INTRA DEPARTMENTAL MOOT COURT COMPETITION, 2019

TABLE OF AUTHORITIES

Cases

A.B.S.K Sangh (Rly.) V. Union of India .................................................................................................. 8

Air India vs. Nargesh Meerza ............................................................................................................... 11
Ajay Hasia V. Khalid Mujib .................................................................................................................... 9
Anju Garg and others V. Hotel Association of India ............................................................................ 11
Charu Khurana and Others vs. Union of India .................................................................................... 11
Dipak Sibal vs. Punjab University and others ...................................................................................... 10
Dr.Ismail faruqui etc Vs. union of india and others,.............................................................................. 17
Electricity Board, Rajasthan V. Mohan lal ............................................................................................. 8
Francis coralie V. union territory of Delhi ........................................................................................... 12
India young lawyers Assn. Vs. state of kerala................................................................................. 16, 17
Janta Dal V. H.S chaudhary ................................................................................................................... 8
judges transfer case ................................................................................................................................ 8
Khursheed Ahmad Khan v. State of Uttar Pradesh and Others ........................................................ 13
Menka Gandhi case............................................................................................................................... 12
Peoples Union for Democratic Right V. Union of India ......................................................................... 8
Ramana Dayaram shetty V. The International Airport Authority of India ............................................. 8
Rustom cavasjee cooper V. UOI ........................................................................................................... 12
S.P Gupta and others V. president of India and others .......................................................................... 8
Shayara Bano V. Union of India ........................................................................................................... 15
Shayara Bano vs. Union of India .......................................................................................................... 10
Sri Venkatramana Devaru V. State of Mysore ...................................................................................... 11
Sri Venkatramana Devaru vs. State of Mysore and others ................................................................... 11
Sukhdev V.Bhagatram ............................................................................................................................. 8
Vishaka and others V. state of Rajasthan ............................................................................................. 14

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STATEMENT OF JURISDICTION

In the instant matter, the Hon,ble supreme court of Indistan has jurisdiction under Article 32 of the
Constitution of Indistan.

 Article 32 in The Constitution Of India 1949, as follows:

Art.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

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STATEMENT OF FACTS

1. The democratic republic of Indistan is a secular country in South Asia.

2. Indistan has rich social composition, as many religions have originated in the country and.
3. Diverse religion group makes the country unique.
4. The constitution of Indistan provide for freedom of religion as a fundamental right to give
its people the freedom of worship
5. There is no intervention of state in religion matters.
6. Constitution also prohibit discrimination on the basis of religion .
7. All religions are governed by their personal laws.
8. Religion diversity and religious tolerance were both established in the country by law and
custom.
9. Recently the honorable supreme court of Indistan has permitted entry of women of all ages
group to the Dharmik temple holding that devotion cannot subjected to gender
discrimination .
10. Now the Nari Shakti NGO, suo moto filed a writ petition challenging practice of prohibiting
entry of women in mosque which is violative of article 14 15 21 25 .
11. Petition contend that the prohibition is void and unconstitutional.

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ISSUES RAISED

ISSUE I

WHETHER PIL FILED UNDER ARTICLE 32 IS MAINTAINABLE ?

ISSUE II

WHETHER ACT OF PROHIBITING WOMEN FROM ENTERING MOSQUE IS VOILATIVE OF

ARTICLE 14, 15, 21 AND 25 ?

ISSUE III

WHETHER PROHIBITION OF WOMEN IN MOSQUE IS ESSENTIAL PART OF ISLAM ?

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SUMMARY OF ARGUMENTS

ISSUE-I

ARGUMENT-1: Petition is maintainable because by texting the other authorities and govt.
instrumentalities it is found that mosque come under the purview of Article 12.

ISSUE-II

ARGUMENT-2:Since prohibition is violative of art.14,15,21 and 25,it create the discrimination on

gender basis and it should be removed.

ISSUE-III

ARGUMENT-3:As prohibition is not essential part of islam it should be eradicated because there is no
authentiv hadith and direct verse of quran which prohibit women entry in mosque

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ARGUMENTS ADVANCED

ISSUE I

WEATHER WRIT PETITION IS MAINTAINABLE UNDER ARTICLE 32

A.1 THIS PETITION IS MAINTAINABLE UNDER ARTICLE 32

It is been submitted that the petition if allowed, would benefit the citizens of this country. Generally, as
rule of law is essential for democracy and such brazen violation of law by the respondents can be stopped
by the orders of this humble court only.

The persons affected by such acts of the state are numerous and are not in a position to approach the
Hon’ble Court hence the “NARI SHAKTI” NGO is filing the writ petition on behalf of such affected
persons.

The petitioner has approached this Hon’ble Court, it is the appropriate authority and vested with powers
under the Constitution of Indistan for appropriate direction. Protecting the Violation of Constitutional and
Fundamental Right of the Women guaranteed under the Constitution of Indistan.

Religious Bodies that ask for and receive taxpayers’ money from the Government are also subject to this
condition imposed by our Constitution.

A.1.1 Locus standi: NGO has locus standi in this case

NGO Nari Shakti has the locus standi to file a writ petition before the hon’ble court. The traditional rule is
that right to move the Supreme Court is only available to those whose Fundamental Rights are infringed.
Now in recent rulings of the apex court traditional rule of locus standi has been relaxed by the Supreme
Court. The court now permit writ or PIL under article 32 at the instance of public spirited citizens for the
enforcement of the constitutional and other legal right of any person or group of persons who because of
their poverty or socially or economically disadvantaged position are unable to approach the court for
relief.

It is been submitted before the hon’ble court that in support of above argument petitioner has cited the
following cases in which hon’ble court has allowed the petition.

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1. In A.B.S.K Sangh (Rly.) V. Union of India1, it was held that A.B.S.K sangh, through an unregistered
association could maintain the writ petition under Art. 32 for redressal of common grievance.
2. In judges transfer case2, a seven member bench of the supreme court has firmly established that the
rule regarding the rule regarding the PIL. The court held that any member of the public having
sufficient interest can approach the court for enforcing the constitutional and legal right of other person
and redressal of common grievance .
3. In Peoples Union for Democratic Right V. Union of India3 , it was held that the peoples union for
democratic right has locus standi to file a petition for enforcement of various labour laws under which
certain benefits are conferred on workers.

A.1.2. Mosques are within the meaning of state

It is submitted that this petition is maintainable under Article 32 for the gross voilation of Part III of the
constitution and are within the meaning of state under Article 12(3)&(4). Therefore this petition is within
the jurisdiction of this hon’ble court. For supporting above argument petition has cited the case of
Electricity Board, Rajasthan V. Mohan lal4. The supreme court held the expression ‘other authorities’
created by the constitution or statute on whom power are conferred by the law. It is not necessary that the
statutory authority should be engaged in performing governmental or sovereign function.

A.1.3. Applying test of Instrumentality:

In Ramana Dayaram shetty V. The International Airport Authority of India5, Bhagwati,J.. preferred, the
broader test as suggested by Mathew, J., in Sukhdev V.Bhagatram6. the test is laid down as follows:-

(i) Financial resources of the state is the chief funding source

(ii) Existence of deep and pervasive state control
(iii) Functional character being governmental in essence
(iv) The Dept. of Govt. transferred to a corporation
(v) Weather the body enjoys monopoly status which is state conferred or protected by state.

Since applying above laid test shows that most of the mosques are funded in India, even if not funded but
still

1
AIR (1981) SC 298
2
S.P Gupta and others V. president of India and others, AIR 1982 SC 149, Janta Dal V. H.S chaudhary (1992)4
SCC 305
3
AIR (1983) SC 339
4
AIR 1967 SC 1857
5
AIR 1979 SC 1628
6
AIR 1975 SC 1331

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Protected by the state, therefore it fulfills the criteria to come within the Def. of state under Art. 12.

In Ajay Hasia V. Khalid Mujib7 , it has been held that a society registered under the society registration
Act 1898 is an agency or instrumentality of the state and hence a state within the meaning of Art. 12.

7
AIR 1981 SC 487

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ISSUE II

WHETHER ACT OF PROHIBITING WOMEN FROM ENTERING MOSQUE IS VOILATIVE OF

ARTICLE 14, 15, 21 AND 25 OR NOT?

A.2. PROHIBITION OF WOMEN IN THE MOSQUE IS VIOLATIVE OF ARTICLE 14, 15, 21

AND 25

The prohibition is void and unconstitutional as such practices are not only repugnant to the basic dignity of
women as an individual but also violation of Fundamental Rights guaranteed under Articles 14, 15, 21 and
25 of the constitution

A.2.1 VIOLATIVE OF ARTICLE 14

As per Article 14, any law being Discriminatory in nature has to have the existence of an Intelligible
Differentia and the same must bear a rational nexus with the object sought to be achieved. But in the case
of prohibiting the women from mosques does not have any Intelligible Differentia and any kind of
rationality behind it therefore it violates Article 14. Article 14 of the Constitution is not to mean to
perpetuate illegality or fraud even by the wrong decisions made in other cases.

The Test of Reasonable Classification: The classification to be reasonable must fulfill two condition:-

(i) As per the Article 14 the classification must be founded on an Intelligible Differentia which
distinguishes between persons or things that are group together from others left out of the group.
(ii) The differentia must have rational relational to the object sought to be achieved by the Act.

If there is no reasonable basis of classification, then classification may be declared as discriminatory but
prohibiting women’s entry to mosque has no Intelligible Differentia. It is submitted that the Quran
casts the same religious duty on both the sexes - women are not subject to less religious duties or
obligations. Further, both sexes are promised the same spiritual rewards - men are not promised more.

In the case of Dipak Sibal vs. Punjab University and others: The exclusionary practices per se violate the
Sacrosanct Principal of Equality of Women and Equality before law.8

8
Dipak Sibal Vs Punjab University (1989)2 SCC 145

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In Shayara Bano vs. Union of India: As it is solely based on physiological factors and, therefore, neither
serve any valid object nor satisfy the taste of reasonable classification under article 14 of the Constitution9.

In Air India vs. Nargesh Meerza: A air hostess was given a compulsory retirement upon attending the 35
years or upon pregnancy but there are no such restrictions are imposed upon the male counterparts.
Hon’ble court has stuck down this rule because of unjust classification.

The judgment of this court in Sri Venkatramana Devaru vs. State of Mysore and others10 has been cited to
submit to submit that a religious denomination cannot completely exclude or prohibit ant class or section
for all time. All that religious denomination may do is to restrict the entry of a particular class or section in
certain rituals.

A.2.2 VOILATIVE OF ARTICLE 15

ARTICLE15(1)-directs the state not to discriminate against the citizen on grounds only of religion, race,
caste sex , place of birth or any of them.

ARTICLE(2)-prohibits citizen as well as state from making such discriminatiomn with regard to excess to
public places.

Clause 2 declare that no citizen shall be subjected to any disability restriction or condition on ground only
of sex to access public place.

It is submitted that the exclusionary practice per se violates Article15(1) of the constitution which
amounts to discrimination on the basis of sexing support of the said submission the petitioner has placed
reliance upon the judgments of this court in Anju Garg and others V. Hotel Association of India11 and
Charu Khurana and Others vs. Union of India12.

That Article 15 directs that the State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, and place of birth or any of them. Any law discriminating on one or more
on these grounds would be void.

Article 15 prohibits discrimination on the grounds only of religion, race, caste, sex, place of birth, or
any of them. This right can be enforced against the State as well as private individuals, with regard to
free access to places of public entertainment or places of public resort maintained partly or

9
Shayara Bano Vs. UOI(2017) 9 SCC 1
10
Sri Venkatramana Devaru V. State of Mysore(1995)SCR 895:1958 AIR 55
11
(2008) 3 SCC 1
12
(2015) 1 SSC 192

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wholly out of State funds. It is submitted that the mosques which are receiving state funds cannot
make segregation and discrimination amongst entry of people inside mosque based on sex and gender.

A.2.3 VOILATIVE OFARTICLE 21

In Menka Gandhi case13 the supreme court has gave a new dimension to Article 21 it has been held that
the right to live is not merely confined to physical existence but it includes within its ambit the right to live
with human diginity . elaborating the same view the court in Francis coralie V. union territory of Delhi14,
said that the right to live is not restricted to mere anyone existence it means something more than physical
survival. The right to live is not confine to the protection of any faculty or limb through which life is
enjoyed or the sole communicate with the outside world but it also include right to live with human dignity
and all that goes along with it, namely, the bare necessities of life such as adequate nutrition, clothing,
shelter, free moving.

Therefore keeping Menka Gandhi judgment by the hon’ble court in the mind petition would like to submit
that stopping women entry to mosque is equivalent to voilation of free moving which ultimately results in
voilation of Article 21

It is submitted that Muslim women are being 'discriminated' as they are not allowed to enter and
pray in the main prayer hall of mosques in violation of Articles 14 and 21 of the Constitution. This is
an encroachment into the realm of personal liberty and social security.

Since the decision of eleven bench judges in Rustom cavasjee cooper V. UOI15, it is now well settled
doctrine that the fundamental rights contained in part III are not as it has been said , water-tight
compartments.

A.2.4 VOILATIVE OFARTICLE 25

The freedom of conscience and free profession, practice and propagation of religion guaranteed by
Article 25 of the Constitution is not absolute and, in terms of Article 25(1), “subject to public order,
morality and health and to the other provisions of this Part”. It is submitted that harmonious

13
Menka Gandhi v. UOI: AIR (1978) SC 597
14
AIR (1981) SC 746
15
(1970) 1SSC 248

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reading of Part III of the Constitution clarifies that the freedom of conscience and free
profession, practice and propagation of religion guaranteed by Article25 is subject to the fundamental
rights guaranteed by Articles 14, 15 and 21. In fact, Article 25 clearly recognizes this interpretation by
making the right guaranteed by it subject not only to other provisions of Part III of the
Constitution but also to public order, morality and health.

Article 25(1), by employing the expression ‘all person’, demonstrates that the freedom of conscience and
the right to profess, practice and propagate religion is available, though subject to the restrictions
delineated in Article 25(1) has nothing to do with gender or, for that matter, certain physiological factors
specifically attributable to women.

This Fundamental Right equally entities’ all such persons to the said Fundamental Right. Every member of
the religious community has right to practice the religion so long as he does not, in any way, interfere with
the corresponding right of his co-religionists to do the same.

Three defining features of Article 25(1) is violated by the Respondent:

(i) Firstly, the entitlement of ‘all persons’ without exception;

(ii) Secondly, recognition of equal entitlement ;
(iii) Thirdly, recognition of both freedom of conscience and the right freely profess, practice and
propagate religion ;

This Hon’ble Court in Khursheed Ahmad Khan v. State of Uttar Pradesh and Others16, (2015)
has taken the view that practices permitted or not prohibited by a religion do not
become a religious practice or a positive tenet of the religion, since a practice does not
acquire the sanction of religion merely because it is permitted?

Universal Declaration of Human Rights17

Article 3 of the Universal Declaration of Human Rights provides that everyone has the Right to
Life, Liberty and Security of person while Article 7 provides that everyone is equal before the law
and is entitled without any discrimination to equal protection of the law. Since the adoption of

16
Khursheed Ahmed khan Vs. state of uttar Pradesh and others,(2015) 8 SCC 439
17
Universal Declaration of Human Rights charter

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the Universal Declaration of Human Rights, the universality and indivisibility of human rights have
been emphasised and it has been specifically recognised that women’s Human Rights are part of
Universal Human Rights.

The judgment of this court in Vishaka and others V. state of Rajasthan18 has been cited to submit that
International conventions must be followed when there is void in the domestic law or when there is any
inconsistency in the norms construing the domestic law.

International Covenant on Civil and Political Rights and the International Covenant on Economic,
Social and Cultural Rights

Non-discrimination and equality between women and men are central principles of human rights
law. Both the International Covenant on Civil and Political Rights and the International Covenant on
Economic, Social and Cultural Rights (to both of which India acceded on 10.04.1979)prohibit
discrimination on the basis of gender and guarantee women and men equality in the
enjoyment of the rights covered by the Covenants. Article 26 of the International Covenant on
Civil and Political Rights provides for equality before the law and equal protection of the law,
while Article 2(2) of the International Covenant on Economic, Social and Cultural Rights requires States
to guarantee that the rights enunciated in the Covenant can be exercised without any discrimination
of any kind including on the lines of gender or religion.

18
(1997) 6 SCC 2412

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ISSUE 3.

WHETHER PROHIBITION OF WOMEN IN MOSQUE ESSENTIAL RELIGIOUS PRACTICE

OR NOT?

Petitioner humbly contended before the Hon’ble Court that prohibiting women from entering the mosque
is not the essential religious practice which can be prove by examining the essentiality in the light of
Quran and hadith[A.3.1], by the customs of Islamic law[A.3.2] and the contemprory situation in the
Islamic world[A.3.3]. In the support of the arguments the petitioner has put forward various rulings of the
Hon’ble Court in which court has stuck down those religious practice which is not the essential or basic
thing of such respective religion.

A3. DOCTRINE OF ESSENTIALITY: PROHIBITION IS NOT AN ESSENTIAL RELIGIOUS

PRACTICE UNDER ISLAM

The doctrine of essentiality was invented by a 7 judge bench of the supreme court in the ‘Shirur Mutt’case
in 1954.It is a doctrine evolve by the court to protect such religious practices which were essential and
integral to the religion. The essentiality test came to be linked to the “fundamental character” of religion. If
abrogation of a practice does not change the fundamental nature of religion, the practice itself is not
essential.

In Shayara Bano V. Union of India19, a constitutional bench of this court considered weather the practice
of triple talaq was an essential practice to Hanafi school of Sunni Muslims. Based on examination of
Islamic jurisprudence which established that triple talaq constitutes irregular practice of divorce and court
held triple talaq was not an essential practice .

A.3.1. Examination of non-essentiality of prohibition in the light of Quran and Hadith

There is nothing in the Quran and Hadith that requires gender segregation. There are diverging opinions
among experts in Islamic theology concerning gender segregation. An Islamic theologian in Canada
Ahmad kutty, has said segregation of the sexes is not a requirement in the islam as men and women
intracted in Muhammed’s time without any partitions.the prophet muhammed specifically admonished the
men not to keep there wives from going to mosque:

Ibn Umar (Abdullah bin umar) reported what is translated as :

19
(2017) 9SCC 1

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The messanger of god said, “do not prevent the maid-servents of god from going to mosque20.”

The Hon’ble Court has recently held that, “religion cannot be used to deny rights of worship to women and
its also against human dignity.” “prohibition on women is due to non religious reasons and it is a grim
shadow of discrimination going on for centuries 21”

Indeed there are multiple hadith from the Prophet that advises men not to prohibit women from attending
mosques, and that certain women learned entire Surahs from the Qur'an from the Prophet's recitation.
For example:

Salim narrated it from his father ('Abdullah b. Umar) that the Messenger of Allah

said: When women ask permission for going to mosque, do not prevent them22.

A.3.2 Examination of non-essentiality in the light of custom

After the life of the prophet S.W.A the time of chaliphat has started . During the regin of first chaliph the
practice of entering of women in the mosque prevails and during the entire regim of Hazrat. Abu-Bakar
women are freely allowed to perform namaz with there male counterparts without any evidence of
hinderence which restrain women from entering mosque.

A.3.3 Practice followed in the contemprory Islamic world.

If a women’s entry to a masjid or eidgah(a place where muslim congregate for eid-ul-fitr and eid-ul-azha
celebrations) creates fitna(distress)? If yes, then why not in the Hajj pilgrimage and umrah, where
thousands of muslim women gathered and perform Hajj rituals such as tawaf (walking around ka’ba) and
sa’l (running between the hills of safa and marwa) and ramye zamrat (stonning of the devil ceremony)
along with there male counterparts?

That there are no records stating that the Holy Quran and Prophet Muhammad had opposed women
entering mosques and offering prayers. Like men, women also have the Constitutional rights to offer
worship according to their belief. At present, women are allowed to offer prayers at mosques under
Jamaat-e-Islami and Mujahid denominations, while they are barred from mosques under the predominant
Sunni faction. It is submitted that even in the mosques where women are allowed, there are separate
entrances and enclosures for worship for men and women. There should not be any gender discrimination
and allow Muslim women to pray in all mosques, cutting across denominations. It is
20
Bukhari vol.1 Nos.824,832
21
India young lawyers Assn. Vs. state of kerala,(2017) 10 SCC 689
22
Sunan An-Nisa'i Book 11 Hadith 74

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submitted that there is no such gender discrimination to offer worship in Mecca, the holy city. The
faithful, both men and women, together circle the Kaaba.

Maulana Syed Ahmed Bukhari, Shahi Imam of Jama Masjid in Delhi, said there was no ban on
Muslim women entering a mosque. "Islam gives permission for women to enter and pray inside," the
imam of India's largest mosque said. He, however, blamed male chauvinists in the community
for barring women inside many smaller mosques. "Traditionally,these local committees have never
allowed women to enter mosques.

There is complete unanimity in the Muslim community on the Masjid-al-Haram in Mecca being the
most sacred mosque to all Muslims in the world; every able bodied Muslim is required to visit it at
least once in his lifetime. The Masjid-al-Haram in Mecca has always invited Muslim women from
every part of the world to pray in it. It does not discriminate between men and women simply because
any such discrimination would have violated the Quran.

---->Under the following cases Supreme court had stuck down those religious practices which were not the
essential part of respective religions.

1.Reffering to the Aayodhya case the Constitutional bench had ruled in 1994 that a mosque is not the
essential part of practice of religion of islam and Namaz by muslim can be offered by muslim anywhere
even in open23.

2. Reffering to the sabrimala case court held untouchability is not a essential part of hindu religion and
court stuck down the prolonge practice of non-entry of women in the temple24.

3. Reffering to the shayara Bano case supreme court held that tripal talq is not the essential part of
religious practice therefore supreme court found it to be inconsistent with the partIII of the Constitution25.

23
Dr.Ismail faruqui etc Vs. union of india and others,1994,AIR1995,SC605A
24
India young lawyers Assn. Vs. state of kerala,(2017) 10 SCC 689
25
Shayara Bano Vs. Union of india,(2017) 9 SCC1

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PRAYER

This writ petition is filed under Article 32 of the Constitution of indistan praying for a direction against the
union of indistan and other seeking a writ or order or direction in the nature of mandamus declaring the
practices of prohibition of entry of Muslim women in mosques in indistan as illegal, unConstitutional for
being violative of Article 14, 15, 21, and 25 of the Constitution and to pass further orders as this Hon’ble
Court may deem appropriate to provide a life of dignity to Muslim women.

Sd/-

……………………….

(counsel for the petitioner)

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