Team
Code:
In the
Hon’ble Supreme Court of JaiIndia
Petitions
under Article 32 of the Constitution of India
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His Holliness Davra Vahehaha…………............................... Joint Petitioners
V.
State of Mahadesha
W.P. No 1234 of
2010.
And other
Connected Petitions
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Memorial on Behalf of the Joint
Petitioners
Counsels for the Joint
Petitioners
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TABLE OF
CONTENTS
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ABBREVIATIONS
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S.NO
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ACRONYM
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FULL FORM
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1.
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AIR
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All
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2.
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Ed.
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Edition
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3.
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Hon’ble
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Honourable
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4.
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SC
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Supreme
Court
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5.
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Sec
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Section
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6.
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SCC
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Supreme
Court Cases
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7.
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D.D. Basu
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Durga Das
Basu
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8.
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Art.
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Article
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9.
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DPU
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10.
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SCW
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Supreme
Court Weekly
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11.
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PU(R) Act
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12.
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Ors.
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Others
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13.
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Ker
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Kerala
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14.
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Guj.
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15.
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Edu.
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Education
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16.
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Bomb.
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17.
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A.P.
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Andhra
Pradesh
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18.
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M.P.
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Madhya
Pradesh
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19.
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Paragraph
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INDEX OF
AUTHORITIES
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LIST OF
CASES
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S.No.
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CASES
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CITATION
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1.
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The
Commissioner, Hindu Religious Endowments,
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AIR 1954 SC 282.
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2.
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Brahmachari
v. state of W. B
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AIR
1995 SC 2089.
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3.
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Durgah
Committee v . Hussain
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AIR
1961 SC 1402.
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4.
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Ratilal
v . State of
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AIR
1954 SC 388.
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5.
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Vide Adelaide Company v. The
Commonwealth
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67 C.L.R. 116, 127.
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6.
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Commissioner
of Police v.Acharya Jagdishwarananda
Avadhuta
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2004
AIR SCW 1887.
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7.
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Mormon
Church v.
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136
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8.
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Commr. of H.R.E. v. L. T.
Swamiar
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AIR 1954 SC 282 p. 290
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9.
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Krishnankutty, M.L.A. v.
State of
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AIR 1985 Ker 148 at p.
157.
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10.
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Tilakayat's case (1964)
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(1964) 1 SCR 561
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11.
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Gayatri Devi Pansari v. State of Orissa
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(2000) 4 SCC 221
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BOOKS AND
COMMENTARIES
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S.No.
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BOOK
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AUTHOR
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EDITION
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PUBLISHER
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1.
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Constitutional Law of
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D.D. Basu
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I, II and
III
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Wadhwa & Componay
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2.
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Constitutional Law of
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V. N. Shukla
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3.
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Law
of Writs
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V.G Ramachndran’s
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I
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4.
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Constitutional Law of
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H.M. SEERVAI
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III
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Sweet & Maxwell
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5.
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Commentary on the Constitution of
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D.D.Basu
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V
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S.C. Sarkar & Sons (Private) LTD
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6.
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Indian Constitutional Law
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M.P. Jain
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V
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Wadhwa Nagpur
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7.
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Legalizing
Religion: The Indian Supreme Court and Secularism.
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Ronojoy
Sen, With commentary by Upendra Baxi.
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8.
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Constitutional Law of
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Dr.Subhash C.Kashyap
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I
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Universal
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JOURNALS
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Ø All
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Ø Supreme
Court Case Reporter
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Ø Supreme
Court Weekly
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STATUTES AND
CONVENTION
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UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948
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COVENANT ON
CIVIL AND POLITICAL RIGHT 1966
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EUROPEAN
CONVENTION 1950
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INTERNET LINK
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S.NO
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LINK
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1.
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2.
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3.
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4.
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5.
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6.
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7.
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STATEMENT OF
JURISDICTION
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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
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ISSUES
RAISED
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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
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?
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STATEMENT OF
FACTS
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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
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
With the growth
of Islam, White Hibuscus migrated to France France Netherlands
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.
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SUMMARY OF ARGUMENTS
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JOINT
PETITION IS FILED IN HON’BL HIGHT
COURT
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 Yes,
White Hibuscus is a religious denomination because of ‘a common faith’, and
distinct practice.
Ø Fusion
of both the order, renders they both are sects.
Ø White
Hibuscians further has constitutional right to conserve its religion, by their
practice.
Ø The
Act denied the right of White Hibucians, for Red Hibuscians, to enjoy, and to
practice as per their own religion.
Ø Being
a religious denomination or sect, get protection 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?
Ø Use
of absinth, is an essential practice of White Hibuscians that’s the reason why
they left France, sooner it was made illegal there.
Ø Practice
being continual.
Ø ‘Use
of absinth’ is what White Hibuscians believe in.
Ø Act,
passed is in the interest of secularism that is protection of each religion,
but not to promote either of the religion.
Ø It is not necessary for any person who
considers him to be aggrieved, to wait till the actual threat has taken place.
Herein, this case, till the religion is wholly polluted.
Ø Fundamental
Right to Religion may not be fully enjoyed unless the religion dignity is maintained
if it is lost individualistic dignity is lost.
Ø Article 253 of
the Constitution empowers the Parliament to make any law for the whole or any
part of the territory of JaiIndia, for giving effect to international
agreements.
Ø Act,
is in national interest, and to protect “cultures’, for which the nation is
known for.
Ø The Act enacted
by the Parliament of JaiIndia is in confirmation with Article 253, i.e., for
the fulfillment of the international obligations of the Union of JaiIndia.
Thus, the Act is valid.
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
Act does not satisfy Article 14, when justified on the touchstone of Article
14.
Ø Act
passed discriminates sects, on the basis of majority and citizenship, and at
present both of them are citizens.
Ø Act,
neither protects larger interest nor is in the national interest.
Ø As the Law
brought by the State of Mahadesha takes away or abridges the Fundamental Right
conferred by the Constitution, that is Article 25(1) and Article 26(b), hence,
as per the Article-13(2), is void.
Ø Herein, this case, Law is an injunction on White Hibuscians,
to destroy their religion.
Ø ‘Public order’
has a larger connotation than law and order. Contravention of law to affect
public order must affect community or public at large. A mere disturbance of
law and order leading to disorder is not one which effects ‘public’ order. The
authorities should not in the face of guaranteed religious rites prohibit
religious processions on the facile ground of public peace and tranquillity,
but adopt a positive approach to protect fundamental rights under Arts. 25 and
26 of the Constitution.
Ø As the Law
brought by the State of Mahadesha takes away or abridges the Fundamental Right
conferred by the Constitution, that is Article 25(1) and Article 26(b), hence,
as per the Article-13(2), is void.
ISSUE 4:
Whether or not, State Government
order, is beyond the power of delegated legislation?
Ø Government
order, passed by no means has reasonable nexus with the object sought to be
achieved, and is arbitrary.
Ø Injustice, Act is not in the interest of both
the Hibuscians, thereby polluting the religion of White Hibuscians.
Ø Law
does not satisfy Article 14, when justified on the touchstone of Article 14.
As, it fostered Red Hibuscians Religion by ignoring the White Hibucians
religion.
Ø State of
Mahadesha has got no right to interfere in the religious matter, as this power
has not been conferred by the Constitution to it, is the reason why religious
matter hadn’t been mentioned in either List II (State List) or List III
(Concurrent List).
Ø State Government
order passed by the Executive, ultravires the power, as it has got no delegated
power to impose restriction on the Fundamental Right guaranteed under
Constitution, that’s why it resulted in ‘Excessive delegation’.
Ø Law,
passed is unreasonable, illogical and irrational so by no means it bestows
freedom of religion, to practice as per their religion.
ISSUE 5: Whether
or not, appointment of Amicus Curae by the Supreme Court of JaiIndia is just,
fair and reasonable?
Ø It is to be
noted that Suta Hamoso has been appointed Amicus Curae by the supreme court of of
JaiIndia, he is a senior counsel belonging to the Red Hibiscus. As he is a Red Hibiscian, he will be
biased towards White Hibiscians by favouring Red Hibiscians. As both Red and
White Hibiscus are party to the dispute alonfand both are on opposite sides.
Ø So the
appointment of Suta Hamoso as Amicus
Curae is arbitrary and against the principles of Natural Justice.
Thence let the Act enacted by the
Parliament to prevail and cherish, thereby, protecting fundamental right of
White Hibuscians, guaranteed under Art-25(1) and Art-26(b).
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ARGUMENTS ADVANCED
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Flexible;
as Law is
But the Constitution, never is.
Thou canst infer, which one, is supreme.
Infer, to refer, it, for thy life.
Whether?
By being; flexible is supreme or, not so.
But the Constitution, never is.
Thou canst infer, which one, is supreme.
Infer, to refer, it, for thy life.
Whether?
By being; flexible is supreme or, not so.
Tho'
we say ‘The Constitution’ should be flexible
Sooner the, emergency situation bobs up.
Sooner the, emergency situation bobs up.
If,
it will be so, thee (Constitution) will lose its' soul.
As,
to us the life owed
By,
‘Almighty God’, is already conditional.
Soul
is the, basic structure.
Will
something be done?
Heading
to, let it to lose its beats.
I
bow with humble, before God,
When
restriction?
Will
be, like gravity,
As
gravity, does; never encroach upon us;
To,
maim.
“Religion
to, one, is ‘superstition’ to, another.”
Essential
practice, to be, what!
Differs,
on, who they are?
There is nothing
irreligious about the jurisdiction of the court because-
(a)
In
every religion there is a difference of opinion even as between scriptures and
the interpretation thereof and there is no unanimity amongst the religious
leaders of different sect. Hence, the determination of some impartial authority
is required, otherwise it would amount to ‘let everyone have his own law’ in
the name of religion.
(b)
Even
in ancient times, such questions had to be determined by the King or some
representative of his, such as a Kazi, which role is now performed by the court
as the judicial limb of the sovereign.
Justice B.K. Mukherji, drew
definition of religion on the Adelaide Company v. Commonwealth judgement in
Australia in which the High Court said the Constitution not only protected
“liberty of opinion” but also “acts done in pursuance of religious belief as
part of religion.” Collapsing the belief-practice dichotomy, Justice Mukherji
observed, “A religion undoubtedly has its basis in a system of beliefs or doctrines
which are regarded by those who profess that religion as conducive to their
spiritual well-being, but it would not be correct to say that religion is
nothing else but a doctrine of belief. A religion may not only lay down a code
of ethical rules for its followers to accept, it might prescribe rituals and
observances, ceremonies and modes of worship which are regarded as integral
parts of religion…”[1]
ISSUE1: Whether or not White Hibuscus is a religious
denomination, and should they get protection guaranteed under Article 25(1) and
Article 26(b)?
As,
Article 26 contemplates not merely a religious denomination but also a section
thereof, the Math or the spiritual fraternity represented by it can
legitimately come within the purview of this Article.[2]
Herein, this case, the
White Hibuscians is a section of the order of Hibuscous religion, therefore
they are too protected.
In order to constitute a religious
denomination, the following three conditions must be fulfilled[3];
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.
And all these conditions are fulfilled
by the White Hibuscus.
a)
They
have a common faith as they considered Hibiscus sacred, and used to bathe the
White petals with absinth on special interplanetary positions and on certain
eclipses. Faith on Goddess-Aryani.
b)
They
have common organization, which is of people whose essential practice is the
use of absinthe.
c)
Also
have distinct name that is “White Hibuscus”.
1.
Whatever White Hibuscians
taught was understood to have taught new religious doctrine and practice.
- It is the propagation of belief that is protected under
Article 25(1), no matter whether the propagation takes place in a church
or monastery, or in a temple or parlour meeting.[4]
- White and
Red Hibuscians were being founded by two different Sohhkriti’s, is the
reason they both are a religious denomination.
- “After
Sankara, came a galaxy of religious teachers and philosophers who founded
the different sects and sub-sects of the Hindu religion that we find in
- “Thus the section goes far beyond protecting liberty of
opinion. It protects also acts done in pursuance of religious belief as
part of religion."[6]
White Hibuscians is a religious denomination
(is
a sect of Hibiscus religion), is the
reason for why, both of them consented for fusion. Their community observed the
practice of using absinthe, as it was supposed to be medicinal. White
Hibuscians differ from Red Hibuscians on the practices adopted, and persuaded;
same as Jainism and Buddhism do. Court has declared many religious sects
as religious denomination in series of cases, like “Anand Margis” [7],
“the Chistia sect of muslims” [8],”swethambar
sect of jains” [9].
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.
Justice A.R. Lakshmanan
contested this definition of essential practices and wrote in his dissent, “If
these practices are accepted by the followers of such spiritual head as a
method of achieving their spiritual upliftment, the fact that such practice was
recently introduced cannot make it any less a matter of religion”.[10]
2.
“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.”[11]
- “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.”[12]
- “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.”[13]
Herein, 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
As being a religious denomination,
they can have their own practice. So, it can be said that the use of absinth is
the essential practice of another sect that were the White Hibuscians who were
practicing it from a long time, and it became tradition which made it distinct
from Red Hibuscians, resulting in formation of religious denomination or
different sect. The introduction of use of absinth was the later development
when sooner it became religious denomination... Thence, if White Hibuscians
doesn’t practice the use of absinth to bathe the Hibuscus, fundamental character
of the religion will change since it is the only practice which make it
different from Red Hibuscians that is why it’s a religious denomination.
The reason why White Hibuscians left
France France
Without the practice of using
absinth to bathe Hibuscus by the White Hibuscians would had have resulted in a
fundamental change in their character of religion, is the reason they left from
France
- ‘Religion’
is not mentioned in any any of the three Lists. Article 248 of the
Constitution provides that Parliament has exclusive power to make any law
with respect to any matter not enumerated in the Concurrent or the State
List. Thus, by virtue of the residuary power, vested in the Parliament,
the Act enacted by it which allows use of absinthe by the White Hibiscians
on certain occasions.
- "This
prerogative of parens patriae is inherent in the supreme power of every
State, whether that power is lodged in a royal person or in the
legislature [and] is a most beneficent function . . . often necessary to
be exercised in the interests of humanity, and for the prevention of
injury to those who cannot protect themselves."[14]
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, also includes the State's substantial interest
in securing its residents from the harmful effects of discrimination.
- Ours is a
secular State, i.e., it neither inhibits nor favours a particular religion.
The Parliament has enacted the said Act, with a view to prevent
discrimination between the White and Red Hibiscians. It therefore, allowed
the use of absinthe on certain special occasions.
9.
Interestingly, a single
bench of the Calcutta High Court, in a rare occurrence, took a contrary line
when asked to reconsider the case of Commissioner of Police v.Acharya
Jagdishwarananda Avadhuta (AIR 1990 Cal. 336). Justice Bhagabati Prasad Banerji
wrote, “The concept of tandava dance was not a new thing which is beyond the
scope of religion. Hindu texts and literatures provide [for] such dance. If the
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 wish the practice to be.”
10. “Judges are now endowed with a three step inquiry to determine, in
tandem, whether a claim was religious at all, whether it was essential for the
faith and, perforce, whether, even if essential, it complied with the public
interest and reformist requirements of the Constitution.”[15]
Herein, this case, use of absinthe was essential for the faith, is the reason
they left France
- In the case
of People v Woody[16],
the Supreme Court of California, held, that
- Use of absinthe by White Hibuscians is sanctioned by custom.
- The White Hibuscians use absinth only for religious purposes and not for the consumption, as liquor. They believed that absinth is medicinal and also 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. So, White hibuscians have “bonafide Faith” in the use of absinth. Their belief was honest and in good faith, and there was no immoral or illegal intention under the cloak of religion.
- "The
language of the two Clauses (b) and (d) of Article 26 would at once bring
out the difference between the two. In regard to affairs in matters of
religion, the right of management given to a religious body is a
guaranteed fundamental right which no legislation can take away."[17]
- Article 253
of the Constitution empowers the Parliament to make any law for the whole
or any part of the
Universal Declaration of Human Rights, 1948,
Article 18 declares that “Everyone has the right to freedom of thought,
conscience and religion; this right includes freedom to change his religion or
belief, and freedom, either alone or in community with others and in public or
private, to manifest his religion or belief in teaching, practice, worship and
observance.”
Covenant on Civil and Political Rights,
1966, Article 18 provides that “Everyone shall have the right to freedom of
thought, conscience and religion. This right shall include freedom to have or
to adopt a religion or belief of his choice, and freedom, either individually
or in community with others and in public or private, to manifest his religion
or belief in worship, observance, practice and teaching”. “No one shall be
subject to coercion which would impair his freedom to have or to adopt a
religion or belief of his choice”.
European Convention, Article 9, provides a
right to freedom of thought, conscience
and religion. This includes the freedom
to change a religion or belief, and to manifest
a religion or belief in worship, teaching,
practice and observance.
- The Act enacted by the Parliament of
JaiIndia is in confirmation with Article 253, i.e., for the fulfillment of
the international obligations of the Union of JaiIndia. Thus, the Act is
valid.
17. Gary Jacobsohn points out, “religious and secular life are so pervasively
entangled [in India
- Secularism
was “designed to allow people to live together in civility. This is what contemporary
critiques of secularism seem to forget”.[19]
State of
- “The
Constitution is in the form in which a State is organised and its
philosophy deals with principle underlying it. It is the soul of the
Constitution, and the provision thereof, the body. If the philosophy is
ignored or misinterpreted in any way the Constitution loses its soul and
ceases to be itself.”[20] From one of the
basic principles of the Indian Constitution, “Federation with a bias
towards the Centre is the most important of all”[21].
- Parliament
enacted Act, isn’t violative of Article 26(b), as it protected the right
of White Hibuscians too. Since, Fundamental Right Guaranteed under
Article-25 and Article 26 is for every person, which, State Government
order didn’t protected, by neglecting the White Hibuscians essential
practices.
- “Ultimately,
it was the “equal respect” theory-where the state respects and tolerates
all religions-that won the day. This was also Prime Minister Jawaharlal
Nehru’s formulation of secularism. This is a position that oscilates
between sarvadharma samhava (goodwill toward all religions) and dharma
nirpekshatta (religious neutrality). It is no secret that Nehru saw
religion as a force that checked the ‘tendency to change and progress’.”[22]
Herein, this case, Act enacted by the Parliament was in furtherance of
above laid principle, and was in the National Interest of JaiIndia.
- A better
description of Constitutional secularism is offered by Rajeev Dhavan who
disaggregates Indian secularism into three components: religious freedom,
celebratory neutrality, and reformatory justice. Religious freedom covers
not just religious beliefs but also rituals and practices.[23]
Parliament while enacting the Act, kept this concept in mind.
- Act,
enacted by the Parliament is in furtherance of the Fundamental principle
of the Constitution, as it protected rights of both the order.
- In the name
of secularism, a “circumscribed multiculturalism” has been put in place by
the Indian state.[24]
So, all religion to be given importance not to a single religion.
- The
convergence between the Nehruvian Congress and Hindu nationalist also is
visible in the Constitutional Assembly debates of 1946-47. Although both
groups differed in their conception of the Indian nation-state, “they
agreed on the need for national
unity to triumph cultural or religious diversity. Herein, this case,
Act is in National interest, for national unity.
- The freedom
and tolerance of religion is only to the extent of permitting pursuit of
spiritual life which is different from the secular life. The later falls
in the exclusive domain of the affairs of the State. Act, was in favour of
“the freedom of religion”.
- “Religious
tolerance and equal treatment of all
religious groups and protection of their life and property and of
their places of worship are an essential part of secularism enshrined in
our Constitution.”[25]
Herein, the case, Act was parallel to equal
treatment of all religious groups.
- “The most,
striking aspect of the essential practices doctrine is the constant
attempt by the Court to fashion religion in the way a modernist state
would like it to be rather than to accept religion as represented by its
practitioners.”[26]
29. If the tenets of any religious sect of the Hindus prescribe that
offerings of food should be given to the idol at particular hours of the day,
that periodical ceremonies should be performed in a certain way at certain
periods of the year or that there should be daily recital of sacred texts or
oblations to the sacred fire, all these would be regarded as parts of religion
and the mere fact that they involve expenditure of money or employment of
priests and servants or the use of marketable commodities would not make them
secular activities partaking of a commercial or economic character; all of them
are religious practices and should be regarded as matters of religion within
the meaning of Article 26(b).[27] Herein, this case, use of absinthe, was the
essential practice and was a periodical ceremony, to be performed, all these
should be regarded as a part of religion, mere fact that absinthe involve,
expenditure of money or is a toxic substance, would not make it secular
activities.
- “Thus the section goes far beyond protecting liberty of
opinion. It protects also acts done in pursuance of religious belief as
part of religion."[28]
Herein, this case Act, protected liberty of opinion.
Act enacted by the Parliament, “has given full effect to modern notions of
individual freedom to choose one’s way of life and to do away with all those
undue and outmoded interferences with liberty of conscience, faith and belief.
It is also aimed at ensuring human dignity and removing all those restrictions
which prevent a person from living his own life so long as he did not interfere
with similar right of others.”
Act, enacted by the Parliament is valid
and it furthers the nexus with the object sought to be achieved, and is not
arbitrary. Herein, the nexus was ‘secularism’, one of the objects sought to be
achieved by the Constitution that is to protect each religion. Act, hasn’t
fostered any of the religion, but took cognizance of interest of both the
religion. They both preferring for fusion, for it their consent is necessary;
meaning none of the religion interest should be override or ignored.
Act, has achieved it’s nexus of finding
a solution, for solving the dispute which arose between them. By this Act, both
of the sects are getting protected. It is in furtherance of their, fusion
motive. As, the use of absinthe wasn’t continual, it was been practiced on
special occasion, so should can be allowed to do that. Eclipse occurrence isn’t
habitual in nature; it may or may not take place for a long time. The use of
absinthe is contingent in nature, therefore its use should be allowed at least
on those days.
From one of the basic principles of the
Indian Constitution, “Federation with a bias towards the Centre is the most
important of all”[29].
Therefore, Act enacted by the parliament should prevail.
As the
Law brought by the State of Mahadesha takes away or abridges the Fundamental
Right conferred by the Constitution, hence, as per the Article-13(2), it must
be to the extent of contravention, is void. Thence let the Act enacted by the
Parliament to prevail and cherish. Thereby solving the problem of dispute, as
well as protecting interest of each sect, so, to foster ‘secularism’ which
being one of the nexus of our Constitution.
