ARGUMENTS ADVANCED
ISSUE1: Whether or not White Hibuscus is a religious denomination, and should they get protection guaranteed under Article 25(1) and Article 26(b)?
1. The word "denomination" has been defined in the Oxford Dictionary to mean "a collection of individuals classed together under same name: a religious sect or body having a common faith and organization and designated by a distinctive name."[1]
2. In order to constitute a religious denomination , the following three conditions must be fulfilled.[2]
a) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conductive to their spiritual well –being i.e., a common faith .
b) A common organization.
c) Designation by a distinctive name.
All these conditions are fulfilled by White Hibuscians. They have common faith as they considered hibiscus sacred and used to bathe the white petals with absinth on special interplanetary positions and on certain eclipses. They have common organization and also have distinct name. So the white hibiscus was a religious denomination. It was a sect of Hibiscus religion. Court has declared many religious sects as religious denomination in series of cases, like “Anand Margis”[3], “the Chistia sect of Muslims”[4],“Swethambar sect of Jains”[5].
3. Because of fusion, they both no longer remain a religious denomination, as because of which they were sect that is by having White petal and Red diamond is no longer in existence, since now flower is in existence. Thence, they both are now a religion, not sects.
4. The particular sanctum sanctorum, place where it is situated, absinthe has never been brought into it. So if the White Hibuscians will bring absinthe into it that will be against the practices being practiced in the premises of the temple.
5. The facts of the case provides “Six months after the fusion of the flower, it was decided, to decide who will be the leader, three months before the ceremony particular dispute arose”, it renders that White and Red Hibuscians were no longer a religious denomination, but by fusion have converted their respective sect into one religion, the religion of Hibuscus. Therefore White Hibuscians, no longer remain to be a religious denomination, hence losing protection guaranteed under Article 26(b).
6. 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?
1.“What is meant by an essential part or practice of a religion is the matter of elucidation. Essential part of the religion means the core beliefs upon which a religion is founded .Essential practice means those practices that are fundamental to follow a religious belief.”[6]
“There cannot be additions or subtractions to essential part because it is the very essence of that religion and alterations will change its fundamental character. It is such essential part of religion that is protected by the constitution.”[7]
“Test to determine whether a part or practice is essential to the religion is-to find out whether the nature of the religion will be changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion or in its behalf, then such part could be treated as an essential or integral part.”[8]
Here in this case, the order of Hibiscus is one of the most ancient religions surviving today. It began as an ancient mystical order in JaiIndia roughly during the Indus Valley Civilization. Around 223 A.D., a dispute arose regarding appointment of Sohhkriti, the head priest. As a result, the order of Hibuscus split into two sects, i.e., White Hibiscus and Red Hibiscus . However, this division had nothing to do with the religious belief of the two orders. 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.
2. Over centuries passed and each of them developed their own traditions. However, the basic tenets of the religion remained intact even after the split. The Hibiscus flower was a ‘holy artefact’ for both and consecration of the same an essential duty for the Hibuscians to be performed in their lifetimes. There was no contention on use of water to bathe the Hibuscus(flower), as both, Red Hibuscus and White Hibuscus, have consensus on it. But, the main contention was on the use of absinth to bathe the Hibuscus(flower) which wasn’t the ‘core’ upon which Hibuscus order was founded.
Hence, it cannot be contended that use of absinth is an essential practice as even before the introduction of the use of absinth, the order of Hibuscus was in existence, and as they 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.
3. If the practice is religious practice or the affairs are the affairs in matter of religion, then, of course, the rights guaranteed by Article 25(1) and 26(b) cannot be contravened.[9] It has been held by the Privy Council, that the idea most prominent in the mind of the worshipper is that a departure from the traditional rules would result in the pollution or defilement of the image which must be avoided at all costs. That is also the rationale for preserving the sanctity of the Garbhagriha or the Sanctum Sanctorum.[10]
Use of absinthe by the White Hibiscians is against the basic tenet of the Order of Hibiscus. Bringing the same into the Sanctum Sanctorum of the temple of the Two Rivers would desecrate the holy artifact, i.e., the Hibiscus flower.
4. The US
5. The government can neither show favouratism towards a particular religion or sect, nor work to the deterrence of any religious belief. India
6. Ours being a secular State and there being freedom of religion guaranteed by the Constitution, both to individuals and to groups, it is against the policy of the Constitution to pay out of public funds any money for the promotion or maintenance of any particular religion or religious denomination.[12]
7. Parens patriae means literally "parent of the country." The parens patriae action has its roots in the common-law concept of the "royal prerogative." The royal prerogative included the right or responsibility to take care of persons who "are legally unable, on account of mental incapacity, whether it proceed from 1st. nonage: 2. idiocy: or 3. lunacy: to take proper care of themselves and their property."[13]
The doctrine of Parens patria is a doctrine by which a government has standing to prosecute a lawsuit on behalf of a citizen, especially on the behalf of someone who is under a legal disability to prosecute the suit. The state ordinarily has no standing to sue on behalf of its citizens, unless a separate, sovereign interest will be served by the suit.[14]
In this case, the Parliament brought an Act invoking the doctrine of Parens patriae for the purpose of peaceful unification of the two sects. However, this interference by the Parliament is undesirable, since, the White Hibiscians are legally able to bring an action against the State by challenging the State government order.
8. In order to maintain a parens patriae action, a State must articulate an interest apart from the interests of particular private parties, that is, the State must be more than a nominal party. The State must express a "quasi-sovereign" interest, such as its interest in the health and well-being - both physical and economic - of its residents in general.
In the present case, 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.
In the light of above submissions, the Act passed by Parliament, is violative of Fundamental Right of Red Hibuscians, as initially when the order of Hibiscus was not divided into two sects, the Hibiscus (flower) was not bathed by absinth, as the bathing of hibiscus (flower) by absinth was not essential part or practice, of the religion. So, if the Parliament enacted Act allowed the use of absinth for bathing Hibuscus (flower) by White Hibuscians, it will destroy the basic or essential characteristics of religion, resulting into fundamental change in their character of order. This will be violative of Art 26(b).
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?
1. A religion undoubtedly has its basis in a system of beliefs and doctrine which are regarded by those who profess religion to be conducive to their spiritual well-being. A religion is not merely an opinion, doctrine or belief. It has outward expression in acts as well. It is not every aspect of religion that has been safeguarded by Articles 25 and 26 nor has the Constitution provided that every religious activity cannot be interfered with. Every mundane or human activity was not intended to be protected by the Constitution under the guise of religion.[15] The protection of Articles 25 and 26 is not limited to matters of doctrine or belief, they extend also to the acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral part of religion. Also, what constitutes an essential part of religion or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion and includes practices which are regarded by the community as a part of its religion.[16]
2. A “practice” to be religious within the meaning of Article 25(1) need not be adopted by all members of a religion and it cannot be denied if it is shown to be performed as an article of faith by a religious denomination. The wordings in Art. 25 do not refer to ‘a ’ religion but ‘to’ religion without any qualification. The absence of word ‘a’ means that reference to the Article is to the religion in general. There are many practices of the Hindu sects, which though not accepted by all, would undoubtedly fall within the concept of religion and no particular practice of Hinduism is followed by all the Hindus.[17]
Red Hibiscians have a Fundamental Right under Article 25(1) and 26 (b) to practise the essential practices of their religion as well as to protect the basic character of their religion against the practices of White Hibiscians.
3. The right to religion guaranteed under Article 25 and 26 is not an absolute or unfettered right to propagating religion which is subject to legislation by the State limiting or regulating any activity - economic, financial, political or secular which are associated with religious belief, faith, practice or custom. They are subject to reform on social welfare by appropriate legislation by the State.[18] Restrictions by the State upon free exercise of religion are permitted both under Articles 25 and 26 on grounds of public order, morality and health. Clause (2) (a) of Article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-clause (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices.[19]
4. 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 the 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 the derogation of the law of the land or opposed to the public policy or social decency can be accepted or upheld by courts in the country.[20]
Since use of absinthe by the White Hibiscians was against the principle of “social decency”, therefore the State Government order banning the use of absinthe was not violative of Articles 25 (2) and 26 (b).
5. If the practice in question is purely secular or the affair which is controlled by the statute is essentially and absolutely secular in character, it cannot be urged that Article 25 (1) and 26 (b) has been contravened. It is necessary to consider whether the practice in question is religious or the affairs in respect of which the right of management is alleged to have been contravened are the affairs in matters of religion. If the practice is religious practice or the affairs are the affairs in matter of religion, then, of course, the rights guaranteed by Article 25(1) and 26(b) cannot be contravened.[21]
Since the practice of using absinthe is purely secular, it is not protected by virtue of Articles 25(2) and 26(b). Therefore, the State Government order banning the use of absinthe is not in contravention of the aforesaid Articles.
6. It has been held by the Privy Council, that the idea most prominent in the mind of the worshipper is that a departure from the traditional rules would result in the pollution or defilement of the image which must be avoided at all costs. That is also the rationale for preserving the sanctity of the Garbhagriha or the Sanctum Sanctorum.[22]
Use of absinthe by the White Hibiscians is against the basic tenet of the Order of Hibiscus. Bringing the same into the Sanctum Sanctorum of the temple of the Two Rivers would desecrate the holy artifact, i.e., the Hibiscus flower. Thus, State Government order forbidding the use of absinthe is not violative of Articles 25(2) and 26(b).
7. List II, Entry 1, empowers the state government to pass laws for maintenance of “public order”. In the present case, the two sects, Red Hibiscus and White Hibiscus disagreed on the use of absinthe over the Hibiscus flower. It led to a public dispute between the two sects. As a result, the State of Mahadesha Mahadesha
8. What sub-cl (a) and Cl. (2) of the Article 25 contemplates is not State regulation of the religious practices as such which are protected unless they run counter to public health or morality but of activities which are really of an economic, commercial or political character though they are associated with religious practices. Article 25 permits legislation in the interest of social welfare and reform as a part of public order, national morality and collective health of the people. Religious practice which is not an integral part of the practices of the religion is not protected under Article 25.
9. Earlier, Supreme Court had observed that no rights in an organized society can be absolute. Enjoyment of one’s right must be consistent with the enjoyment of rights also by others. Where a free play of social forces is not possible to bring about a voluntary harmony, the State has to step in to set right the imbalance between two competing interests.[23]
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?
1) Directions are issued for variety of purposes. Administrative authorities churn out directions through letters, circulars, orders, memoranda, pamphlets, public notices, press notes etc. So orders are directions that are issued by administrative authorities from time to time. It may be specific, being applicable to a particular purpose , or a particular case, or it may be of general nature, laying down general principles , policies, practices, or procedures to be followed in similar cases.
2) A statute may confer a general power to make orders. Such power may authorize the making of orders of both administrative as well as legislative character.
3)“ The source of power” is thus the crux of the matter. The proposition that the “source of power” is decisive of the nature of a Government order, finds support from a pronouncement of Supreme court in Jayantilal Amratlal v F.N Rana[24]. The court clarified the position in following words:
“This is not to say that every order issued by the executive authorities has the force of law.If the order is purely administrative or is not issued in exercise of any statutory authority it may not have the force of law .But where a general order is issued even by a executive authority which confers power exercisable under a statute, and which thereby in substance modifies or adds to the statute such conferment of powers must be regarded as having the force of law.”
4) The basic rule is that 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.
5) Delegated legislation can be issued only when the authority concerned has statutory power to do so.
6) Here in this case, firstly, the State of Mahadesha
ISSUE 5: Whether or not, appointment of Amicus Curae by the Supreme Court of JaiIndia is just, fair and reasonable?
1. The phrase amicus curiae is legal Latin and literally means "friend of the court". Amicus curae, is someone, not a party to a case, who volunteers to offer information to assist a court in deciding a matter before it.
Black’s Law Dictionary defines the term as “A person who is not a party to the law suit but who petitions the court or is requested by the court to file a brief in the action because that person has a strong interest in the subject matter.”[25]
2. An amicus curiae educates the court on points of law that are in doubt, gathers or organizes information, or raises awareness about some aspect of the case that the court might otherwise miss.
3. The supreme court of of JaiIndia appointed Suta Hamoso, a senior counsel belonging to the Red Hibiscus as Amicus Curae in the case.
4. The appointment of Suta Hamosa as Amicus Curiae is for the help of the court. 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 . And 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.
Therefore, it is humbly submitted that the appointment of Amicus Curiae is just, fair and reasonable.
PRAYER
Wherefore in the light of facts stated, arguments advanced and authorities cited, it is most respectfully prayed before this Hon’ble Supreme Court of Bongia that it may be pleased to hold, affirm and declare:
1. DPU must be refused “no objection certificate” and therefore prohibit to start its new academic session of July 2009.
2. The enacted provisions laid in PU(R) Act 2009 is not violating Article 14, 19(1)(a), 19(1)(g), 21, 29(1), 29(2) and 30(1) of Constitution of Tikula.
3. Sec-3, Sec-11 and Sec-15 of Private University
And may issue any such order as it may deem fit in the interest of equality, justice, expedience and good conscience.
And the Joint Petitioner shall ever beseech the Hon’ble Court
All of which is most respectfully submitted.
Place: JaiIndia S/d .... .... ..... .... .... .... .... .... .... ... ... ....
Date: (Counsel for the Respondent)
[1] The Commissioner, Hindu Religious Endowments, Madras
[2] Brahmachari v State of W. B , AIR 1995 SC 2089.
[3] Brahmachari (n 2).
[4] Durgah Committee v Hussain AIR 1961 SC 1402.
[5] Ratilal v State of Bombay , AIR 1954 SC 388.
[6] Commissioner of Police v Acharya Jagdishwarananda Avadhuta, 2004 AIR SCW 1887.
[7] Commissioner of Police v Acharya Jagdishwarananda Avadhuta (n 6).
[8] Commissioner of Police v Acharya Jagdishwarananda Avadhuta (n 6)
[9] Tilkayat Shri Govindlalji Maharaj v The State of Rajasthan & others, 1964 (1) SCR 561.
[10] His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu v Prativathi Bhayankaram Venakatacharlu and others.
[11] (1971) 403 US
[12]The Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, (n 1).
[14] Black’s Law Dictionary.
[15] A.S. Narayan v State of A.P, AIR 1996 SC 1765.
[16] Commisioner Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, (1954) SCR 1005; Mahant Jagannath Ramanuj Das v The State of Orissa, (1954) SCR 1046; Sri Venkatamona Devaru v The State of Mysore, (1953) SCR 895; Durgah Committee, Ajmer v Syed Hussain Ali, (1962) 1 SCR 383
[17] Commissioner of Police v Acharya Jagdishwarananda Avadhuta (n 6).`
[18] Bhuri Nath & Ors. v State of J & K & Ors.,
[19] The Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, (n 1).
[20] N. Adithayan v Travancore Devasworn Board, AIR 2002 SCW 4146.
[21] Tilkayat Shri Govindlalji Maharaj v The State of Rajasthan & others, 1964 (1) SCR 561.
[22] His Holiness Peria Kovil Kelvi Appan Thiruvenkata Ramanuja Pedda Jiyyangarlu Varlu v Prativathi Bhayankaram Venakatacharlu and others,
[23] Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj v State of Gujarat, AIR 1974 SC 2098.
No comments:
Post a Comment