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Memorial - scc

Master of Law (LL.M) (Chandigarh University)

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BEFORE THE HON’BLE SUPREME COURT OF INDIVA

Union of Indiva and others …Petitioner

V.

Drishti Foundation through its authorized representative

…Respondent

Moot Memorial

On behalf of

Submitted to: Prof. Mukesh Kumar Submitted by: 18BAL5087

UNIVERSITY INSTITUTE OF LEGAL STUDIES

CHANDIGARH UNIVERSITY, MOHALI

2022-2023

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TABLE OF CONTENTS

LIST OF ABBREVATIONS…………………………………………………………………

INDEX OF AUTHORITIES…………………………………………………………………

STATEMENT OF JURISDICTION…………………………………………………………

STATEMENT OF FACTS…………………………………………………………………

ISSUES………………………………………………………………………………………

SUMMARY OF ARGUMENTS………………………………………………………………

ARGUMENT ADVANCED……………………………………………………………………

1) Whether the PIL is maintainable before the Supreme Court for hearing and admission?
2) Whether the activities exploiting the religious sentiments of the people amount to
infringement of Fundamental Rights of the people of Indiva?
3) Whether the alleged activities are contrary to the secular structure of Union of Indiva
asenshrined in the Preamble of the Constitution of Indiva?
4) Whether the ban on such Matths/Ashrams would violate the fundamental rights of the
peopleto follow the religious faith of their choice?
5) Whether the amendment in the present laws is necessary to deal sternly with such
Baba’s?

PRAYER………………………………………………………………………………………

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LIST OF ABBREVATIONS

PIL Public interst litigation

Ld. Learned

V. Versus

No. Number

Ind Indiva

SC Supreme Court

AIR All Indiva Reporter

BMP Black Magic Prohibition

ORS. others

i.e That is

NGO Non Governmental Organisation

INDEX OF AUTHORITIES

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 CASE LAWS REFERRED

Serial No. Case Law
1. Ghisalal Vs. Dhapubai (Dead) by L.R’s and others
2011 AIR (SC)644.

2. KALINDI DAMODAR GARDE (D) BY LRS VS MANOHAR LAXMAN KULKARNI (D)

BY LRS & ORS
CIVIL APPEAL NO. 6642-6643 OF 2010
3.

 LEGISLATIONS

Serial No. Particulars

1. Constitution of India
2. The
3.

 WEB RESOURCES

Serial No. Web Address

1. www.manupatra.co.in
2. www.lexisnexis.co.cin
3. www.livelaw.in
4. www.scconline.in
5. www.thewire.in
6. www.indiankanoon.org
7. www.lawkhoj.com
8. www.legalindia.com
9. www.indiancaselaws.wordpress.com
10. www.indiancourts.nic.in
11. www.justia.com

STATEMENT OF JURISDICTION

The petitioner i.e. Union of Indiva and others against exploitation of the religious feelings of
the people, to save people from the atrocities being committed by such Godman Babbaram.
Petitioner approached the Hon’ble supreme Court of Indiva under Article 32 of the

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Constitution of Indiva challenging the illegal and immoral activities of exploitation being
carried out by the so called Baba’s in theirs Matts and. The present memorandum contains the
facts, contentions, and arguments of the present case:-
1. The petitioner humbly submit the memorandum in PIL filed by the petitioner in the
interst of people living in the Indiva .

STATEMENT OF FACTS

1. Shivrashtra is a state in the Union of Indiva, where the population of the state on basis
of religios faith comprises 40% Hindus, 25% Muslims, 15% Christians and the
remaining 20% belong to various smaller groups like Paris, Tribal and Non-tribals and
Non-believers. The state is predominately a hilly area with people being religious.
Mostly number of population being illiterate, carries out primitive occupations.

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Religious practices, superstitions and rituals, take much of their time and money
which has greatly affected the development of the state.
2. The state is known all over the world for its religious centres. The various religious
institutions in the state are imparting only religious education putting the secular
education into oblivion which has reduced drastically the people’s employement
avenues, the religious leaders Gurus and prophets of various religions in the same state
are vying with one another because of huge donations offered by the pilgrims.
3. Accordingly mass prayers, retreats, yagnas, penance services etc. are conducted very
frequently. The religious leaders, so called God men in order to continue their hold,
have create a kind of fear in mind of their followers by way of fundamentalist
practices and attitudes, which further created divisions in the society and often within
the families too.
4. The youth of the state were boiling with anger and frustration looking at the economic
progress of other states, often revolted against those oppressive and suppressive
religious practices that prevailed in their states. There were many protests by many
groups headed by moderates, intellectuals and non-believers on various occasions in
different parts of the state.
5. Dr. Virendra Panhalkar, the 70 years old social activist, who was shot dead on 20 th
August2020 in one city of the state of Shivrashtra, had waged a long and lonely battle
for an Anti-Superstition Law.
6. Within a week after the vicious assassination of Dr. Panhalkar, the Governor of
Shivrashtra signed the ‘Black Magic Prohibition’ Ordinance. It come into force from
26th August, 2020 all over the state of Shivrashtra.
7. The ordinance is aimed at banning superstitious practices, inhuman rituals and black
magic that have been the used to exploit people in the name of religious beliefs. This
law is against fraudulent and exploitative practices, such practices have no place in an
enlightened society. In the entire text there is not a single word about God or Religion.
8. The draft Bill clearly specifies 12 such practices which includes claiming to perform
surgery with just fingers or to change the sex of the foetus in the womb, sexual
exploitation under the guise of claims of supernatural powers, branding women as
witches and causing them physical harm, human sacrifies and Aghori practices.
9. Inspite of coming into force of the above legislation the superstitious activites are on
rise. The people of state of Shivrashtra as being exploited by the self- declared God
like Babaram Maharaj, who has amassed huge wealth by exploiting the religious

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sentiments of the people. Under the garb of religious practices he started to exploit
illiterate and poor women and children and employed youths. He uses their energies
by providing them training to play with rifles and arms for his own protection and to
prevent Govt. authorities to take any action against him. He poses himself as God or
supernatural power to attract women’s too. The ban his activities the govt. of
Shivrashtra tried to enter in to his Ashram but could not succeed.
10. In the backdrop of above facts and circumstances, Drishti Foundation which is NGO
working against the exploitation of the religious feelings of the people by such so
called Godman Babaram, has filed a PIL before the Supreme Court under Article 32 of
constitution of Indiva challenging the activities of exploitation being carried out by the
so called Baba’s in their Matths and Ashrams and has prayed therein that all these
Matths and Ashrams which are carrying out the activities of exploiting the religious
feeling of the people should be closed and all the assets acquired by these Baba’s be
confiscated and added to the national wealth of Indiva.

Judicial Presence:

The PIL is filed in the interest of the people of Indiva , before the Hon’ble Supreme Court of
Indiva , as the cause of action arises against the Godman’s having their matts and ashrams in
whole of the Indiva , therefore Jurisdiction lies with the Hon’ble Supreme court of Indiva .

LEGAL ISSUES RAISED

ISSUE I

Whether the PIL is maintainable before the Supreme Court of Indiva for hearing and
admission?

ISSUE II

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Whether the activities exploiting the religious sentiments of the people amount to
infringement of Fundamental Rights of people of Indiva?

ISSUE III

Whether the alleged activities are contrary to the secular structure of Union of Indiva
asenshrined in the preamble of the constitution of Indiva?

ISSUE IV

Whether the ban on such Matths /Ashrams would violate the fundamental rights of the
peopleto follow the religious faith of their choice?

ISSUE V

Whether amendment in the present laws is necessary to deal sternly with such Baba’s?

SUMMARY OF ARGUMENTS

Issue 1. Whether the PIL is maintainable before the Supreme Court of Indiva for hearing and
admission?

No, the PIL is not maintainable before the Supreme Court of Indiva for hearing and admission
because the state has passed the law Black Magic Prohibition ‘Ordinance’ which came into
force from 26th August, 2020 all over the state of shivrashtra. Now the laws as already passed
by the legislature, the duty to implement the law is of executive and not judiciary. The
legislature has done his work by passing the law to ban the activities the govt. of Shivrashtra
tried to enter into his ashram but could not succeed.

Issue 2. Whether the activities exploiting the religious sentiments of the people amount to
infringement of Fundamental Rights of the people of Indiva?

No, the activities are not exploiting the religious sentiments of the people amount to
infringement of Fundamental Rights of the people of Indiva because under article 25 of the
Constitution of Indiva there is freedom of conscience and free profession, practice and
propagation of religion. The people has the right to check the right or wrong about their

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religion, and also the persons has the faith in the religious activities. They are doing these
religious activities by their own willingness.

Issue 3. Whether the alleged activities are contrary to the secular structure of Union of
Indiva asenshrined in the preamble of the constitution of Indiva?

No, the alleged activities are not contrary to the secular structure of Union of Indiva
asenshrined in the preamble of the constitution of Indiva, because whatever the people are
following the religion or faith that has nothing to do with the secular structure of the union.
The Secular structure of the union will be decided by the policies and law adopted by the
union.

Issue4. Whether the ban on such Matths /Ashrams would violate the fundaental rights of the
people to follow the religious faith of their choice?

Yes, the ban on such Matths/ Ashrams violate the fundamental rights of the people to follow
the religious faith of their choice, because under Article 25, Article 26, Article27 it is the
fundamental rights of the people to follow their own choice of religion.

Issue 5. Whether amendment in the present laws is necessary to deal sternly with such
Baba’s ?

Yes, the present amendment is a need of time and surely necessary to deal sternly with such
Babas but the appropriate authority to make the amendment is parliament or legislature and
not the judiciary. Parliament make laws judges don’t make laws.

ARGUMENTS ADVANCED

ISSUE 1:- Whether the PIL is maintainable before the Supreme Court of Indiva for hearing
and admission?
1. No, the PIL is not maintainable before the Supreme Court of Indiva for hearing and
admission because the state has passed the law Black Magic Prohibition ‘Ordinance’
which came into force from 26th August, 2020 all over the state of shivrashtra. Now
the laws as already passed by the legislature, the duty to implement the law is of
executive and not judiciary. The legislature has done his work by passing the law to

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ban the activities the govt. of Shivrashtra tried to enter into his ashram but could not
succeed.

2. In Indiva separation of functions is followed. The three branches of the government

are the executive, the legislature and the judiciary. Although the three have distinct
functions to perform, their scope sometimes meet. Separation of powers is an
organizational structure where responsibilities, authorities, and powers are divided
between groups rather than being centrally held. Separation of powers is most closely
associated with political systems, in which the legislative, executive, and judicial
powers of government are vested in separate bodies. Separation of powers refers to
the division of powers into distinct branches of government, each with their own
responsibilities.

3. The chief function of the legislature is to enact laws. It is the basis for the functioning
of the other two organs, the executive and the judiciary. It is also sometimes accorded
the first place among the three organs because until and unless laws are enacted, there
can be no implementation and application of laws. The executive is the organ that
implements the laws enacted by the legislature and enforces the will of the state. It is
the administrative head of the government. Ministers including the Prime/Chief
Ministers and President/Governors form part of the executive. The judiciary is that
branch of the government that interprets the law, settles disputes and administers
justice to all citizens. The judiciary is considered the watchdog of democracy, and also
the guardian of the Constitution. It comprises of the Supreme Court, the High Courts,
District and other subordinate courts.
4. The doctrine of separation of powers is a part of the basic structure of the Constitution,
although not specifically mentioned. The legislature cannot pass a law violating this
principle. The functions of the three organs are specifically mentioned in the
Constitution. Article 50: This article puts an obligation over the State to
separate the judiciary from the executive. But, since this falls under the
Directive Principles of State Policy, it is not enforceable.
5. The Honourable Supreme Court in Ram Jawaya Kapoor V State of Punjab held that
the Indian Constitution has not indeed recognised the doctrine of separation of powers
in its absolute rigidity but the functions of the different parts or branches of the
government have been sufficiently differentiated and consequently it can be very well

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said that our Constitution does not contemplate assumption by one organ or part of the
state of functions that essentially belong to another.

ISSUE 2:- Whether the activities exploiting the religious sentiments of the people amount to
infringement of Fundamental Rights of the people of Indiva?
1. No, the activities are not exploiting the religious sentiments of the people amount to
infringement of Fundamental Rights of the people of Indiva because under article 25
of the Constitution of Indiva there is freedom of conscience and free profession,
practice and propagation of religion. The people has the right to check the right or
wrong about their religion, and also the persons has the faith in the religious activities.
They are doing these religious activities by their own willingness.
1. 2.Under Article 25 of Indiva constitution, the constitution ensures equal freedom to all
religions. At the same time, it is declared that the religion of a person has nothing to do
in the matters relating to social and economic welfare of the people, which matters
can be regulated or restricted by the state, by law. It is thus, held that the right to
freedom of religion, its scope and significance is to be studied in the view of secular
Democracy established under the constitution.
2. A religion is, therefore, not merely an opinion, doctrine or belief. It has its outward
expression in acts as well. Religious practices or performances of acts in pursuance of
religious belief, are as much a part of religion as faith or belief in particular doctrines.
Religion is the belief which binds spiritual nature of men to supernatural being. It
includes worship, belief, faith, devotion etc and extends to rituals.
3. In Lily Thomas V. Union of India, the Supreme Court explained that religion was a
matter of faith stemming from the depth of the heart and mind and that religion, faith
or devotion were not easily interchangeable. The Court further said that if the person
feigned to have adopted another religion just for some worldly gain or benefit, it
would be religious bigotry.
4. The apex court in Ratilal v. State of Bombay, explained that religious practices or
performances of acts in pursuance of religious beliefs were as much a part of religion
as faith or belief in particular doctrines. It was further impressed that no outside
authority had any right to say that those were not essential parts of religion and it was
not open to the secular authority of the state to restrict or prohibit them in any manner
they liked under the guise of administering the trust estate. Practices which are

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regarded by a religious community as part of its religion are also matters of religion.
For instance, right to burry dead bodies in a particular manner with particular rites in
consecrated places is part and parcel of certain religions.

ISSUE 3:- Whether the alleged activities are contrary to the secular structure of Union of
Indiva asenshrined in the preamble of the constitution of Indiva?

1. No, the alleged activities are not contrary to the secular structure of Union of Indiva
asenshrined in the preamble of the constitution of Indiva, because whatever the people
are following the religion or faith that has nothing to do with the secular structure of
the union. The Secular structure of the union will be decided by the policies and law
adopted by the union.
2. It is made explicit in the very Preamble that Indiva is a secular state. The concept of
secularism, to put, in a nutshell, is that the state will have no religion. It does not
mean that it is an irreligious or atheistic State. Nor it means that Indiva is an anti-
religion state It merely explains that the state has no religion of its own. That in the
matters of religion, the state is neutral. It neither promotes or practices any particular
religion, nor it interferes with any religious practice. That the state is not concerned
with the relationship of men with their God. It is concerned only with the relationship
of men with other men.
3. Under Article 25 of Indiva constitution, the constitution ensures equal freedom to all
religions. At the same time, it is declared that the religion of a person has nothing to do
in the matters relating to social and economic welfare of the people, which matters
can be regulated or restricted by the state, by law. It is thus, held that the right to
freedom of religion, its scope and significance is to be studied in the view of secular
Democracy established under the constitution.
4. Secularism, the Supreme Court explained in St. Xavier’s College v. State of Gujarat,
is neither anti-God, nor pro-God; it treats alike the devout, the agnostic and the atheist.
It eliminates God from the matters of the state and ensures that no one shall be
discriminated against on the ground of religion. That every person is free to mould or
regulate his relations with his God in any manner. He is free to go to God or to Heaven
in his own ways. And that worshipping God is left to be dictated by his own
conscience.

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5. Positively, India advocates secularism by granting equal religious freedom to all

religions. It stands for all citizens’ right to freedom. “India as a secular state
guarantees constitutionally, freedom of religion to all persons and does not assign a
special position to any particular religion.”
6. Article 25 ensures that all persons get the freedom of conscience and the right to
profess, practice, and propagate any religion of their choice. Religious conversion
cannot be done forcefully as it is a punishable offence. Due to the secular features of
India, no single state gets the title of state religion in India. All religions are treated
equally in the eyes of law. People are vested with religious freedom and can adopt or
refrain from adopting any religion.
7. Article 26 guarantees the rights of religious denominations or their sections. It protects
collective freedom of religion. It is also subject to public order, morality, and health
but not subject to other provisions relating to fundamental rights. The Supreme Court
of India has held multiple times that the religious denomination must assure three
constraints which are as follows:
o A group of individuals should believe in an ideology that they consider to be conducive
to their spiritual well-being.

o It should have a common organization.

o There should be a unique name designated to it.

8. In 1973, in the Kesavananda Bharati v. State of Kerala judgment, the Supreme

Court of India held that secularism is a part of the basic structure of the Constitution.
Further, it was held that elements that constitute the basic structure cannot be amended
by the Parliament.
9. The principle laid down in the Kesavananda Bharati case was reiterated in 1994 in the
case of S.R Bommai v. Union of India. The Supreme Court cleared the doubt over
the word ‘secularism’ in the Constitution. The Court held that a secular nature of a
society does not make it an atheist society. Secularism makes society more
heterogeneous. The law of a secular nation provides equal status to all religions and
does not favour or discriminate against anyone.
10. The High Court of Madhya Pradesh, in Stainislaus Rev v. State of MP, explained
that freedom of ‘profession’ means one’s right to state in public the creed he belongs
to. Moreover, the Court said that freedom of ‘practice’ means one’s right to worship in

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private or public. It was further explained that the right to propagate one’s religion
gives one the right to convey his/her religious beliefs to another individual but not to
convert a person to one’s religion.

ISSUE 4:-Whether the ban on such Matths/Ashrams would violate the fundamental rights of
the people to follow the religious faith of their choice?

1. Yes, the ban on such Matths/ Ashrams violate the fundamental rights of the people to
follow the religious faith of their choice, because under Article 25, Article 26,
Article27 it is the fundamental rights of the people to follow their own choice of
religion.
2. Religion is a matter of belief or faith. The constitution of India recognizes the fact,
how important religion is in the life of people of India and hence, provides for the
right to freedom of religion under Articles 25 to Article 28. The Constitution of India
envisages a secular model and provides that every person has the right and freedom to
choose and practice his or her religion.
3. The Apex Court has held that secularism is the basic structure of the Constitution, the
most important being the Kesavananda Bharati case. People in India mainly practice
Islam, Hinduism, Jainism, Buddhism, Sikhism and, Christianity. In India, there are
religion-specific laws and Goa is the only state to have a Uniform Civil Code known
as the Goa Civil Code. The Constitution supports religious harmony which means the
people of India show love and affection to different religions of the country.
4. Matter of religion includes religious practices, rituals, observances, ceremonies, mode
and manner of worship, etc., regarded as the essential and integral part of the religion.
For instance, in Acharaj Singh v. State of Bihar it was held that, if Bhog offered to the
deity is a well-established practice of that religious institution, such a practice should
be regarded as a part of that religion.
5. The right to religion under Article 26 is subject to certain limitations and not absolute
and unfettered. If any religious practice is in contravention to any public order,
morality or health then such religious practice cannot claim the protection of the state.
6. India is the most diverse country with respect to religion. Being a secular country it
does not have its own religion and every citizen has the right to choose, practice,
propagate and even change his or her religion. However, these rights are not absolute
but subject to certain restrictions provided by the constitution. No person in the name

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of religion can do any act that is opposed to the public policy or creating any kind of
disturbances or intolerance among the people of India.
7.

ISSUE 5:- Whether the amendment in the present laws is necessary to deal sternly with such
Baba’s?
1. Yes, the present amendment is a need of time and surely necessary to deal sternly with such
Babas for the simple reason these Babas are subject matter of cruelty for the public at large
specially womens, who proves to be the simple and easy target for these Babas .

2.

PRAYER

In the light of the issues raised, arguments advanced and authorities cited the petitioner most
humbly and respectfully pray and request the Hon’ble court:

1)The centre must constitute a Judicial Commission or an Expert committee to expert the anti
conversion laws and policies of the developed nations and the best provisions of the Anti
conversion of the states and enact a law to control forceful and deceitful religious conversion.

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2) direct the centre and state to take appropriate steps to control black magic, superstition and
religious conversion by intimidating, threatening, deceivingly luring through the gifts and
monetary beliefs.

3)direct the centre to ascertain the feasibility of appointing a committee to enact a conversion
of Religion act to check the abuse of religion in spirit of the direction.

) To grant any other relief which the Hon’ble court may deem think fit in the eyes of justice,
equity and good conscience.

All of which is respectfully submitted and for such act of kindness the Respondents shall be
duty bound as ever pray.

Sd/- (COUNSEL FOR

RESPONDENTS)

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