En Argu I

                                                                                                                 Team Code:

                     In the Hon’ble Supreme Court of JaiIndia

His Holliness Davra Vahehaha…………............................... Joint Petitioners

V.

State of Mahadesha and others................................................. Respondent 

W.P. No 1234 of 2010.

                             And other Connected Petitions

Memorial on Behalf of the Respondents

Counsels for the Respondents

TABLE OF CONTENTS

S.No. CONTENTS PAGE NO. 1. Abbreviations 3 2. Index of Authorities 4 3. Statement of Jurisdiction 7 4. Issues Raised 8 5. Statement of Facts 9 6. Summary of Arguments 10 7. Arguments Advanced 11 8. Prayer 21

             

ABBREVIATIONS

S.NO	ACRONYM	FULL FORM
1.	AIR	All India Reporter
2.	Ed.	Edition
3.	Hon’ble	Honourable
4.	SC	Supreme Court
5.	Sec	Section
6.	SCC	Supreme Court Cases
7.	D.D. Basu	Durga Das Basu
8.	Art.	Article
9.	DPU	Domili Professional University
10.	SCW	Supreme Court Weekly
11.	PU(R) Act	Private University (Regulation) Act
12.	Ors.	Others
13.	Ker	Kerala
14.	Guj.	Gujarat
15.	Edu.	Education
17.	A.P.	Andhra Pradesh
18.	M.P.	Madhya Pradesh
19.	Ltd.	Limited

INDEX OF AUTHORITIES

                                LIST OF CASES

S.No.	CASE		CITATION
1.	The Commissioner, Hindu Religious Endowments, Madras v.  Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt		AIR1954SC 282.
2.	Brahmachari v. state of W. B		AIR 1995 SC 2089
3.	Durgah Committee v . Hussain		AIR 1961 SC  1402.
4.	Ratilal v . State of Bombay		AIR 1954 SC 388.
5.	Commissioner of Police  v.Acharya Jagdishwarananda Avadhuta		2004 AIR  SCW 1887.
6.	Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan & others		1964 (1) SCR 561
7.	His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu v. Prativathi Bhayankaram Venakatacharlu and others		P.C
8.	Leman v. Kurtzman		(1971) 403 US 602
9.	Mormon Church v. United States		136 U.S. 1, 57 (1890).
10.	A.S. Narayan v. State of A.P		AIR 1996 SC 1765
11.	Mahant Jagannath Ramanuj Das v. The State of Orissa		(1954) SCR 1046
12.	Sri Venkatamona Devaru v. The State of Mysore		(1953) SCR 895
13.	Durgah Committee, Ajmerv. Syed Hussain Ali		(1962) 1 SCR 383
	14.	Bhuri Nath & Ors. V. State of J & K & Ors	[1997] RD-SC 19
	15.	Tilkayat Shri Govindlalji Maharaj v. The State of Rajasthan & others	1964 (1) SCR 561
	16.	N. Adithayan v. Travancore Devasworn Board	AIR 2002 SCW 4146
	17.	Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v. State of Gujarat	AIR 1974 SC 2098
	18.	Jayantilal Amratlal v F.N Rana	AIR 1964 SC 648

BOOKS AND COMMENTARIES

S.No.	BOOK	AUTHOR		EDITION	PUBLISHER
1.	Constitutional Law of India		D.D. Basu	I, II and III	Wadhwa & Componay
2.	Constitutional Law of India		V. N. Shukla
3.	Law of Writs		V.G Ramachndran’s	I
4.	Constitutional Law of India		H.M. SEERVAI	III	Sweet & Maxwell
5.	Commentary on the Constitution of India		D.D.Basu	V	S.C. Sarkar & Sons (Private) LTD
6.	Indian Constitutional Law		M.P. Jain	V	Wadhwa Nagpur
7.	Legalizing Religion: The Indian Supreme Court and Secularism.		Ronojoy Sen, With commentary by Upendra Baxi.
8.	Constitutional Law of India		Dr.Subhash C.Kashyap	I	Universal

      JOURNALS

Ø  All India Reporter

Ø  Supreme Court Weekly

Ø  Lawyers Update

STATUTES AND CONVENTION

UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948

COVENANT ON CIVIL AND POLITICAL RIGHT 1966

EUROPEAN CONVENTION 1950

  REPORTS AND ARTICLES

Annual Survey of India 2003, 2004

Annual Survey of India 2004

  

       INTERNET LINK

S.NO	LINK
1.	www.lexisnexis.com
2.	www.manupatra.com
3.	www.scconline.com
4.	www.supremecourtcases.com
5.	www.indiankanoon.com
6.	www.lawyersclubindia.com
7.	www.article4us.com

STATEMENT OF JURISDICTION

The Joint Petitioners submits to the jurisdiction of this Hon’ble

Supreme Court under Article 32 of the, Constitution of JaiIndia.

Petitioner I-:  White Hibuscians

Petitioner II-: Union of  JaiIndia

As “cause of action” is same for all the Joint Petitioners. All Joint Petitioners had have been affected with the Law, brought by the State of Mahadesha. So a Joint Petition is maintainable in Hon’ble Supreme Court under Article 32 of the Constitution of JaiIndia.

ISSUES RAISED

ISSUE1: Whether or not White Hibuscus is a religious denomination, and should they get protection guaranteed under Article 25(1) and Article 26(b)?

                              

ISSUE 2: Whether or not, ‘use of absinth’ is an essential practice of White Hibuscians, and so, whether the Act enacted by the Parliament is valid, or not?

ISSUE 3: Whether or not, Red Hibiscians should get protection guaranteed under Article 25(1) and Article 26(b) against the practices of the White Hibiscians, and so, whether the Law brought by the State of Mahadesha is valid or not?

ISSUE 4: Whether or not, State Government order is beyond the power of delegated legislation?            

ISSUE 5: Whether or not, appointment of Amicus Curae by the Supreme Court of JaiIndia is just, fair and reasonable?      

STATEMENT OF FACTS

FACTUAL MATRIX:

The order of the Hibuscus began as an ancient mystical order in JaiIndia. The flower of hibiscus was adopted as its symbol. With the passage of time it became the most sacred of the Hibuscian’s artifacts.

Around 200 A.D., the Sohhkriti, the head priest of the Ehanaai left for the survival and spread of their religion, with 100 senior members, leaving the second senior most of the priests the Mazhoori as the custodian of the faith till he returned. In order to carry the authorization of the order of the Hibuscus, the Sohhkriti broke off the White petals and plucked the diamond of the flower, as consecration of the Hibiscus was one of the five essential duties the Hibuscians had to perform in their lifetimes. Around 220 A.D., Sohhkriti died without leaving any instructions for the appointment of a new Sohhkriti. Later on, the will was discovered wherein the successor was named. Meanwhile, a new Sohhkriti had been duly ordained and invested with the office. Thus, a dispute ensued, causing the religion to split into two orders with the two Sohhikritis. The named Sohhkriti went back to Egypt with a large number of followers. As the white petals remained with them they were called the White Hibuscus. The sect at JaiIndia came to be known as the Red Hibuscus.

Over Centuries passed and each of them developed their own traditions. The Red Hibiscians consecrated and bathed the Holy Hibuscus every day with the water of Indus River. The White Hibuscians used Absinth, as it was supposed to be medicinal and believed it helped them to produce visions of God, and Aryanai, the Green Goddess. They also used it to bathe the White petals on special interplanetary positions and on certain eclipses.

With the growth of Islam, White Hibuscus migrated to France where Absinth was legal. In 1910 France made Absinth illegal, and White Hibuscus shifted to the Netherlands. However, at the end the 200 members of the White Ehanaai migrated to JaiIndia in 2004. In 2009 all of them applied for JaiIndian citizenship.

In the meantime, the process of fusion began, to eventually choose one successor. In 2009 in an assembly attended by Hibuscians from the world, the white petals and the Miza Miza were fused to the flower. Before the appointment of a common successor, a special interplanetary position took place. The White Sohhkriti brought Absinth to the sanctum sanctorum of the temple. The Red Sohhkriti objected as to the use of a hallucinogen and narcotic, as it would desecrate the holy artifact, but on the contrary, the White Sohhkriti said it was an essential practice of the White Sohhkriti.

The public dispute brought out the otherwise secretive practices out in the open and the State of Mahadesha, brought a law forbidding the use of allowing Absinth to be used or passed through it. It banned the consumption, use, import, passage of absinth by a Government order. Later an Act was passed by the JaiIndian Parliament on 01.01.2010 invoking the doctrine of Parens Patriea to ensure the peaceful unification of the two orders and on special occasions allowed Absinth to be used. On 01.05.2010, Davra Vahehaha and the other 200 Ehanaai received JaiIndian citizenship.

The Supreme Court admitted the Petitions, and appointed Suta Hamoso, a Senior Counsel belonging to the Red Hibuscian as Amicus Curae, the Counsel for the White Ehanaai filed an affidavit opposing the same.

SUMMARY OF   ARGUMENTS

ISSUE1: Whether or not White Hibuscus is a religious denomination, and should they get protection guaranteed under Article 25(1) and Article 26(b)?

Ø  By fusion, White and Red Hibuscians, have converted their respective sect into one religion, i.e.,  the religion of Hibuscus.

Ø  Therefore, White Hibuscians, no longer remain to be a religious denomination, hence losing protection guaranteed under Article 26(b).

Ø  The remaining right which is still available is of Article 25(1) and as White and Red Hibuscians have converted themselves into one religion that is of Hibuscus (original one), the order of Hibuscus never allowed use of absinthe so it wasn’t the essential practice of the religion.

ISSUE 2: Whether or not, ‘use of absinth’ is an essential practice of White Hibuscians, and so, whether the Act enacted by the Parliament is valid, or not?

Ø  Essential part of the religion means the core beliefs upon which a religion is founded.

Ø  Formation of sect wasn’t on the basis of practice of using absinth, or water to bathe with; instead it was on the ground of successor to the office of Sohhikriti.

Ø  Use of absinth to bathe the Hibuscus(flower) which wasn’t the ‘core’ upon which Hibuscus order was founded.

Ø   As the White and Red Hibuscians are favoring fusion of the two sects, it’s necessary for them to practice the initial fundamental or original essential practices of the order of Hibuscus.

Ø  The Act enacted by the Parliament allowing the use of absinthe by the White Hibiscians on special occasions, was favouring the interests of the White Hibiscians. It thereby, suppressed the interest of the Red Hibiscians.

Ø  The interest involved is that of the two sects, White and Red Hibiscians which is not a “quasi-sovereign” interest.  Thus, ground on which the Parliament has passed the law is not sufficient for invoking the doctrine of Parens Patriea.

Ø  Therefore, the Act passed by Parliament

ISSUE 3: Whether or not, Red Hibiscians should get protection guaranteed under Article 25(1) and Article 26(b) against the practices of the White Hibiscians, and so, whether the Law brought by the State of Mahadesha is valid or not?

Ø  The right to religion guaranteed under Article 25 and 26 is not an absolute or unfettered. It is subject to reform on social welfare by appropriate legislation by the State. Use of absinthe by the White Hibiscians was against the principle of “social decency”.

Ø  The practice of using absinthe is purely secular; therefore, it is not protected by virtue of Articles 25(2) and 26(b).

Ø  List II, Entry 1, empowers the state government to pass laws for maintenance of “public order”. State of Mahadesha has passed a law forbidding the use of allowing absinthe, with the objective of preventing the dispute between the two sects,  that might have led to further disruption of public order within the State of Mahadesha, wherein the maximum number of JaiIndian Hibiscians were resident.

Ø  In the light of above submissions, it is humbly submitted that the State Government order forbidding the use of absinthe is not violative of Articles 25(2) and 26(b).

ISSUE 4: Whether or not, State Government order is beyond the power of delegated legislation?            

Ø  “The source of power” is thus the crux of the matter. While orders made under statutory power are binding, a non statutory order is not enforceable in a court of law against either an individual or the administration.

Ø  Delegated legislation can be issued only when the authority concerned has statutory power to do so.

Ø  The State of Mahadesha brought a law forbidding the use of allowing absinth to be used or passed through its territory.

Ø  Thereafter, government order was issued under statutory power , and is of supplementary nature. Hence, the government order is not beyond the power of delegated legislation.

ISSUE 5: Whether or not, appointment of Amicus Curae by the Supreme Court of JaiIndia is just, fair and reasonable?  

Ø  The Amicus Curae who belongs to the sect of Red Hibiscus will help the court in understanding the basic character of their religion, i.e., whether or not use of absinth is part of essential practice.

Ø  It is to be noted that the advice of the Amicus Curiae is not binding on the court , it merely has persuasive value. It will only help in clearing the confusion regarding the dispute in question, which is certainly in the interest of justice.