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Download Moot memorial sample and more Study Guides, Projects, Research Law in PDF only on Docsity! THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 1 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS BEFORE THE HON’BLE SUPREME COURT OF INDIA [EXTRAORDINARY ORIGINAL JURISDICTION] PUBLIC INTEREST LITIGATION WRIT PETITION (CIVIL) NO……….. OF 2019 A PUBLIC INTEREST LITIGATION FILED UNDER ART 32 OF THE CONSTITUTION OF FINDIA, 1950 -------IN THE MATTER BETWEEN------- KISHU RADO, MAA LIELA & ORS …………………PETITIONERS v. UNION OF FINDIA …………………RESPONDENT UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF FINDIA WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT COUNSEL FOR RESPONDENTS THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 2 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS TABLE OF CONTENTS INDEX OF AUTHORITIES ................................................................................................................... 3 TABLE OF CASES…………………………………………………………………………………….5 LIST OF ABBREVIATIONS ................................................................................................................. 9 STATEMENT OF JURISDICTION ..................................................................................................... 11 STATEMENT OF BRIEF FACTS ....................................................................................................... 12 STATEMENT OF ISSUES .................................................................................................................. 14 SUMMARY OF ARGUMENTS .......................................................................................................... 15 ARGUMENTS ADVANCED .............................................................................................................. 17 1. Whether the instant Public Interest Litigation is maintainable before this Hon’ble Court? ..... 17 1.1 A. No Public Interest is involved: ..................................................................................... 17 1.2 No Fundamental Right has been violated: ........................................................................ 20 2. Whether The Sections 8(c) & 27 of the NDPS Act, 1985 Suffer From Any Constitutional Infirmities And Are Therefore Ultra Vires The Constitution of Findia? .......................................... 20 2.1. Art 14 is not breached ....................................................................................................... 21 2.2. Art 19 (1) (g) is not breached ........................................................................................... 22 2.3. No Violation of Art 21 ..................................................................................................... 23 3. Whether Section 35 of the NDPS Act, 1985, which Attaches A Presumption Of Culpability, Is Ultra Vires the Constitution Of Findia? ............................................................................................ 23 3.1. Proper Legislative Competence ....................................................................................... 24 3.2. Constitutional Validity of S. 35 ....................................................................................... 25 3.3. Article 14 is not violated .................................................................................................. 27 3.4. Differential Treatment is not Violative Per se ................................................................. 28 3.5. Test of Arbitrariness.......................................................................................................... 31 3.6. Presumption of Constitutionality- Doctrine of Legitimacy .............................................. 33 4. Whether the consumption of drugs can fall within the protective cover of Art 25 of the Findian Constitution? ..................................................................................................................................... 33 4.1. CORE OF ESSENTIAL RELIGIOUS PRACTICE ......................................................... 34 4.2. CONSTITUTION SHOULD BE THE TOUCHSTONE FOR ANY PRACTICE TO BE REGARDED AS ESSENTIAL: ................................................................................................... 38 4.3. TEST OF RELIGIOUS DENOMINATION ..................................................................... 40 PRAYER ............................................................................................................................................... 42 THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 5 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS TABLE OF CASES 1. A. K. Roy vs Union Of India And Anr, 1982 SCR (2) 272 ................................................. 22 2. Abdul Rashid vs. State of Gujarat [AIR 2000 SC 821] ....................................................... 27 3. Adi Saiva Sivachariyargal Nala Sangam v. Government of Tamil Nadu (2016) 2 SCC 725 .............................................................................................................................................. 38 4. Ameeroonissa Begum v. Mahboob begum, 1953 SCR 404 (417) ....................................... 33 5. Ameeroonissa Begum v. Mehboob Begum, 1953 SCR 404(414 ........................................ 28 6. Ameeroonissa v. Mahboob, AIR 1953 SC 951.................................................................... 30 7. Anil Verma v. Harish Kumar, Cr. Appeal No.453 of 2018 ................................................. 27 8. Ashok Kumar Pandey v. The State Of West Bengal, (2004) 3 SCC 349 ............................ 17 9. Ashok Kumar Pandey v. The State Of West Bengal, (2004) 3 SCC 349. ........................... 18 10. Ashok Leyland Ltd. V. Union of India, (1997) 9 SCC 10 ................................................. 30 11. Babu Ram v. State of U.P(1995) 2 SCC 689 ..................................................................... 29 12. Babulal Amthalal Mehta v. Collector of customs, Calcutta, (1957) SCR 1110 ................ 30 13. Babulal Amthalal Mehta v. Collector of Customs, Calcutta, AIR 1957 SC 877, .............. 29 14. Bandhua Mukti Morcha v. Union of India & Others, 1984 SCR (2) 67............................ 17 15. Bir Singh v. Mukesh Kumar, CRIMINAL APPEAL NOS.230-231 OF 2019 .................. 28 16. Board of Trustees v. State of Delhi, AIR 1962 SC 458 ..................................................... 33 17. Board of trustees v. State of Delhi, AIR 1962 SC 458(471).............................................. 33 18. Budhan Chowdry v. State of Bihar, 1955(1) SCR 1045 (1049) ........................................ 29 19. Central.Elecricity.Supply Utility of Odisha v. Dhobei Sahoo & Ors.,(2013) SCC 1005. .............................................................................................................................................. 17 20. Chandra Bhawan Boarding and Lodging v. State of Mysore, AIR 1970 SC 2042 ........... 31 21. Chhetriya Pardushan Mukti v. State of U.P & Ors.,AIR (1990) SC 2060......................... 17 22. Chiranjit Lal Chowdhuri v. The Union of India And Others, 1950 SCR 869 ................... 33 23. Chiranjit Lal Chowdhuri vs The Union Of India 1951 AIR 41 ......................................... 29 24. Chiranjit Lal v. Union of India. (1950) S.C.R.869 ............................................................ 20 25. Chirendra v. Legal Remembrancer, AIR 1954 SC 424. .................................................... 29 26. Cochin Devaswom Bd. V. Vamana Setti, AIR 1966 SC ................................................... 33 27. Cochin Devaswom Bd. V. Vamana Setti, AIR 1966 SC 1980 .......................................... 33 28. Commissioner of Police v. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770, 782-83................................................................................................................................... 35 29. Commissioner of Police Vs. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770, 782-....................................................................................................................................... 38 Commissioner of Police Vs. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770, 782-83................................................................................................................................... 35 30. Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR 282, (1954). ........................................................... 41 31. Common Cause (A Regd. Society) vs Union Of India & Ors, Writ Petition (civil) 580 of 2003 ...................................................................................................................................... 17 THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 6 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS 32. Dargah Committee vs. Syed Hussain Ali , AIR 1961 SC 1402 ................................... 36, 37 33. Dattaraj Nathuji Thaware v. State Of Maharashtra & Ors.,(2005) 1 SCC 590 ................. 17 34. Dhanapal & Ors vs State By Public Prosecutor, 1985 (1) MLJ (Crl) 207 ......................... 26 35. Dharam Dutt & Ors v. Union Of India & Ors, (2004) 1 SCC 712 ................................... 39 36. Dlamini; S v. Dladla and others 1999(7) BCLR 771 ......................................................... 26 37. Dr. B. Singh v. Union of India & Ors.,(2004) 3 SCC 363 ................................................. 17 38. Dr.Subramanian Swamy v. Director, Cbi & Anr, WRIT PETITION (CIVIL) NO. 21 OF 2004 ...................................................................................................................................... 21 39. Dr.Surbahmaniam Swamy v. State of Kerala, WP(C).No. 35180 of 2009........................ 17 40. Durand Didier v. Chief Secretary, Union Territory of Goa 1989 AIR (1966) .................. 31 41. Dyeing & Mfg. Co. Ltd v. Bombay Environmental Action Group & Ors.,AIR (2006) SC 1489 ...................................................................................................................................... 17 42. East India Tobacco Ltd. V. State of A.P., AIR 1962 SC 1733 .......................................... 32 43. Fertiliser Corporation Kamgar Union (Regd.), Sindri and Ors. v. Union of India and Ors, [1981] 1 SCC 568 ................................................................................................................. 18 44. Gian Singh v. State Of Punjab & Anr, (2012) 10 SCC 303.............................................. 19 45. Gopi chand v. Delhi Administration, AIR 1959 Supp. (2) SCR 87................................... 28 46. Government of Andhra Pradesh &Ors. V. Smt. P. Laxmi Devi,(2008) 4 SCC 720. ......... 33 47. Government of NCT of Delhi v. Union of India (2018) 8 SCALE 72 .............................. 39 48. Greater Bombay Co-operative Bank Ltd v. United Yarn Tex (P) Ltd Appeal (civil) 432 of 2004.................................................................................................................................. 24 49. Hanif v. State of Bihar, AIR 1958 SC 731 ........................................................................ 29 50. Har Shankar & Ors. v. The Dy. Excise & Taxation Commr, 1975 SCR (3) 254 .............. 40 51. Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166 ........................... 29 52. Hari Bansh Lal v. Sahodar Prasad Mahto & Ors.,(2010) 9 SCC 655. ............................... 19 53. Harnam Singh v. R.T.A, 1954 SCR 37 ............................................................................. 33 54. Harnam Singh v. R.T.A., 1954 SCR 371 ........................................................................... 32 55. Hinsa Virodhak Sangh v. Mirzapur Moti Kuresh Jamat & Ors. [(2008) 5 SCC 33] ......... 33 56. Holicow Pictures Pvt.Ltd v. Prem Chandra Mishra & Ors.,AIR (2008) SC 913 .............. 17 57. Indian Young Lawyers Association & Ors. v. State Of Kerala & Ors., Writ Petition (Civil) No. 373 of 2006 ........................................................................................................ 35 58. IndraSawhney v. Union of India, AIR 1993 SC 477. ........................................................ 28 59. Jagdish Negi v. State Of U.P. And Anr, (1997 (7) SCC 203) ........................................... 28 60. Janata Dal v. H.S. Choudhary, (1992) (4) SCC 305 .......................................................... 17 61. Justice K.S. Puttasamy (Retd) V. Union of India, (2017) 10 SCC 1 ................................. 22 62. K. Veeraswamy v. Union of India, [1991] Insc 164 .......................................................... 27 63. Kamleshkumar Ishwardas Patel vs. Union of India & Ors. [(1995) 4 SCC 51 ................. 21 64. Kansing Kalusing Thakore & Ors.v. Rabari Maganbhai Vashrambhai, (2006) 9 SCR 196 .............................................................................................................................................. 17 65. Kazi Lhendup Dorji v. Central Bureau of Investigation, (1994) 3 SCR 201 ..................... 17 66. Kedar Nath Bajoria And Anr v. The State Of West Bengal , AIR 1954 SC 660 .............. 21 67. Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404 ................................................... 30 68. Kewal singh v. Lajwanti, AIR 1980 SC 161 ..................................................................... 31 69. Krishna A.S v. State of Madras, 1957 SCR 399 (414) ..................................................... 30 THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 7 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS 70. Krishna Swami v. Union of India, (1992) 4 SCC 605. ...................................................... 18 71. Kumar Mukherjee v. Local Board of Barpeta, AIR 1965 SC 1561 ................................... 32 72. Kushum Lata v. Union of India & Ors., AIR (2006) SC 2643 .......................................... 17 73. LaxmiKhandsari v. State of Uttar Pradesh, (1981) 2 SCC 600 ......................................... 30 74. M.G. Badappanavar v. State of Karnataka, (2001) 2 SCC 226 ......................................... 28 75. M/S Swastik Gases P.Ltd vs Indian Oil Corp.Ltd, [2013] 7 S.C.R. 581 ........................... 21 76. Maneka Gandhi v. Union of India and Anr. (1978) 1 SCC 248 ........................................ 33 77. Municipal Committee, Hoshiarpur V. Punjab State Electricity Board. & ors., (2010) 13 SCC 216 ............................................................................................................................... 19 78. N. Adithayan v. Travancore Devaswom Board and others, (2002) 8 SCC 106 ................ 41 79. N. Adithayan v. Travancore Devaswom Board and others, (2002) 8 SCC 106. ............... 41 80. Namit Sharma v. Union of India, (2013) 1 SCC 745......................................................... 33 81. Naresh Shridhar Mirajkar & Ors. v. State Of Maharashtra, AIR (1967) SC 1 .................. 19 82. National Legal Services Authority v. Union of India, AIR 2014 SC 1863 ....................... 20 83. Neetu v. State of Punjab & Ors., AIR (2007) SC 758 ....................................................... 17 84. Nirmal Singh Kahlon v. State Of Punjab & Ors, (2009) 1 SCC 441 ................................. 17 85. Noor Aga vs State Of Punjab &Anr, (2008) 16 SCC 417 ................................................. 26 86. P.N. Krishna Lal v. Govt. of Kerala, 1995 Supp (2) SCC 187 .......................................... 28 87. P.Seshadri v. S.Mangati Gopal Reddy & Ors.,(2011) 5 SCC 484 ..................................... 17 88. Pannalal Bansilal Pitti v. State of A.P., (1996) 2 SCC 498 ............................................... 29 89. Parayankandiyal Erkavath Kanapravan Kalliani Amma v. K. Devi, (1996) 4 SCC 76 .... 32 90. Pathumma v. State of Kerala, AIR 1978 SC 771;.............................................................. 29 91. People's Union for Democratic Rights v. Union of India & Others, AIR (1982) SC 1473 .............................................................................................................................................. 18 92. Piyush Kantilal Mehta v. Commissioner Of Police, 1988 SCR Supl. (3)1081 ................. 22 93. Prabu das Morarjee Rajkotia v. Union of India, AIR 1966 SC 1044 ................................ 33 94. Prabu Das Morarjee Rajkotia v. Union of India, AIR 1966 SC 1044 ............................... 33 95. R.K. Garg v. Union of India, AIR 1981 SC 2138 .............................................................. 33 96. Raj Kumar v. UOI AIR 1991 45 ....................................................................................... 25 97. Raja Bira Kishore Deb v. State of Orissa(1964) 7 SCR 32 ............................................... 42 98. Rajasthan v. Shankar LalParmar, AIR 2012 SC 1913 ....................................................... 28 99. Rajbala & Ors vs State Of Haryana & Ors writ petition (civil) no. 671 of 2015 ............. 32 100. Rajiv Ranjan Singh Lalan & Anr v. Union of India & Ors.,(2006) 6 SCC 613 .............. 17 101. Rajpal Sharma And Others vs State Of U.P.Thru Principal (WRIT - A No. - 5731 of 2013)..................................................................................................................................... 24 102. Ram Krishna Dalmia v. State of Bihar,AIR 1958 SC 53 ................................................. 24 103. Ramnath Verma v. State of Rajasthan , AIR 1967 SC 603 ............................................ 33 104. Ranjit D. Udeshi v. State Of Maharashtra, 1965 SCR (1) 65 ......................................... 22 105. Ranju Gopal Mukherjee & Anr. v. State Of West Bengal & Ors.,W.P 441 of 2018....... 18 106. Ratilal Panachand Gandhi Vs. State Of Bombay (1954) SCR 1055 ............................... 37 107. Raunaq International ltd. v. I.V.R. Construction Ltd., (1999) 1 SCC 492 ...................... 18 108. Ritu Prasad Sharma v. State of Assam, (2015) 9 SCC 461 ............................................. 35 109. Rohit bhai J Patel v. The State of Gujarat, CRIMINAL APPEAL NO. 508 OF 2019 .... 27 110. Roy Romer, Governor of Colorado. v. Richard G. Evans, 517 U.S. 620 ........................ 20 THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 10 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS UOI : Union of India US : United States UK : United Kingdom v : versus THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 11 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS STATEMENT OF JURISDICTION The Petitioners have approached this Hon’ble Supreme Court of Findia under Art 32 of the Findian Constitution, 19501, through a Public Interest Litigation. The Respondent reserves the right to contest the maintainability of the present litigation. 1 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 clause ( 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 THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 12 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS STATEMENT OF BRIEF FACTS About the Country: (i) Union of Findia is a unique entity following the Centre-biased form of a federation with morality and cultural norms influencing the state and where all the socio-cultural and religious sects have one common aspect– the use of recreational drugs. Noticing this, the Parliament of Findia brought in the NDPS Act in 1985. The Cult: (ii) Since 1950s, there existed a religious cult in the State of Maharashtra headed by Kishu Roado which believed in attaining the state of nirvana by a “technique of transformation”. The cult took pride in defying societal norms and appealed to the humans to live authentically without shunning themselves from the natural joyful experiences. The cult indulges in practices contravening the law; propagate immoral behaviors including promiscuity and usage of certain substances to attain nirvana. The Issue: (iii) Barty Junior, a law student, came in contact with an active member of the cult called Maa Liela through social media who promised to guide him to attain nirvana. Upon her persistence, Barty met Kishu at her residence on May 2019 to start the process. Impressed by the views, he visited Maa Liela’s residence on 11.06.19 and decided to meet on 25.06.19 for the next session. On 23rd June, the police received an anonymous tip relating to the usage of drugs at the residence of Maa Liela. Consumption of Drugs: (iv) On 25.06.19, Barty arrived at her residence at around 9:00 am and they began the session at around 9:30 am. Maa Liela offered Barty a brownish white powder called “essence of heaven” in order to help him focus on his mediation. At first, he was hesitant, but at Kishu’s persistence, Barty consumed the powder. At 10.15 am, PI Kiran Desai along with his raiding unit arrived at the residence. (v) On entering, they saw Barty, Kishu and Maa Liela sitting on the floor and saw lines of brownish white powder on the dining table and an open packet which they suspected to be THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 15 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS SUMMARY OF ARGUMENTS 1. WHETHER THE INSTANT PUBLIC INTEREST LITIGATION IS MAINTAINABLE BEFORE THIS HON’BLE COURT? It is most reverently contended before this Hon’ble Apex Court of Findia that the instant Public Interest Litigation is not maintainable before this Hon’ble Court as the interest litigation is filed at the garb of private interest, rather than public interest, that violates the “relaxation of locus standi” principle that is given to public interest litigations. Further, it also submitted that the “impugned provisions” of the Narcotic Drugs and Psychotropic Substances Act, 1985 do not violate any fundamental rights; thereby this current petition cannot be engaged by this Hon’ble Supreme Court. 2.WHETHER THE SECTIONS 8(C) & 27 OF THE NDPS ACT, 1985 SUFFER FROM ANY CONSTITUTIONAL INFIRMITIES AND ARE THEREFORE ULTRA VIRES THE CONSTITUTION OF FINDIA? It is most humbly submitted before this Hon’ble Court that S. 8 (c) of the Act and S. 27 of the Act are intravires the Findian Constitution and do not suffer from any infirmities. This is because the sale, consumption and usage of drugs are directly related to financing of organized crimes and terrorism as a whole. This was the very intent behind the legislation of the Narcotic Drugs and the Psychotropic Substances Act, 1985 and also the same was the rationale behind adoption of the Single Convention on the usage of Drugs, by the United Nations that laid international pressure to curb the usage of drugs. Since it is a matter of national security, it is submitted with utmost reverence that the usage and consumption of drugs cannot be legalized. 3. WHETHER SECTION 35 OF THE NDPS ACT, 1985 WHICH ATTACHES A PRESUMPTION OF CULPABILITY, IS ULTRA VIRES THE CONSTITUTION OF FINDIA? It is humbly submitted that S. 35 of the narcotic Drugs and Psychotropic Substances Act, 1985 is not ultra vires the Findian Constitution. It is submitted that the initial burden still lies on the Prosecution to establish a prima facie case, upon which the onus probandi is transferred to the accused to prove that he is innocent. It is submitted that “innocent until proven guilty” still prevails and therefore, this provision does not violate the cardinal rule of criminal jurisprudence. Further, it is also submitted that this classification of drugs alone does THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 16 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS not violate Art 14 of the Findian Constitution as it a “reasonable classification” based on intelligible differentia, and this classification has a rational nexus to the object of the Act, without which the object of the Act cannot be achieved. Therefore, it is submitted that this provision is not arbitrary. 4. WHETHER THE CONSUMPTION OF DRUGS CAN FALL WITHIN THE PROTECTIVE COVER OF ARTICLE 25? The Respondent submit with utmost venerance that only religious practices that are “essential to the religion” will receive protection under the umbrella of Art 25 of the Findian Constitution. It is contended that the usage of “drugs” does not constitute the essential religious practice of any religion, in fact all religions view the usage of drugs with utmost contempt. Further, it is also submitted that “public order, morality and health” are exceptions to soliciting protection under Art 25 of the Findian Constitution and all the three restrictions apply in the present context, thereby making it impossible for the consumption of drugs to be protected under Art 25 of the Findian Constitution. THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 17 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS ARGUMENTS ADVANCED 1. Whether the instant Public Interest Litigation is maintainable before this Hon’ble Court? The Petitioner has filed a Public Interest Litigation by invoking Art 32 of the Findian Constitution2. The Respondent humbly submits that the PIL is not tenable in the eyes of law as there is not an iota of “public interest” [A] in the given case, rather only private interest is involved and no fundamental right has been repugnantly violated [B]. 1.1 A. No Public Interest is involved: (a) Lexically, the expression "PIL" means the legal action initiated in a Court of law for the enforcement of public interest or general interest in which the public or a class of the community have pecuniary interest or some interest by which their legal rights or liabilities are affected.3 However, this has become a procedure that is widely abused.4 It has evolved to become "publicity interest litigation5" or "private interest litigation6" or "politics interest litigation7" or the latest trend being "paise income litigation".8 (b) If not properly regulated and abuse averted it also becomes a tool in unscrupulous hands to release vendetta and wreck vengeance9. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errantor poke ones into for a probe10. Courts of justice should not be allowed to be polluted by unscrupulous litigants by 2 Page 6, Moot Court Proposition 3 Janata Dal v. H.S. Choudhary, (1992) (4) SCC 305. 4 Dattaraj Nathuji Thaware v. State Of Maharashtra & Ors.,(2005) 1 SCC 590. Also in: Kansing Kalusing Thakore & Ors.v. Rabari Maganbhai Vashrambhai, (2006) 9 SCR 196; Rajiv Ranjan Singh Lalan & Anr v. Union of India & Ors.,(2006) 6 SCC 613. 5 Bandhua Mukti Morcha v. Union of India & Others, 1984 SCR (2) 67. 6 Nirmal Singh Kahlon v. State Of Punjab & Ors, (2009) 1 SCC 441 7 Common Cause (A Regd. Society) vs Union Of India & Ors, Writ Petition (civil) 580 of 2003 8 Dr. B. Singh v. Union of India & Ors.,(2004) 3 SCC 363. 9 S.P Gupta v. Union of India, AIR (1982) SC 149. 10 Kazi Lhendup Dorji v. Central Bureau of Investigation, (1994) 3 SCR 201. THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 20 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS 1.2 No Fundamental Right has been violated: (a) The powers of the Supreme Court of Findia under Art.32 of Findian Constitution is wide and it can be used to reinstate the fundamental rights of individuals when they have been denied.30 PIL’s can be entertained when the rights of individuals guaranteed by Part III of the Findian Constitution have been grossly violated.31 (b) The Respondent deferentially submits that there is no fundamental right of the Petitioners that is violated in the present case as the Respondent will be establishing by virtue of the forth coming issues. The Sections that are being challenged in the instant case32 are constitutionally valid and there is no legal nexus or basis to contend them as being unconstitutional; this will be proved by the Respondents in the forth coming issues. (c) Any writ petition becomes unsustainable in this Hon’ble Court where it has been satisfactorily established that no fundamental right is violated33. Moreover, there is no element “genuine public harm” or “genuine public injury”34 that has to be redressed in the present case. In fact, the Respondent fails to see the essence of any “public interest” being present in the instant matter at all. Moreover, as already explained, admission of the present litigation will lead to more public harm than good; the instant litigation if allowed will go against public order, morality and health, which are reasonable restrictions on Fundamental Rights laid down by the Findian Constitution.35 Hence, by virtue of this fact also, this PIL is not maintainable, in the Respondent’s considered view. 2. Whether The Sections 8(c) & 27 of the NDPS Act, 1985 Suffer From Any Constitutional Infirmities And Are Therefore Ultra Vires The Constitution of Findia? The Respondent submit with utmost reverence before this Hon’ble Court that S. 8 (c) and S. 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 are intra vires the Findian 30 Naresh Shridhar Mirajkar & Ors. v. State Of Maharashtra, AIR (1967) SC 1. 31Tilokchand Motichand & Ors. v. H.B. Munshi & Anr., AIR (1979) SC 898. 32 S. 8 (c), S. 27 and S. 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985. 33 The State of Gujarat & Anr., v. Shri Ambica Mills Ltd., AIR (1974) SC 1300. 34 Hari Bansh Lal v. Sahodar Prasad Mahto & Ors.,(2010) 9 SCC 655. 35 T.M.A .Pai Foundation and Ors. v. State Of Karnataka and Ors, AIR 2003 SC 355. THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 21 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS Constitution and do not suffer from any Constitutional infirmities as they do not violate any of the Fundamental Rights vested in Part III of the Findian Constitution. 2.1. Art 14 is not breached (a) The Constitution of Findia envisages the Right to Equality.36 Article 14 has in itself two limbs, “equality before law37” and “equal protection of law38. The guaranty of the equal protection of the laws means “the protection of equal laws39”. It forbids class legislation, but does not forbid classification which rests upon reasonable grounds of distinction40. It does not prohibit legislation, which is limited either in the objects to which it is directed or by the territory within which it is to operate.41 It merely requires that all persons subjected to such legislation shall be treated alike under like circumstances and conditions both in the privileges conferred and in the liabilities imposed.42 (b) The Learned Counsel for the Petitioner may contend that Art 14 stands violated in the instant classification of drugs, wherein consumption and selling of drugs is made a penal offence by virtue of the “impugned provisions”43. However, the Respondents most reverently submit that there is a presence of “intelligible differentia44” and “rationale nexus to the object of the Act45” by virtue of this classification. Therefore, this classification of “narcotic drugs” alone will amount to “reasonable classification46”, thereby falling within the scope of Art 14. (c) It is a proven fact that violence increases as a repercussion of people consuming drugs, it in fact increases manifold that it contributes as a factor to terrorism also47. The United Nations Office on Drugs and Crimes has presented a detailed report and analysis as to how the inflow of illicit drugs and its usage contributes to organized crime and terrorism in a country.48 “We need to integrate our work to build up more effective and efficient networks 36 Art 14 to 18 of the Findian Constitution. 37 The State of West Bengal V. Anwar All Sarkarhabib Mohamed, [1952] INSC 1 38 Chiranjit Lal v. Union of India. (1950) S.C.R.869 39 Roy Romer, Governor of Colorado. v. Richard G. Evans, 517 U.S. 620. 40 National Legal Services Authority v. Union of India, AIR 2014 SC 1863 41 M/S Swastik Gases P.Ltd vs Indian Oil Corp.Ltd, [2013] 7 S.C.R. 581 42 Kedar Nath Bajoria And Anr v. The State Of West Bengal , AIR 1954 SC 660 43 S. 8 (c) and S. 27 of the Narcotic Drugs and Psychotropic Substances Act, 1985 44 Dr.Subramanian Swamy v. Director, Cbi & Anr, WRIT PETITION (CIVIL) NO. 21 OF 2004 45 Vivian Joseh Ferreira & Anr vs Municipal Corporation, 1972 SCR (2) 257 46 State Of Andhra Pradesh & Anr vs Nalla Raja Reddy & Ors, 1967 SCR (3) 28 47 https://www.un.org/press/en/2018/gashc4228.doc.htm 48 https://www.unodc.org/unodc/en/frontpage/drug-trafficking-and-the-financing-of-terrorism.html THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 22 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS so that we may defeat these illegitimate networks that perpetuate so much destruction throughout the world” was the conclusion that was propounded and communicated to the world community at the end of this report.49 It is a well-established fact, worldwide that that the money from the sale of drugs is directed towards financing of terrorism and other sectors in organized crimes.50 (d) Therefore, it is the humble submission of the Respondents that the decriminalizing and further allowance of consumption and sale of drugs will contribute it to being an issue of national security and national concern. National security and national concern is a said exception for all fundamental rights guaranteed under Part III of the Findian Constitution51. Therefore, the intent of the Legislation is catogerzing drugs as a separate class is satiated as it becomes a matter of “national security” and therefore, falls under “reasonable classification”, in the humble submission of the Respondents. 2.2. Art 19 (1) (g) is not breached (a) The Narcotic Drugs and Psychotropic Substances Act, 198552 imposes a blanket ban on the sale of narcotic drugs and psychotropic substances. However, the Respondents submit that this will not amount to being a violation of Art 19 (1) (g) of the Findian Constitution. (b) Art 19 (1) (g) of the Findian Constitution guarantees the freedom to practice any profession, trade or occupation. However, Art 19 (2) of the same Article imposes “reasonable restrictions” on this particular right. The interests of the sovereignty and integrity of Findia53, the security of the State54, friendly relations with foreign States, public order55, decency or morality56 or in relation to contempt of court, defamation or incitement to an offence57 have been laid down as “reasonable restrictions” that can be levied on the “freedom to practice of any profession or business. (c) As submitted earlier, drugs, its consumption, use and sale becomes a subject matter of national security concern, which is a clear exception to the freedom granted under Art 19 (1) 49 Ibid 50 https://www.govinfo.gov/content/pkg/CHRG-107shrg85660/html/CHRG-107shrg85660.htm 51 Kamleshkumar Ishwardas Patel vs. Union of India & Ors. [(1995) 4 SCC 51] 52 S. 8 (c) of the Narcotic Drugs and Psychotropic Substances Act, 1985 53 State Of Andhra Pradesh vs Challa Ramkrishna Reddy & Ors, (2000) 5 SCC 2 54 A. K. Roy vs Union Of India And Anr, 1982 SCR (2) 272 55 Piyush Kantilal Mehta v. Commissioner Of Police, 1988 SCR Supl. (3)1081 56 Ranjit D. Udeshi v. State Of Maharashtra, 1965 SCR (1) 65 57 Art 19 (2) of the Findian Constitution THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 25 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS abuse of Narcotic Drugs and Psychotropic Substances and the menace of illicit traffic therein.66 3.2. Constitutional Validity of S. 35 (a) It is the humble submission of the Petitioners that S. 35 of the Narcotic Drugs and Psychotropic Substances Act, 1985 is intra vires the Findian Constitution as it does not violate Art 21 or Art 14 or any other fundamental right guaranteed by Part III of the Findian Constitution. 3.2.1. Art 21 is not violated (a) Art. 21 of the Findian Constitution guarantees right to life and personal liberty of person, unless through a procedure established by law. The presumption of innocence means that a suspect is supposed innocent when the interrogation begins and will not be convicted unless there is proof to prove his guilt.67 It is the fundamental principle of Criminal Jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law.68 (b) Presumption of innocence is also a basic human right as envisaged under the International Covenant on Civil and Political Rights69. It, however, cannot per se be equated with the fundamental right and liberty adumbrated in Article 21 of the Constitution of Findia.70 The constitutionality of a penal provision placing burden of proof on an accused, thus, must be tested on the anvil of the State's responsibility to protect innocent citizens.71 The court must assess the importance of the right being limited to our society and this must be weighed against the purpose of the limitation. The purpose of the limitation is the reason for the law or conduct which limits the right.72 (c) It must, however, be borne in mind that the Act was enacted having regard to the mandate contained in International Conventions on Narcotic Drugs and Psychotropic Substances. Only because the burden of proof under certain circumstances is placed on the accused, the same, 66 Raj Kumar v. UOI AIR 1991 45 67Law Commission, Article 20(3) of the Constitution and the right to Silence,(law Commission No. 180) 68Dhanapal & Ors vs State By Public Prosecutor, 1985 (1) MLJ (Crl) 207 69 Article 14(2) of the International Covenant on Civil and Political Rights 70 Noor Aga vs State Of Punjab &Anr, (2008) 16 SCC 417 71Ibid 72 Dlamini; S v. Dladla and others 1999(7) BCLR 771 THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 26 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS by itself, in our opinion, would not render the impugned provisions unconstitutional.73 Section 35 of the NDPS Act74 provides for presumption of culpable mental state. It also provides that an accused may prove that he had no such mental state with respect to the act charged as an offence under the prosecution. 3.2.2. International Jurisprudence (a) The European Court of Human Rights75 while dealing with the scope of Article 11 of Universal Declaration of Human Rights, the scope of the burden of proof on the prosecution and also its placement on the accused, held that presumption of fact or of law operate in every legal system. Clearly, the Covenant on Civil and Political rights does not prohibit such presumption in principle. (b) It does, however, require the contracting states to remain within certain limits in this respect as regards criminal law. It was therefore held that providing exceptions or to place partial burden on the accused was not violative of the Universal Declaration of Human Rights or the International Covenant on Civil and Political Rights. 3.2.3. Parlance to other Statutes that Shift the Burden of Proof (a) Quite similar to the Narcotic Drugs and Psychotropic Substances Act, 1985, the Prevention of Corruption Act, 1988 also shifts the burden of proof on the accused76. The Supreme Court affirmed and ascertained that this provision is constitutionally valid, by justifying that a statute placing the burden on the accused cannot be regarded as unreasonable, unjust or unfair nor can it be regarded as contrary to Article 21 of the Constitution as contended for the Appellant77. (b) Sections 35 of the Act, no doubt, raise presumptions with regard to the culpable mental state on the part of the accused as also place burden of proof in this behalf on the accused; but a bare perusal the said provision would clearly show that presumption would operate in the trial of the accused only in the event the circumstances contained therein are fully satisfied78. 73Noor Aga vs State Of Punjab &Anr, [(2008) 16 SCC 417] 74S. 35.of the Narcotic Drugs and Psychotropic Substances Act, 1985 75 Salabiaku v. Grance [1988] 13 ECHRR 379 at 388 76 S. 5 (1) (e) and S. 5 (3) of the Prevention of Corruption Act, 1988 77 K. Veeraswamy v. Union of India, [1991] Insc 164 78 Narcotics Control Bureau v. Sukh Dev Raj Sodhi (2011) 6 SCC 392 THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 27 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS This Hon’ble Court has time and again reiterated that an initial burden exists upon the prosecution and only when it stands satisfied, the legal burden would shift79. (c) Even then, the standard of proof required for the accused to prove his innocence is not as high as that of the Prosecution. Whereas the standard of proof required for proving the guilt of accused on the prosecution is "beyond all reasonable doubt" but it is `preponderance of probability' on the accused80. If the Prosecution fails to prove the foundational facts so as to attract the rigours of S.35 of the Act, the actus reus which is in possession of contraband by the accused cannot be said to have been established.81 (d) It is a clear fact that the burden of proof shifts on the side of accused only when the prosecution has established certain basic facts82. So, the Respondents submit that this provision is not arbitrary or draconian as it gives equal chance to the accused to prove himself as innocent and the initial burden lies on the Prosecution83. (e) It is humbly contended that all the accused are treated as a class84 and there is reasonable nexus between the offence created and the case to be dealt with the procedure, presumption and burden of proof placed on the accused, this is not unjust, unfair or unreasonable as to offending Articles 21 and 14. It also does not violate Article 20(3).85 So it is explicit that this doesn’t violate Art. 21 of the Findian Constitution as this is made in order to curb the illegal activities which will affect the public order. 3.3. Article 14 is not violated (a) It is humbly submitted before this Hon’ble Court that the Right to Equality, vested under Art 14 is not violated due to this Act. The Right to Equality is regarded as one of the corner- stones of Indian democracy,86 and the ‘fon juris’ of our Constitution.87 Art. 14 has in itself two concepts: ‘equality before law’ and ‘equal protection before law.’ The first is a negative concept which ensures that there is no special privilege for a particular person and none is above the law. The latter is positive in content, and postulates the application of the same 79 Hanif Khan @ Annu Khan v. Central Bureau Of Narcotics, Criminal Appeal No(s). 1206 of 2013 80 Anil Verma v. Harish Kumar, Cr. Appeal No.453 of 2018 81 Abdul Rashid vs. State of Gujarat [AIR 2000 SC 821] 82 Rohit bhai J Patel v. The State of Gujarat, CRIMINAL APPEAL NO. 508 OF 2019 83 Bir Singh v. Mukesh Kumar, CRIMINAL APPEAL NOS.230-231 OF 2019 84 Jagdish Negi v. State Of U.P. And Anr, (1997 (7) SCC 203) 85 P.N. Krishna Lal v. Govt. of Kerala, 1995 Supp (2) SCC 187,( ¶ 53) 86Indra Sawhney v. Union of India, AIR 1993 SC 477. 87Smt. SunitaBugga v. Director Of Education And Others 2010 (7) AD (Del) 727 THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 30 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS (c) The legislature, out of necessity, has large powers of selection or classification of persons and things to deal with the different problems arising out of an infinite variety of human relations.105 It is a settled principle of law that “so long as classification could withstand the test of Art. 14, the same couldn’t be questioned as to why one subject was included and other left out and why one was given more benefit than the other,106” thereby supporting the Respondents claim in the instant matter. 3.4.3. Direct Rationale Nexus to the Object of the Act (a) When a law is challenged as offending against the guarantee in Art.14, the first duty of the court is to examine the purpose and policy of the Act and then to discover whether the classification made by the law has a reasonable relation to the object which the legislature seeks to obtain.107 The reasonableness is to be judged with reference to the object of the legislation and not moral consideration.108 (b) Narcotic Drugs and Psychotropic Substances Act, 1985 was enacted to make stringent provisions for the control and regulation of operations relating to narcotic drugs and psychotropic substances109. The object of the act points out that an urgent need was felt for the enactment of a comprehensive legislation on narcotic drugs and psychotropic substances, which, inter--alia, should consolidate and amend the existing laws relating to narcotic drugs, strengthen the existing controls over drug abuses, considerably enhance the penalties particularly for trafficking offences, make provisions for exercising effective control over psychotropic substances.110 (c) The anguish of the Supreme Court of India was expressed in case Durand Didier v. Chief Secretary, Union Territory of Goa,111 wherein the Apex Court held that “With deep concern, we may point out that the organised activities of the underworld and the clandestine smuggling of Narcotic drugs and Psychotropic substances into this country and illegal trafficking in such drugs and substances have led to drug addiction among a sizable section of the public, particularly the adolescents and students of both sexes and the menace has 105Ameeroonissa v. Mahboob, AIR 1953 SC 951 106 Omblika Das v. Husila Shaw AIR 2002 SC 1685 107Kedar Nath Bajoria v. State of W.B., AIR 1953 SC 404 108Ashok Leyland Ltd. V. Union of India, (1997) 9 SCC 10 (para 20) 109 Preamble of the Narcotic Drugs and Psychotropic Substances Act, 1985 110Law Commission, One Hundred and Fifty Five, the Narcotic Drugs and Psychotropic Substance. 111Durand Didier v. Chief Secretary, Union Territory of Goa 1989 AIR (1966) THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 31 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS assumed serious and alarming pro- portions in the recent years. Therefore, in order to effectively control and eradicate this proliferating and booming devastating menace, causing deleterious effects and deadly impact on the society as a whole, the Parliament in its wisdom, has made effective provisions by introducing this Act 1981 of 1985 specifying mandatory minimum imprisonment and fine.” (d) Drug addiction has become one of the curses of our times, a menace which threatens public health and results in the dissolution of human personality, promoting conditions for various forms of human degradation, whose consequences spread to crime and lawlessness.112 So, in order to curb such illegal activities, stringent rules are made, and that is the very reason why burden of proof is on the accused. This clearly establishes that the classification was made in order to achieve the object of the legislation. (e) A procedure different from that laid down by the ordinary law can be prescribed for a particular class of persons if the discrimination is based upon a reasonable classification113 having regard to the objective which the legislation has in view and the policy underlying it.114It is a reasonable classification to sub serves the social good115, in the considered view of the Respondents and thereby does not violate the Findian Constitution. 3.5.Test of Arbitrariness 3.5.1THIS ACT AND ITS PROVISIONS ARE NOT ARBITRARY (a) The expression ‘arbitrarily’ means: in an unreasonable manner, as fixed or done capriciously or at pleasure, without adequate determining principle, not founded in the nature of things, non-rational, not done or acting according to reason or judgment, depending on the will alone.116 (b) An Act of Legislature or its provisions cannot be struck down merely by saying that it is arbitrary.117 The burden of showing that a classification rests upon an arbitrary and not 112Law Commission, One Hundred and Fifty Five, the Narcotic Drugs and Psychotropic Substance. 113Kewalsingh v. Lajwanti, AIR 1980 SC 161 114Chandra Bhawan Boarding and Lodging v. State of Mysore, AIR 1970 SC 2042 115 State Of Kerala & Anr v. N. M. Thomas & Ors, 1976 SCR (1) 906 116Sharma Transport v. Government of A.P(2002) 2 SCC 188. 117State of Bihar v. Bihar Distillery Ltd., (1997) 2 SCC 453 (para 22) THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 32 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS reasonable basis118 or the discrimination is apparent and manifest119 is upon the person who impeaches the law as a violation of the guarantee of equal protection.120 In the case of State of A.P. v. McDowell,121 Reddy J, on behalf of a three-judge bench of the Supreme Court, laid down that “no enactment or provision can be struck down by just saying that it is arbitrary or unreasonable. Some or other constitutional infirmity has to be found before invalidating an Act. (c) It is clear that courts in this country do not undertake the task of declaring a piece of Legislation or its provisions as unconstitutional on the ground that the legislation is “arbitrary” since such an exercise implies a value judgment and courts do not examine the wisdom of legislative choices unless the legislation is otherwise violative of some specific provision of the Constitution.122 (d) The allegation must be specific, clear and unambiguous123 and must give particulars.124 Throwing out vague hints that there may be other instances of like nature which the impugned legislation has left out, is not enough; such instances must be specified125 and it must be proved that the selection by the legislature has been arbitrary,126 and has no relation to the object to be achieved by the statue.127 (e) In the instant Act, S. 35 does not violate any of the fundamental rights guaranteed under the Findian Constitution. It is submitted that the Learned Counsel arguing on behalf of the Petitioner has not satisfactorily established that the Act is arbitrary or that it violates the any of the Constitutional Guarantees under Part III. So, merely based on an apprehension that these provisions may be arbitrary, it is submitted that this provision, which is of significant importance to the Act, per se cannot be read down by this Hon’ble Court. 118State of U.P v. Kartar Singh, AIR 1964 SC 1135; Ajay Kumar Mukherjee v. Local Board of Barpeta, AIR 1965 SC 1561; East India Tobacco Ltd. V. State of A.P., AIR 1962 SC 1733 119Parayankandiyal Erkavath Kanapravan Kalliani Amma v. K. Devi, (1996) 4 SCC 76 (para 67) 120Harnam Singh v. R.T.A., 1954 SCR 371; Syed Md. V. State of Andhra, 1954 SCR 1117 121State of A.P. v. McDowell (1996) 3 SCC 709 122Rajbala & Ors vs State Of Haryana & Ors 2016 SCC OnLine SC 1260 123V.S. Rice and Oil Mills v. State of A.P., AIR 1964 SC 1781; Cochin Devaswom Bd. V. VamanaSetti, AIR 1966 SC 1980; RamnathVerma v. State of Rajasthan , AIR 1967 SC 603 ; Prabu Das MorarjeeRajkotia v. Union of India, AIR 1966 SC 1044 124Cochin Devaswom Bd. V. VamanaSetti, AIR 1966 SC 125Board of Trustees v. State of Delhi, AIR 1962 SC 458 126Ameeroonissa Begum v. Mahboob begum, 1953 SCR 404 (417): Harnam Singh v. R.T.A, 1954 SCR 371, Prabu das Morarjee Rajkotia v. Union of India, AIR 1966 SC 1044, Board of trustees v. State of Delhi, AIR 1962 SC 458(471) 127 V.S. Rice and Oil Mills v. State of A.P., AIR 1964 SC 1781 THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 35 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS differences between what are religious and what is Secular nature is to be adjudicated by Judicial Balancing.142 The individual rights under Article 25 would prevail over anything, which is not essential to the religion. (f) In the factual matrix of the present case, for the consumption of drugs to be shielded by Art 25 of the Findian Constitution, it is pressing to prove that it is an “essential religious practice” of that particular religion which constitutes the fulcrum of the religion and the religion fails to exist without this practice.143 4.1.1. THE TRANSFORMATION FROM “ESSENTIALLY RELIGIOUS” TO “ESSENTIAL TO THE RELIGION” (a). It is the contention of the Respondents that for any practice to be tested whether or not Essential, has to be “Essential to the Religion”. This shift144 here, from determining whether it is Essential went from qualifying the nature of the practice (whether religious or secular) to qualifying its importance (within the Religion) i.e. if the practice is essentially religious to the religion. (b) This significant Transformation has expanded the scope of Court in determining the questions intended to Religion. This test was further affirmed by the Supreme Court where the court upheld the Law prohibiting Cow Slaughter.145 Thus the two distinct tests to determine whether any practice is protected by virtue of Article 25 are: Is the Practice of a Religious or Secular nature? (Or) Is it Essential to the Religion? (c) For the same reasons, the test of “Essentially Religious” as laid in Shirur Mutt146 creates two propositions in tension with one another, that the Religious freedom clause extends to practice and conduct; and what practice or conduct was protected was to be judged from the internal stand point of the Religion itself. This along with the words of Dr. Ambedkar in the Constitution Assembly Debates has transformed the said test from “Essentially Religious” to “essential to the religion”, which was further tread as one test in the Obiter of Justice 142 Jared.A. Goldstien, Is There a "Religious Question" Doctrine? Judicial Authority to Examine Religious Practices and Beliefs, Catholic University Law Review , Volume 54 Issue 2 Winter 2005. 143 Page 6, Moot Court Proposition. 144Ram Prasad Seth Vs. State of Uttar Pradesh. AIR 1957 ALL 411 para 12, relying on State of Bombay Vs. Narasu Appa Mali, AIR 1952 Bom. 84 145 Mohd. Hanif Qureshi Vs. State of Bihar 1959 SCR 629, ¶ 13 146 The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar of Shirur Mutt, AIR 1954 SC 282 THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 36 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS Gajendragadkar in deciding the Constitutionality of an Act stipulating control over the managing committee of a Muslim Durgah147 (d) Thus, the settled proposition is a combination of two distinct tests i.e. religious/secular and essential/inessential into a single one. With respect to the first step, the question must be whether the said practice is to be viewed from the internal point of view i.e the community’s determination of the scope of what constitutes religion, while determining the question by Judicial fiat148. (e) The Court in Durgah Committee149 for the first time, distinguished between “Superstitious beliefs” and “religious practice.” The Court apart from engaging in Judicial Enquiry to determine whether a practice claimed to be essential was in fact grounded in Religious Scriptures, beliefs and tenets, the Court would “Carefully Scrutinize” that the practice claiming constitutional protection does not claims Superstition as its base. This was considered necessary safeguard to ensure that superstitious beliefs would not be afforded constitutional protection in the grab of an essential religious practice. Thus, matters which are purely Secular clothed with a religious form, do not enjoy protection as an essential part of Religion. (f) The test was further narrowed down in Saifuddin150, where by 4:1 majority, the court struck down the Bombay Prevention of Excommunication Act, 1949, which prohibited Excommunication within Religious Communities. The strong Dissent of Justice Sinha151, who opined that the Excommunication was not wholly a Religious nature, but to be associated with the Civil Rights of the members of the Community, has a far-reaching consequence. Further, the consequences that follow excommunication were noted in the dissent by the Hon’ble Judge.152 (g) Given this well settled legal position, in the instant matter, to accord to protection under Art 25 of the Findian Constitition, the interpretations of this Hon’ble Court have made it evident that it is not enough if it is proven to be an “essentially religious practice”, but it should be a practice that is “essential to the religion”. With regard to drug usage and 147 Dargah Committee vs. Syed Hussain Ali , AIR 1961 SC 1402 ¶ 33 148 Ratilal Panachand Gandhi Vs. State Of Bombay (1954) SCR 1055 149 Dargah Committee vs. Syed Hussain Ali , AIR 1961 SC 1402 150 Sardar Syadna Taher Saifuddin Saheb v. The State of Bombay 1962 AIR 853 151 Para 11 152 Sardar Syadna Taher Saifuddin Saheb v. The State of Bombay 1962 AIR 853 THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 37 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS consumption of drugs, no particular religion regards it as a hinge of the religion, and so fundamental that the religion ceases to exist sans this practice. (h) Most of the religions view regular consumption of drugs as a sin and as a practice that is highly condemned and derogatory to one’s health. Religions uphold strict values against practises like usage of alcohol and consumption of drugs and hence the Respondent humbly submits there is no way that this practice will constitute the fundamentals of any religion, and therefore, cannot be regarded as an “essential religious practice” that is protected vides Art 25 of the Findian Constitution. 4.1.2. ESSENTIALITY OF A PRACTICE HAS TO BE DETERMINED BY THE COURTS. (a). The Respondents contend that, assuming but not conceding to the contention of the Petitioner that the impugned practice is one Essential, the said practice has to be tested for Judicial Scrutiny by this Hon’ble Court. In Tilkayat153 case, the Court while determining the Constitutional validity of Nathdwara Temple Act 1959, underlined why the claims of any community regarding their religious practices could not be accepted without scrutiny. (b) For the same reasons, the Respondent submits that, blind application of Shirur Mutt154 formula cannot be applied to cases because, persons within a community have diverse and contrasting conceptions of what is essential to their religion. Thus, it is this Hon’ble Court which has the power to determine not only whether a practice is religious in character, but also whether it could be considered an essential part of Religion. In a given case, it is for the court to decide whether apart practise is an essential part or practise of a given religion.155 (c) Thus, from determining what is essential to religion would be determined by the “adherents to the faith”, the Court moved towards a doctrine that what is essential “will always have to be determined by the Court.” In this regard, the Respondents also contend that, the Court must determine, whether a statute seeks to regulate what is “essentially and absolutely secular.” Both these boundaries are subject to adjudication by the Court.156 153 Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638 ¶ 57 154 The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Swamiar of Shirur Mutt, AIR 1954 SC 282 155 Commissioner of Police Vs. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770, 782-83 (¶ 9 and 11); Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638 156 Commissioner of Police Vs. Acharya Jagadishwarananda Avadhuta, (2004) 12 SCC 770, 782-83 (¶ 9 and 11); Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, AIR 1963 SC 1638 THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 40 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS The very intent of the Legislature behind enacting the Narcotic Drugs and Psychotropic Substances Act, 1985171 was to bring about stringent regulations on the usage of drugs so as to reduce violence in the community. This, prima facie, proves the contention of the Respondent that increased usage of drugs leads to increased violence and anti-national crimes in the society. THEREFORE, the Respondents most humbly submit that the legalizing of the usage of drugs by using Art 25 of the Findian Constitution is not possible as it is barred by the Reasonable Restrictions of “public order, morality and health” laid down in the article itself. 4.3.TEST OF RELIGIOUS DENOMINATION (a) For any group of people to dictate their own religious practices, they should be protected vide Art 26 of the Findian Constitution that gives the right to religious denominations to profess and practice religion in their own way, subject to certain restrictions. Now, the question is what constitutes a “religious denomination”. This question is not res intergra and there are judicial interpretations explaining the same. (b) It is humbly presented before this Supreme Court, that a denomination is a “collection of individuals classed together under the same name”172. Further it is pertinent to note that the nature of "religious denomination" must take their colour from the word 'religion' and if this be so, the expression "religious denomination" must also satisfy two conditions which in the instant case are not met with as under173: (c) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well-being, that is, a common faith174: In the factual matrix of the instant case, the group is a “cult175”, which is defined as a “religious veneration that has devotion directed towards a particular object”.176 Therefore, if the practice of drug usage is to be regarded as ‘essential to the religion’, then drug usage per se, should be completely allowed in all tenets, but as proved earlier, it is contravening the ethos of the constitution and is condemned by the religions itself, therefore, not being in accordance to the 170 Smt. Angoori Devi For Ram Ratan vs Union Of India & Ors, 1989 AIR 371 171 Preamble of the Narcotic Drugs and Psychotropic Substances Act, 1985 172 Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, 1954 AIR 282, (1954). 173 S.P Mittal v. Union of India, 1983 SCR (1) 729, (1983) 174 N. Adithayan v. Travancore Devaswom Board and others, (2002) 8 SCC 106. 175 Page 4, Moot Court Proposition. 176 https://en.oxforddictionaries.com/ THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 41 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS well- recognized constitutional and religious principles. It is further essential to note that There cannot be additions or subtractions to such part, which is not true in the present case.177 (d) Common organization – It is essential to note that there is no separate organization of the tenets of the religion, Designations by a distinctive name. Considering that a "denomination"178 collection of individuals classed together under the same name, the “cult” in the instant case, will not fall under this category. In furtherance, the Courts179 hold a Religious Denomination180 to be one in which the sects or sub-sects can certainly be balled out distinctly181, in the present factual matrix, there is no common organization also as a “cult” cannot be legally recognized as a common organization. Hence, it is crystalline that this cult will not amount to being a religious denomination that can dictate its own norms of practice and avail the right under Art 26 of the Findian Constitution. (e) Therefore, it is the reverent submission of the Respondent that viewed from any angle, the consumption and usage of drugs will not be shielded by Art 25 of the Findian Constituion as it is not an essential religious practice and is infact a practice condemned by religions itself. Further, it is also violating of the “health factor” that stands as a restriction to avail any protection under Art 25. Moreover, it is also submitted that the cult headed by one, Kishu Rado182 will not amount to being a “religious denomination” as it does not satiate the essentials of the same and cannot exercise any right183 of dictating its own norms of religion. 177 N. Adithayan v. Travancore Devaswom Board and others, (2002) 8 SCC 106. 178 https://en.oxforddictionaries.com/ 179 Sardar Syedna Taher Saifuddin Saheb v. State of Bombay [1962] Suppl. 2 SCR 496. 180 Raja Bira Kishore Deb v. State of Orissa(1964) 7 SCR 32, Shastri Yagnapurushadiji and others v. Muldas Bhundardas Vaishya and another (1966) 3 SCR 242 : AIR 1966 SC 1119. 181 Commr., Hindu Religious Endowments v. Shirur Mutt AIR 1954 SC 282. 182 Page 4, Moot Court Proposition. 183 Art 26 of the Findian Constitution. THE 7TH ANNUAL ADV. B. P. APTE MEMORIAL MOCK TRIAL, MOOT COURT & JUDGEMENT WRITING COMPETITION, 2019. Page 42 of 42 WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS PRAYER WHEREFORE, in the lights of the issues raised, arguments advanced and authorities cited it is most humbly and respectfully prayed before this Hon’ble Court that it may be pleased to adjudge and declare that: • The present petition is devoid of all merits and to dismiss the same. AND/OR pass any other order/orders as this Hon’ble Court deems fit and proper in the circumstances of the given case and in the light of Justice, Equity and Good Conscience and thus renders justice. The Counsel pleads this Hon’ble Court to bind “Sacramentum habet in se tres comites, veritatem, justitiam et judicium veritas habenda est in jurato, justitia et judicium in judice” And for this act of kindness and justice the RESPONDENT shall be duty bound and forever pray All of which is submitted with utmost reverence Place: ________ ,Findia S/d_____________ Date: September 2019 COUNSEL FOR THE RESPONDENTS