Memorial Respondent moot

Team Code.

IN THE HON’BLE SUPREME COURT OF THE UNION OF JAIINDIA

(Writ and Original Jurisdiction)

Writ Petition No. 1234/2010

HIS HOLLINESS DAVRA VAHEHAHA AND ORS PETITIONERS v. STATE OF MAHADESHA AND ORS RESPONDENTS

And other Connected Petitions

T he C ase C oncerning the F undamental R ight V iolation under A rticle 25 and 26 A nd the C entre S tate D ifference R egarding L egislative C ompetence over U se of A bsinth

MEMORIAL ON BEHALF OF THE RESPONDENTS UNDER ARTICLE 32 AND 131 OF THE CONSTITUTION OF JAIINDIA

COUNSELS FOR RESPONDENT

UNIVERSITY MOOT COURT SELECTIONS (UMCS) 2010

University Moot Court Selection, 2010

Table of c ontents

1. Index of Authorities

I. Books Referred……………………………………………………………............3II. Articles and Journals…………………………………………….........................4

III. Cases Referred…………………………………………………………………….5IV. Websites and URLs………………………………………………….....…………7

2. Statement of Jurisdiction………………………………………..8

3. Statement of Facts………………………………………………..9

4. Issues Raised………………………………………………….....11

5. Summary of Arguments……………..…………………………12

6. Arguments Advanced…………………………………………..14

7. Prayer for Relief………………….......…………………………23

Index of Authorities Memorial on behalf of the Respondent Page 2


I. Books Referred

S.No. Name of the Book Cited at page no

1. Adams Jad, Hideous Absinth: a history of the devil in a bottle, (I.B.Tauris Publishers, 2004)53

15

2. Alarid Leanne Fiftal, Cromwell Paul F., V. Del Carmen Rolando, Community-Based Corrections (Thomsan Learning Inc, 2008) 310

19

3. Basu, D.D. Constitutional Law of India (Lexis-Nexis Butterworths, Wadhwa and Nagpur, New Delhi 2008) 3465

18, 19

4. Black’s Law Dictionary (5th edition, 1979) 1003 19

5. Brans Edward H.P.,Liability for damage to public natural resources: standing damage and damage assessment (Kluwer Law International, 2001) 55

20

6. Dela haye, Marie-Claude, L’Absinthe, historie de la Fee verte Paris (1983) 79

15

7. Dr. Richard Rappolt, Absinthe: History in a Bottle (Clinical Toxicology Conrad III, Barnaby Chronicle Books, San Francisco 1988)71

14

8. Godbey, Rev. W.B. Absinthe and the Drink Demon (God's Revivalist Office, Cincinnati) 190

15

9. Jain, M.PIndian Constitutional Law. (5th edition Wadhwa and Nagpur, New Delhi 2009) 1200

17

10. Kashyap, Subhash C. Constitutional Law in India (Universal Law Publishing Company, New Delhi 2008)

17, 18

11. L.M.Singvi Constitution of India (Vol. 2, 2nd Edition) 1287 18

12. Lanier, Doris. Absinthe, the Cocaine of the 19th Century: A History of the Hallucinogenic Drug and its Effect on Artists,(Jefferson, NC: McFarland & Company, Inc., 1995) 256

15

13. Lenson, David. On Drugs (University of Minnesota Press, Minneapolis 1995)

15

Memorial on behalf of the Respondent Page 3


14. Mauro R. Muñoz, Delilah Gonzales- Muñoz , Philippine Governance and Constitution (Goodwill Trading Co.Inc.2002) 9

20

15. O’Halloran Kerry, Lowndes Myles Mcgrower, Simon kalra W., Charity law and social policy: national and international perspectives on the functions of the Law relating to charities, (Springer Science plus Business Media, 2008)

19

16. Ogalthorpe Gostin Larry , Ogalthorpe Gostin Lawrence Public Health Law: power, duty, restraint (University of California Press, 2000)52

20

17. Paul Daniel Ellner, The biomedical Scientist as expert witness, (Library of Congress. Cataluoging-in-publication data, Washington, 2006) 267.

21

18. State Antitrust Enforcement Handbook, (Section of Antitrust Law . 2 nd edition, American Bar Association 2008) 16.

19

19. Swaigen John, How to fight for what's right: the citizen’s guide to public interest law (James Lorimer & Company, 1981) 15

21

II. Articles and Journals

1. Arnold, Wilfred Niels., ‘Absinthe’(June 1989) Scientific American, 112-117

14

2. G.B. Curtis, ‘The Checkered Career of Parens Patriae : The State as Parent or Tyrant?’ (1976) 25 Depaul L. rev. 895: Note, State Protection of its Economy and Enviorment : Parens Patriae Suits for Damages (1970) 6 colum J.L. & Soc. Prob. 428

20

3. Ishita Sehgal, ‘Friend of the Court-Amicus Curie’ published at Legal Service India.

22

4. Jason C. Blokhuis, ‘Parens Patriae: A corporative legal study of Sovereign Authority and Public Education Policy in the Province of Ontario and the State of New York’ (DPhil thesis, University of Rochester, New York 2009)

20

5. Perumal Piravi M., ‘Amicus Curie- Meaning and Role,’ Lawyers Club India.

22

6. Prestwich PE, ‘Temperance in France: a curious case of Absinth’ 15

7. Shelton Dinah, ‘The Participation of Nongovernmental Organizations in International Judicial Proceedings’

22


http://www.google.co.in/search?tbs=bks:1,bkv:a&tbo=p&q=+inauthor:%22American+Bar+Association.+Section+of+Antitrust+Law%22

http://www.google.co.in/search?tbs=bks:1,bkv:a&tbo=p&q=+inauthor:%22Lawrence+Ogalthorpe+Gostin%22

http://www.google.co.in/search?tbs=bks:1,bkv:a&tbo=p&q=+inauthor:%22Larry+Ogalthorpe+Gostin%22

http://www.google.co.in/search?tbs=bks:1,bkv:a&tbo=p&q=+inauthor:%22Delilah+Gonzales-+Mu%C3%B1oz%22

http://www.google.co.in/search?tbs=bks:1,bkv:a&tbo=p&q=+inauthor:%22Mauro+R.+Mu%C3%B1oz%22


8. (1994) Vol. 88, American Journal of International Law 22

9. Weinstock, Robert A., ‘The Lorax State: Parens Patriae and the Provision of Public Goods,’ June, 1999 Columbia Law review

20

III. Cases Referred

Supreme Court Cases Cited at1. Ali Akbar v. Dt. Munsiff, Pudukkottai, AIR 2004 SC 2081 17

2. Bihar Distillery v Union of India AIR 1997 SC 1209 16

3. CBI v. Dawood Ibhrahim Kasker & Others(2000) 10 SCC 438 21

4. Commr. H.R.E. v. Lakshmindra (1954) SCR 1005 (1022, 1024, 1025)

18

5. Charan Lal Sahu Etc v Union of India & Ors AIR 1990 SC 1480 19

6. Cooverjee B. Bharucha v Excise Commr. and the Chief Commr., Ajmer1954 SCR 873;

16

7. Durgah Committee v. Hussain, AIR 1961 SC 1402 19

8. Evupa Sudhakar & anr v Govt of A.P. & Ors W.P. (Cri) 284of 2005

22

9. Govindlalji v. State of Rajasthan, AIR1963 SC 1638 18

10. Govt. of Haryana and Ors v Haryana Brewery Ltd. and Anr 1997)5SCC758

16

11. Harbhajan Singh Dhalla v. Union of India AIR 1987 SC 9 21

12. Javed v. State of Haryana, (2003) 8 SCC 369, 39 18

13. Khoday Distilleries Ltd and Ors. v State of Karnataka and Ors. 1995 SCC574

16

14. M. Veerbhadra Rao v. Tek chand AIR 1985 SC 28 22

15. M.P.Gopalakrishna & Anr. v. State of Kerela ,AIR 2005 SC 2053,

17

16. N. Adithayan v. Travancore Dewaswom Board AIR 2002 SC 3538

18

17. Nagendra Nath Bora v The Commr of Hills Division, 1958 SCR 1240

16

18. Naresh Kumar v Kala Wati & Other. SC Cri Appeal No. 578 of 2002.

21



19. Nashirwar v State of Madhya Pradesh AIR 1975 SC 360 16

20. Kapila Hingorani & Anr. v. State of Bihar & Anr (2003) 6 SCC 1

21

21. P. Krishan Wariya v state of Kerala and Ors AIR 1981SC 1863 15

22. Salem Advocate Bar Association, Tamil Nadu v. Union of India AIR 2003 SC 189

21

23. Sardar Sydena Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853.

17

24. Shankara Narayana v State of Mysore AIR 1966 SC 1571 17

25. Southern Pharmaceuticals and Chemicals, Trichur and Ors v State of Kerala and Ors AIR 1981 SC 1863

15

26. State of A.P. v Mcdowell & Co AIR 1996 SC 1627 14, 16

27. State of Assam v A.N. Kidwai 1957 SCR 295 16

28. State of Bihar and Ors v Shree Baidyanath Ayurved Bhavan private Ltd and Ors AIR 2005 SC 932.

15

29. State of Maharastra & Ors. v. Asha Arun Gawali & Anr.[2004] RD-SC 328

22

30. State of W.B. v. Ashutosh Lahiri, AIR 1995 SC 464 18

31. Vam Organic Chemicals Ltd. and Othrs v State of U.P. and Ors AIR 1997 SC

16

High Court Cases

1. Nutan Kumar & Others v. IInd Additional District Judge & Others 1994 All LJ 999

21

2. Quareshi v. State of Bihar, AIR 1958 MP 115 (paras. 15-18) 18

Foreign Cases

1. Alfred. L. Snapp, 458 U.S. 607 (1982) 20

2. Cf. Abington School Dr. v. Schempp, (1963) 374 US 203 19

3. Georgia v. Tennessee Cooper Co. 206 U.S. 297 (1907) 20

4. Grand Rapids v. Consumers' Power Co., 185 N.W. 852, 854, 216 Mich. 409, 415 (1921)

22



5. Hawaii v. Standard Oil Co. of Cal, 301 F. Supp, 982. 20

6. Shallow v. Shallow [1979] 2 ALL ER 483 22

7. People v. Mullins. 50 Cal. App. 3d61 (1979) 19

8. R v Gyngal [1893]2 QB232at 239. 19

9. Town v. State, 377 So.2d (Fla. 1979) 19

Websites and URLs

1. http://www.legalserviceindia.com/article/l282-Amicus-Curiae.html (last visited Aug 14, 2010)

22

2. http://www.lawyersclubindia.com/articles/AMICUS-CURIAE-MEANING-AND-ROLE-M-PIRAVI-PERUMAL-664.asp (last visited Aug 15, 2010)

22

Statement of Jurisdiction


http://www.lawyersclubindia.com/articles/AMICUS-CURIAE-MEANING-AND-ROLE-M-PIRAVI-PERUMAL-664.asp


http://www.legalserviceindia.com/article/l282-Amicus-Curiae.html



The Respondents submit to the Writ jurisdiction of the Hon’ble Supreme Court invoked under Article 32 concerning violation of Fundamental Right under Article 25 and 26 and at the same time submit to the Original Jurisdiction under Article 131 concerning dispute between Union of Jailindia and State of Mahadesha.

Article 32. Remedies for enforcement of rights conferred by this Part.-(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.

Article131. Original jurisdiction of the Supreme Court.—Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute—

(a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States,

if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends:

Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagement, sanad or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute.

Statement of Facts

Background



The order of the Hibuscus worshipped at eclipses and special interplanetary positions. The Hibuscians were quickly identified with the Goddess Aryanai and later with the prototype of Kali as their views were not antithetic to Hinduism. Hibiscus (flower) is especially sacred to Kali and this was adopted as the symbol of their order around 100 B.C.

The Hibiscus was made of Gold and and grounded Rubies on one hand and diamonds on the other to indicate the two colours of Hibuscus. In the centre it held the Miza Miza, a diamond which had a tint of slight redish colour. It was consecrated at the great temple of the Two Rivers (Indus and Jhelum) in 50 A.D at the second Conclave of the Ehanaai, following the first one around 1. B.C. where the clergy of Hibuscians met.

To save the religion from diminishing, the head priest of the Ehanaai, Sohhkriti, left Jailindia during third conclave in 200 A.D along with 100 senior members of the Ehanaai with him leaving the second senior most of the priests the Mazhoori as the custodian of the faith till he returned. The practice remained secretive and self contained fearing corruption. As per the Hibuscian law only the Sohhkriti could choose the Sohhkriti and the Mazhoori the Mazhoori.

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. The Hibuscian delegation landed in Egypt around 202 A.D and set to work with missionary zeal there and soon missions were sent to Rome, Judea and even the newly developed Roman settlements in Britain.

When in 220 A.D. the Sohhkriti believed that the order had spread, he decided to go back to JaiIndia but suddenly passed away with no instructions about his successor.

The Ehanaai on receiving the message, decided the next Sohhkriti as per existing Hibuscian law. The message of the new election was sent to the Egyptian mission, but the messenger died on the way and no message reached them.

Two years later when the last Sohhkriti’s final belongings were being sent to JaiIndia, a will was discovered. In his last will he had recognized his senior most disciple of the delegation which had accompanied him to Egypt as the successor to the office of the Sohhkriti.

The named heir apparent took the will and reached the Temple of the Two Rivers around the end of 223 AD and the political turmoil led to split in the Ehnaai and so the religion split in two orders with them. 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 and they established the Western Temple of the Two Rivers at the confluence of the White Nile and the Blue Nile. The sect at JaiIndia came to be known as the Red Hibuscus.

Bone of Contention Each of them developed their own traditions. The Red Hibuscus explored mysticism through

meditation and Kirtans. They consecrated and bathed the Holy Hibuscus every day with water of river Indus. In the meantime the White Hibuscus absorbed the practice of using Absinth, as it was supposed to be medicinal. They also believed it helped them 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 and continued this practise in France until it was made illegal in 1910 and thereafter shifted to Netherland.



In 2003 France made Absinth legal again and the White Sohhkriti came back to JaiIndia after almost 1800 years.200 members of the White Ehanaai migrated to JaiIndia in 2004. In 2009 all of them applied for JaiIndian citizenship and received it on 01.05.2010. In the meantime the process of fusion began between two White and Red Sohhkritis and flower was fused along with adoption of Sohhkriti and Mazhoori.

Three months before the ceremony a special interplanetary position took place and both of the Sohhkriti wished to bathe the flower. 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.

Legislative Measures The State of Mahadesha, a State in the JaiIndian Union, where the temple of the Two Rivers was

located and the maximum number of JaiIndian Hibuscians resident, 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 which received Presidential signatures on 10.01.2010, which invoked the doctrine of Parens Patriea to finally take a decision in order to ensure the peaceful unification of the two orders and on special occasions allowed Absinth to be used. For this purpose it assumed the custody of the Holy Hibiscus.

Procedure A series of Petitions were filed by the members of both the order between 11.02.2010-

15.04.2010. including the lead petition by Davra Vahehaha. The White Hibuscians and the Union of JaiIndia ended up on one side and the Red Hibuscians and State of Mahadesha on the other.

This Court admitted the clubbed Petitions. In the meantime it also appointed Suta Hamoso, a Senior Counsel belonging to the Red Hibuscian as Amicus Curae in the case. The Counsel for the White Ehanaai filed an affidavit opposing the same. All the questions are now to be decided by the Hon’ble Court.

Hence the present submissions.

Issues Raised



1. Whether there is infringement of right to freedom of religion of White Hibuscians, vide Article 25 & 26 of the constitution of JaiIndia?

2. Whether the application Doctrine of Parens Patriae by the Union of JaiIndia is justified?

3. Whether the appointment of Amicus Curiae is justified?

Summary of Arguments



1. Whether there is infringement of right to freedom of religion of White Hibuscians, vide Article 25 & 26 of the constitution of JaiIndia?

Whether the Government order is valid and within the legislative competence of State? It is submitted before the Hon’ble Court that State Government has exclusive power to make any regulation in respect of “intoxicating liquor” under Entry 8 List II of the Seventh Schedule and since the use of Absinth by the Petitioners is for consumption, the state Government is the only regulating authority with no interference from parliament whatsoever. Moreover Absinth herein is a subject under State List vide Entry 8 and is not subjected to Entry 52 of List I. Whether the grant of Citizenship to Petitioners is valid under the Indian Citizenship Act 1955? It is submitted that the grant of citizenship to Petitioners is not justified under Indian Citizenship Act 1955 reason being, minimum 12 years of stay for a complete foreigner to acquire citizenship by Naturalisation but here citizenship has been granted in only five years of stay. Whether White Hibuscians possess right to freedom of religion?It is submitted that under constitutional scheme every person has a fundamental right not merely to entertain the religious belief of his choice but also to exhibit this belief and ideas in manner which does not infringe the religious right and personal freedom of others. Furthermore, , the State has reserved unto itself the power to make laws providing for social reform and social welfare even though they might interfere with religious practices. Whether the use of Absinthe an integral and essential religious practice?The ‘practice’ in question must be an essential, mandatory as distinguished from optional religious practices. Essential part of a religion means the core beliefs upon which a religion is founded. An essential practice means those practices that are fundamental to follow a religious belief. Article 25 and 26 only protects religious practices that form an essential and integral part of a religion.

2. Whether the application Doctrine of Parens Patriae by the Union of JaiIndia, justified?

It is humbly submitted that Parens patria is a Latin term for the doctrine that “the state is parent” and therefore serves as guardian of the people under legal disability. The emphasis has to be paid on the word “legal disability”. In Lousiana v. Texas, the court emphasized that for a state to obtain relief as the affected interests must be related to obligations of its sovereign to its citizens, and the wrong must affect “the public at large” rather than private individuals.



It is argued that the court may properly deny standing if a suit involves only a few injured individuals because those individuals could bring their own law suit and state is thus, only a nominal party.


It is humbly submitted before the Hon’ble Court that Suta Hamoso has been appointed Amicus Curiae in the present case by the Hon’ble Supreme Court of JaiIndia.1 The very fact that he, being a learned senior counsel of the Supreme Court, has been appointed by the apex court, makes it a ground strong enough not to be challenged by anyone i.e. un-objectionable The court allows the permission to the amicus curiae to “call to the attention of courts, points of law or facts that would appear to have been overlooked”2 or to make submissions to court, “either in written or oral form concerning any matter that he thinks should be considered by court in reaching its findings.” The court may also appoint someone who, without having any interest in the action, provides information on the point of law or fact for the benefit of the judge.

Arguments Advanced

1 See Facts on record.2 Swaigen John, How to fight for what's right: the citizen’s guide to public interest law, James Lorimer & Company, 1981 at page 15



1. Whether there is infringement of Right to Freedom of Religion of White Hibuscians, vide Article 25 & 26 of the Constitution of JaiIndia?

1.1. Whether the Government order is valid and within the legislative competence of State?

It is humbly submitted before the Hon’ble Court that the impugned Government Order is valid and Central act will not have any force. It is again submitted that to legislate and to give order regulating the use of Absinth is within the four corners of Entry 83 of List II read with Entry 64 List II which inter alia refers to public health.5 Moreover, Article 47of Constitution has direct bearing on the Government Order, which states that the State shall regard the improvement of public health as primary duty and endeavour to bring out the prohibition of consumption of intoxicating drinks & drugs which are injurious to health.

It is submitted before this Court that as the matter herein revolves around the alcoholic liquor “Absinth”, thus it needs a little insight as to its constituents and effects. The chemical composition of Absinth and the amount of alcohol in it has to be construed in the sense in which it was used by the White Hibiscians in France. The Central Act allowed them the use of Absinth and which definitely be interpreted as the use as White Hibisciuns want.

The most harmful ingredient in absinthe is ethanol.6 The drink's high alcohol content is such because it is the only way to keep absinthe's oil constituents in solution.7The peculiar features of this highly alcoholic drink can be stated in the terms of French Author Doris Lanier that “a product of an age of uncertainty, absinthe seduced many of the gifted people and many of the period's greatest talents were among its victims. Already emotionally unstable, or isolated because their talents, these people turned to absinthe: it appealed to their imagination, eased their loneliness, and comforted them in their despair. It may be that, even without absinthe, they would have destroyed themselves, but it is difficult to overlook the fact that one of the side effects of indulgence in absinthe is a preoccupation with death.”8 Further, Absinthe is very strong liquor, typically about 140 proof or 70% alcohol by volume9 and it is hallucinogen and that it drove people insane and even to their death in France.10 Absinthe was an industrial alcohol as it

3Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors.4Public health and sanitation; hospitals and dispensaries5 See State of A.P. v Mcdowell & Co AIR 1996 SC 16276Dr. Richard Rappolt, Absinthe: History in a Bottle (Clinical Toxicology Conrad III, Barnaby Chronicle Books, San Francisco 1988)717Arnold, Wilfred Niels. "Absinthe." Scientific American (June 1989), 112-117.8 Lanier, Doris. Absinthe, the Cocaine of the 19th Century: A History of the Hallucinogenic Drug and its Effect on Artists,(, McFarland & Company, Inc., Jefferson NC 1995) 2569 Report 35 of Food and Drug Administration, U.S.A.10 Godbey, Rev. W.B. Absinthe and the Drink Demon (God's Revivalist Office, Cincinnati) 190; Lenson, David. On Drugs (University of Minnesota Press, Minneapolis 1995)



is and is incapable of being consumed by a normal human being.11The Absinth is considered as a beverage which is dangerous to health and was a root to all social evils in France.12

The claim of Petitioners to use Absinth is in the guise of medical purpose but when this Court will look in to the history of the use of absinth by petitioners, it will find that petitioners will definitely use it as narcotic and hallucinogenic substance to create the visions of Goddess Aryani and other recreational activities.13 So Absinth is capable of being used as an alcoholic beverage which is intoxicant owing to its high alcohol content and its diversion to human consumption can be regulated by State laws enacted with reference to Entries 6 and 8 of List II14.Furthermore, Medicinal & Toilet Preparations (Excise Duties) Act, 1955 seeks to regulate the manufacture of medicinal preparations for the bona fide use and to prevent the misuse of rectified spirit for human consumption. Moreover, the enumeration of “intoxicating liquor” in Entry 8 List II confers exclusive power to the State to legislate in respect of medicinal and toilet preparations containing alcohol.15

Arguendo, the claim of Petitioners that the use of Absinth is for Medicinal use and it does not lie within the jurisdiction of State, falls short of merit because as they claim it to use as Medicine within the meaning of “medicinal preparations”16 under Medicinal & Toilet Preparations (Excise Duties) Act, 1955 thereby bringing the Absinth within the category “drug”. It is a matter of common knowledge that such preparations are always likely to be misused as a substitute for alcoholic beverages17 and, therefore, the restriction imposed18 by the State is justified within the meaning of Entry 8 List II. The same is the contention here. Respondent being the Welfare State and deriving power from Article 47 of Constitution, fear and reasonably believe that looking in to the historical past of the Petitioners and how they used Absinth i.e. consuming to get visions of Goddess Aryani, Petitioners use it for their intake along with other purposes. And since the legislative power conferred upon the States by the Constitution should include all incidental and ancillary powers attached to it19, it has power to regulate the use of Absinth diverting to purposes other than medicinal use while regulating medicinal preparations containing the alcohol. So the Respondents are of the view that in pith and substance it is a law relating to intoxicating liquor providing for regulatory measure and squarely falls under Entry 8, List II of Seventh Schedule.

11 ?Prestwich PE, Temperance in France: a curious case of Absinth 12Dela haye, Marie-Claude, L’Absinthe, historie de la Fee verte Paris (1983) 79; Adams Jad, Hideous Absinth: a history of the devil in a bottle, (I.B.Tauris Publishers, 2004)5313 See .14See State of Bihar and Ors v Shree Baidyanath Ayurved Bhavan private Ltd and Ors AIR 2005 SC 932.15See P. Krishan Wariya v state of Kerala and Ors AIR 1981SC 186316 Section 2(g). 'medicinal preparation' includes all drugs which are a remedy or prescription prepared for internal or external use of human beings or animals and all substances intended to be used for or in the treatment, mitigation or prevention of disease in human beings or animals; 17 See Southern Pharmaceuticals and Chemicals, Trichur and Ors v State of Kerala and Ors AIR 1981 SC 186318 held to be valid in ibid19 See Govt. of Haryana and Ors v Haryana Brewery Ltd. and Anr 1997)5SCC758; Bihar Distillery v Union of

India AIR 1997 SC 1209



The Petitioners further contend that under the Entry 52 of List I the Parliament has enacted the Industries [Development and Regulation] Act, 1951 and Item 26 of Schedule I of that Act reads as "Fermentation Industries - [1] Alcohol, [2] Other products of Fermentation and Distillery". Read with Section 2 of the IDR Act, the said Entry would mean that the alcohol industry dealing in potable or non-potable alcohol is a controlled industry within the meaning of the said Act and thus the parliament vide this Act and further by amendment in 195620has taken over the control of State’s exclusive power to legislate under Entry 8 of List II. In response to the above contention the Respondent will like to submit that the aspect in the List I Entry 52 is industry while that in Entry 8 of List II is intoxicating liquor. Entry 8 List II is therefore to be read in its own terms. Furthermore, the pith and substance of the IDR Act is to provide the Central Government with the means of implementing their industrial policy21. Hence the IDR Act confers on the Central Government power to make rules for the registration of existing undertakings and for regulating the production and development of the industries mentioned in the Schedule.22 The Act does not in any way denude the power of the State Governments to make laws regulating and prohibiting the production, manufacture, possession, transport, purchase and sale of intoxicating liquors meant for human consumption and levying excise on them under Entries 8 and 51 of List II. If there is any incidental encroachment by the relevant State Acts on the area occupied by the IDR Act, that will not invalidate the State Act.23 This Court24 held that once the impugned enactment falls within the four corners of Entry 8 read with Entry 6, no Central law made with respect to any Entry in List I or with reference to any Entry in List III can affect the validity of such State enactment. Moreover, the argument of occupied field in such a case is totally out of place. Any incidental trenching does not amount to encroaching upon the field reserved for Parliament25 i.e. State order under Entry 8 List II incidentally trenching Entry 52 List I.

It is further submitted that the regulatory power given to state is absolute vide Entry 8 list II and State has the right to prohibit absolutely every form of activity in relation to intoxicants- its manufacture, storage, export, import, sale and possession.26And the Central Act constitutes the colorable exercise of power as the doctrine against colorable legislation has nothing to do with the motive of the legislation; it is in essence a question of vires or power of the legislature to enact the law in question.27Therefore even the motive of the Parliament cannot be considered while enacting the law which comes under State List.

20 Insertion of Alcohol under Entry 26 of the First Schedule IDR Act 1951.21 Resolution of 6th April, 194822 See Khoday Distilleries Ltd and Ors. v State of Karnataka and Ors. 1995 SCC57423 See Vam Organic Chemicals Ltd. and Othrs v State of U.P. and Ors AIR 1997 SC24See State of A.P. v Mcdowell & Co AIR 1996 SC 162725See ibid26 See Cooverjee B. Bharucha v Excise Commr. and the Chief Commr., Ajmer1954 SCR 873; State of Assam v A.N.

Kidwai 1957 SCR 295 ; Nagendra Nath Bora v The Commr of Hills Division, 1958 SCR 1240 ; Nashirwar v State of Madhya Pradesh AIR 1975 SC 360

27 See Shankara Narayana v State of Mysore AIR 1966 SC 1571



1.2. Whether the grant of Citizenship to Petitioners is valid under the Indian Citizenship Act 1955?

It is submitted before the Hon’ble Court that the grant of Citizenship by the Government of JaiIndia is against the provisions of the Indian Citizenship Act 1955.

It is submitted before the Hon’ble Court that Petitioners came to India from Netherland in 2004 and after 5 years of stay, they applied for JaiIndian Citizenship and got the same in 01.05.2010. As White Hibiscians were foreigner they cannot get the citizenship within the period of 5 years stay. Neither of the provision of Indian Citizenship Act gives citizenship within this period. They being complete foreigner has the option of availing only through Naturalization, but the requirement is the twelve years of must stay28 which Petitioners have not followed. Thereby it is submitted that the Central Government being pro-White Hibiscians favored the petitioners and granted citizenship by going against the law.

1.3. Whether White Hibuscians possess right to freedom of religion?

Article 25 of the Constitution of JaiIndia guarantees that every person in JaiIndia shall have the freedom of conscience and shall have the right to profess, practice and propagate religion, subject to public order, health and morality29. Similarly Art 26(b) guarantees to every religious denomination or any section thereof, to manage its own affairs in matters of religion, subject to public order, morality and health.30Under constitutional scheme every person has a fundamental right not merely to entertain the religious belief of his choice but also to exhibit this belief and ideas in manner which does not infringe the religious right and personal freedom of others.31But the practice of White Hibuscians is a clear case of infringement of religious right of Red Hibuscians. Since freedom under article 25 belongs to every person, the freedom of one cannot encroach upon similar freedom belonging to other person.32 Furthermore, , the State has reserved unto itself the power to make laws providing for social reform and social welfare even though they might interfere with religious practices33.

White Hibuscians use Absinthe which is hallucinogenic34 and detrimental to public health, morality and public order. Though the freedom of conscience and religious belief are absolute, the right to act in exercise of man’s freedom of conscience and freedom of religion cannot override public interests and morals of the society and in that view it is competent for the State to suppress such religious activity which is prejudicial to public interest.35 And the same

28 Schedule III Qualifications for Naturalisation; (d) that during the twelve years immediately preceding the said period of twelve months, he has either resided in India or been in the service of a Government in India, or partly the one and partly the other, for periods amounting in the aggregate to not less than nine years.

29 Jain, M.P.,Indian Constitutional Law. (5th edition Wadhwa and Nagpur, New Delhi 2009) 120030 Kashyap, Subhash C. Constitutional Law in India (Universal Law Publishing Company, New Delhi 2008).31 See Sardar Sydena Taher Saifuddin Saheb v. State of Bombay, AIR 1962 SC 853.32 See A. Ali Akbar v. Dt. Munsiff, Pudukkottai, AIR 2004 SC 2081.33 See M.P.Gopalakrishna & Anr. v. State of Kerela ,AIR 2005 SC 2053,34 See Facts on Record35 L.M.Singvi Constitution of India (Vol. 2, 2nd Edition) 1287



has been done by the State by banning the use of Absinth in the State. Use of Absinth in the sanctum sanctorum of the temple is an indecent act and against public policy. It is found in the case of N. Adithayan v. Travancore Dewaswom Board36it was held that no usage which is found to be pernicious and considered to be in derogation of law of land or opposed to public policy or social decency can be accepted or upheld. Article 18 (3) of International Covenant on Civil and Political Rights (ICCPR) also describes the limitations on the freedom of religion37. Since no fundamental right can be absolute in a modern state, freedom of religion cannot be absolute.38

1.4. Whether the use of Absinthe an integral and essential religious practice?

Article 25 and 26 only protects religious practices that form an essential and integral part of a religion.39 Religious practice which is not an integral part of the practices of the religion is not protected under Article 25. The ‘practice’ in question must be an essential,40 mandatory as distinguished from optional41 religious practices. Essential part of a religion means the core beliefs upon which a religion is founded. An essential practice means those practices that are fundamental to follow a religious belief. Hence, the practice of White Hibuscians cannot be said to be an essential practice as it is not fundamental to follow any religious belief. The test to determine whether a part or practice is essential to a religion is to find out whether the nature of the religion will be changed without part or practice.42 If taking away of that part or practice could result in a fundamental change in the character of that religion or in its belief, then such part could be treated as an essential or integral part.43The ban on Absinth does not change the character of the religion or its belief and thereby it does not form an essential practice of the religion. Though it is generally acknowledged that this question is to be determined by a religious denomination itself, 44it has at the same time been laid down that the determination of such denomination is not final.45 Moreover, the question-whether a religious practice is an essential part of a religion is an objective question to be determined by the court: the view of the religious denomination itself is not final.46Furthermore, it may be expected that no sensible state, in the name of social reform, would affect the very essence of any religion.47The legislation would only touch questionable practices, dogmas and the like which stand in the way of social progress of the country as a whole.48 Whether there exists a relation between drugs and religion?

36 AIR 2002 SC 353837 See Article 18(3), ICCPR38 See Govindlalji v. State of Rajasthan, AIR1963 SC 1638.39 See Javed v. State of Haryana, (2003) 8 SCC 369, 391.40 See Quareshi v. State of Bihar, AIR 1958 MP 115 (paras. 15-18)41 See State of W.B. v. Ashutosh Lahiri, AIR 1995 SC 46442 Basu, D.D. Constitutional Law of India (Lexis-Nexis Butterworths, Wadhwa and Nagpur, New Delhi 2008) 346543See Ibid 346544 See Commr. H.R.E. v. Lakshmindra (1954) SCR 1005 (1022, 1024, 1025)45 See Govindlalji v. State of Rajasthan, AIR 1963 SC 163846 See Durgah Committee v. Hussain, AIR 1961 SC 140247 VII CAD 781.48 See Cf. Abington School Dr. v. Schempp, (1963) 374 US 203.



Use of Absinthe is purely unethical. It is an immoral practice in the garb of religion. In a similar case, members of the Ethiopian Zion Church and visiting non-members assemble daily at petitioner’s[in that case] to worship and use cannabis in accordance with their religious belief. The trial court granted temporary injunction as health and safety was threatened by the cannabis use.49 Also in the case of People v. Mullins,50 defendant was found guilty of violating former health and safety code section 11530(now 11358) by trial court, because he used marijuana in worship. He contended that it is essential and exclusive to his rituals. But the court of appeal affirmed the judgment of trial court against him

2. Whether the application Doctrine of Parens Patriae by the Union of JaiIndia is justified?

According to the Black’s Law Dictionary51, it means literally ‘parent of the country’ and refers to role of the state as a sovereign and guardian of persons under legal disability.52 Parens patria is a Latin term for the doctrine that “the state is parent” and therefore serves as guardian of the people under legal disability.53 The emphasis has to be paid on the word “legal disability”. Earlier the Court of Chancery had a general right delegated by the crown as , for the benefit of such who are incapable to protect themselves.54 This makes it very clear that for invoking the Doctrine of the person must be legally disable or incapable, unlike the White Hibuscians. In Lousiana v. Texas,55 the court emphasized that for a state to obtain relief as the affected interests must be related to obligations of its sovereign to its citizens, and the wrong must affect “the public at large” rather than private individuals.56 But there is not much in the present case to prove that there has been any wrong done to anyone. Arguendo, any wrong done at all, is not affecting the public at large. It is reiterated that under this doctrine of which in Latin means parent/ guardian of the country, the state has power of guardianship only over persons who are unable to take of themselves or protect themselves; such as infants, lunatics or minors.57 The doctrine in the present case has been invoked for all competent White Hibuscians. It should be

49 See Town v. State, 377 So.2d (Fla. 1979)50 See People v. Mullins. 50 Cal. App. 3d61 (1979)51 Black’s Law Dictionary (5th edition, 1979) 100352See Charan Lal Sahu Etc v Union of India & Ors AIR 1990 SC 148053Alarid Leanne Fiftal, Cromwell Paul F., V. Del Carmen Rolando, Community-Based Corrections (Thomsan

Learning Inc, 2008) 310.54 O’Halloran Kerry, Lowndes Myles Mcgrower, Simon kalra W., Charity law and social policy: national and

international perspectives on the functions of the Law relating to charities, (Springer Science plus Business Media, 2008)

55 176 U.S. 1 (1900)56 State Antitrust Enforcement Handbook, (Section of Antitrust Law . 2 nd edition, American Bar Association 2008)

16.57 Mauro R. Muñoz, Delilah Gonzales- Muñoz , Philippine Governance and Constitution (Goodwill Trading Co.Inc.2002) 9


http://www.google.co.in/search?tbs=bks:1,bkv:a&tbo=p&q=+inauthor:%22Delilah+Gonzales-+Mu%C3%B1oz%22

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remembered that if children were competent to safeguard their own interests i.e. they were legally competent, even in that case the concept of would be unintelligible.58 It is humbly submitted that the court may properly deny standing if a suit involves only a few injured individuals because those individuals could bring their own law suit and thus only a nominal party.59 In the case at hand, the White Hibuscians have brought the petitions on their own, therefore the standing of the Union of JaiIndia is not justiciable.

The power is traditionally invoked in two conditions: to make decisions on behalf of individuals who are incapable of doing so for themselves60 and to assert the state’s general interest and standing in the Communal health, comfort and welfare.61 On the contrary, the Doctrine has been here invoked to give freedom to the White Hibuscians to use Absinth, which is against communal health and welfare .the doctrine has been expanded, however, to allow states to seek redress for the injuries to its quasi-sovereign interests.62 Quasi sovereign interests are the interest that the state has in “well being of its citizens.” 63 In order to maintain a action, in relation to quasi-sovereign interests, a state must meet certain requirements.64 It must show that it has an interest of its own, separate and distinct from the interest of particular parties. 65 It is also required that a substantial portion of the state’s inhabitants is adversely affected by the acts of the defendants.66 It is to be noted here that in the present case, neither the union of JaiIndia has an interest of its own, nor the substantial portion of the state’ inhabitants adversely affected, so as to invoke the impugned Doctrine. The standing is inappropriate when a state potentially serve as a “nominal party” litigating to advance the interests of an individual67. It is contended here that the union of JaiIndia is nominal party as it lacks appropriate interest in the case of the White Hibuscians and thereby the invocation of the doctrine of Parens Patriae is clearly inappropriate. At last it is summed up that the application of Doctrine by the Union of JaiIndia is not based on any strong ground which thereby renders it irrelevant in the present context.


58 Jason C. Blokhuis , Parens Patriae: A Comparative Legal Study of Sovereign Authority and Public Education Policy in the Province of Ontario and the State of New York , University of Rochester, New York 2009

59Weinstock, Robert A.,The Lorax State: and the Provision of Public Goods, Columbia Law review June, 1999, 99 Colum.

60 Ogalthorpe Gostin Larry , Ogalthorpe Gostin Lawrence Public Health Law: power, duty, restraint (University of California Press, 2000)52

61 ibid62 Brans Edward H.P.,Liability for damage to public natural resources: standing damage and damage assessment

(Kluwer Law International, 2001) 5563 G.B. Curtis, “The Checkered Career of : The State as Parent or Tyrant?” (1976) 25 Depaul L. rev. 895: Note,

‘State Protection of its Economy and Enviorment : Suits for Damages’ (1970) 6 colum J.L. & Soc. Prob. 428. 64 Ibid, pp 413-418.65 Georgia v. Tennessee Cooper Co. 206 U.S. 297 (1907); Hawaii v. Standard Oil Co. of Cal, 301 F. Supp, 982.66 Alfred. L. Snapp, 458 U.S. 607 (1982).67 Weinstock, Robert A.,The Lorax State: and the Provision of Public Goods, Columbia Law review June,

1999, 99 Colum at page 10


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It is humbly submitted before the Hon’ble Court that Suta Hamoso has been appointed Amicus Curiae in the present case by the Hon’ble Supreme Court of JaiIndia.68 The very fact that he, being a learned senior counsel of the Supreme Court, has been appointed by the apex court, makes it a ground strong enough not to be challenged by anyone i.e. un-objectionable. Amicus curiae is a person who does not work for either side but calls the attentions of the court to a question of law by submitting a brief.69Suta Hamoso has also been appointed for this purpose. The court allows the permission to the amicus curiae to “call to the attention of courts, points of law or facts that would appear to have been overlooked”70 or to make submissions to court, “either in written or oral form concerning any matter that he thinks should be considered by court in reaching its findings.” The intention of the court in appointing an Amicus curiae can clearly be collected from the above lines. It can now be based that Suta Hamoso is appointed for he is a learned senior counsel of the court and not because he is Red Hibuscian. It is absurd to make a supposition regarding the step of the Hon’ble apex court to be bias.

It is further contended that the filing of an affidavit to check the appointment of Suta Hamoso as Amicus Curiae by the Hon’ble apex court, is an absurd step of White Hibuscians. The petitioners are admitting to the jurisdiction of this court by bringing the petition before it and at the same time they are suspicious about the character of the Hon’ble Court, as they file an affidavit71 questioning the appointment of Suta Hamoso as Amicus Curiae, for they believe that he might be bias towards Red Hibuscians. Hence it is proved that the petitioners lack faith on the apex court. But it must also be borne in mind that Amicus Curiae(appointed by court) has not to always act as a neutral person. he might also be appointed by the court to appear from a particular side like in the cases of Naresh Kumar v. Kala Wati & Others;72 State through CBI v. Dawood Ibhrahim Kasker & Others;73 Salem Advocate Bar Association, Tamil Nadu v. Union of India;74 Nutan Kumar & Others v. IInd Additional District Judge & Others.75Also in this Court76

an advocate was appointed to appear from the side of the petitioners. In Kapila Hingorani & Anr. v. State of Bihar & Anr.77 Amicus Curiae was appointed to appear from the side of the state of Bihar and Union of India. Similar appointment was done in the case of M. Veerbhadra Rao v. Tek chand78

68 See Facts on record.69 Paul Daniel Ellner, The biomedical Scientist as expert witness, (Library of Congress. Cataluoging-in-publication data, Washington, 2006) 267.70 Swaigen John, How to fight for what's right: the citizen’s guide to public interest law (James Lorimer & Company, 1981) 1571 See Facts on record.72 Cri Appeal no.578 of 2002.73 (2000) 10 SCC 43874 AIR 2003 SC 18975 1994 All LJ 99976 See Harbhajan Singh Dhalla v. Union of India AIR 1987 SC 977 (2003) 6 SCC 178 AIR 1985 SC 28



The court may also appoint someone who, without having any interest in the action, provides information on the point of law or fact for the benefit of the judge.79When the case involves an important question of law court may appoint Amicus Curiae. The attitude of most courts is that "in cases involving questions of important public interest, leave is generally granted to file a brief as amicus curiae."80 Mr Soli Sorabjee, Ex-Attorney General of India and a learned advocate of Supreme Court of india, was appointed as Amicus Curiae in the case of Erupu Sudhakar & Another. v. Govt. Of A.P. & Ors.81 as it involved an important question of law relating to the remission of punishment. In India, the courts have time and again welcomed the idea of permitting amicus curiae to associate themselves with proceedings, generally involving public interest. By doing so, the court is guided not only by the academic perspective required for the particular case, but also enables the court to have an understanding which would allow them to do justice in its entirety.82Suggestions of Amicus Curiae were demanded in the case PUCL v. State of Tamil Nadu & others.83 In one case84 In view of the sensitive nature of the matter a learned counsel was appointed as Amicus Curie and his assistance was appreciated by the High Court. It is to be remembered that courts usually permit an amicus to participate on the basis of a general interest, including the desire to prevent a collusive suit, to protect unrepresented persons or the public interest, or to point out error to the court.85 All courts probably have the inherent power to request anyone to assist their deliberations. 86 Even in the international sphere, the role of amicus curiae has been well under consideration by inter-governmental bodies like the World Trade Organization (WTO).87

It is further argued that the Amicus plays a limited role; it provides specific information to the Court almost exclusively through written submissions, and neither controls developments in the case nor has the rights and duties of parties.88 In the light of the above points it is made loud that the appointment of amicus by the apex court has never been objected. And filing of affidavit is an absurd step of the petitioners.

Prayer For relief

79 Shallow v. Shallow [1979] 2 ALL ER 48380 Grand Rapids v. Consumers' Power Co., 185 N.W. 852, 854, 216 Mich. 409, 415 (1921). 81 Writ Petition (crl.) 284-285 of 200582See Ishita Sehgal, Friend of the Court-Amicus Curie, published at Legal Service India. at http://www.legalserviceindia.com/article/l282-Amicus-Curiae.html (last visited Aug 14, 2010)83 Pucl v. State of Tamil Nadu, Writ petition (civil) 3922of 198584 State of Maharastra & Ors. v. Asha Arun Gawali & Anr.[2004] RD-SC 32885Shelton Dinah, The Participation of Nongovernmental Organizations in International Judicial Proceedings,

American Journal of International Law, Vol. 88, 199486 See ibid.87Perumal Piravi M., Amicus Curie- Meaning and Role, Lawyers Club India, at

http://www.lawyersclubindia.com/articles/AMICUS-CURIAE-MEANING-AND-ROLE-M-PIRAVI-PERUMAL-664.asp (last visited Aug 15, 2010)

88 See Supra note 55.






Therefore, in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that this Hon’ble Court may be pleased to hold, adjudge and declare that:

1) The Respondent has Fundamental Right under Article 25 and 26 to practice their religion and the Essential Practice of the Respondent should not be compromised with the desecration of the Holy Hibiscus with the use of Absinth.

2) Act passed by the Centre is beyond the competence of the Parliament and should be invalidated.

3) The Government Order is justified as it has exercised its power within four corners of its exclusive jurisdiction.

4) Application of doctrine of Parens Patriae is not justified in the case of White Hibuscians.

5) Appointment of Amicus Curie is for the Hon’ble Court to decide and Petitioners have no say in it.

Any other appropriate order, which your lordships deemed just and proper in the facts and circumstances of the case, even the same has not been specifically prayed for, but which is necessary to secure ends of justice may kindly also be passed. For this the Respondents shall ever pay.

/s/

COUNSELS FOR THE RESPONDENTS

Submitted on behalf of the Respondents


Documents

Memorial Respondent moot