Memorial Petitioners Kla

TEAM CODE: 13
29th ALL INDIA MOOT COURT COMPETITION 2020
BEFORE THE HON’BLE HIGH COURT OF DHARMASTHAN
WRIT PETITION NO ____ OF 2019
IN THE MATTER OF
SNEHA RETREAT CENTER …………………………………………PETITIONER
V.
STATE OF DHARMASTHAN…………………………………………... RESPONDENT
UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF HIGH COURT OF DHARMASTHAN
MEMORIAL FOR THE PETITIONER

MEMORANDUM FOR PETITIONERS
___________________________________________________________________________________________________________________________________________________________________
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS…………………………………………………………… 4
INDEX OF AUTORITIES…………………………………………………………………. 5
 Cases referred
 Books referred
 Articles referred
 Statues referred
 Web sources
STATEMENT OF JURISDICTION……………………………………………………….... 9
STATEMENT OF FACTS..................................................................................................... 10
 Background
 Relevant Facts
 Judicial Treatment
STATEMENT OF ISSUES…………………………………………………………………. 12
SUMMARY OF ARGUMENTS……………………………………………………………13
ARGUMENTS ADVANCED……………………………………………………………… 15
1. Whether The Writ Petition Filed by The Sneha Retreat Centre On 3-12-2019 Challenging
the Validity of the Act Is Maintainable?
1.1. Infringement of Fundamental Rights
1.1.1. Infraction of Article 14
MEMORIAL FOR PETITIONERS 2

___________________________________________________________________________________________________________________________________________________________________
1.2. The Jurisdiction of High Court
2) Whether Section 3 of the Act Read with Section 2 (C) Of The Act and Paragraph 9 of the
Schedule violates the Petitioner's Fundamental Right Under Art 19(1) (A) And
Art 25(1) Of The Indian Constitution?
2.1. The gamut of Religious Practices in the Indian Constitution
2.2. Amalgamation of Propagation Under Article 25(1) And Expression Under Article
19(1)(a) and 19(1)(g)
2.2.1. Freedom under Article 19(1)(a) and 19(1)(g)
2.2.2. Repugnancy with central act.
2.3. Prevention and Eradication of Essential Practices of Catholics
2.3.1. Insights of Exorcism and Deliverance retreat and Healing of the sick
2.3.2. Doctrine of Essentiality
2.4. Spiritual Healing in Catholicism
2.4.1. Concept of Sui Juris
2.5. Demarcation of Rights and Restrictions Under Article 19(1)(a) And 19(2)
2.6. Repugnancy Between Articles 25(1) And 19(1)(a) with the Act, 2019
3.Whether Section 14 Of The Act Is Unconstitutional On Grounds of Violation of Art

14 And Excessive Delegation of Legislative Power?
3.1. Delegation of essential function.
3.1.1 Doctrine of Delegated legialation
3.2 The Canopy of excessive delegation
3.2.1 The doctrine of permissible limits
3.3 Incompentancy of Dharmasthan State Legislature
3.3.1 The doctrine of Pith and Substance

___________________________________________________________________________________________________________________________________________________________________
3.4. Encroachment On the Principle of Isonomy
3.4.1 The Doctrine of Classification
PRAYER………………………………………………………………………………….

___________________________________________________________________________________________________________________________________________________________________
TABLE OF ABBREVIATIONS
S.NO TERMS ABBREVIATIONS

1. & And
2. § Section
3. ¶ Paragraph
4. A.P Andhra Pradesh
5. AIR All India Reporter
6. Anr. Another
7. Art. Article
8. HC High Court
9. Hon’ble Honourable
10. i.e. That is
11. Ors. Others
12. SC Supreme Court
13. SCC Supreme Court Cases
14. SCR Supreme Court Reporter
15. v. Versus

___________________________________________________________________________________________________________________________________________________________________
INDEX OF AUTHORITIES
1. A. Periakaruppan Chettiar v. State of Tamil 1971 A.I.R. 2303

Nadu
2. Agriculture Market Committee v. Shalimar A.I.R. 1997 S.C.
Chemical Works Ltd 2502
3. Ashok Kumar v. Union of India A.I.R. 1991 S.C.
1792
4. B. Rajendran v State of Madras 1968 A.I.R. 1012
5. Babu Ram Jagdish Kumarampv. State of A.I.R. 1979 S.C.
Punjab 1475
6. Bharat Hydro Power Corp. Ltd v State of A.I.R. 2010 S.C.
Assam 2633
7. Bombay Dyeing & Mfg. Co. Ltd. v. Bombay A.I.R. 2006 S.C.
Environmental Action Group 1489
8. Brij Sunder Kapoor v. Ist Additional District 1989 A.I.R. 572
Judge
9. Budhan v State of Bihar A.I.R. 1955 S.C.191
10. D.C. Wadhwa v. State of Bihar A.I.R. 1987 S.C.
579
11. Delhi Cloth and General Mills Co Ltd v A.I.R. 1983 S.C.
Union of India 937
12. Edward Mills Co. Ltd. v. State of Ajmer 1955 A.I.R. 55
13. Fertilizer Corporation kamgar Union, Sindri A.I.R. 1981 S.C.

v.Union of India 344.
14. Govt. of A.P. v. J. B. Educational Society A.I.R. 2005 S.C.
2014
15. Gujarat Water Supply v. Unique Electro A.I.R. 1989 S.C.

973

___________________________________________________________________________________________________________________________________________________________________
16. Gullapalli Nageswara Rao v. AP State Road A.I.R. 1959 S.C.

Transport Corpn, 308
17. b Gwalior Rayon Silk Mfg. (Wvg.) Co v. The 1974 A.I.R. 1660
u Asstt. Commissioner of Sales
18. Harakchand v Union of India A.I.R. 1970 S.C.
1453
19. Jindal Stainless Ltd v. State of Haryana A.I.R. 2006 S.C.
2550
20. Justice K.S.Puttaswamy (Retd) v. Union Of 2018 S.C.C. OnLine

S.C. 1642
India
21. K.C Gajapati Narayan Deo v. State of Orissa A.I.R 1953 S.C
375
22. Kannan Devan Hill Produce Co Ltd v. State A.I.R. 1972 S.C.
of Kerala 2301
23. Kapila Hingorani v. State of Bihar 2003(3) PLJR 17
24. Lochamesh B Hugar v. Union of India 2013 (2) KarLJ 643
25. Mangal Singh v. Union of India 1967 A.I.R. 944
26. P. Vajravelu Mudaliar v. Spl. Dy. Collector A.I.R 1965 S.C
1017
27. Prafulla Kumar Mukherjee v. The Bank of (1947) 49 BOMLR
Commerce 568
28. R.S. Joshi v. Ajit Mills A.I.R. 1977 S.C.
2279.
29. Rajesh Kumar Srivastava vs A.P. Verma AIR 2005 All 175
30. Rajnarain Singh v. Chairman Patna A.I.R. 1954 S.C.
Administration Committee 569
31. Ratilal Panachand Gandhi v. The state of 1954 A.I.R. 388
Bombay
32. RomeshThappar v. State of Madras A.I.R. 1950 S.C.
124
33. S.R. Bommai v. Union of India 1994 A.I.R. 1918
34. Sardar Syedna Taher Saifuddin v. The State 1962 A.I.R. 853
of Bombay
35. Shreya Singhal v. Union of India (2015) 5 S.C.C. 1.

___________________________________________________________________________________________________________________________________________________________________
36. Shri Ram Krishna Dalmia v. S. R. Tendolkar 1958 A.I.R. 538

37. Sonapur Tea Co Ltd v. Dy. Commissioner of A.I.R. 1962 S.C 137
Kamrup,
38. Sri Adi Visheshwara of Kashi Vishwanath (1997) 4 S.C.C 606

Temple, Varanasi v. State of U.P
39. St. Johns Teachers training institute v A.I.R. 2003 S.C.
Regional director 1533
40. State of Bihar v. Kameshwar Singh A.I.R. 1952 S.C.
252
41. State of Gujarat v. Akhil Gujarat Pravasi v. A.I.R. 2004 S.C.
Mahamandal 3894
42. State of Kerala v. N.M. Thomas 1976 A.I.R. 490
43. State of Madras v. V.G. Row A.I.R. 1952 S.C.
196
44. Surajmull Nagarmull v. The Commissioner A.I.R. 1961 Cal 578
of Income Tax
45. Thanmal v. Union of India A.I.R. 1959 Raj 206
46. The Commissioner v. Sri Lakshmindra 1954 A.I.R. 282

Thirtha Swamiar of Sri Shirur Mutt
47. V.S. Sivakumar v. State of Tamil Nadu 2008 S.C.C. OnLine
Mad 237
48. Vasantha R v. Union of India 2000 SCC OnLine
Mad 856
49. Vishaka v. State of Rajasthan A.I.R.1997S.C.3011
50. Yashpal v. State of Chattisgarh A.I.R. 2005 S.C.
2026
51. Zameer Ahmed Latifur Rehman Sheikh v. A.I.R. 2010 S.C.

State of Maharashtra 2633

___________________________________________________________________________________________________________________________________________________________________
BOOKS REFERRED:
1. D.D. Basu Human rights in constitutional law, 3rd Ed, Lexis nexis
2. M.P Jain, Indian Constitutional Law, 6th Ed, Lexis nexis
3. ‘Prato Conclusions' of 2010
4. D.D. Basu, commentary on constitution of India, 8th Ed, Wadhwa and co.
5. Aravind.P.Datar, commentary on constitution of India, 2nd Ed, Wadhwa and co.
6. Loveland, constitutional law, admn. law and human rights, 5th Ed, Oxford university press.
7. Brownlie Goodwin, basic documents on human rights, 5th Ed, Oxford university press.
8. S.P. Sathe, Administrative Law, 7th ed., Lexis Nexis.
9. Massey IP, Administrative Law, 7th ed. Eastern Book co.
10. Holy Bible
11. When Prayer Fails: Faith Healing, Children, and the Law - Shawn Francis
12. PetersCults: Faith, Healing, and Coercion - Marc Galanter
13. Dr. C.D. Jha, Judicial Review of Legislative acts (2nd Ed. 2009).
14. G.P. Singh's Principles of Statutory Interpretation.
WEB SOURCES:
1. http://www.manupatrafast.com/ipAccess.aspx
2. https://indiankanoon.org/we
3. https://www.scconline.com/web-edition
4. http://www.prsindia.org/
5. https://home.heinonline.org/
6. https://www.refworld.org/
7. https://www.unchr.org/

___________________________________________________________________________________________________________________________________________________________________
8. https://advance.lexis.com/inresearchhome/
LEGISLATIONS REFERRED:
1. The Constitution of India, 1950
2. The International Covenant on Civil and Political Rights, 1966
3. The Universal Declaration of Human Rights, 1948
4. Customary International Humanitarian Law
5.The Hague Conventions of 1907
6.The Code of Criminal Procedure, 1973
7. The Drugs and Magic Remedies Act, 1954
8. The Constitution of the State of Washington, 1889
9. The Constitution of the Republic of Singapore, 1965
10. The Constitution of the State of Texas, 1876
11. The Constitution of Canada, 1982

___________________________________________________________________________________________________________________________________________________________________
STATEMENT OF JURISDICTION
The writ petition filed by the petitioner invoking Article 226 of the Indian Constitution is
maintainable before this Honourable High Court.
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.

___________________________________________________________________________________________________________________________________________________________________
STATEMENT OF FACTS
BACKGROUND:
I. Dharmasthan is a State in the Indian Union. Population of the State is 71645718.

Literacy of the State is 45%. On 16-4-2019, the leading newspaper of the State, the
Dharmasthan Times published the following report: In the state of Dharmasthan,
spiritualism has become a holy cover for unholy deeds. Among the many kinds of
mafia thriving in Dharmasthan, the most powerful is of fake Godmen and Godwomen.
RELEVANT FACTS:
II. Santhu Mahavir alias Swami Mokshanandha (35), wanted by the Interpol since 2014,
was arrested two years ago. He was accused of cheating a Gulf-based woman from
Dharmasthan of Rs. 45 lakh. Investigations later proved that Santhu Mahavir, who
started his career as an astrologer to become a popular Godman in Dharmasthan, was
up to many more exploits. A jet-setting guru revered by many film stars, top police
officials and politicians until he was arrested.
III. Santhu Mahavir was sentenced by a Sessions Court in 2018 to 16 years' rigorous
imprisonment for raping two minor girls. Other charges against him included real
estate swindle, tiger skin trade etc. The state police had seized CDs from his ashram
containing visuals of the "guru" persecuting the minor girls. Santhu Mahavir’s arrest
had triggered a flood of complaints from many parts of the State against scores of God
men and God women, accusing them of cheque fraud, tax dodging, cheating, rape and
even murder. Within weeks, the state police arrested more than a dozen "spiritual
gurus" belonging to various religions and castes-many with swanky ashrams and
devotees not only from the State but other parts of the country, and even abroad.
IV. On 25-05-2019 the Dharmasthan Times published another report which contained the
following allegation against a Christian Retreat Centre. Claimed to be the largest
Catholic healing centre in India, the Sneha Retreat Centre in Kalkotti, Dharmasthan,
was in news recently after one of the devotees sent an anonymous letter to the Chief

___________________________________________________________________________________________________________________________________________________________________
Minister. The letter reportedly carried serious charges including, forceful confinement
and murder charges against the Centre. Soon the Director General of Police constituted
a high-level team headed by an Inspector General of Police to inquire into the charges.
The probe team found that several persons were locked in cells in the name of healing.
Persons showing violent signs were often injected with unknown drugs by untrained
hands. Besides the FIR filed at Kalkotti City police station, the team has also filed a
report before the First Class Judicial Magistrate.
V. The team has also recommended a probe into the foreign funding of the healing centre.
In June and July 2019, most of the newspapers in the state published reports regarding
incidents of exploitation of the ordinary people in the society, using inhuman, evil and
sinister practices, sorcery and practices of black magic.
JUDICIAL TREATMENT:
VI. On 6-11-2019 Dharmasthan Legislative Assembly passed Dharmasthan Prevention and

Eradication of Inhuman Sorcery and Black Magic bill, 2019 and it became an Act
(given as Appendix) and came into force with effect from 12-11-2019. On 3-12-2018
Sneha Retreat Centre filed writ petition challenging the Validity (vires) of the Act on
the following among other grounds
1. Section 3 of the Act read with Section 2 (c) of the Act and paragraph 9 of the
Schedule violates his fundamental right under Art 19(1) (a) and Art 25(1) of the
Constitution.
2. Section 14 of the Act is unconstitutional on grounds of violation of Art 14 and

excessive delegation of legislative power. On behalf of the State, all contentions
were refuted

___________________________________________________________________________________________________________________________________________________________________
STATEMENT OF ISSUES
1) Whether the Writ Petition Filed by The Sneha Retreat Centre On 3-12-2019
Challenging the Validity of the Act is Maintainable?
2) Whether Section 3 Of The Act Read with Section 2 (c) Of the Act and Paragraph 9 of
the Schedule Violates the Petitioner's Fundamental Right Under Article 19(1) (a), Article
19(1) (g) and Article 25(1) of The Indian Constitution?
3) Whether Section 14 of the Act is Unconstitutional On Grounds of Violation of Article


___________________________________________________________________________________________________________________________________________________________________
SUMMARY OF ARGUMENTS:
1) Whether the Writ Petition Filed by The Sneha Retreat Centre On 3-12-2019
Challenging the Validity of the Act Is Maintainable?
The writ petition filed by Sneha Retreat center is maintainable. There is a crystal clear
violation of the petitioner's fundamental rights under Article 14, 19 and 21. The original
jurisdiction of High Court is involved under Article 226. Therefore, the petition is
maintainable.
2) Whether Section 3 Of The Act Read with Section 2 (C) Of the Act and Paragraph 9 of
the Schedule Violates the Petitioner's Fundamental Right Under Article 19(1) (a), Article
19(1) (g), And Article 25(1) Of The Indian Constitution?
Articles 25 and 19 of the Indian Constitution holds right to propagation and freedom of
expression as it's cynosure. The essential practices of Catholics are enormously enumerated in
their scriptures and its validity is upheld through the doctrine of essentiality. The word
'reasonable restriction' does not occupies any place since the nexus between the said right and
restriction is not established. Article 51(c) and obligatory provisions of international laws
mandates the inclusion of personal convictions and laws.
3.Whether Section 14 of the Act is Unconstitutional On Grounds of Violation of Article

In constitutional jurisprudence the delegation of essential legislative function gives momentum

to uncanalised flow of power. The criteria for deciding the essential function of a legislature
coincides with the doctrine of excessive delegation. The Incompetency of state legislature to
Legislate on a matter related to the union list is highlighted. The inconsideration of intelligible
differentias is reflected on the fundamental rights of the petitioner's which is violated undet
Art.14 of the Indian Constitution.

___________________________________________________________________________________________________________________________________________________________________
ARGUMENTS ADVANCED
1) Whether the writ petition filed by the Sneha Retreat Centre on 3-12-2019 challenging
the validity of the Act is Maintainable under Article 226 of the Indian Constitution?
1) It is humbly submitted that maintainability of writ petition for enforcement of

fundamental rights can be questioned only when disputed questions of facts are involved
or enforcement of private or contractual rights is sought to be enforced. The instant
petition does not involve questions of facts and fundamental rights are sought to be
enforced.
1.1. Infringement of Fundamental Rights:
2) The rights essential for intellectual, moral and spiritual upliftment of individuals are
guaranteed under Part III (Articles 12 to 35) of the Indian Constitution. Fundamental
rights emphasize on the fundamental unity of India and help not only in protection but
also the prevention of gross violations of human rights. In the instant petition, there is an
atrocious violation of Articles 14, 19 and 25.
1.1.1. Infraction of Article 14:
3) Equality means parity of treatment under parity of conditions1. The rule of parity is
the equal treatment of equals in equal circumstances and the rule of differentiation is
enacting laws differentiating between different persons or things in different
circumstances without mandating universal application of the same. The test is whether it
has a reasonable basis free from artificiality and arbitrariness embracing all and omitting
none naturally falling into that category 2. In the present case, it has become a symbol of
man's revolt against chance, fortuitous disparity, and crystallized privileges. The
differential treatment is not justified.
1
State of Kerala v. N.M. Thomas, 1976 A.I.R. 490.
2
Vasantha R v. Union of India, 2000 SCC OnLine Mad 856

___________________________________________________________________________________________________________________________________________________________________
4) Freedom of speech is the foundation of all democratic organizations. 3 It cannot be over

emphasized that when it comes to democracy, liberty of thought and expression is a
cardinal value that is of paramount significance under our constitutional scheme 4.
Freedom to think as you will and to speak as you think means indispensable to the
discovery and spread of political truth. In the present case, a manifestation of
unreasonable bar on the said cardinal value of democracy is evident. The word
"reasonable" implies intelligent care and deliberation which reason dictates. Legislation
which arbitrarily or excessively invades the right cannot be said to contain the quality of
reasonableness and unless it strikes a proper balance between the guaranteed freedom and
restriction, it is wanting in that quality.5
5) The word “religion” in the expression “the right freely to profess, practice and propagate
religion” harmonizes with several religions as a matter of religious duty. The resilience of
our Republic to face these challenges one after another has proved the peoples' faith in
the political philosophy of socialism, secularism and democracy enshrined in the
Preamble of our Constitution. This right stands negated in the instant case. In our
constitutional fabric, the cursory look at the provisions of the Constitution.
1.2. The Jurisdiction of High Court:
6) The Hon'ble Supreme Court, in the case of Surya Devi Rai v. Ram Chander Rai, relied on
several judgments, one of which was UmajiKeshaoMeshram v. Smt. Radhikabai. The
scope, power and differences between Article 226 and Article 227 were laid down in the
said case. The original jurisdiction of the High Court is invoked under Article 226. In the
instant case, the petitioner's fundamental rights guaranteed under part III of the Indian
Constitution has been gravely violated and the same resulted in invoking writ jurisdiction
of this Hon’ble Court under Article 226 of the Constitution of India seeking a declaration
of invalidity of the Dharmasthan Prevention and Eradication of Inhuman Sorcery and
3
RomeshThappar v. State of Madras, A.I.R. 1950 S.C. 124
4
Shreya Singhal v. Union of India, (2015) 5 S.C.C. 1.
5
Surajmull Nagarmull v. The Commissioner of Income Tax, A.I.R. 1961 Cal 578

___________________________________________________________________________________________________________________________________________________________________
Black Magic Act, 2019 through declaratory mandamus. The Hon'ble High Court Has
Enough Powers under Article 226 of the Indian Constitution and Precedents to Uphold
Rights in the Present Case.
2. Whether Section 3 of the Act read with Section 2 (c) of the Act and paragraph 9 Of
the Schedule violates the petitioner's fundamental right under Art 19(1) (a), Art 19(1)
(g) and Art 25(1) of the Indian Constitution?
2.1. The gamut of religious practices in the Indian Constitution:
7) Owing to its heterogeneity, India is home to people following different religions and
having different faiths. Although religious rights are restricted in our Constitution, it still
provides for right to worship; right to visit religious places (like temple, mosque, church)
to follow their faith and religion. Article 25 guarantees every person (not only citizens)
the freedom of conscience and right to freely profess, practice and propagate religious
ideas6. The line of difference between freedom of ‘profession’ and freedom of ‘practice’
is crucial to mark the ambit of religious freedom in the Indian Constitution. Freedom of
‘profession’ means the right of the believer to state his creed in public whereas freedom
of ‘practice’ means his right to give expression in forms of private and public worship 7.
Secularism does not mean an atheist society but a heterogeneous society providing equal
status to all religions without favoring or discriminating against any one and it is the
essence of our Constitution8. Religious freedom not only becomes necessary for securing
the religious rights of people but also to define the scope of what could be considered as a
legal wrong against religion.
2.2. Amalgamation of propagation under Article 25(1) and expression under Article 19(1)
(a) and 19(1)(g):
8) Article 25 of the Constitution makes freedom of conscience and free profession, practice
and propagation of religion subject to public order, morality, and health and lastly other
provisions of Part-III of the Constitution. The exceptions clause under Art 25 coincides
6
Ratilal Panachand Gandhi v. The state of Bombay, 1954 A.I.R. 388
7
Rev Stanislaus v State of Madhya Pradesh, 1977 A.I.R. 908
8
S.R. Bommai v. Union of India, 1994 A.I.R. 1918.

___________________________________________________________________________________________________________________________________________________________________
with clause 2 of Art 19 which talks about freedom of expression. The US Constitution’s
First Amendment, adopted in 1791, envisages the principle of “Wall of Separation”
which sounds as an echo of doctrine of the separation of Church and State. This doctrine
came up with a declaration that the Congress shall make no laws on establishing religions
or prohibiting their free exercise, or abridging freedom of speech, press and assembly in
the United Sates. However, Indian Constitution does not create an absolute embargo on
the State's association with every and any religious activity; nor does the Constitution
permit the establishment of a theocratic State. As observed already, ‘the State's attitude is
one of the benevolent neutrality towards religion’.
2.2.1 Freedom under Art 19(1)(a) and Art 19(1)(g):
9) Freedom of Speech and Expression is guaranteed under Article 19(1)(a) and freedom to
practice any profession, or to carry on any occupation, trade or business is
guaranteed under Article 19 (1)(g). The right to freely profess, practice and
propagate religion may be a facet of free speech guaranteed under Article 19 (1)(a).9
Religion and freedom of speech exist harmoniously on paper, free expression and
religion often conflict in practice, and free speech is often trampled in the name of
protecting religious sensibilities and so is the freedom under Article 19 (1)(g).
10) Article 19 (1)(g) confers a general and vast right available to all persons to do any particular type
of business of their choice. But this does not confer the right to do anything consider illegal in
eyes of law or to hold a particular job or to occupy a particular post of the choice of any
particular person10. Article 19 upholds an individual’s right to freedom of opinion,
expression and the freedom to seek, receive and impart information and ideas through
any media regardless of frontiers and Article 19 of International Covenant on Civil and
Political Rights mandates the same. Article 19(1)(a) and Article 19 (1)(g) make a law
subject only to conditional clause under Article 19(2). The restrictions imposed there
upon must be reasonable and proper nexus or relationship must be established between
the restrictions.
9
Justice K.S.Puttaswamy(Retd) v. Union Of India, 2018 S.C.C. OnLine S.C. 1642
10
Fertilizer Corporation Kamgar Union, Sindri v.Union of India; A.I.R. 1981 S.C. 344.

___________________________________________________________________________________________________________________________________________________________________
2.2.2 Repugnancy with Central Act
11) The Drugs and Magic remedies Act is an existing law with respect to the matters
enumerated in List III of the Seventh Schedule to the Constitution and it empowers the
Central Legislature to enact a law in the said subject matter. Repugnancy will also arise
between two enactments even though obedience to each of them is possible without
disobeying the other, if a competent legislature with a superior efficacy expressly or
impliedly evinces by its legislation an intention to cover the whole field . 11 Sections 2, 3
and para 9 of the Act, 2019 are unconstitutional on the ground that they violate the
requirement of Article 19(1)(g) of the Constitution which is mandated by the Drugs and
Magic remedies Act and that they make serious inroads into the fundamental rights by
treating unequals as equals and are unsustainably Vague. State Legislature are governed
and covered which parliament has exclusive competence, and that being so, the said
provisions enacted by a state legislature are ultra vires the Constitution. 12 It was also
submitted that the said provisions are not only beyond the legislative competence of the
state legislature13 but they also infringe upon the fundamental rights guaranteed under
Part III of the Constitution as the said provisions are violative of Articles 14 and 19(1)(g)
of the Constitution and, therefore, the said provisions are to be declared ultra vires the
Constitution on both the counts.
12) Our Constitution grants a great degree of freedom of conscience and guarantees a
fundamental right to freely profess, practice and propagate any religion but such a right is
made subject to the requirements of public order, morality and health. The United
Nations Declaration of Human Rights (UDHR) drafted in the year 1949 offers a dual
protection to religion and free expression. Under Articles 18 and 19 of UDHR, the ways
in which both free expression and religious freedom should be protected has been
outlined. Article 18 protects an individual’s right to freedom of thought, conscience,
11
Animal Welfare Board oincomf India vs A. Nagaraja, (2014) 7 S.C.C. 547
12
Sonapur Tea Co Ltd v. Dy. Commissioner of Kamrup, A.I.R. 1962 S.C 137; P. Vajravelu Mudaliar v Spl. Dy.
Collector, A.I.R 1965 S.C 1017; R.S. Joshi v. Ajit Mills, A.I.R. 1977 S.C. 2279.
13
D.C. Wadhwa v. State of Bihar, A.I.R. 1987 S.C. 579 ; Ashok Kumar V. Union of India, A.I.R. 1991 S.C. 1792;
Yashpal v. State of Chattisgarh, A.I.R. 2005 S.C. 2026

___________________________________________________________________________________________________________________________________________________________________
religion and the freedom to change religion or beliefs. The amalgamation of right to
propagation under Article 25(1) and freedom of expression under Article 19(1)(a) as
distinct but complementary rights is itself a unique feature in the Indian Constitution.
2.3. Prevention and eradication of essential practices of Catholics:
13) Christianity principally comprises of four different denominations; Eastern Orthodox,

Protestants, Anglicans and Roman Catholics. Catholicism refers to the theology, liturgy,
moral, spirituality, traditions and beliefs of both western and eastern Catholic Churches
that are in full communion with the Holy See, the jurisdiction of the Bishop of Rome.
They believe in the Jesus of Nazareth and they constitute a religious denomination within
the meaning of Art 26 of the Indian Constitution. A religious denomination is capacitated
to ensure its continuity by maintaining the bond of religious unity and discipline, which
would secure the continued acceptance by its adherents of certain essential tenets,
doctrines and practices; the right to such continuity involves the right to enforce
discipline.14
14) A religion may not only lay down a code of ethical rules for its followers to accept, it
might prescribe rituals and observances, ceremonies and modes of worship which are
regarded as integral parts of religion, and these forms and observances might extent even
to matters of diet and dress code. Our constitution guarantees and protects the freedom of
religious opinion, acts done in pursuance of it. The same is made clear by the language
and use of expression 'practice of religion' in Article 25 15.The essential religious practices
of Catholics which is put to question are Exorcism, Deliverance retreat and Healing.
2.3.1. Insights of Exorcism, Deliverance retreat and Healing of the sick:
14
Sardar Syedna Taher Saifuddin v. The State of Bombay, 1962 A.I.R. 853
15
The Commissioner v. Sri LakshmindraThirthaSwamiar of Sri Shirur Mutt, 1954 A.I.R. 282

___________________________________________________________________________________________________________________________________________________________________
15) Exorcism, Deliverance retreat and healing of the sick are different forms of spiritual
appeasements among the Christians, particularly among Catholics. The Catholic Church
authorizes the use of exorcism for those who are believed to be the victims of demonic
possession. Deliverance and healing is a broad term that can mean being freed from any
problem even of a spiritual nature or supernatural cause. It is defined as deprecatory
prayer offered with the hope that God will free a person from a spiritual affliction. In
1890 Pope Leo XIII added the “Exorcism against Satan and the Fallen Angels” as an
appendix to the solemn exorcism. The practices of Exorcism and Deliverance retreat and
Healing are mentioned for about 98 and more than 103 times, respectively in the Holy
Bible.
16) Our Constitution-makers, however, have embodied the limitations which have been
evolved by judicial pronouncements in America or Australia in the Constitution itself and
the language of articles 25 and 26 is sufficiently clear to enable us to determine without
the aid of foreign authorities as to what matters come within the purview of religion and
what do not. As we have already indicated, freedom of religion in our Constitution is not
confined to religious beliefs only; it extends to religious practices as well subject to the
restrictions which the Constitution itself has laid down. Therefore, under article 26(b), a
religious denomination or an organization enjoys complete autonomy in the matter of
deciding as to what rites and ceremonies are essential according to the tenets of the
religion they hold and no outside authority has any jurisdiction.
2.3.2. Doctrine of essentiality:
17) All secular activities which may be associated with religion but which do not relate or
constitute an essential part of it may be amenable to State regulations but what constitutes
the essential part of religion may be ascertained primarily from the doctrines of that
religion itself according to its tenets, historical background and change in evolved
process etc. The concept of essentiality is not itself a determinative factor 16. It is one of
the circumstances to be considered in adjudging whether the particular matters of religion
16
V.S. Sivakumar v. State of Tamil Nadu, 2008 S.C.C. OnLine Mad 237

___________________________________________________________________________________________________________________________________________________________________
or religious practices or belief are an integral part of the religion. It must be decided
whether the practices or matters are considered integral by the community itself. 17
“The contention formulated in such broad terms cannot, we think,

supported. In the first place, what constitutes the essential part of a
religion is primarily to be ascertained with reference to the doctrines of
that religion itself. If the tenets of any religious sect of the Hindus
prescribe that offerings of food should be given to the idol at particular
hours of the day, that periodical ceremonies should be performed in a
certain way at certain periods of the year or that there should be daily
recital of sacred texts or oblations to the sacred fire, all these would be
regarded as parts of religion and the mere fact that they involve
expenditure of money or employment of priests and servants or the use of
marketable commodities would not make them secular activities
partaking of a commercial or economic character; all of them are
religious practices and should be regarded as matters of religion within
the meaning of Article 26(b). What Article 25(2) (a) contemplates is
notregulation by the State of religious practices as such, the freedom of
which is guaranteed by the Constitution except when they run counter to
public order, health and morality but regulation of activities which are
economic, commercial or political in their character though they are
associated with religious practices."18
18) Catechism of Catholic Church and the Holy Bible provides several references of satanic
beliefs. It has been highlighted a number of times in the said tenets. The beliefs in demons
and demonic possession constitute an essential part of Christianity. “Finally, be strong in
the Lord and in his mighty power19.Put on the full armor of God, so that you can take your
stand against the devil’s schemes20. For our struggle is not against flesh and blood, but
against the rulers, against the authorities, against the powers of this dark world and against
the spiritual forces of evil in the heavenly realms,” 21 the verses evidently proves exorcism
deliverance retreat and healing to be the essential practices of Catholics. With reference to
the doctrines of the said religion, the legality of it being a fundamental right is proved.
19) The laws thus derived must be consistent with the Constitution lest they become void
under Article 13 if they violate fundamental rights. Right to Religious practice is a
17
Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi v. State of U.P, (1997) 4 S.C.C 606
18
The Commissioner v. Sri LakshmindraThirthaSwamiar of Sri Shirur Mutt,1954 A.I.R. 282
19
Ephesians 6:10
20
Ephesians 6:11
21
Ephesians 6:12

___________________________________________________________________________________________________________________________________________________________________
fundamental right. Article 25 protects the freedom to practice rituals and ceremonies etc.
Even when it is construed narrowly, it safeguards the integral parts of the religion. Article
25 of the Constitution of India will, therefore, have any application in the instant case.
Parliament, therefore, has enacted this Act to eradicate two essential practices of
Catholics. The barrier is sought to be remedied by Section 2 and 3 read with para 9 of the
Schedule enlarging the scope of eradicating two integral practices constituting the Basic
Tenets of Catholics.
2.4. Spiritual Healing in Catholicism:
20) The divine intervention in spiritual and physical healing by using the practice of prayer
and gestures such as laying on of hands is titled as faith healing. It is claimed to be a
spiritual and supernatural practice. The church believes healings come most often as a
result of priesthood blessings given by the laying on of hands; however, prayer often
accompanied with fasting is also thought to cause healings. Healing is always attributed
to be God's power. Every individual has his/her own right of curing himself/herself.
He/she has the right to choose.
21) There is a common feeling with where medicines are not prescribed or where no
particular form of treatment is preached or practiced, such practice or form to cure
ailments is not required to be regulated, and that there cannot be any law which may
restrict such persons from using these methods and practices, and that every person has a
right to cure himself/herself, which the person may decide for himself/herself. It is also
commonly believed that faith in the Almighty by whatever name or form of belief is the
cure to all ailments, and that no law can stop the persons, who have fundamental right to
choose, practice and profess the religion in adopting such methods22.
22) Individual’s autonomy is the basic necessity for any individual in any society. The
principles of self-determination and individual autonomy are of fundamental importance
in our legal system. There is a right to choose how one's body will be dealt with, even in
22
Rajesh Kumar Srivastava vs A.P. Verma, 2005 AIR 2005 All 175.

___________________________________________________________________________________________________________________________________________________________________
the context of beneficial medical treatment, has long been recognized by the common
law. To impose medical treatment on one who refuses it constitutes the invalidity of the
same, and our common law has recognized the right to demand that medical treatment
which would extend life be withheld or withdrawn.
2.4.1. Concept of Sui Juris
23) The phrase Sui Juris means "of one's own right" and it is used in both civil law and canon
law by the Catholic Church. It also indicates legal competence that is the capacity to
manage one's own affairs23. This principle further entitles an individual his/her right to
choose and to decide his/her own method of treatment. Faith healers believe that their
healing power comes from God and any attempt to disprove the same shakes the
fundamental right and freedom their religion and religious practices. The instant Act
violates the said right and freedom and must be struck down as unconstitutional.
2.5. Demarcation of rights and restrictions under Article 19(1) (a) and 19(2):
24) Limitations imposed by Arts.19 (2) to 19(6) on the freedoms guaranteed by Arts. 19(1)(a)
to (g) serve a twofold purpose, viz., on one hand, they specify that these freedoms are not
absolute but are subject to regulation; on the other hand, they put a limitation on the
power of a legislature to restrict these freedoms.
25) A legislature cannot restrict these freedoms beyond the requirements of Arts. 19(2) to
19(6). The legislative determination of the criteria of restrictions to impose on a freedom
is not final and conclusive as it is subject to judicial review. It is difficult to give an exact
definition of the word "reasonable"24. There is no definite test to adjudge reasonableness
of a restriction. Each case is to be judged on its own merits, and no abstract or general
pattern of reasonableness is applicable uniformly to all cases. It is important in this context
to bear in mind that the test of reasonableness, wherever prescribed, should be applied to
23
Black's Law Dictionary, Oxford English Dictionary
24
Gujarat Water Supply v. Unique Electro, A.I.R. 1989 S.C. 973

___________________________________________________________________________________________________________________________________________________________________
each individual statute impugned, and no abstract standard or general pattern, of

reasonableness can be laid down as applicable to all cases25.
26) The Court, confronted with a challenge to the constitutional validity of any legislative
enactment by reference to Article 19 of the Constitution, shall first ask what is the sweep
of the Fundamental Right guaranteed by the relevant sub clause out of sub clauses (a) to
(g) of clause (1). If the right canvassed falls within the sweep and expanse of any of the
sub-clauses of clause (1), then the next question to be asked would be, whether the
impugned law imposes a reasonable restriction falling within the scope of clauses (2) to
(6) respectively.
27) However, if the right s\ought to be canvassed does not fall within the sweep of the
Fundamental Rights but is a mere concomitant or incidence of that right, then the validity
thereof is not to be tested by reference to clauses (2) to (6). The test which it would require
to satisfy for its constitutional validity is one of reasonableness, as propounded in the case
of State of Madras v. V.G. Row26 or if it comes into conflict with any other provisions of
the Constitution.
2.6. Violation of articles 25 and 19 with the Act, 2019:
28) The constitutional protection to the tenets of a religion cannot be interfered with, as long
as the same do not infringe “public order, morality and health, and/or the provisions of
Part III of the Constitution.” The instant challenge regarding the practices of ‘Exorcism’
and 'Deliverance Retreat' in no way infringes with public order, morality and health,
and/or the provisions of Part III of the Constitution. It is not possible for us to accept, that
the practices of ‘Exorcism’ and 'Deliverance Retreat and Healing' can be set aside and
held as unsustainable in law for the three defined purposes expressed in Article 25(1).
Viewed from any angle, it is impossible to conclude, that the practice impinges on ‘public
order’, or for that matter on ‘health’.
25
State of Madras v. V.G. Row, A.I.R. 1952 S.C. 196
26
A.I.R. 1952 S.C. 196

___________________________________________________________________________________________________________________________________________________________________
29) The courts invoked the concept of over-breadth: according to which “public order” was
synonymous with public tranquility and peace. Even then, Exorcism and Deliverance
retreat and Healing does not attract the doctrine of over-breadth. Moreover, it has no
nexus to ‘morality’, as well. Right to health is distinct from this aspect and does not
enclose the essential practices of Catholics. Therefore, the practices of Catholics cannot be
prevented or eradicated on the three non-permissible/prohibited areas which Article 25
forbids even in respect of ‘personal law’.
30) The international conventions and norms having relevance in this field assume
significance in application in their manner of judicial review. Some other provisions in the
Constitution permit such use of Article 51(c) to foster respect for international law and
treaties in the dealings of organized peoples with one another. This Article embodies the
object of India in the international sphere. A statute must be interpreted in the light of
international treaties and conventions27 Hence, in the light of Art.51(c), Customary Rules
of International Humanitarian Law mandates that the personal conviction and religious
practices of persons deprived of their liberty must be respected. Interestingly, The Hague
Regulations 1907 mandates the same. Therefore, Article 19(1) (a) and Article 25 (1) are
gravely violated through this impugned Act when the Principle of Conformity with the
international laws is applied.
31) Magnitudinal self-realisation of religious beliefs is the striking feature of our constitution.
Arts 25 and 19 of the Indian Constitution holds right to propagation and freedom of
expression as it's cynosure. The essential practices of Catholics are enormously
enumerated in their scriptures and its validity is upheld through the doctrine of
essentiality. Art 19 guarantees rights but imposes reasonable restrictions on the same. In
the instant case, the word 'reasonable restriction' does not occupies any place since the
nexus between the said right and restriction is not established. The effect and
consequences test and the test of reasonableness projects the true nature and motto of the
Act, 2019. Articles 25 and 19 are clearly inconsistent with the said act since there is grave
violation of the said fundamental rights of the petioners. Article 51(c) and obligatory
27
Kapila Hingorani v. State of Bihar,2003(3) PLJR 17; Vishaka v. State of Rajasthan, A.I.R. 1997 S.C. 3011

___________________________________________________________________________________________________________________________________________________________________
provisions of international laws are brought in to bring to light the mandation of liberty of
personal conviction and religious practices.
3. Whether Section 14 of the Act is unconstitutional on grounds of violation of Art 14

and excessive delegation of legislative power?
3.1. Delegation of essential functions:
32) Delegation is considered to be a sound basis for administrative efficiency and it does not
by itself amount to abdication of power if restored to within proper limits. The delegation
should not, in any case, be unguided and uncontrolled leading to uncanalised flow of
powers. Parliament and State Legislatures cannot abdicate the legislative power in its
essential aspects which is to be exercised by them. It is only a non-essential legislative
function that can be delegated. It is settled that the Legislature, except when authorized
by the Constitution, cannot create a parallel Legislature or abdicate its function in favor
of some outside authority.
33) Similarly, the Legislature cannot delegate its power to repeal a law or even to modify it in
essential features. The inhibition against delegation of essential legislative function is
also impliedly derived from the provisions of the Constitution which confer the power to
make laws on the legislature. It is reasoned that the Constitution entrusts the duty of law-
making to Parliament and the Legislatures of States and thereby impliedly prohibits them
to throw away the responsibility on the shoulders of some other authority.
34) Though plenary powers of legislation have been conferred the Parliament and State
legislatures in respect of legislative topics allotted to them, yet courts have opined that by
the exercise of that power neither Parliament nor State legislature can delegate to other
authorities their essential legislative functions nor can they invade on the judicial power. 28
It is a fundamental principle of constitutional law that everything necessary to the
28
Mangal Singh v. Union of India, 1967 A.I.R. 944

___________________________________________________________________________________________________________________________________________________________________
exercise of a power is included in the grant of the power. A legislature cannot certainly
strip itself of its essential functions and vest the same on an extraneous authority. The
primary duty of law making has to be discharged by the legislature itself but delegation
may be reported to as a subsidiary or ancillary measure.29
3.1.1 Doctrine of Delegated Legislation:
35) The doctrine of delegated legislation appertains to the domain of separation of powers.
Though legislative function is in the exclusive jurisdiction of the Legislature by implied
rule of the constitutional jurisprudence, the Legislature may find it urgent and expedient
to delegate its non-essential legislative function to the executive by giving full legislative
direction. The doctrine of excessive delegation envisages that ‘excessive delegation may
amount to abdication’, and ‘delegation unlimited may invite despotism uninhibited.’ So,
the principle is that a legislature may not delegate its essential legislative function. “The
power of delegation is part of the legislative power as a whole. In modern times, when
the Legislatures have to enact numerous laws to meet the challenges of the complex
socio-economic problems, they often find it convenient and necessary to delegate
subsidiary or non-essential legislative power for carrying out the policy laid down by the
Acts. The extent to which such delegation is permissible, is now well-settled. The
delegation of non-essential legislative power is a constitutional expediency” 30
36) “Though there is no earmarked demarcation in the Indian Constitution

regarding separation of powers, by implication it is fully established that the
law-making function solely belongs to the legislature. The executive or
administrative body has no legislative power. Therefore, the Legislature
cannot delegate its essential legislative function to the executive and if any
such delegation is made, such delegation is ultra-vires. The legislature,
however, due to pressure of work may delegate non-legislative function to
the executive or to any other body by giving adequate guidance and
direction”.31The problem of delegated legislation, thus, relates to the
question whether, in making a particular statute, the Legislature has, in fact,
29
Edward Mills Co. Ltd. v. State of Ajmer, 1955 A.I.R. 55
30
Dr. C.D. Jha, Judicial Review of Legislative Acts 477 (2nd Edn. 2009)
31
Id.

___________________________________________________________________________________________________________________________________________________________________
delegated its ‘essential’ functions. The essential function has to be decided

having regard to the (i) subject matter, (ii) the scheme of law, (iii) the
provisions of the Statutes including its preamble and (iv) the facts and
circumstances in the background of which the Statute is enacted”.32
37) In the instant case, (i) the subject matter of the Act, 2019 and its schedule is religion since
it entails twelve essential practices of various religions, (ii) the scheme of the law is
criminalization of religious practices by tagging it under the blanketed terms of
“inhuman, evil or sinister practices, Sorcery and black magic.”, (iii) the sixteen sections
of the Act, 2019 including its preamble aims at the eradication of essential religious
practices of Catholics, (iv) the instant statue was enacted with the heights of spiritualism
becoming a holy cover for unholy deeds in the state of Dharmasthan.
38) The circumstances when Swami Mokshanandha was arrested triggered a flood of
complaints from many parts of the State against scores of God men and God women,
accusing them of cheque fraud, tax dodging, cheating, rape and even murder. The
allegations of forceful confinement and murder charges against one of the largest
Catholic healing centers further aggravated the situation.
39) Thereafter, most of the newspapers in the state published reports regarding incidents of
exploitation of the society, using inhuman, evil and sinister practices, sorcery and
practices of black magic. With reference to the above stated, it is apparent that the State
Legislature of Dharmasthan in making this particular statue has delegated its essential
functions. It has contravened the principle of delegation which annotates: “The legislature
cannot delegate its essential legislative functions.” The delegation of essential legislative
power and delegation without essential legislative direction are violative of the Indian
Constitution and such legislative Acts also become justiciable and must be struck down
as unconstitutional.
3.2. The canopy of excessive delegation:
32
St. Johns Teachers training institute v Regional director, A.I.R. 2003 S.C. 1533.

___________________________________________________________________________________________________________________________________________________________________
40) The principle of excessive delegation has been invoked in India in a large number of
cases to test the validity of the statutory provisions delegating legislative power. 33 The
effect of the doctrine of excessive delegation is that the delegate who has been authorized
to make subsidiary rules and regulations has to work within the scope of his authority and
cannot widen or constrict the scope of the parent Act delegating power to him, or the
policy laid down in the parent Act.34
41) A statute may, at times, confer on the executive the power to modify or amend itself by
the same statute itself through delegated legislation. The power conferred on the delegate
may be to make ‘such modifications’ in the parent statute as it likes with a view to
reconcile the delegation of power to modify the statute with the doctrine of excessive
delegation, the formula evolved by the courts is that while the power to modify the
statute35may be conferred on the executive the concerned body subject to two safeguards:
the Act lays down the (i) policy subject to which the power is to be exercised, (ii) cannot
use the power so as to change the policy underlying the parent statute, or effect any
essential changes therein or in other words, if no guidance is provided or policy laid
down, the fact that the delegate has a representative character could make no difference
in principle.36
42) A method to invoke legislative supervision of delegated legislation is a provision in the

delegating statute requiring placing of the rules before the appropriate authority. It is used
to inform the Houses of Parliament about the content of the delegated legislation made by
the government from time to time under various statutes 37. After their promulgation, there
is no time-frame within which the rules must be placed before the said authority. The
phraseology used is also not strong enough to stick to a time-frame leading to
ineffectiveness of parliamentary control. Moreover, it is only directory and not
mandatory. Any failure to adhere with the sated formula does not affect their legal
validity under section 14 of the Act, 2019.
33
Babu Ram Jagdish Kumarampv. State of Punjab,A.I.R. 1979 S.C. 1475
34
Agriculture Market Committee v. Shalimar Chemical Works LtdA.I.R. 1997 S.C. 2502
35
Rajnarain Singh v. Chairman Patna Administration Committee A.I.R. 1954 S.C. 569
36
Gwalior Rayon Silk Mfg. (Wvg.) Co v. The Asstt. Commissioner of Sales, 1974 A.I.R. 1660
37
Thanmal v Union of India, A.I.R. 1959 Raj 206

___________________________________________________________________________________________________________________________________________________________________
43) The functions of the court and the legislature are different. While the legislature looks
into the merits of or the policy underlying the rules in question, a court probes not the
merits of the rules but into the legality thereof, that is whether the rules fall within the
parameters of the enabling provision. At times the said formula has been used by the
courts as one of the factors to uphold legislation against an attack on the ground of
excessive delegation of legislative power. This judicial approach seems to be unjustified
and amounts to the dilution of the doctrine of excessive delegation as it is merely of a
directory nature and, in effect, does not invite any legislative control over the rules made
by the executive.38
3.2.1. The doctrine of permissible limits:
44) Doctrine of permissible limits talks about those limitations of a legislation to which the
power can be delegated. This doctrine puts a limitation on the legislature so that
legislature is handicapped from delegating its all the powers to the administrative
authorities. This type of legislature provides a very important role in the making of law as
there is more delegated legislation enacted each year than there are Acts of Parliament. In
addition, delegated legislation has the same legal standing as the Act of Parliament from
which it was created. In order to delegate its powers to any person or body, parliament
has its own limitations. It cannot delegate all its powers to any Administrative authority.
There are some powers which cannot be delegated. Those powers which can be delegated
can come into the preview of the Doctrine of permissible limits. By reason of any
legislation whether enacted by the legislature or by way of subordinate legislation, the
State gives effect to its legislative policy.
45) Such legislation, however, must not be ultra vires the Constitution. A subordinate
legislation apart from being intra vires the Constitution, should not also be ultra vires the
parent Act under which it has been made. A subordinate legislation, it is trite, must be
reasonable and in consonance with the legislative policy as also give effect to the purport
38
Delhi Cloth and General Mills Co Ltd v Union of India, A.I.R. 1983 S.C. 937

___________________________________________________________________________________________________________________________________________________________________
and object of the Act and in good faith. 39 Delegated legislation is open to the scrutiny of
courts and may be declared invalid particularly on two grounds: (a) Violation of the
Constitution; and (b) Violation of the enabling Act. The second ground includes within
itself not only cases of violation of the substantive provisions of the enabling Act, but
also cases of violation of the mandatory procedure prescribed.
“It is true that the words 'such restrictions and modifications as it thinks fit',
if construed literally and in isolation, appear to give unfettered power of
amending and modifying the enactment sought to be extended. Such a wide
construction must be eschewed lest the very validity of the section becomes
vulnerable on account of the vice of excessive delegation. Moreover, such a
construction would be repugnant to the context and the content of the
section, read as a whole, and the statutory limits and conditions attaching
to the exercise of the power. We must, therefore, confine the scope of the
words 'restrictions and modifications' to alterations of such a character
which keep the inbuilt policy, essence and substance of the enactment
sought to be extended, intact, and introduce only such peripheral or
insubstantial changes which are appropriate and necessary to adapt and
adjust it to the local conditions of the Union Territory”.40
46) It may also be challenged on the ground that it cannot be said to be in conformity with the
statute or Article 14 of the Constitution or that it has been exercised in bad faith. The
limitations which apply to the exercise of administrative or quasi-judicial power
conferred by a statute except the requirement of natural justice also apply to the exercise
of power of delegated legislation. Rules made under the Constitution do not qualify as
legislation in true sense and are treated as subordinate legislation and can be challenged
in judicial review like delegated legislation. Compliance with the requirements or even
approval by a resolution of Parliament does not confer any immunity to the delegated
legislation but it may be a circumstance to be taken into account along with other factors
to uphold its validity although as earlier seen a non-subjective clause may prevent the
enabling Act being declared invalid for excessive delegation 41 as elucidated by section 14
of the Act, 2019.
39
Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group, A.I.R. 2006 S.C. 1489
40
Brij Sunder Kapoor v.Ist Additional District Judge, 1989 A.I.R. 572
41
G.P. Singh's Principles of Statutory Interpretation, 916 (Tenth Edition)

___________________________________________________________________________________________________________________________________________________________________
3.3. Incompetency of Dharmasthan State Legislature:
47) A law to be valid must conform to the constitutional norms. The doctrine of
parliamentary sovereignty as it obtains in England does not prevail here except to the
extent and in the fields provided by the Constitution. Violation of the scheme of
distribution of powers between the Centre and the States, infringement of a Fundamental
Right, and violation of other constitutional restrictions/limitations are the instances when
the unconstitutionality of a statute arises from various constitutional violations.
48) The power to legislate is a plenary power vested in the legislature and unless those who
challenge the legislation clearly establish that their Fundamental Rights under the
Constitution are affected or that the legislature lacked legislative competence, they would
not succeed in their challenge to the enactment bought forward in the wisdom of the
legislature42. A statute to be valid ought to be with respect to a matter assigned to the
particular legislature which has enacted it. If it is not within the scope of legislative
authority, or if it offends some constitutional restriction or prohibition then it becomes
unconstitutional and hence invalid. This essentially refers to the question of distribution
of powers between the Centre and the States.
49) Parliament has exclusive power to legislate with respect to any of the matters enumerated
in List I, notwithstanding anything contained in clauses (2) and (3) of Article 246. The
non obstante clause under Article 246(1) indicates the predominance or supremacy of the
law made by the Union Legislature in the event of an overlap of the law made by
Parliament with respect to a matter enumerated in List I and a law made by the state
legislature with respect to a matter enumerated in List II of the Seventh Schedule.
However, both Parliament and the State Legislatures are supreme in their respective
assigned fields.
50) It is the duty of the Court to interpret the legislations made by Parliament and the state
legislature in such a manner as to avoid any conflict. But if the conflict is unavoidable,
and the two enactments are irreconcilable then by the force of the non obstante clause in
42
Mylapore Club v. State of T.N, A.I.R. 2006 S.C. 523

___________________________________________________________________________________________________________________________________________________________________
clause (1) of Article 246, the parliamentary legislation would prevail notwithstanding the
exclusive power of the state legislature to make a law with respect to a matter enumerated
in the State List. Repugnancy between the parliamentary legislation and the state
legislation can arise in two ways. First, when there is an overlap or conflict of legislations
with respect to matters in their allotted sphere 43. Second, where the two legislations are
with respect to matters in the Concurrent List and there is a conflict. In both the
situations, parliamentary legislation will predominate, in the first, by virtue of the non
obstante clause in Article 246(1), in the second, by reason of Article 254(1).44
51) A special mention may be made here of the rule of ‘pith and substance’ which means that
to determine whether a statute is ultra vires the enacting legislature, its pith and
substance, its true character, is to be ascertained. The advantage of the rule is that it
avoids a law being declared unconstitutional merely because it incidentally trenches into
the prohibited legislative area. The rule thus adds a further dimension to the legislative
power of a legislature.45
3.3.1. The doctrine of pith and substance:
52) The phrase “pith and substance” means “true nature and character”. This doctrine relates
to the violation of Constitutional delimitation of legislative powers in a Federal State.
Under it, the Court ascertains whether the alleged encroachment is merely incidental or
substantial. Thus, the doctrine of “pith and substance” postulates, for its application, that
the impugned law is substantially within the legislative competence of the legislature that
made it, but only incidentally encroached upon the legislative field of another legislature.
53) The doctrine saves this incidental encroachment if in reality the law is within the
legislative field of the particular legislature which enacted it. 46 For applying the principle
of “pith and substance” regard is to be had to the enactment as a whole; to its main
43
State of Bihar v. Kameshwar Singh, A.I.R. 1952 S.C. 252; K.C Gajapati Narayan Deo v. State of Orissa, A.I.R
1953 S.C 375 Gullapalli Nageswara Rao v. AP State Road Transport Corpn, A.I.R. 1959 S.C. 308
44
Govt. of A.P. v. J. B. Educational Society, A.I.R. 2005 S.C. 2014
45
State of Gujarat v. Akhil Gujarat Pravasi v.Mahamandal,A.I.R. 2004 S.C. 3894
46
Prafulla Kumar Mukherjee v. The Bank of Commerce, (1947) 49 BOMLR 568

___________________________________________________________________________________________________________________________________________________________________
objects; and to the scope and effect of its provision. Where the question for determination
is, whether a particular law relates to a particular subject mentioned in one list or the
other, the Court looks into the substance of the enactment. If the substance of the
enactment falls within the Union List, then the incidental encroachment by the enactment
on the State List would not make it invalid.47
54) If there is a challenge to the legislative competence the courts will try to ascertain the pith
and substance of such enactment on a scrutiny of the Act in question. In this process, it is
necessary for the courts to go into and examine the true character of the enactment, its
object, its scope and effect to find out whether the enactment in question is genuinely
referable to the field of legislation allotted to the State under the constitutional scheme 48In
the instant case, the necessity of the State Government to take appropriate and stringent
measures to effectively eradicate the spread of black magic, sorcery and to save the
common people from the same is the essence of this law. The substance of the Act is the
various practices essentially associated with different religions which again are blanketed
under “black magic or sorcery”. Both the essence and substance of the Act, 2019
connotes different shades of religion and that is enumerated by the 9 paragraphs of the
schedule of the Act, 2019 entailing 12 essential practices of 6 different religions.
55) Adding on, the Hon’ble High Court of Orissa held propagation and conversion to be a
part of Christian religion and thereby affirmed it to be entry 97 of list I since the subject
matter of that entry was religion. In the present scenario, the true nature of the Act, 2019
is oriented to religion and comes under entry 97 in List 1 of the Seventh Schedule to the
Constitution. The power to amend the Schedule itemized under section 14 of the Act,
2019 is not in pith and substance to the entries in the lists.
56) The State Legislature of Dharmasthan does not have the legislative competence to pass
the this instant act, because their laws aims at the eradication of religious practices and
fall under the Residuary Entry 97 in List 1 of the Seventh Schedule to the Constitution.
Where a challenge is made to the constitutional validity of a particular State Act with
reference to a subject mentioned in any entry in List I, the Court has to look to the
47
Bharat Hydro Power Corp. Ltd v State of Assam, A.I.R. 2010 S.C. 2633
48
Kannan Devan Hill Produce Co Ltd v. State of Kerala,A.I.R. 1972 S.C. 2301

___________________________________________________________________________________________________________________________________________________________________
substance of the State Act and on such analysis and examination, if it is found that in the
pith and substance, it falls under the Union list, the State Act would become invalid49
3.4. Encroachment on the principle of isonomy:
57) Principle of isonomy or the law of equality is guaranteed under Article 14 of the Indian
Constitution. The First part of Art.14 , which was adopted from the Irish , Constitution is
a declaration of equality of the civil rights of all persons within the territories of India and
it enshrines a basic principle of republicanism and that the second part, which is a
corollary of the first and is based on the last clause of the first section of the Fourteenth
Amendment of the American , Constitution, enjoins that equal protection shall be secured
to all such persons in the enjoyment of their rights and liberties without discrimination or
favoritism. It is a pledge of the protection of equal laws, that is, laws that operate alike on
all persons under like circumstances.
58) Art.14 has contributed to a great extent to the establishment of rule of law. The rule of
law is that the Legislature shall not make any law which takes away or abridges the
equality clause in Art.14 which enjoins the State not to deny to any person equality
before the law or the equal protection of the laws of the country. 50 Permissible
classification under isonomy offers protection from both legislative and executive
tyranny by way of discrimination.
3.4.1. The doctrine of classification:
59) It is sufficient to state that the content and reach of Art.14 must not be confused with the
doctrine of classification. It condemns discrimination not only by substantive law but by
a law of procedure and forbids class legislation but does not forbid classification.
49
Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, A.I.R. 2010S.C. 2633
50
Jindal Stainless Ltd v. State of Haryana, A.I.R. 2006 S.C. 2550

___________________________________________________________________________________________________________________________________________________________________
However, permissible classification must satisfy two conditions, namely, (i) it must be
founded on an intelligible differentia which distinguishes persons or things that are
grouped together from others left out of the group, and (ii) the differentia must have a
rational relation to the subject sought to be achieved by the statute in question. The
differentia and object are different elements and it follows that the object by itself cannot
51
be the basis of the classification. There must be a nexus between the basis of
classification and the object of the Act under consideration.52
60) In the instant case, Section 3 clause 1 of the Act, 2019 reads, “No person shall by himself
or through any other person, promote, propagate or practice or cause to promote,
propagate or practice inhuman, evil or sinister practices, black magic or sorcery specified
in the Schedule.” By stating it, they have grouped all the acts plus Exorcism and
Deliverance retreat and Healing specified in the schedule under three heads: inhumane
acts; Evil or sinister practices; black magic or sorcery. The intelligible differentias
between these acts were not taken into consideration. Even a single individual may be in
a class by himself on account of some special circumstances or reasons applicable to him
and not applicable to others; a law may be constitutional even though it relates to a single
individual who is in a class by himself. 53 The credo of magic and the dichotomy among
different approaches to magic were clubbed under the said heads.
61) The Wiccanisim54 aspect of differentia was not brought in. The Act, 2019 does not pay
any heed to the purpose, scope, object and the exceptions behind the performance of the
said magic. Any act to be construed under the instant statue must satisfy three conditions:
1. it must be inhumane; 2. it must an undignified act; 3. it must evidently be a
superstitious act. All the acts included in the instant statue are presumed to be satisfying
the above said conditions but when closely analyzed it is proved to be false. A
classification which has no rational basis 55 and has no relation to the object sought to be
51
Shri Ram Krishna Dalmia v. S. R. Tendolkar, 1958 A.I.R. 538
52
Budhan v State of Bihar, A.I.R. 1955 S.C.191; Harakchand v Union of India, A.I.R. 1970 S.C. 1453
53
Shri Ram Krishna Dalmia v. S. R. Tendolkar, 1958 A.I.R. 538
54
Lochamesh B Hugar v. Union of India, 2013 (2) KarLJ 643
55
A. PeriakaruppanChettiar v. State of Tamil Nadu, 1971 A.I.R. 2303

___________________________________________________________________________________________________________________________________________________________________
achieved is violative of Art. 14.56 If a law deals equally with members of a well-defined
class, it is not obnoxious and it is not open to the charge of denial of equal protection on
the ground that it has no application to other persons. Therefore, there is inconsideration
of dual intelligible differentia, inconsistence with the doctrine of classification and
absolute violation of Article 14 of the Indian Constitution
PRAYER
Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly
prayed that this Hon’ble Court may be pleased to hold, adjudge and declare that;
1. Section 3 Of The Act Read with Section 2 (c) Of the Act and Paragraph 9 of the
Schedule Violates the Petitioner's Fundamental Right Under Article 19(1) (a), Article
19(1) (g) and Article 25(1) of The Indian Constitution;
2. Section 14 of the Act is Unconstitutional On Grounds of Violation of Article
14 And Excessive Delegation of Legislative Power;
56
B. Rajendran v State of Madras, 1968 A.I.R. 1012

___________________________________________________________________________________________________________________________________________________________________
Henceforth, the Dharmasthan Prevention and Eradication of Inhuman Sorcery and Black
Magic Act, 2019 must be struck down as unconstitutional.
The Court may make any other such order as it may deem fit in terms of justice, equity and
good conscience.
And for this act of kindness the Petitioners shall as duty bound ever humbly pray.

Memorial Petitioners Kla

Uploaded by

Document Information

Original Description:

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Memorial Petitioners Kla

Uploaded by

Copyright:

Available Formats

TEAM CODE: 13

29th ALL INDIA MOOT COURT COMPETITION 2020

BEFORE THE HON’BLE HIGH COURT OF DHARMASTHAN

WRIT PETITION NO ____ OF 2019

SNEHA RETREAT CENTER …………………………………………PETITIONER

STATE OF DHARMASTHAN…………………………………………... RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

MEMORIAL FOR THE PETITIONER

1.1. Infringement of Fundamental Rights

1.1.1. Infraction of Article 14

1.1.2. Infraction of Article 19

1.1.3. Infraction of Article 25

MEMORIAL FOR PETITIONERS 2

1.2. The Jurisdiction of High Court

2.1. The gamut of Religious Practices in the Indian Constitution

2.2.1. Freedom under Article 19(1)(a) and 19(1)(g)

2.2.2. Repugnancy with central act.

2.3. Prevention and Eradication of Essential Practices of Catholics

2.3.2. Doctrine of Essentiality

2.4. Spiritual Healing in Catholicism

2.4.1. Concept of Sui Juris

3.Whether Section 14 Of The Act Is Unconstitutional On Grounds of Violation of Art

3.1. Delegation of essential function.

3.1.1 Doctrine of Delegated legialation

3.2 The Canopy of excessive delegation

3.2.1 The doctrine of permissible limits

3.3 Incompentancy of Dharmasthan State Legislature

3.3.1 The doctrine of Pith and Substance

MEMORIAL FOR PETITIONERS 3

3.4. Encroachment On the Principle of Isonomy

3.4.1 The Doctrine of Classification

MEMORIAL FOR PETITIONERS 4

S.NO TERMS ABBREVIATIONS

MEMORIAL FOR PETITIONERS 5

1. A. Periakaruppan Chettiar v. State of Tamil 1971 A.I.R. 2303

13. Fertilizer Corporation kamgar Union, Sindri A.I.R. 1981 S.C.

15. Gujarat Water Supply v. Unique Electro A.I.R. 1989 S.C.

MEMORIAL FOR PETITIONERS 6

16. Gullapalli Nageswara Rao v. AP State Road A.I.R. 1959 S.C.

20. Justice K.S.Puttaswamy (Retd) v. Union Of 2018 S.C.C. OnLine

MEMORIAL FOR PETITIONERS 7

36. Shri Ram Krishna Dalmia v. S. R. Tendolkar 1958 A.I.R. 538

38. Sri Adi Visheshwara of Kashi Vishwanath (1997) 4 S.C.C 606

46. The Commissioner v. Sri Lakshmindra 1954 A.I.R. 282

51. Zameer Ahmed Latifur Rehman Sheikh v. A.I.R. 2010 S.C.

MEMORIAL FOR PETITIONERS 8

2. M.P Jain, Indian Constitutional Law, 6th Ed, Lexis nexis

3. ‘Prato Conclusions' of 2010

5. Aravind.P.Datar, commentary on constitution of India, 2nd Ed, Wadhwa and co.

8. S.P. Sathe, Administrative Law, 7th ed., Lexis Nexis.

9. Massey IP, Administrative Law, 7th ed. Eastern Book co.

10. Holy Bible

12. PetersCults: Faith, Healing, and Coercion - Marc Galanter

14. G.P. Singh's Principles of Statutory Interpretation.

MEMORIAL FOR PETITIONERS 9

2. The International Covenant on Civil and Political Rights, 1966

3. The Universal Declaration of Human Rights, 1948

4. Customary International Humanitarian Law

5.The Hague Conventions of 1907

6.The Code of Criminal Procedure, 1973

7. The Drugs and Magic Remedies Act, 1954

8. The Constitution of the State of Washington, 1889