Phonetix v. Acoustic Riff

Friday, 6 February 2015

An Argu II

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. Law, brought by the State of Mahadesha, was passed for solving the existing public dispute, but it didn’t serve its purpose; instead it enhanced the dispute. No nexus that was sought to be achieved, by the State Government order. State Government order didn’t served its purpose for which it was passed, that is for resolving out the dispute between two. Instead, it furthered the dispute.

2. “If one religious denomination is allowed to carry its religious practice but another religious denomination is restrained from carrying on religious practice and almost similar religious practices, the same makes out a clear case of discrimination in violation of the principles of Article-14 of the Constitution.”[30] Herein the particular case, RH were allowed to carry out their practice of bathing the Hibuscus with water, whereas WH were being restrained at the same time from carrying out their practice of bathing the Hibuscus with absinth, by being bias on the ground that WH weren’t citizen of JaiIndia.

3. Law is ambiguous, and it is also violative of Fundamental Right guaranteed under Article 19(1)(g) of Constitution, as it has prohibited ‘use’ of absinth which is a raw material for manufacturing of certain substances like liquor, medicine, etc..

4. “The right guaranteed under Article 26(b) to manage its own affairs in matters of religion in favour of religious denomination or any section thereof is more absolute in its terms and beyond the power of any legislative interference."[31] It is clear from the aforesaid decisions that the State cannot make a law relating to the fundamental right of the denomination "to manage its own affairs in matters of religion". If there is any dispute among the members of the denomination with respect to religious, spiritual, ritual or ceremonial matters pertaining to the Devaswom it is a matter for adjudication by a civil Court and the decision of the civil court will be binding on all members of the denomination.[32]

5. Anticipatory action or placing anticipatory restriction on particular kind of act of religious denomination isn’t valid, as there wasn’t any kind of danger to public order. Since the practice of using absinth to bathe the Hibuscus, occasionally, and was secretive not public in nature. If being secretive in nature, how can it be a danger to public order?

6. Religious denomination sometime has their different practices same as Hindu religious denomination has. What is needed, the practices shouldn’t be against public order, for protection under Art 25(1). And here in the particular, absinth practices aren’t against public order and are not even continuous in nature but it’s being practiced occasionally.

7. “‘Secularism’ actually figures in the preamble to the Indian Constitution, albeit through an amendment 1976, while it is absent in the American Constitution. It is apparent that the Indian version of secularism differs from the American or the European model.”[33] Herein, this case, Law brought by State of Mahadsha is against the principle of ‘secularism’, as it has favoured one of the religions, that is, of Red Hibuscians, and Constitution doesn’t support it.

8. “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 oscillates 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’.”[34] Herein, this case, Law brought by State of Mahadesha was not parallel to the principle of “equal-respect” to each religion, as it didn’t protected the interest of White Hibuscians essential practices.

9. “Nandy goes even further and identifies secularism as part of a larger package consisting of development, mega-science, and national security which is used by the state to silence its ‘non-conforming citizens’ (Nandy 1999:333)”[35], is the reason Indian Constitution favours ‘secularism’.

10. Parliament Act gave equal respect to each of the religion. “A secular state does not mean an irreligious state: it only means that we respect and honor all religions giving them freedom to function.”[36] Herein, this case, Law brought by the Sate ignored the White Hibuscians religion, by forbidding their essential practices, by an arbitrary action.

11. The “basic structure” doctrine, articulated by the Indian Supreme Court in the landmark Kesavananda case (AIR 1973 SC 1461), means that court can nullify any legislation that it thinks runs counter to the fundamental principles of the Constitution. Herein, this case, Law brought by State of Mahadesha runs counter to the Funamental principle of the Constitution.

12. In the name of secularism, a “circumscribed multiculturalism” has been put in place by the Indian state.[37] Law of State of Mahadesha has destroyed ‘multiculturalism’, for which JaiIndia is known.

13. “The Indian Constitution as well as subsequent interventions of the Supreme Court has tried to ensure that religious organization and groups are not discriminated against in the public domain”.[38] And herein, this case, use of absinthe by the White Hibuscians cannot be banned by the Law, on the ground that it isn’t the tenet of Red Hibuscians. One sect shouldn’t be compared with other sect; each sect should be viewed in isolation. So, on the ground of public dispute, Law cannot ban use of absinth. “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.”[39] Herein, the case, Law was contrary to equal treatment of all religious groups, as it suppressed the essential practice of the Red Hibuscians.

14. State Government order, whatever it was intended for, is not essential, but who is hit by it, is essential, and herein, this case White Hibuscians were hit as it violated their Fundamental Right guaranteed under, Article 25(1) and Article 26(b).

15. The word ‘Forbidding’ used in State Government order means to ‘make impossible’. It renders that it’s permanent, and there is complete ban. So, it can be inferred that Law was not passed for the emergency situation of public dispute. Forbidding, ultravires the State Legislature. Herein, this case, Law is an injunction on White Hibuscians, to destroy their religion, as in JaiIndia absinthe isn’t manufactured.

16. Another important principal were essential for the “complete autonomy” granted to religious denominations to decide which religious practices were essential for them. Mukherjea reiterated this point in Ratilal, which was decided by the Supreme Court the same year as Shirur Mutt: “Religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines…No outside authority has any right to say that these are not essential parts of religion and it is not open to the secular authority of the State to restrict or prohibit them in any manner they like under the guise of administering the trust estate”.[40]

17. Herein, this case, Law by State of Mahadesha is not favouring national unity; instead it has furthered the public dispute.

18. “Whatever the attitude of the State towards the religions, religious sects and denominations, religion cannot be mixed with any secular activity of the Sate”.[41] Herein, the case, State Government order banned use of absinth, as it being the secular activity of State.

19. ‘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.[42]

20. Herein, this case, State of Mahadesha had interfered with freedom of White Hibuscians, as they hadn’t created such a disturbance which could fall within the permissible limit that is hindering with public order.

Law, brought by the State of Mahadesha and the Government order, is ambiguous, and by no means has reasonable nexus with the object sought to be achieved. And is also arbitrary as it is imposing restriction on White Hibuscians, not to use absinthe; use of absinthe is their essential practice. Restriction imposed on White Hibuscians, are against their will and assent, therefore violative of Fundamental Right guaranteed by, Art-25(1) and Art-26(b), that is the freedom to practice and to manage its internal affairs by being a religious denomination.

Law isn’t temporary in nature, and there had been absolute ban. It doesn’t solve the dispute which had arisen. For what it was brought, as it serves no purpose.

From one of the basic principles of the Indian Constitution, “Federation with a bias towards the Centre is the most important of all”[43]. Law, brought by the State of Mahadesha must be struck down, and let the Parliament Act, to prevail.

Act, enacted by the Parliament isn’t contrary to, Law brought by the State; instead it furthers the purpose for which it was passed that is to solve the public dispute.

Act, has just filled the loopholes or gap, which were existing for solving the dispute which arose.

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 goal of our Constitution.

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

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’.
State Law was brought not for the purpose of solving public dispute that arose, but for banning use of absinthe by the White Hibuscians, as earlier it was not known to the State. So, here motive of the State for forbidding use of absinthe, is violating the Fundamental Right, to practice and manage its own affairs, which the State has got no power regarding it that is to interfere in the religious matter.
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).
State Government order, is ambiguous, as it resembles general in nature, not specific as the Law brought by the State is even it is violative of Fundamenta Right.
Nothing can be made out, from the text of the Government of order, whether it’s specific or general.
State law is serving the public purpose, since, it has banned the use of allowing absinthe to be used or passed through the sanctum sanctorum. It has not banned the consumption of absinthe, which shows the intention of State is to resolve the dispute between the two sects, i.e., use of absinthe over the Hibiscus flower. However, the government order has banned the consumption, use, import, as well as passage of absinthe through the State. The order of the Government should be construed keeping in view the purpose and substance as well as the object underlying the same, more with a view to promote the same rather than stifle it.[44]However, in the present case, there is no nexus between the Government order and the law passed by the State. The order passed by the executive is not in sync with the object sought by the Act, i.e., preventing the dispute between the two sects, Red Hibiscus and the White Hibiscus. Hence, the Government order is beyond the power of delegated legislation.

7. 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?

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.”[45]
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.
So the appointment of Suta Hamoso as Amicus Curae is arbitrary and against the principles of Natural Justice. Firstly there is no need of appointing Amicus Curae and even if the court wants to appoint Amicus Curae, it should appoint two Amicus Curae one each from the sects, because white Hibiscian will naturally have more knowledge about his sect than Red Hibiscian do. So in this case court will hear from both Amicus curae, and will be in better condition to decide on the particular matter.

PRAYER FOR RELIEF

Wherefore in the light of facts stated, arguments advanced and authorities cited, it is most respectfully prayed before this Hon’ble Supreme Court of JaiIndia that it may be pleased to hold, affirm and declare:

1. Writ of mandamus should be issued against the State of Mahadesha.

2. Use of absinthe, shouldn’t be forbidden as being the essential practice.

3. Law, brought by the State of Mahadesha, when justified on the touchstone of Article-13(2), stands void.

4. Act, enacted by the Parliament must be held valid.

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 for this cognitive consideration.

All of which is most respectfully submitted.

Place: JaiIndia S/d.... ......... .... .... .... .... .... ... ... ... ...

Date: (Counsel for the Joint Petitioner)

[1] Ronojoy Sen, Legalizing Religion: The Indian Supreme Court and Secularism, (East-West Centre, Washington, 2007).

[2] The Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, AIR 1954 SC 282.

[3] Brahmachari v State of W. B., AIR 1995 SC 2089.

[4] Brahmachari v state of W. B.,(n 3).

[5] Brahmachari v state of W. B.,(n 3).

[6] Vide Adelaide Company v The Commonwealth, 67 C.L.R. 116, 127.

[7]Vide Adelaide Company v The Commonwealth, (n 6).

[8] Durgah Committee v Hussain, AIR 1961 SC 1402.

[9] Ratilal v State of Bombay, AIR 1954 SC 388.

[10] Commissioner of Police v Acharya Jagdishwarananda Avadhuta, 2004 AIR SCW 1887.

[11] Commissioner of Police v Acharya Jagdishwarananda Avadhuta, (n 10).

[12] Commissioner of Police v Acharya Jagdishwarananda Avadhuta, (n 10).

[13] Commissioner of Police v Acharya Jagdishwarananda Avadhuta, (n 10).

[14] Mormon Church v United States, 136 U.S. 1, 57 (1890).

[15] Rajeev Dhavan and Fali Nariman, ‘The Supreme Court and Group Life: Religious Freedom, Minority Groups and Disadvantaged Communities’ in BN Kirpal (ed), Supreme but not Infallible: Essays in honour of the Supreme Court of India (Oxford University Press, New Delhi 2000)

[16] 61 Cal.2d 716

[17] Vide Adelaide Company v The Commonwealth, (n 6) 391.

[18] Ronojoy Sen, (n 1).

[19] Ronojoy Sen, (n 1).

[20] K.Subba Rao THE PHILOSOPHY OF THE Indian CONSTITUTION. By, Former Chief Justice of India. The Advocates Association, Bangalore, 1969, Pp.32.

[21] Ibid.

[22] Ronojoy Sen, (n 1).

[23] Raajev Dhavan, ‘The Road to Xanadu: India’s quest for Secularism’ in Gerald Lawson (ed), Religion and Personal Law in Secular India (Indiana Un iversity Press, Bloomigton 2001).

[24] Jaffrelot Christophe, ‘Composite Culture is not Multiculturism: A Study of the Indian Constituent Assembly Debates’ in Ashutosh Varshney (ed), India and the Politics of Developing Countries ( Sage Publications, New Delhi 2003) 133.

[25] Ronojoy Sen, (n 1).

[26] Ronojoy Sen, (n 1).

[27] The Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, (n 2).

[28] Ratilal v State of Bombay, (n 9).

[29] N 20

[30] Commissioner of Police v Acharya Jagdishwarananda Avadhuta, (n 10).

[31] Krishnankutty, M.L.A. v State of Kerala, AIR 1985 Ker 148 at p. 157.

[32] Tilakayat Shri Govindlalji Maharaj v State of Rajasthan & Others, (1964) 1 SCR 561.

[33] Ronojoy Sen, (n 1).

[34] Ronojoy Sen, (n 1).

[35] Ronojoy Sen, (n 1).

[36] Shariful Hasan, ‘Nehru’s Secularism’ in Raajev Dhavan and Thomas Paul (eds), Nehru and the Constitution (N.M. Tripathi Ltd., Bombay 1992)185.

[37] Jaffrelot (n 24), 131.

[38] Gurpreet Mahajan, ‘Identities and Rights: Aspects of Liberal Democracies in India’ (Oxford University Press, New Delhi 1988) 69.

[39] Ronojoy Sen, (n 1).

[40] The Commissioner, Hindu Religious Endowments, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, (n 2).

[41] Ronojoy Sen, (n 1).

[42] Supra note 20.

[43] Commissioner of Police v Acharya Jagdishwarananda Avadhuta, (n 10).

[44] Gayatri Devi Pansari v State of Orissa, (2000) 4 SCC 221.

[45] Black’s Law Dictionary.

An Argu

Team Code:

In the Hon’ble Supreme Court of JaiIndia

Petitions under Article 32 of the Constitution of India

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

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

W.P. No 1234 of 2010.

And other Connected Petitions

Memorial on Behalf of the Joint Petitioners

Counsels for the Joint Petitioners

TABLE OF CONTENTS

S.No.	CONTENTS	PAGE NO.
1.	Abbreviations	3
2.	Index of Authorities	4
3	Books and Commentaries	5-6
3.	Statement of Jurisdiction	7
4.	Issues Raised	8
5.	Statement of Facts	9
6.	Summary of Arguments	10-11
7.	Arguments Advanced	12
8.	Prayer	22

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
16.	Bomb.	Bombay
17.	A.P.	Andhra Pradesh
18.	M.P.	Madhya Pradesh
19.	Para	Paragraph

INDEX OF AUTHORITIES

LIST OF CASES

S.No.	CASES	CITATION
1.	The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt.	AIR 1954 SC 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.	Vide Adelaide Company v. The Commonwealth	67 C.L.R. 116, 127.
6.	Commissioner of Police v.Acharya Jagdishwarananda Avadhuta	2004 AIR SCW 1887.
7.	Mormon Church v. United States	136 U.S. 1, 57 (1890).
8.	Commr. of H.R.E. v. L. T. Swamiar	AIR 1954 SC 282 p. 290
9.	Krishnankutty, M.L.A. v. State of Kerala	AIR 1985 Ker 148 at p. 157.
10.	Tilakayat's case (1964)	(1964) 1 SCR 561
11.	Gayatri Devi Pansari v. State of Orissa	(2000) 4 SCC 221

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 Case Reporter

Ø Supreme Court Weekly

STATUTES AND CONVENTION

UNIVERSAL DECLARATION OF HUMAN RIGHTS 1948

COVENANT ON CIVIL AND POLITICAL RIGHT 1966

EUROPEAN CONVENTION 1950

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

JOINT PETITION IS FILED IN HON’BL HIGHT COURT UNDER ARTICLE 226 THAT IS WRIT PETITION BASED ON FOLLOWING GROUNDS:

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.

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.

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).

ARGUMENTS ADVANCED

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.

Tho' we say ‘The Constitution’ should be flexible
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 India at the present day. Each one of such sects or sub-sects can certainly be called a religious denomination, as it is designated by a distinctive name, - in many cases it is the name of the founder, - and has a common faith and common spiritual organization.”[5] Herein, this case, White Hibuscians is a religious denomination, as it fulfils all the essential conditions required.
“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 Civilization. The order split into two sects White Hibiscus and Red Hibiscus around 223 A. D. And after that White Hibuscians developed the practice of using Absinth.

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 when absinth was made illegal and shifted to Netherland where absinth was legal was because, of their essential practice which was made illegal in 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 and shifted to Netherland. Therefore, use of absinth to bathe Hibiscus is the ‘core’ upon which White Hibuscus(a sect) order was founded.

‘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 sooner it was made illegal there.

In the case of People v Woody[16], the Supreme Court of California, held, that California could not constitutionally apply statute proscribing use of peyote so as to prevent Indian tribe from using peyote as sacramental symbol. Since the defendants used the peyote in a bona fide pursuit of a religious faith. The court agrees, and the evidence amply demonstrates, that defendant’s use of peyote was for a religious purpose.
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 territory of JaiIndia, for giving effect to international agreements. The Union of JaiIndia has entered into a number of international Conventions and Treaties.

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] that a posture of official indifference cannot be justified either politically or constitutionally (Jacobsohn 2003:10)”[18].

Secularism was “designed to allow people to live together in civility. This is what contemporary critiques of secularism seem to forget”.[19] State of Mahadesh brought a Law, which snatched away Right to religious practice.
“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.