BEFORE THE HON’BLE HIGH COURT OF DELHI

PETITION FILED UNDER ARTICLE 226, 227 OF THE CONSTITUTION OF I

STARK INDUSTRIES ,

KUKOO AND OTHRS ….Petitioner 1

Vs.
UNION OF INDIASTAR …Respondent 1
PETITION NO. __________/2018
.

Most Respectfully Submitted to the Hon’bleJustice Hashish Kumar& Justice

chachi of the High Court of DELHI

MEMORIAL FILED ON BEHALF OF THE RESPONDENTS

FRESHERS POOL SELECTION 2018-19

NATIONAL LAW INSTITUTE UNIVERSITY, BHOPAL

 TABLE OF CONTENTS

INDEX OF AUTHORITIES..................................................................................................................ii
STATEMENT OF JURISDICTION.................................................................................................... iii
ISSUES RAISED .................................................................................................................................. iv
STATEMENT OF FACTS .................................................................................................................... v
SUMMARY OF ARGUMENTS ........................................................................................................... v
ARGUMENTS ADVANCED ............................................................................................................... 1
I. WHETHER THE PETITION FOR ANTICIPATORY BAIL IS MAINTAINABLE BEFORE
THE HIGH COURT? ......................................................................................................................... 1
A. THAT BYPASSING THE STATUTORY PROVISION SHOULDN’T BE ALLOWED .... 1
B. THAT THE POWER UNER THE ARTICLE 226 OF THE CONSTITUION CAN BE
INVOKED ONLY IN RARE AND EXCEPTIONAL CASES. .................................................... 1
C. THAT THE PETITIONER WOULD NOT BE DEPRIVED OF ANY OF HIS
SACROSANCT RIGHTS. ............................................................................................................. 2
II. WHETHER THERE HAS BEEN AN A) ATTEMPT AND B) ABETMENT OF SUICIDE IN
THE INSTANT MATTER? ............................................................................................................... 2
A. THAT THERE HAS BEEN AN ATTEMPT TO COMMIT SUICIDE. ................................ 2
A. THAT THERE HAS BEEN AN ABETMENT TO SUICIDE BY MAULVI DUKHYAM
DAROYA. ...................................................................................................................................... 4
III. WHETHER PRACTICES OBSERVED DURING SHOHARMAN VIOLATE PUBLIC
SAFETY? ................................................................................................ Error! Bookmark not defined.
A. Defining “PUBLIC SAFETY” ..................................................... Error! Bookmark not defined.
B. THAT THE PRACTICE IS IN FURTHERANCE OF THE RIGHT TO RELIGION
GAURANTEED UNDER THE CONSTITUTION. ........................... Error! Bookmark not defined.
C. THAT THE BREACH OF PUBLIC SAFETY AT THE COMMUNITY AND SOCIETY
LEVEL CANNOT BE PROVED. ....................................................... Error! Bookmark not defined.
D. DISTINGUISHING THE CASE OF Commissioner of Police and Ors.v.
AcharyJagadishwarananda Avadhuta and Anr. .................................. Error! Bookmark not defined.
PRAYER FOR RELIEF ......................................................................................................................vii
 INDEX OF AUTHORITIES

Cases

Sh jogendrasinghji , vijaysinghji v state of gujrat and ors.

umaji keshao meshram and ors vs Radhikabai W/O Anandrao1986 AIR 1272 ............................. 2
Berin P. Varghese v. State of Kerela 2008 Cri LJ 1759 ........................................................................ 4
Chitresh Kumar Chopra v. State (Government of NCT of Delhi) (2009) 16 SCC 605 ......................... 6
Commissioner of Police and Ors.v. Achary Jagadishwarananda Avadhuta and Anr. AIR 1990 Cal
336.......................................................................................................................................................... 8
Dr. Ram Manohar Lohia v. state of Bihar AIR 1966 SC 740................................................................ 7
Gangula Mohan Reddy v. State of Andhra PradeshAIR 2010 SC 327 ................................................. 5
Kartar Singh v. State of Punjab(1994) 3 SCC 569. ............................................................................... 1
Ratilal Panachand Gandhi v. State of Bombay AIR 1954 SC 388 ........................................................ 7
Sharad Birdhichand Sarda v. State of Maharashtra AIR 1984 SC 1622 ............................................... 3
Smt. Amarawati and Ors. v. State of U.P(2005) Cri.L.J. 755................................................................ 1
Superintendent, Central Prison v. Ram Manohar Lohia AIR 1960 SC 633 .......................................... 7
Books

Mahendra Pal Singh, V.N. SHUKLA’S CONSTITUTION OF INDIA, at 114 (12th ed., 2016) ...................... 7
 STATEMENT OF JURISDICTION

The petitioner has approached the Hon’ble High Court of DELHI Uunder the Article 226
which reads as under:

226. POWER OF HIGH COURTS TO ISSUE CERTAIN WRITS

(1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout
the territories in relation to which it exercise jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories
directions, orders or writs, including writs in the nature of habeas corpus, mandamus,
prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the
rights conferred by Part III and for any other purpose

(2) The power conferred by clause ( 1 ) to issue directions, orders or writs to any
Government, authority or person may also be exercised by any High Court exercising
jurisdiction in relation to the territories within which the cause of action, wholly or in part,
arises for the exercise of such power, notwithstanding that the seat of such Government or
authority or the residence of such person is not within those territories

Article 139 of The Constitution of India

CLUBBING OF TWO CASES

IF the Grivances of the petition are co-associated with one another the Hon’ble Chief justice of
High court will allow the case to a single judge to take up 2 distint matters under 2 different Laws
along administration of justice.

TRANSFER OF CERTAIN CASES TO THE HIGHER BEANCH OF HIGH COURT

If the High Court is satisfied that a case in which the petition has been rejected the
petitioner has the right to file letter patent appeal in front of the higher beanch

Patent appeal i.e Patents Appeal in the state.Letter patents Appeal (LPA) is an appeal from
a decision of a single judge to another bench of the same court. It was a remedy provided
when high courts were first created in india by Letters Patent in 1865

THE RESPONDENTS PLEAD THAT THE PRESENT PETITION IS MAINTAINABLE

 ISSUES RAISED

The Delhi High Court has framed the following issues:

1 Weather the patent letter patent appeal is maintainable?

2 Weather the “DISCLOUSER REQUIRMENT OF TECHNOLOGY IS” IS
constitutional ?
3 Weather the hacking of mobiles of stark industries leads to breach of privacy of the
company and it’s customer /
 STATEMENT OF FACTS

1 In the city named andreas on November 9th 2018 a blast took place in a university named bholemaal , where
the students were protesting against the administration , in the blast approximately four students died , when
the investigation took place ,The commissioner of mandori bureau identified three accused

2 After that the commissioner gaitonda confiscated theirs mobile phones . These phones were manufactured
by the stark industries which formed it’s customer base because of it’s privacy and confidality norms. The
commissioner asked the sl to let the force access the messages of accused , but Sl did’nt agree on that , later
Mr uddu thechie in charge of the force hacked the mobiles of the accused and got hold on all the messages
exchanged.

later stark industries filed a suit in delhi high court pleading that there was a breach of right to privacy of
stark industries as well as it’s customers.

Another case in vice city where Mr deekay the head of the accounts departments was beaten by a mob ,
later it was founded that the lynching took place because of the message circulated on social message app
“ kukoo” Which portrayed mr deekay as a serial child kidnapper . Later after the investigation mr deekay
was given a clear chit , later the app ovider come up with an new feature i.e ‘ kukoo ka jadoo which
disabled all sorts of hacking into the app the

Taking into consideration the above issues the government of india legislated a law named
“DISCLOUSER REQUIRMENT FOR TECHNOLOGY INTERMEDIARIES “ which instruct all mobile
manufactures and app providers to give real time access to the information for the interest of national
importance .

The kukoo app and others filed a suit challenging the constitutional validity of the act , due to high
percentage of cases being pending in the court t5hew court clubbed both athe cases .The single beanch
dismissed the petition saying that the” the present petition is frivolous “ against this all petitioner filed a
Letter patent appeal in front of divisional beanch of high court .
 I. WHETHER THE LETTER PATENT IS MAINTAINABLE OR NOT ?
A. Maintainability of letter patent appeal would depend upon the nature and character of order
passes b the single beanch ,
B. .It is the obligation of the divisional beanch to hear the issue and decide weather the
decision made is under the obligation of article 226 and 227 of the constitution .

C. The letter patent appeal is only maintainable under article 226 and not under article 227 of
. constitution .

II. WHETHER THE “ DISCLOSURE REQUIREMENT OF TECHNOLOGY

INTERMEDIARIES ACT 2018 ‘ IS UNCONSTITUTIONAL ?
A. The act was made considering the I fact of national importance
B. The act made is for the welfare of the people ?

III. WHETHER THE MOBILES HACKED OF STACK INDUSTRIES LEADS TO BREACH

OF PRIVACY OF CUSTUMER AND COMPANY ?
A. The mobile hacked were to find the culprit behind the blast
B. The bureaus/ police has an authority under regulatory and investigatory power act .
 ARGUMENTS ADVANCED

WHETHER THE LETTER PATENT IS MAINTAINABLE OR NOT BEFORE THE HIGH

COURT?

THAT BYPASSING THE STATUTORY PROVISION SHOULDN’T BE ALLOWED

a. There is a conscious withdrawal of the section 438 CrPC by the Legislature from the
Code of Criminal Procedure by Section 9 of the Criminal Procedure (Uttar Pradesh)
Amendment Act, 1976.The Constitution Bench of the Supreme Court in Kartar Singh v.
State of Punjab1 and the Court held that the deletion of the application of Section 438 in
the State of Uttar Pradesh by Section 9 of the above mentioned Amendment Act does not
offend either Article 14, Article 19 or Article 21 of the Constitution of India and the State
Legislature is competent to delete that section, which is one of the matters enumerated in
the concurrent list, and such a deletion is valid under Article 254(2) of the Constitution of
India.
b. There is a conscious withdrawal of Section 438 CrPC by the Legislature from the Code of
Criminal Procedure, by Section 9 of the Criminal Procedure (Uttar Pradesh) Amendment Act,
1976, the relief which otherwise the appellant could not have obtained under the Code, is sought
to be obtained indirectly by invoking the writ jurisdiction of the High Court, which is
impermissible in law. As it would amount to bypassing the provisions of the statute which would
amount to back door entry and defeat the very purpose for which the provision of anticipatory bail
was abrogated.

THAT THE POWER UNER THE ARTICLE 226 OF THE CONSTITUION CAN BE
INVOKED ONLY IN RARE AND EXCEPTIONAL CASES.

The High Court can in only rarest of rare cases grant pre-arrest bail while exercising powers
underArticle 226 of the Constitution of India. As per the Constitution Bench, in case of aSmt.
Amarawati and Ors. v. State of U.P.2, claim for pre-arrest protection is neither a statutory nor a right
 guaranteed under Article 14,Article 19 or Article 21 of the Constitution of India. Though it cannot be
said that the High Court has no jurisdiction to entertain an application for bail underArticle 226 of the
Constitution and pass orders either way, relating to the cases under the Act 1987, that power should be
exercised sparingly, that too only in rare and appropriate cases in extreme circumstances.3

THAT THE PETITIONER WOULD NOT BE DEPRIVED OF ANY OF HIS SACROSANCT

RIGHTS.

Since the appellant has no legal right to move for anticipatory bail and that practice is not an integral
part of Article 21 of the Constitution of India, it cannot be asserted by the accused person that he is
being deprived of any right which is necessarily needed to be restored to him, and the legislature
reserved the necessary power to abrogate his right of anticipatory bail by curtailing the provison.

The position would have been different in case of abridgement of the fundamental rights, but the
curtailment of the present right of the accused by the state legislature is intra vires and cannot be
challenged. The High Courts should refrain from exercising the extraordinary jurisdiction in
such matters. In the case of Balchand Jain v. State of M.P.4, the Supreme Court observed that
the discretion to grant bail in non- bailable offences remains with the Court and hence, it
cannot be claimed as a matter of right, but the aggrieved party can only seek a remedy and it
is on the discretion of the Court to grant it or not.

Thus, the present case is not maintainable in the High Court of the Allahabad.

WHETHER THERE HAS BEEN AN A) ATTEMPT AND B) ABETMENT OF SUICIDE IN

THE INSTANT MATTER?

A. THAT THERE HAS BEEN AN ATTEMPT TO COMMIT SUICIDE.

It is humbly submitted that suicide hasn’t been defined under the IPC as such, but under the
section 309 of IPC5, the two essentials are:
THERE SHOULD BE AN “ATTEMPT” TOWARDS COMMISSION OF SUICIDE.

a. There was an effort towards commission of suicide. Attempt according to the Black Law
Dictionary is defined as “An effort or endeavour to accomplish a crime, amounting to more
than mere preparation or planning for it, and which, if not prevented, would have resulted in
the full consummation of the act attempted, but which, in fact, does not bring to pass the
party’s ultimate design.” 6 In the present case, the action of Rodan of hitting himself with
knives and swords and severing his left hand artery is definitely an effort towards
commission of suicide since it lead to severe blood loss and can result in death if not
prevented.
b. The effort wasn’t mere preparation but an act in the course of attempt since he hit himself
with swords and knives and severed his left hand artery.

THERE SHOULD BE AN INTENTION TO COMMIT SUICIDE.

a. Rodan’s background sheds light on his suicidal disposition.

The Supreme court, in the case of Sharad Birdhichand Sarda v. State of Maharashtra 7, in
order to buttress the opinion that a woman had committed suicide due to sheer depression and
frustration, cited some passages of an eminent psychiatrist, Robert I. Kastenbaum’s book
'Death, Society and Human Experience" in which he analyses the causes, the circumstances,
the moods and emotions which may drive a person to commit suicide. The learned author has
written that a person who is psychotic in nature and suffers from depression and frustration is
more prone to commit suicide than any other person. extract certain passages from his book:

“And it is only through a gross distortion of the actual circumstances that one could claim all
suicides are enacted in a spell of madness. Seen in these terms, suicide is simply one of the
ways in which a relatively weak member of society loses out in the jungle like struggle. The
individual does not destroy himself in hope of thereby achieving a noble postmortem
 reputation or a place among the eternally blessed. Instead he wishes to subtract himself from
a life whose quality seems a worse evil than death.

The newly awakened spirit of hope and progress soon became shadowed by a sense of
disappointment and resignation that, it sometimes seemed, only death could swallow.

The victim of suicide may also be the victim of self-expectations that have not been fulfilled.
The sense of disappointment and frustration may have much in common with that
experienced by the person who seeks revenge through suicide...”

The above observations are fully applicable to the case of Rodan. It is apparent that Rodan
was facing hardships due to unemployment which normally causes lowering down of self-
esteem and motivation. Despite of his family not being religiously inclined, he visited
Alamgir toskue and shared his problems and stress with the Maulvi Dukhyam Daroya which
sheds light on his state of mind which was ridden by disappointment and frustration. This
back ground shows that he had a predisposition to commit suicide.

b. In the case of Naresh Marotrao Sakhre and another v. Union of India and others8 , the bench
highlighted a few most common reasons behind the commission of suicide by a person like
dowry, quarrel with spouse, irretrievable break down of marriage, fighting or otherwise
unhappy and strained relations with in-laws, illegitimate pregnancy, marital infidelity, illicit
relations, unfulfilled love, poverty, unemployment, incurable disease, superstitious
achievements, etc.
Thus, unemployment has been identified as one of the common reasons behind commission
of suicide.
Thus, under the pretext of religious custom, Rodan’s state of depression due to hardships
faced by him and his suicidal mental disposition cannot be ignored.

A. THAT THERE HAS BEEN AN ABETMENT TO SUICIDE BY MAULVI DUKHYAM

DAROYA.
a. That there will be liability for abetment even in the case of Rodan surviving the fatal hit
i.e., attempt to suicide remaining unsuccessful.
In case Rodan survives the injury, it cannot be said that in the case of unsuccessful suicide
there is no attempt to abet the commission of suicide. In the case Berin P. Varghese v. State
of Kerela9the view was taken that “an attempt to commit the offence under Section 306 I.P.C.
is certainly possible and there is no warrant for the presumption that there cannot ever be a
conviction for an offence under Section 306 r/w. 511 I.P.C. If a person abets the commission
of suicide and the abetment does not succeed and fructify into a completed offence under
Section 306 I.P.C. it must, according to me certainly, be held to fall within the sweep of
Section 306 r/w. 511 I.P.C. The miscreants, against whom allegations are raised under
Section 306 r/w. 511 I.P.C. that they attempted the abetment to commit suicide by the
unfortunate victim in this case can legitimately be proceeded against under Section 306 r/w.
511 I.P.C. and there is no inherent legal defect, infirmity or impossibility in such
prosecution.”
Thus under the general principle of law embodied in Section 511 I.P.C. , in which every
offence can be attempted also, Maulvi Dukhyam Daroya can be held liable in case Rodan
survives the deathly injuries.

b. That there was a positive act on the part of Maulvi Dukhyam Daroya to aid the
commission of suicide by Rodan.
The essence of abetment in the section 306 is derived from the section 107 of the IPC which
says that a person abets the doing of a thing if he instigates or intentionally aids, by any act or
illegal omission, the doing of a thing. Aiding has been explained as whoever, either prior to
or at the time of the commission of an act, does anything in order to facilitate the commission
of that act, and thereby facilitate the commission thereof, is said to aid the doing of that act.

According to the facts, the maulvi aided the act commission of suicide by Rodan. When
Rodan’s parents showcased their concern that Rodan might not be able to handle it as it was the first
time he was observing tatbir and even tried to stop him , Maulvi Doraya assured them that their son
was doing the right thing, and said that he would be there in the Shoharman procession and would
 ensure that no harm would come upon Rodan. This act of the maulvi facilitates the commission of the
act of suicide by Rodan.

c. That there was existence of “mens rea” on the part of Maulvi.

In the Supreme Court case of Gangula Mohan Reddy v. State of Andhra Pradesh10, along with
the essentiality of positive act by accused to constitute abetment, it recognized that human
sensitivity of each individual differs from the other according to the situation. Similarly, in
the case of Chitresh Kumar Chopra v. State (Government of NCT of Delhi)11, it was held that
‘Abetment’ involves a mental process of instigating a person or intentionally aiding a person
in doing of a thing. Most importantly it was recognized that since it is impossible to lay down
any straight- jacket formula in dealing with such cases, each case has to be decided on the
basis of its own facts and circumstances. Thus, both the cases talk about taking into account
the differing human sensitivity according to different situation.
 According to the facts, the parents of Rodan Naadu were not religiously inclined, and had
never pressured him to observe all the ceremonies associated with being a Mudlam but under
the influence of Maulvi Daroya, Rodan became a deeply religious.
 Rodan was facing hardships due to unemployment which normally causes lowering down of
self- esteem and motivation. He frequently visited Alamgir toskue and shared his problems
and stress with the Maulvi Dukhyam Daroya which sheds light on his state of mind which
was ridden by disappointment and frustration. This back ground shows that he had a
predisposition to commit suicide.
 Despite of knowing about the disturbed state and suicidal disposition of Rodan, the Maulvi
supported Rodan’s decision to observe tatbir and convinced his parents by assuring them he
would not let any harm come upon Rodan.
Thus, such a positive act on the part the mualvi proves the mens rea on his part.

I. WHETHER PRACTICES OBSERVED DURING SHOHARMAN VIOLATE THE

PUBLIC SAFETY?
It is humbly submitted that it is important to define to defining “Public safety”:
 The freedom of speech and expression under Clause (2) of Article 19 is limited by allowing
the legislature to impose reasonable restrictions on the right to free speech on different
grounds, including Public Order. Similarly, the same meaning is borne under the Article 25
clause (1) of the constitution, where the freedom to conscience and free profession, practice
and propagation of religion is subject to public order, morality and health.
In the supreme court case of Superitendent , Central Prison v. Ram Manohar Lohia 12 the
expression “Public order” was held synonymous with public peace, safety and tranquillity. “It
signifies that State, in the interest of public order, can prohibit use of threatening, abusive or
insulting words or behaviour in any public place or at any public meeting with intent to cause
breach or whereby breach of peace is likely to be cause, and all such acts as would endanger
public safety.”13
Public safety is used as a subset of the wider concept of public order. 14 Thus, in that sense
anything which tends to prevent danger to public health may also be regarded as public
safety.15

A. THAT THE PRACTICE OF TATBIR CAN BE SAID TO BE IN VIOLATION OF

THE PUBLIC SAFETY.
The pratice of tatbir is observed by hitting the body of oneself with swords and knives during
Shoharman mourning is something similar to Muharram mourning. Constitution embellishes
on each and every individual a fundamental right to profess, practice and propagate the any
religion subjected to public order, morality and health. Freedom of conscious connotes a
person’s right to entertain beliefs and doctrines concerning matters, which are regarded by
him to be conducive to his spiritual being.16 The right is not only to entertain such religious
beliefs as may be approved by his judgement or conscious but also to exhibit his sentiments
in overt acts as are enjoined by his religion.17 “Religious practices or performances of acts in
pursuance of religious belief are as much a part of religion as faith or belief in particular
doctrines”18 But at the same time fundamental right to profess, practice and propagate his
religion and can be subjected to reasonable restrictions19 .

“In Dr. Ram Manohar Lohia v. state of Bihar20 the Supreme Court pointed out the difference
between maintenance of law and order and its disturbance and the maintenance of public
order and its disturbance. Disturbance of public order is to be distinguished, from acts
directed against individuals which do not disturb the society to the extent of causing a general
disturbance of public tranquility. The question to ask is: Does it lead to disturbance of the
current of life of the community so as to amount to a disturbance of the public order or
does it affect merely an individual leaving the tranquility of the society undisturbed?
This question has to be faced in every case on facts. There is no formula by which one case
can be distinguished from another.”21
 Tatbir is a mourning ceremony which involves the congregational self flagellation using
instruments like swords and knives leading to spilling of human blood via methods that are
very unhygienic and a health hazard. The ceremonies pose a hazard to public health since the
practice leads to causing blood to spill all over the surrounding environment and often onto
other mourners who have open wounds. Blood permeating into environment through open
wounds of mourners can carry dangerous diseases, such as, Hepatitis B (HBV), Human
Immunodeficiency Virus (HIV), Hepatitis C (HCV), Syphilis, Malaria, etc breaching public
health. Blood mourning gatherings put people at risk to these and other dangerous diseases.
It is almost impossible to impose good hygiene in these environments and individual blood
mourners generally do not implement the any hygiene procedures. Blood is splattered around
the environment, and the blades and other surfaces are not decontaminated. Sharing of blades
is also common since no precautions are maintained by general public conducting such
practices under the religious sentiment Some of these acts also carry the possibility of
incurring other forms of harm, such as: infections to wounds, skeletal damage, damage to
nerves & veins. There have also been a few reports of deaths due to these acts.
 On the other hand, Tatbir can disrupt the mental balance of people of society since it has
negative effect on onlookers of Tatbir as well. Most human beings are naturally averse to acts
of bodily harm and to the shedding of blood, since they have been designed to ensure self-
preservation and this feeling of repulsion towards practicing it on oneself and witnessing is
not something that requires some evidence. There are many people who also suffer from
blood phobia and the sight of blood can cause them to feel extremely uncomfortable. Thus
such a practice in public leads to breach of public tranquility.22

B. THAT THE RIGHT TO RELIGION IS LIMTED BY REASONABLE RESTRICTION

IMPOSED BY THE STATE THROUGH PROVISIONS OF THE CONSTITUTION.

 It was held in the case of Commissioner Of Police & Ors vs Acharya J. Avadhuta And
Anr 23 in which performing of dance with skull and knife in the hand were held to be in
 violation of public safety and order and therefore the right of an individual to carry out the
tandav dance which although was considered essential part of that particular religion was
restrained by the various parameters prescribed by the court which held that "the essential
part of a religion means the core beliefs upon which a religion is founded and those practices
that are fundamental to follow a religious belief."24 Similarly in the case of Gulam Abbas v.
State of Uttar Pradesh25, the Shia community owned a place of religious worship which also
had Sunni graves and due to this fact there was a potential of huge conflict among the parties,
in the present case the court order for shifting the graves from of the Shia graveyard, even
though the Shariat law prohibits tampering with the graves and it is one of the sacrosanct
value of the sect. However the court held that in certain exceptional circumstances the rights
are subjected to public order.

 Alternatives to religious practice available:

In the case of the State of West Bengal and Ors. v. Ashutosh Lahiri26, the Supreme Court
while noting that the slaughtering of cow on Bakrid is neither essential to nor necessarily
required as part of the religious ceremony held that “An optional religious practice is not
covered by Article25(1).”
Under Islam there are two basic forms of matam (mourning) : matam using one's hands only,
that is, sineh-zani or breast-beating and matam with implements like chains, knives, swords
and blades, that is, zanjeer-zani, qama-zani, etc. Similarly, one form of mourning during
muharram is the theatrical re-enactment of the incidents of religious importance. Thus, the
mourning can be carried in a way which wouldn’t cause threat to public safety, tranquility
and health.

 The Rights guaranteed by the Article 25 of the constitution is not absolute and
unfettered:
In Bhuri Nath & Ors. Vs. State of J&K & Ors.27, it was held that the rights seemed under
Articles 25 & 26 are not absolute or unfettered but subject to legislation by the State limiting
or regulating any activity, economic, financial, political or secular which are associated with
the religious behalf, faith, practice or custom and that they are also subject to social reform by
suitable legislation.
It was also held that “What constitutes an integral or essential part of religion has to be
determined with reference to its doctrines, practices, tenets, historical background etc. of the
given religion. Essential part of a religion means the core beliefs upon which a religion is
founded. Essential practice means those practices that are fundamental to follow a religious
belief without which, a religion will be no religion.
Test to determine whether a part or practice is essential to the religion is to find out whether
the nature of religion will be changed without that part or practice. If the taking away of that
part or practice could result in a fundamental change in the character of that religion or in its
belief, then such part could be treated as an essential or integral part and such permanent
essential parts are what are protected by the Constitution. Alterable parts or practices are
definitely not the 'core' of religion where the belief is based and religion is founded upon. It
could only be treated as mere embellishments to the non- essential part or practices.”
In the case Ram Prasad Seth v. State of UP28, the Allahabad High Court made a key shift: the
word “essential” has gone from qualifying the nature of the practice (i.e., whether it is
religious or secular), to qualifying its importance (within the religion) – i.e., from whether
something is essentially religious to whether it is essential to the religion. It is a minor
grammatical shift, but with significant consequences, because it allows the Court to define
questions that are internal to religion in a judicial enquiry, and thereby define the nature of
the religion itself.”
The Supreme court in the “jallikattu case” or Animal Welfare Board v. A. Nagaraja and
ors.29, referred to the case of N. Adithayan v. Travancore Dewaswom Board and Ors. 30 which
held that, “Any custom or usage irrespective of even any proof of their existence in pre-constitutional
days cannot be countenanced as a source of law to claim any rights when it is found to violate human
rights, dignity, social equality and the specific mandate of the Constitution and law made by
Parliament. No usage which is found to be pernicious and considered to be in derogation of the law of
the land or opposed to public policy or social decency can be accepted or upheld by courts in the
country.”
Thus, since tatbir and related customs under Shoharman mourning are not integral to the
religion as such, suitable restriction and social legislations can be actuated by the government
on grounds of maintaining public order.
 PRAYER FOR RELIEF

WHEREFORE IN THE LIGHT OF THE FACTS USED, ISSUES RAISED, ARGUMENT ADVANCED,
REASONS GIVEN AND AUTHORITIES CITED, IT IS MOST HUMBLY AND RESPECTFULLY
PRAYED THAT THIS HON’BLE COURT MAYBE PLEASED TO ADJUDGE AND DECLARE THAT:

i. THAT THE PETITION FOR ANTICIPATORY BAIL IS NOT MAINTAINABLE,

.
ii. RODAN AND MAULVI DUKHYAM DORAYA ARE LIABLE FOR ATTEMPT TO
SUICIDE AND ABETMENT OF SUICIDE RESPECTIVELY,

iii. THE PRACTICE OF TATBIR IS AGAINST PUBLIC SAFETY.

AND ANY OTHER RELIEF THAT THIS COURT MAY BE PLEASED TO GRANT IN THE INTERESTS OF
JUSTICE, EQUITY AND GOOD CONSCIENCE.

All Of Which Is Respectfully Submitted.

COUNSEL FOR THE RESPONDENT