Iv Whether There Has Been Violation of Right To Religion Conferred Under Fundamental Rights

IV WHETHER THERE HAS BEEN VIOLATION OF RIGHT TO
RELIGION CONFERRED UNDER FUNDAMENTAL RIGHTS
It is humbly submitted before the Hon’ble Court that India has diverse population, following
different religions and beliefs, makes it necessary to protect and secure rights regarding faith
of each and every religion. Therefore, in India, legal rights are provided like the right to
worship; right to visit religious places (like temple, mosque, church) to follow their faith and
religion but it is subject to certain restrictions prescribed in the Constitution. It is further
submitted that [1] Villagers has the right to freedom to profess or practice religion [2]
Acquisition of worship place.
IV.1 THAT FREEDOM TO PROFESS OR PRACTICE RELIGION OF THE

VILLAGERS ARE INFRINGED
It is humbly submitted before the Hon’ble Court that the traditional rights and practices of
the tribal communities are protected under constitution 1. Essential practice in a religion
means those practices that are fundamental to follow a religious belief 2. If taking away of
the part or practices could result in fundamental change in the character of that religion or
belief, then such part would be treated as the essential or integral part3.
It is hereby submitted that the expression profess denotes practise or performance of

religion rites, rituals, forms and ceremonies, including participation in religious
processions and assemblies and worship4 and protection of such must be assured by the
state5. The assembly of women for the evening prayers near Tulsivan constitute of ritual
followed by women in the form of worshiping.
The petitioner humbly submits that the violation of right to worship nature by acquiring
tulsivans which were considered as God by tribal people was made. This practice is so
peculiar and essential that acquisition of a part of ashram has violated article 25 and 26 of
constitution.
1
INDIAN CONST. art 25
2
Commissioner of Police and Ors. V. Acharya Jagdishwarananda Avadhuta and Anr., (2004) 12 SCC 770
3
Dr. Noorjehan Safia Niaz And 1 Anr vs State Of Maharashtra And Ors, 2016 SCC Bom 5394
4
Shrirur Mutt v commissioner, (1952) 1 MLJ 557 (587)
5
State of Karnataka v. Dr, Parveen Bhai Thogadia, (2004) 4 SCC 684
IV.1.1 THAT TREES ARE AN INTEGRAL PART OF RELIGION
It is humbly submitted that the freedom to practice religion as conferred in the

religion under article 25 also includes the freedom to practice ritual and ceremonies
which are integral part of religion6. In the case of Ismail Faruqui vs Union of India,
while holding that a mosque was not an essential and integral part of the practice of
Islam, the Court also held that if a particular place had a “particular significance for
that religion”, access to that place for the purposes of worship would be protected
under Article 25.
In Bhagavad Gita (Chapter 15, Verse 1), Lord Krishna describes our world like a
banyan tree that has different branches7. Similar references are also found in the
epics Ramayana and the Mahabharata. The Matsya Purana prescribes various
punishments on tree felling and cutting depending upon the gravity of the offence 8.
The religion which keeps the environment at such high pedestal and worshiping it is
a custom followed from time immemorial validates the worshipping of Tulsi by the
tribal people and cutting down of Tulsi is an infringement of an integral part of the
religion.
It is further submitted that Hinduism worships divinity not just in the forms of idol
but also in the form of nature from time immemorial. Trees are an integral part of a
deity's symbolism and are often associated with a god or a godless and treated as
sacred.9 Trees being nature’s major processors of solar energy which is vital for our
existence, and yielding flowers, fruit, wood or medicine, have been worshiped by the
Hindus as a matter of gratitude.
Thus, Taking away of tulsivan from the premise of the ashram would be a direct hit
on the core fundamentals of the religion because they worshiped trees as the deity.
6
ERJ Swami v. State of Tamil Nadu AIR 1972 SCC 1586
7
Chapter XV verse 1
8
Matsya Purāna, 227. 91-94
9
The high court of uttrakhand at nainitaal writ petition (PIL) No.54 OF 2016
IV.2 THAT THERE HAS BEEN ACQUSITION OF PLACE OF WORSHIP WHICH FORMED
AN ESSENTIAL PART OF RELIGION
It is humbly submitted before the Hon’ble Court that article 25 and 26 protect religious
practices which are an essential and integral part of practice of the religion. The right to own
and acquire property is an important right for any institution to manage its own affairs 10. It is
not possible for a body to function effectively if it does not have the freedom to manage and
administer its property. In the Calcutta High Court single bench Justice B.P. Banerjee made
an observation that if courts started enquiring and deciding the rationality of a particular
religious practice, then there might be confusion and the religious practice would become
what the Courts wished the religious practice to be deprive individuals and institutions of the
full enjoyment of the right to religious freedom. Furthermore the religion might prescribe
what could be regarded integral part of religion which might extend even to the matters of
food and dress11. If a place of worship of any religion has such particular significance for that
religion that offering at that particular place of worship is an essential and integral part of the
religion, such a place stands on a higher footing and has to be treated differently and more
reverently than other places of worship of that religion12. The significance of tulsivan in
Advaita Ashram is in the form of God13and the very removal of God from the Ashram by the
state would affect integral part of religion thereby infringing the freedom of religion of the
citizens.
IV.3 THAT NO NUISANCE WAS CREATED BY THE VILLAGERS IN THE NAME OF

RELIGION
It is humbly submitted that a person is guilty of a public nuisance 14 is created when one does
any act or is guilty of an illegal omission which causes any common injury, danger or
annoyance to the public or to the people in general who dwell or occupy property in the
vicinity, or which must necessarily cause injury, obstruction, danger or annoyance to persons
who may have occasion to use any public right15.
10
Narendra Prasadji v. the State of Gujarat, AIR 1974 SC 2098
11
The Commissioner, Hindu Religious Endowments vs Sri Lakshmindra Thirtha Swamiar, AIR 1954 SC 282,
1954 1 SCR 1005
12
Masjid shahid ganj v shiromani gurudwara prabhandhak committee, AIR 1940 PC 116: 1940-52-LW 266
13
12 Moot Proposition
14
Indian Penal Code 1860 sec. 25
15
Hiralal v. Jogeshwar Ram, 1973 CLJ 1375, 1377 (HP)
It is further submitted that the nuisance is said to be caused when an illegal omission has
caused common injury to the public in vicinity.16 The injury in question must be real and
appreciable; the law does not concern itself with trifles. It is also taken n consideration
whether the alleged nuisance is of a continuing nature or has produced permanent or long-
lasting effects17.
In the present case nuisance has not been caused since no obstruction in the use of public
right was caused by the villagers as Villagers were not a hindrance to any on-going
development process as the question of construction was left upon the court to decide about it
and hence the concern in question was not of eminent danger in its nature and neither had
long lasting effect.
It is further submitted that the right to assembly embodies the very idea of a democratic
government. Article 19(1)(b) thus includes the right to hold meetings and to take out
processions It is for the same purpose submitted that in case of The Commissioner, Hindu
Religious Endowments vs Sri Lakshmindra Thirtha Swamiar the Supreme Court noted that
what constitutes the essential part of a religion is primarily to be ascertained with reference
to the doctrines of that religion18. People of Sardarpur had no riot motive behind the assembly
instead the motive was very pious and no violent activity was seen during this assembly.
Hence this lead to the violation of article 19 (1) (b).
The petitioner thus, humbly submits that right to religion was infringed by causing
obstruction to the people by disallowing them to carry their religious practices as mentioned
under article 25 which guarantees the right freely to profess, practise and propagate religion.
Order such passed acted contrary to it and not that nuisance was created by te villagers as
they performed their religious rites which is an essential part of their religion.
16
Ibid.( Hiralal v. Jogeshwar Ram, 1973 CLJ 1375, 1377 (HP)
17
Rameshwar Prashad v. State of Bihar, (1958)59 CLJ 551,552
18
The Commissioner, Hindu Religious Endowments vs Sri Lakshmindra Thirtha Swamiar, AIR 1954 SC 282,
1954 1 SCR 1005

Iv Whether There Has Been Violation of Right To Religion Conferred Under Fundamental Rights

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Iv Whether There Has Been Violation of Right To Religion Conferred Under Fundamental Rights

Uploaded by

Copyright:

Available Formats

IV WHETHER THERE HAS BEEN VIOLATION OF RIGHT TO

RELIGION CONFERRED UNDER FUNDAMENTAL RIGHTS

IV.1 THAT FREEDOM TO PROFESS OR PRACTICE RELIGION OF THE

It is hereby submitted that the expression profess denotes practise or performance of

It is humbly submitted that the freedom to practice religion as conferred in the

IV.3 THAT NO NUISANCE WAS CREATED BY THE VILLAGERS IN THE NAME OF

You might also like