, due to the aforesaid mentioned reasons, in an event where Art. 25 is
established, it will be a flagrant violation of Art. 21 under right to health provision of
the constitution.

[III.B.] BOTH THE FUNDAMENTAL RIGHTS CAN NOT BE BALANCED.

7. It is submitted that in an event where Art. 25 of the petitioner is established by this
court, it will be in conflict with the Art. 21 rights of the citizens. The framework of
Harmonious Construction in which the courts have followed to balance both the rights
will not be applicable in the present scenario. The Courts have also held that in the
interest of public development, maintenance and welfare, the union may choose to
remove any obstacles or act on its discretion to fulfil its goals towards public utility

34
UN General Assembly, Declaration on the Right to Development (4 December 1986)
35
WP 13029/1985 (2019.08.05)
36
Factual Matrix¶ 1.
37
Environment Pollution Control Authority, Special Report seeking urgent intervention on augmentation of
public transport, including approval for phase IV of Delhi Metro and advancement in schedule for additional
buses, July 1, 2019

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and a claim for protection of these religious foundation und Article 25 will not lie.38
To solve this conundrum, reliance must be placed on Dr. D.Y. Chandrachud’s
concurring view in Indian Young Lawyers Association v. The State of Kerala39,
which stated:

“While the Constitution recognises religious beliefs and faiths, its purpose is to
ensure a wider acceptance of human dignity and liberty as the ultimate founding
faith of the fundamental text of our governance. Where a conflict arises, the quest
for human dignity, liberty and equality must prevail.”

8. In Indian Young Lawyers Association v. The State of Kerala 40, it was held that our
constitution does not recognise anything which is destructive of individual dignity, to
that effect, it is pertinent that exercises which are reflection of Art. 21 are not to be
disassociated from the exercise of religious freedom.41 Furthermore, at this stage it is
pertinent to point out the ratio in N.Adithyan v. Travancore Devaswom board42 which
upheld the purposive interpretation of Art. 25 and laid down that the respective article
is sub-ordinate to fundamental rights mentioned under part 3 of the constitution. In
accordance with the law, the respondents had established that citizens have access to
the benefits and conveniences of the metro in order to live a life with dignity and under
healthy environment.
9. It is contended before this Hon’ble Supreme court that the process of laying out a route
for metro requires planning by a committee of learned members who have expertise in
different area. Routes are strategically laid out to ensure cost –effectiveness, to avoid
pollution and traffic blockade.
10. To that effect, it is extremely significant to note that MMRCL is in a more provident
position to decide not only the best possible route for the construction of metro but also
the safety of public at large. Metro tracks need to be laid with a high degree of accuracy
and calibration. It is submitted that the construction of the metro route has already been
started, and the petitioners’ contention to move the proposed alignment by 5meteres43
will require the realignment of entire metro tunnel.

38
Union of India v. State of Gujarat, (2011) 14 SCC 62.
39
Indian Young Lawyers Association v. The State of Kerala 2016 SCC OnLine SC 1783.
40
(2016) SCC OnLine SC 1783.
41
Ibid.,
42
(2002) 8 SCC 106.
43
Factual Matrix ¶ 6.

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11. Construction will lead to more costs- wages, it is submitted that the respondent already
incurred significant losses and during the operation of the stay order of the High court.
This has caused additional delay in the timely completion of the project and at the
outset there are already outstanding dues to the contractors and re-construction will
lead to more expenses in terms of wages and cost of building material.
12. Moreover it is the duty of the state to ensure a pollution free environment under Art.
21, making a new tunnel 5meters away will require re- excavation and digging from
the very beginning, which will further cause noise pollution, traffic blockade,
unnecessary inconvenience to public and other health hazardous problems.

ISSUE 4: WHETHER THE PETITIONERS HAD ESTABLISHED A FUNDAMENTAL

RIGHT UNDER ARTICLE 29 OF THE CONSTITUTION AND WHETHER THERE WAS
ANY VIOLATION THEREOF?

It is contended before this Hon’ble Court that [IV.A.] the petitioners have not established
their right under Article 29 of the constitution. [IV.B]Alternatively, there is no violation
of the petitioners’ fundamental rights under article 29 clause (1) of the constitution as there
is no threat to their heritage structure.

[IV.A.] PETITIONERS HAVE NOT ESTABLISHED THEIR RIGHT UNDER

ARTICLE 29
17. The question before this Hon’ble court is not whether the Saras community is distinct
or not, however the question is whether Art. 29 is absolute or not.
18. The right to conserve culture, in what manner, has not been explained under Article 29.
Further the stress on the Article lies on the pedestal of ‘Conserve,’ which intends to
conserve only the special traditions, however, these special traditions have to be
essential customs to that community.44 There have been numerous cases and claims in
various common law jurisdiction, where courts have favoured the government’s public
policy which have decided upon this principle, have noted that conservation of culture
is extended to essential cultures only, otherwise subject to government policy

44
3 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 3564-3565, (8th ed.,
LexisNexis Butterworths Wadhwa Nagpur 2008).

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restrictions.45 The Petitioners have misrepresented certain practices that are not
inherently a part of their culture and have thus cried violation under Article 29 so as to
conserve these non- essential practices as a distinct identity of the community.
19. The Saras sect indeed is a distinct community and the practice of consecration of
Ankuran and worship of fire through various rituals could indeed be distinctive features
of the Saras and are not challenged by the Respondents.46 However, their belief of the
fact that no obstruction, either underground or above the Ankuran, should be allowed
for the performance of their rituals is merely a superstition,(cit) hence the practice of
such rituals is rather an unreasonable and non- essential custom.
20. To solve the conundrum of rights under Art. 29, reliance must be placed on legal
Jurisprudence which states that the right to conserve distinct religious cultures, just like
other Fundamental Rights is not absolute and could be deprived of legal efficacy, if it
obviously and seriously appears repugnant to rights, reasons and the principles of
justice and public utility.47 Reliance should also be placed on the decision in Fender v.
St. John Mildmay48 which is generally recognised to understand the ‘Doctrine of Public
Policy’, according to this doctrine, it may be invoked in cases where the detriment
caused to the public is largely and substantially incontestable.
49
21. Further, in Mahamaya v. Haridas the courts held that a custom can be deemed
unreasonable if it is prejudicial to the public at large. It is thus fair to assume that the
court may try to nullify unreasonable customs if they believe that the persistence of a
practice may do more harm than good- even if the people of that community have had
a long-standing affinity to that particular practice. The question of reasonability is one
based on law and not merely on fact.
22. In the present scenario, it is submitted that any unnecessary obstruction in construction
of the metro, a public welfare policy which is aimed at collective interest of the society,
will be detrimental to public order and thus such obstruction, specially caused by the
practice of any customs which are unreasonable and repugnant to the rights of the
citizens, will not be protected by the virtue of Article 29. It is also pertinent at this stage
to mention that it has already been proven that shifting the proposed alignment is

45
Animal Welfare Board of India v. A. Nagaraja & Ors, (2014) 7 SCC 547. ; Jamshed Noshir Sukhadwalla and
Ors. v. Union of India and Others, 2018 SCC OnLine Bom 14769.
46
Clarification 26th.
47
Fitzgerald, P.J., M.A., SALMOND ON JURISPRUDENCE 199 (N. M. Tripathi Pvt. Ltd 1997).
48
SINGH AVTAR, LAW OF CONTRACT AND SPECIFIC RELIEF 233 (Eastern Book Company, 2002).
49
Mahamaya v. Haridas, I.L.R. 42 Cal. 455 at p. 475.

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practically not possible, therefore the detriment, if caused will be substantially

incontestable.

[IV.2]: THERE IS NO VIOLATION OF THE PETITIONERS’ FUNDAMENTAL

RIGHTS UNDER ARTICLE 29 CLAUSE (1) OF THE CONSTITUTION.
1. The Right to Heritage essentially is a part of Article 21,50 whereas, the intention of the law
makers was not to include cultural monuments a part of the preservation of Article 29,
which is why such right to heritage is nowhere seen ruled or expressed under the definition
of the distinct culture. Even if there exists a right to preserve cultural heritage, the violation
thereof has to be due to an overt and tangible threat.51
2. The petitioners cannot claim a violation of 29, as the Saras believes that the Ankuran is a
Heritage Site,52 and in such a case the appropriate remedy lies under Article 21 and not 29,
further the threat so claim, mere assumptive, there has been no evidence nor report on
record has been brought by the petitioners that may indicate any form of physical
destruction directly harming the Ankuran Foundation. It has also been held that when there
is a mere presumptive threat of destruction of essential, there cannot lie a relief for further
injunction.53 Here, the facts clearly speak of no signs of damage, it is a mere presumptive
threat to the Ankuran and no actual or even signs of destruction have occurred, and
therefore, there arises no ground of halting the Metro Tunnel Process.
3. Ankuran is a 188 year old Grade III heritage structure, 54 which becomes an inherent duty
of the government to protect and preserve as and when it may deem fit or discovers any
defects. If the government actually feels that there might occur any threat to the physical
structure of Ankuran or there emerges a distinct possibility of causing physical damage to
the Ankuran during the process of tunnelling, it would take positive steps with aid and
advice from technical experts in future, however at present there lies no threat to he
structure even remotely.

50
Ramsharan Autyanuprasi and Anr. v. Union of India and Anr., 1989 Supp 1 SCC 251.
51
Supra note 8.
52
Factual Matrix ¶ 2.
53
Jamshed Noshir Sukhadwalla and Ors. v. Union of India and Others, 2018 SCC OnLine Bom 14769.
54
Clarifications 4th.

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PRAYER

In the light of facts of the case, issues raised, arguments advanced and authorities cited, it is
humbly and respectfully prayed before this Hon’ble Court to:

1. ORDER to uphold the impugned order of the High Court.

2. ORDER to remove the previous Injunction Placed on the Metro Line Project.

AND/OR

Pass any other order that the Court may deem fit in the interests of Justice, Equity and Good
Conscience. And for this kindness, the Petitioners as in duty bound, shall humbly pray.

All of which is respectfully affirmed and submitted.

Sd/-
Counsel for the respondent

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