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i5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015

5TH NATIONAL MOOT COURT COMPETITION

TARKA SASTRA, 2015

IN THE HON’BLE

SUPREME COURT OF GOD’S ISLAND

IN THE MATTER OF

APPELLATE JURISDICTION

SLP NO. ___ OF 2015

MRIGA APPELLANT

V. STATE OF LEOLAND RESPONDENT NO. 1

AND

WRIT JURISDICTION

W.P. (CIVIL) NO. ___ OF 2015

PUBLIC INTEREST BODIES & RELIGIOUS BODIES PETITIONER

V.

UNION OF GOD’S ISLAND RESPONDENT NO. 2

PETITIONS U/ARTS. 136 & 32 OF THE CONSTITUTION OF GOD’S ISLAND, 1950

MEMORANDUM FOR THE APPELLANTS

ii5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015

MEMORANDUM ON BEHALF OF THE APPELLANTS

COUNSEL FOR THE APPELLANTS

TABLE OF CONTENTS

CONTENT P.

LIST OF ABBREVIATIONS v

INDEX OF AUTHORITIES vii

I. CASE LAW vii

II. LEGISLATIONS viii

III. JOURNALS ix

IV. COMMENTARIES ix

V. LEXICONS ix

VI. WEBSITES x

STATEMENT OF JURISDICTION

1

STATEMENT OF FACTS

2

ISSUES RAISED

3

SUMMARY OF PLEADINGS 4

WRITTEN PLEADINGS 6

I. WHETHER THE AGREEMENT ENTERED INTO BETWEEN THE COLONIAL


iii5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015

GOVERNMENT OF THE DARK ISLES AND MRIGA, IN 1898, IS BINDING

UPON THE UNION OF GOD’S ISLAND. 6

[1.1] NON-REPUDIATION OF THE AGREEMENT: AGREEMENT CONTINUES

TO BE IN FORCE 7

[1.2] NO BAR TO INTERFERENCE: ART. 363 IS NOT APPLICABLE 9

II. WHETHER THE AMENDMENT TO ARTICLE 26 OF THE CONSTITUTION

OF GOD’S ISLAND, 1950 IS VALID. 10

[2.1] PROCEDURAL CONFORMITY: REQUISITE PROCEDURE HAS NOT BEEN

STRICTLY COMPLIED WITH 11

[2.2] DOCTRINE OF BASIC STRUCTURE: AMENDMENT HAS DESTROYED THE

ESSENTIAL FEATURES OF THE CONSTITUTION 12

III. WHETHER THE STATE LEGISLATION OF LEOLAND CONCERNING THE

TAKEOVER AND COMPLETE CONTROL OF THE DEER TEMPLE

ESTABLISHMENT IS UNCONSTITUTIONAL. 14

[3.1] LEGISLATIVE COMPETENCE: STATE LEGISLATURE LACKS COMPETENCE

TO ENACT 14

[3.2] FUNDAMENTAL RIGHTS: VIOLATION OF PART III 16

IV. WHETHER THE DEER TEMPLE PROPERTY CAN BE USED TO REDRESS

THE FINANCIAL CRISIS CAUSED BY THE LEOLAND LIQUOR CORPORATION. 19

[4.1] ESSENTIALS OF RELIGION: PROHIBITION OF LIQUOR IS AN ESSENTIAL


iv5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015

PART OF THE RELIGION IN QUESTION

19

[4.2] DPSP: IMPORTANCE OF ART. 47 20

V. WHETHER THE OFFICIALS IN THE STATE GOVERNMENT OF LEOLAND

ARE GUILTY OF COMMITTING AN OFFENCE U/§. 295 OF THE GOD’S

ISLAND PENAL CODE, 1860 FOR THE RAZING DOWN OF STRUCTURES

AND THE CONVERSION OF IDOLS. 21

[5.1] ADJOURNMENT OF TRIAL PROCEEDINGS: §. 343 PERMITS

ADJOURNMENT BY MAGISTRATE 22

[5.2] PROCEDURAL CONFORMITY: REQUISITE PROCEDURE HAS BEEN

COMPLIED WITH 22

[5.3] ESSENTIALS OF AN OFFENCE: §. 295 PROVED BEYOND REASONABLE

DOUBT 23

PRAYER 26


v5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015

LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION

§. Section

§§. Sections

¶ Paragraph Number

¶¶ Paragraphs Numbers

& And

AIR All India Reporter

All Allahabad High Court

Anr. Another

AP Andhra Pradesh High Court

Art. Article

Arts. Articles

GPC, 1860 The God’s Island Penal Code, 1860

The Constitution The Constitution of God’s Island, 1950


vi5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015

Cr.P.C., 1973 The Code of Criminal Procedure, 1973

ed. Edition

e.g. exemplis gratia (Latin)

etc. Etcetera

HC High Court

Hon’ble Honourable

i.e. id est (Latin)

LLC Leoland Liquor Corporation

Ltd. Limited

No. Number

Ors. Others

p. Page Number

Pat Patna High Court

pp. Page Numbers

r/w. Read With

S/d Signed

SC Supreme Court

SCC Supreme Court Cases

S. No. Serial Number

U/§. Under Section

U/§§. Under Sections

U/Art. Under Article

U/Arts. Under Articles

v. Versus

Vol. Volume

Vols. Volumes


vii5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015

INDEX OF AUTHORITIES

I. CASE LAW

S. NO. CASE TITLE CITATION PP.

1. Aruna Roy v. Union of India AIR 2002 SC 3176 13

2. Bhauram v. Baijnath AIR 1962 SC 1476 8

3. Bhikaji Narain Dhakras v. State of Madhya Pradesh AIR 1955 SC 781 17

4. Bhimashya & Ors. v. Smt. Janabi @Janawwa (2006) 13 SCC 627 8

5. C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami AIR 1996 SC 1697 17

6. C.F. Dhirubha Dharangdhara Cheimical v. State of Bombay AIR 1955 SC 47 18

7. Chinthaman Rao v. State of Madhya Pradesh AIR 1951 SC 118 17

8. Deep Chand v. State of Uttar Pradesh & Ors. AIR 1959 SC 648 15

9. Government of Andhra Pradesh v. J.B. Educational Society AIR 2005 SC 2014 14


viii5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015

10. Indira Nehru Gandhi v. Raj Narain AIR 1975 SC 2299 13

11. Jhulan Sain v. Emperor AIR 1920 Pat 349 24

12. Kartar Singh v. State of Punjab (1994) 3 SCC 569 17

13. Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461 12

14. Khoday Distilleries Ltd v. State Of Karnataka (1995) 1 SCC 574 20

15. Laxmi Khandsari & Ors. v. State of Uttar Pradesh AIR 1981 SC 873 (¶ 16) 17

16. M. Karunanidhi v. Union of India & Ors. AIR 1979 SC 898 16

17. M.P. Shikshak Congress v. R.P.F. Commissioner, Jabalpul & Ors. AIR 1999 SC 443 16

18. Madhu Kishwar & Ors. v. State of Bihar & Ors. AIR 1996 SC 1864 (¶ 12) 13

19. Madras Bar Association v. Union of India AIR 2015 SC 1517 10

20. Mahendra v. State of Uttar Pradesh AIR 1963 SC 1019 (¶ 14) 12

21. Minerva Mills Ltd v. Union of India AIR 1980 SC 1789 12

22. Motilal v. State AIR 1952 All 963 (964) 8

23. N.K. Bajpai v. Union of India & Anr. AIR 2012 SC 1210 18

24. P.N. Kaushal & Ors. v. Union of India & Ors. AIR 1978 SC 1457 19

25. R.M.D. Chamarbaugwala v. Union of India AIR 1957 SC 628 14

26. Raghunath Rao v. Union of India AIR 1993 SC 1267 11

27. Rehman Shagoo v. State of Jammu & Kashmir AIR 1960 SC 1 14

28. S.I. Corporation v. Board of Revenue AIR 1964 SC 207 (215) 8

29. S.R. Bommai v. Union of India AIR 1994 SC 1918 17

30. Saghtir Ahmed v. State of Uttar Pradesh AIR 1954 SC 728 12

31. Saksena, I.N. v. State of Madhya Pradesh AIR 1976 SC 2250 14

32.Sri Kanyaka Parameswari Anna Satram

Committee & Ors. v. The Commissioner, Hindu Religious and Charitable Endowment & Ors.

AIR 1999 SC 3567 13, 18

33. Standard Chartered Bank v. Directorate of Enforcement AIR 2005 SC 2622 21

34. State of Bombay v. F.N. Balsara (1975) 1 SCC 29 20


ix5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015

35. Valsamma Paul v. Cochin University AIR 1996 SC 1011 13

36. Veernath v. State of Hyderabad AIR 1957 AP 1034 18

II. LEGISLATIONS

S. NO. TITLE OF LEGISLATION PP.

1. The Constitution of India, 1950 Passim

2. The General Clauses Act, 1897 7, 21

3. The Antiquities and Ancient Treasures Act, 1972 15, 16

4. The Indian Penal Code, 1860 21-25

5. The Code of Criminal Procedure, 1973 21-25

6. The Indian Independence Act, 1947 7, 8

III. JOURNALS

S. NO. TITLE OF JOURNAL PP.

1. All India Reporter (AIR) Passim

2. Supreme Court Cases (SCC) Passim

I. COMMENTARIES

S. NO. AUTHOR TITLE EDITION PP.

1. M.V. Pylee Constitutional Amendments in India

3rd ed. 2010 Passim

2. Arvind P. Datar

Commentary on the Constitution of India, Vol. II

22nd ed. reprint 2010

11

3. Durga Das Basu Shorter Constitution of India

13th ed. reprint 2006

14

4. Durga Das Basu

Case Book on Indian Constitutional Law

2nd ed. 2007 17


x5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015

5. Durga Das Basu

Commentary on the Constitution of India, Vol. II

8th ed. 2007 Passim

6. Durga Das Basu

Commentary on the Constitution of India, Vol. VIII 8th ed. 2011 Passim

7.Durga Das

BasuCommentary on the Constitution

of India, Vol. X8th ed. 2012 Passim

8. V.N. Shukla Constitution of India 12th ed. 2013

Passim

9. P.S.A. Pillai Criminal Law 12th ed. 2014

24

10. Hari Singh Gour

The Penal Law of India 11th

ed.1998Passim

11. Peter Murphy Blackstone’s Criminal Practice 2003 Passim

II. LEXICONS

S. NO. AUTHOR TITLE EDITION PP.

1. Henry Campbell Black Black’s Law Dictionary 4th ed. revised 1968 15

2. P. Ramanatha Aiyar Concise Law Dictionary 3rd ed. reprint 2007 24III. W EBSITES

S. NO. WEBSITE LINK PP.

1. w ww.scconline.in Passim

2. www.manupatra.com Passim

3. www.judis.nic.in Passim

4. www.indiankanoon.org Passim

5. www.legalserviceindia.com Passim

6. www.thelawdictionary.org Passim

7. www.oxforddictionaries.com Passim


http://www.oxforddictionaries.com/

http://www.thelawdictionary.org/

http://www.legalserviceindia.com/

http://www.indiankanoon.org/

http://www.judis.nic.in/

http://www.scconline.in/

xi5TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015


15TH NATIONAL TARKA SASTRA MOOT COURT COMPETITION, 2015

STATEMENT OF JURISDICTION

The Appellants herein have approached the Supreme Court of God’s Island through:

1. Appellant: A Special Leave Petition U/Art. 136 of The Constitution of God’s Island,

1950.

2. Petitioner: A Writ Petition U/Art. 32 of The Constitution of God’s Island, 1950.

The petitions have been clubbed together and the Supreme Court has admitted the petitions as

maintainable.

This Memorandum sets forth the facts, laws and the corresponding arguments on which

the claims are based in the instant case. The Appellants affirm that they shall accept any

Judgement of this Hon’ble Court as final and binding upon itself and shall execute it in its

entirety and in good faith.

[Each of the parties to the pending dispute before this Hon’ble Court may be referred to

individually as either ‘Appellant’, ‘Petitioner’, ‘Respondent No. 1’ or ‘Respondent No. 2’ as the

case may be. For the sake of convenience, they may be collectively referred to as ‘the

Appellants’ (representing the Appellant & the Petitioner) or ‘the Respondents’ (representing

Respondent No. 1 & Respondent No. 2)]


STATEMENT OF FACTS

For the sake of brevity, the material facts are placed herewith in the

chronological order:

1. God’s Island, now an independent and secular country, was conquered

by the Dark Islanders in 1700 A.D. Deer’s Cave, belonging to a

religious denominational sect named Mriga, situated in the State of

Leoland, contained a hoard of antique material riches. Unsuccessful attempts to take

over the property by the Colonial Rulers resulted in an Agreement with Mriga to

safeguard Mriga’s rights over the Deer Temple.

2. In 2011, God’s Island faced a huge financial crisis caused by the Leoland Liquor

Corporation. Several people employed in charitable institutions run by the Corporation

lost their livelihood. Subsequently, based on a re-discovery by the National Bureau of

Ancient Antiquities the State Legislature of Leoland enacted a Legislation to enable

complete control and takeover of the Deer Temple establishment.

3. A writ petition filed by Mriga before the High Court of Leoland challenging the

Legislation was dismissed. Simultaneously, the High Court remanded to trial a certain

issue regarding the criminality of actions of the Government Officials. Aggrieved by the

dismissal, Mriga appealed to the Supreme Court of God’s Island.

4. During the time when the judgement was being considered by the Supreme Court, the

Union of God’s Island passed an Amendment to Art. 26 of the Constitution.

Consequently, various other religious denominations and public interest bodies also filed

petitions challenging the Amendment.


5. The petitions were clubbed to be heard together. The matter was posted for final hearing

before a Constitutional Bench on the 20th of September, 2015.

ISSUES RAISED

ISSUE [I]

WHETHER THE AGREEMENT ENTERED INTO BETWEEN THE COLONIAL GOVERNMENT OF THE

DARK ISLES AND MRIGA, IN 1898, IS BINDING UPON THE UNION OF GOD’S ISLAND.

ISSUE [II]

WHETHER THE AMENDMENT TO ARTICLE 26 OF THE CONSTITUTION OF GOD’S ISLAND, 1950 IS

VALID.

ISSUE [III]

WHETHER THE STATE LEGISLATION OF LEOLAND CONCERNING THE TAKEOVER AND

COMPLETE CONTROL OF THE DEER TEMPLE ESTABLISHMENT IS UNCONSTITUTIONAL.

ISSUE [IV]

WHETHER THE DEER TEMPLE PROPERTY CAN BE USED TO REDRESS THE FINANCIAL CRISIS

CAUSED BY THE LEOLAND LIQUOR CORPORATION.

ISSUE [V]


WHETHER THE OFFICIALS IN THE STATE GOVERNMENT OF LEOLAND ARE GUILTY OF

COMMITTING AN OFFENCE U/§. 295 OF THE GOD’S ISLAND PENAL CODE, 1860 FOR THE

RAZING DOWN OF STRUCTURES AND THE CONVERSION OF IDOLS.

SUMMARY OF PLEADINGS

______________________________________________________________________________

[I] WHETHER THE AGREEMENT ENTERED INTO BETWEEN THE COLONIAL GOVERNMENT

OF THE DARK ISLES AND MRIGA, IN 1898, IS BINDING UPON THE UNION OF GOD’S ISLAND.

______________________________________________________________________________

It is humbly submitted before this Hon’ble Court that the Agreement continues in validity after

the commencement of the Constitution by the joint application of §. 7 of the God’s Island

Independence Act, 1947 and Art. 372 of The Constitution of God’s Island, 1950. Furthermore,

the application of Art. 363 is not attracted owing to the nature of the parties to the Agreement.

______________________________________________________________________________

[II] WHETHER THE AMENDMENT TO ARTICLE 26 OF THE CONSTITUTION OF GOD’S

ISLAND, 1950 IS VALID.

______________________________________________________________________________

It is humbly submitted before this Hon’ble Court that the Amendment to Article 26 of The

Constitution of God’s Island, 1950 is not valid in law. The procedure compliance U/Art. 368 has

not been adhered to and the Amendment has failed the test of Basic Structure which is the

touchstone of validity of a Constitutional Amendment. Furthermore, the retrospective effect of

the Amendment is unclear and ambiguous and thus cannot be applied.

______________________________________________________________________________


[III] WHETHER THE STATE LEGISLATION OF LEOLAND CONCERNING THE TAKEOVER AND


______________________________________________________________________________

It is humbly submitted before this Hon’ble Court that the State Legislation of Leoland

concerning the takeover and complete control of the Deer Temple establishment is

unconstitutional. There is a clear lack in legislative competence to enact the Legislation in the

relevant subject-matter. Furthermore, violation of the Rights guaranteed by Part III and other

provisions of The Constitution points to the unconstitutionality of the Legislation and the

subsequent Constitutional Amendment of Art. 26 cannot validate the Legislation retrospectively.

______________________________________________________________________________

[IV] WHETHER THE DEER TEMPLE PROPERTY CAN BE USED TO REDRESS THE FINANCIAL

CRISIS CAUSED BY THE LEOLAND LIQUOR CORPORATION.

______________________________________________________________________________

It is humbly submitted before this Hon’ble Court that the Deer Temple property cannot be used

to cure the financial crisis of the Leoland Liquor Corporation as the prohibition of liquor is an

‘essential’ part of the religion in question and it affects the religious sentiments of both Mriga

and the crores of devotees.

______________________________________________________________________________

[V] WHETHER THE OFFICIALS IN THE STATE GOVERNMENT OF LEOLAND ARE GUILTY OF

COMMITTING AN OFFENCE U/§. 295 OF THE GOD’S ISLAND PENAL CODE, 1860 FOR THE


______________________________________________________________________________


It is humbly submitted before this Hon’ble Court that the Officials in the State

Government are guilty of committing an offence U/§. 295 of The God’s Island

Penal Code, 1860 for razing down structures and the conversion of idols

belonging to the Appellant. The requisite procedure under The Code of

Criminal Procedure, 1973 has been complied with and the essential elements

of the offence have been proved with substantial evidence beyond

reasonable doubt.

WRITTEN PLEADINGS

______________________________________________________________________________

[I] WHETHER THE AGREEMENT ENTERED INTO BETWEEN THE COLONIAL GOVERNMENT

OF THE DARK ISLES AND MRIGA, IN 1898, IS BINDING UPON THE UNION OF GOD’S ISLAND.

______________________________________________________________________________

It is humbly contended before this Hon’ble Court that the Agreement entered into between the

Colonial Government of the Dark Isles (hereinafter referred to as the ‘Colonial Rulers’)1 and

Mriga, the Denominational Sect (hereinafter referred to as the ‘Appellant’)2 on 17.08.18983

(hereinafter referred to as the ‘Agreement’) is binding upon the Union of God’s Island

(hereinafter referred to as ‘Respondent No. 2’),4 thereby making the State of Leoland (hereinafter

referred to as ‘Respondent No. 1’)5 also bound by it.

It is pertinent to note that the validity of the Agreement was subsequently recognised by

the King of the Dark Isles in 1901.6 The Agreement thus mandated legal recognition for the

1 Moot Proposition, p. 2, ¶ 22 Memorandum For The Appellants, p. i, Cause Title3 Moot Proposition, p. 3, ¶ 64 Memorandum For The Appellants, p. i, Cause Title5 Memorandum For The Appella.nts, p. i, Cause Title6 Moot Proposition, p. 3, ¶ 7


lineal rights, custom and tradition of the Appellant with regard to the management and daily

administration of the temple and its related properties.7 The related properties refer to the assets

found in the Deer’s Cave8 that were under the control of the Appellant prior to the enactment of

the State Legislation of Leoland on the subject of the takeover9 (hereinafter referred to as the

‘State Legislation’).

In the present case it is important to analyse the current status of laws that were brought

about during the pre-Constitutional period, i.e. the period before 1950. The premises for the

continuance in force of the Agreement can be understood by delving into the following aspects:

i. that the Agreement continues to have the force of law owing to non-repudiation by

the appropriate authority; and [1.1]

ii. that the present case does not attract the application of Art. 363 of The Constitution of

God’s Island, 1950 (hereinafter referred to as ‘The Constitution’10).11 [1.2]

[1.1] NON-REPUDIATION OF THE AGREEMENT : AGREEMENT CONTINUES TO BE IN FORCE

The Appellant most respectfully submits that the Agreement continues in validity till the

present date as it has not been repudiated or revoked by any appropriate authority. Repudiation is

required to make the Agreement cease in its application by virtue of the following:

a. the Agreement continues to be valid under the Proviso to §. 7 of the God’s Island

Independence Act, 1947 enacted by the Colonial Rulers; and12 [1.1.1]

b. the Agreement continues to be valid U/Art. 372(1) of The Constitution.13 [1.1.2]

7 Moot Proposition, p. 3, ¶ 68 Moot Proposition, p. 2, ¶ 39 Moot Proposition, p. 3, ¶ 1010 §. 3(15). “Constitution”. The General Clauses Act, 189711 Art. 363. “Bar to interference by courts in disputes arising out of certain treaties, agreements, etc.” The Constitution of God’s Island, 195012 §. 7. “Consequences of the setting up of the new Dominions”. God’s Island Independence Act, 194713 Art. 372. “Continuance in force of existing laws and their adaptation”. The Constitution of God’s Island, 1950


1.1.1: AGREEMENT IS VALID UNDER THE PROVISO TO §. 7

The Agreement is valid under the Proviso to §. 7. This proviso prescribes that

effect shall continue to be given to the provisions of any such agreement which relates to

customs, etc. until the provisions in question are denounced by the Ruler of the Indian

State or by the Dominion or Province or are superseded by subsequent agreements.

Therefore, in the present instance, an Agreement is one which relates to and has acquired

the status of a ‘custom’. A custom to be valid must be immemorial, reasonable, should

have continued without interruption since its immemorial origin, and must be certain.14

Proving the above ingredients, the Appellant had the possession of the Deer Temple since

550 A.D.15 and as the Colonial Rulers failed to take over the property, it has remained

with the Appellant for time immemorial. Therefore, the Agreement continues to be valid

under the Proviso to §. 7 of the God’s Island Independence Act, 1947 enacted by the

Colonial Rulers.

1.1.2: AGREEMENT CONTINUES TO BE VALID U/ART. 372(1)

It is clear from Art. 395 that the God’s Island Independence Act, 1947 has been

repealed.16 Therefore, it may be argued that the provisions of the said Act cannot be

applied to the present case. However, it is important to note that the Agreement was

entered into prior to the enactment of the God’s Island Independence Act, 1947.17

Furthermore, Art. 372 of The Constitution clearly provides for the provision of §. 7 of the

God’s Island Independence Act, 1947 and saves the Court from any difficulties in

interpretation of the validity of the Agreement.

14 Bhimashya & Ors. v. Smt. Janabi @Janawwa, (2006) 13 SCC 62715 Moot Proposition, p. 2, ¶ 416 Art. 395. “Repeals”. The Constitution of God’s Island, 195017 Moot Proposition, p. 3, ¶ 6


The object of Art. 372(1) is to sanction the continuance of the existing laws until

they are repealed or amended by a competent authority under the new Constitution.18 As

established in the previous argument, a custom having the force of law is specifically

included in the definition of ‘law’ U/Art. 13.19 The Agreement in the present case falls

under the definition of ‘law’ U/Art. 13(3)(a). Therefore, U/Art. 372(1) the Agreement

which was in force before the commencement of the Constitution will continue to be in

force as there has been no alteration or repeal or an amendment to the same.

[1.2] NO BAR TO INTERFERENCE : ART. 363 IS NOT APPLICABLE

The Appellant most respectfully submits that Art. 363 of The Constitution cannot be

invoked by the Respondents in the present case as the parties to the Agreement in question are

different from that of those entailed in the Article. The application of the provision requires that

one of the parties to the Agreement must be any ‘Ruler of an Indian State’20 and that the other

party must be the Government of the Dominion of India or any of its predecessor Governments.

By virtue of Art. 363(2)(b) and Art. 366(22), it is evident that the Appellant cannot fall

under the term “Ruler” as it is a Denominational Sect representative of a particular sect in a

religion. The Denominational Sect has a deep-rooted ancestry that dates far back for more than

14 centuries. However, it has not represented itself or been recognised as a Ruler of any of the

States in God’s Island and therefore does not fall under the categories of ‘Prince’, ‘Chief’ or

other person recognised by His Majesty or the Government of the Dominion of India as the Ruler

of any Indian State and cannot be said to fall within the purview of the term “Ruler”.

In light of the above, it is humbly submitted that in the present case, the Agreement

continues to be in force by virtue of Art. 372(1) of The Constitution and is thus binding upon the 18 S.I. Corporation v. Board of Revenue, AIR 1964 SC 207 (215); See also Motilal v. State, AIR 1952 All 963 (964)19 Bhauram v. Baijnath, AIR 1962 SC 147620 Art. 366(22). “Ruler”. The Constitution of God’s Island, 1950


Union of God’s Island. The State of Leoland is bound by obligations that the Union is bound by.

Therefore, the State of Leoland is also bound by the Agreement.

______________________________________________________________________________

[II] WHETHER THE AMENDMENT TO ART. 26 OF THE CONSTITUTION OF GOD’S ISLAND,

1950 IS VALID.

______________________________________________________________________________

It is humbly contended before this Hon’ble Court that the Amendment to Art. 2621 of The

Constitution is not valid in law. In the present instance, the Constitutional Amendment to Art. 26

is not in conformity with the ideals of the Constitution and the principle of Secularism.22

The power of the Parliament to amend the Constitution is derived from Arts. 245, 23 24624 &

24825 r/w. item 97 in List I, i.e. the Union List.26 Art. 368 is the principal provision that confers

upon the Parliament the wide power of Amendment.27

To examine the validity of the Amendment, the Court should not concern itself with the

wisdom behind or the propriety of the Constitutional Amendment but rather with the compliance

of the following rules: 28

21 Art. 26. “Freedom to manage religious affairs”. The Constitution of God’s Island, 195022 “SECULAR”, inserted by the Constitution (42nd Amendment) Act, 1976. Preamble to The Constitution of God’s Island, 195023 Art. 245. “Extent of laws made by Parliament and by the Legislatures of States”. The Constitution of God’s Island, 195024 Art. 246. “Subject-matter of laws made by Parliament and the Legislatures of States”. The Constitution of God’s Island, 195025 Art. 248. “Residuary powers of Legislation”. The Constitution of God’s Island, 195026 Schedule VII: List I - Union List, Entry 97. “Any other matter not enumerated in List II or List III including fees taken in any court”. The Constitution of God’s Island, 195027 Art. 368. “Power of Parliament to amend the Constitution and procedure thereof”. The Constitution of God’s Island, 195028 Madras Bar Association v. Union of India, AIR 2015 SC 1517


i. that the procedure prescribed by Art. 368 of The Constitution is strictly complied with;

and [2.1]

ii. that the amendment has not destroyed or damaged the basic structure or the essential

features of The Constitution.29 [2.2]

[2.1] PROCEDURAL CONFORMITY : REQUISITE PROCEDURE HAS NOT BEEN STRICTLY

COMPLIED WITH

The Appellant most respectfully submits that the requisite procedure U/Art. 368 has not been

strictly complied with [2.1.1] and that the retrospective application of the Amendment is effected

in an ambiguous manner, thereby making it invalid. [2.1.2]

2.1.1: COMPLIANCE WITH ART. 368

For the purposes of an Amendment U/Art. 368, the provisions of the Constitution fall

under two categories:

(i) Art. 368(2) prescribes that an amendment can be effected by a special majority,

i.e., a majority of the total membership of each House of Parliament as well as by

a majority of not less than 2/3rd of the members of that House present and voting.

(ii) The proviso to Art. 368(2) prescribes a condition for five particular types of

amendment wherein a ratification of not less than one half of the States is

required.

In the present case, the Amendment to Art. 26 falls under the former category and not

the latter in which the ratification is required. However, in the present case the State

Legislatures have ratified the Amendment.30 When The Constitution does not place an

obligation upon the Parliament to obtain ratification from the State Legislatures to amend 29 Raghunath Rao v. Union of India, AIR 1993 SC 1267; See also Arvind P. Datar, Commentary on the Constitution of India, Vol. II (2nd ed. reprint 2010)30 Moot Proposition, p. 5, ¶ 19


The Constitution, such ratification would amount to excessive use of procedure which is

not required U/Art. 368. Therefore, the stipulated procedure for Amendment has not been

complied with.

2.1.2: PROCEDURE FOR RETROSPECTIVE APPLICATION

The retrospective operation of the Amendment is unreasonable, arbitrary and

violative of Arts. 1431 & 2132 of The Constitution. Retrospective effect to a Constitution

Amendment Act, if intended, must be given by using express words in that behalf. The

Court cannot ascribe retroactivity to an amendment of The Constitution by implication.33

In the present case, the retrospective effect of the Amendment has neither been expressly

mentioned in the Preamble nor in the Statement of Objects and Reasons of the

Amendment Act.34 Therefore, this Constitutional Amendment cannot be considered to be

retrospective in operation.

[2.2] DOCTRINE OF BASIC STRUCTURE : AMENDMENT HAS DESTROYED THE ESSENTIAL

FEATURES OF THE CONSTITUTION

It is most respectfully submitted that the Doctrine of Basic Structure has been violated in

the present case. The basic features of The Constitution constitute the unalterable part of The

Constitution. The Constitution has conferred a limited power of amendment on the Parliament.

Thus the Parliament cannot, under the exercise of that limited power, enlarge that very power

into an absolute power. Indeed, a limited amending power is one of the basic features of The

Constitution and, therefore, the limitations on that power cannot be destroyed.35

31 Art. 14. “Equality before law”. The Constitution of God’s Island, 195032 Art. 21. “Protection of life and personal liberty”. The Constitution of God’s Island, 195033 Mahendra v. State of Uttar Pradesh, AIR 1963 SC 1019 (¶ 14); See also Saghtir Ahmed v. State of Uttar Pradesh, AIR 1954 SC 72834 For e.g., Constitution (70th Amendment) Act, 199235 Minerva Mills Ltd v. Union of India, AIR 1980 SC 1789


In the present context, the scope of the Doctrine of Basic Structure under Part III36 is to

be examined. In Kesavananda Bharati v. State of Kerala,37 it was held that the Parliament may

amend the Fundamental Rights provided the basic foundation and structure of The Constitution

remains the same.

In the present case, the Amendment, ignoring the subsisting traditional and lineal

denominational rights enjoyed by the communities, provides for the acquisition, management,

control, and administration of denominational institutions without the aid and advice of the

denominational group. If any provision of law were to subject such religious property to a

restriction, it must do so by leaving the right of administration to the denomination. But if such

law takes away the right of administration from the hands of the religious denominations

altogether and vests it in any other authority, it would violate Art. 26,38 thereby violating the

Basic Structure of the Constitution. Secularism and freedom of conscience and religion is

considered to be one of the basic features of The Constitution.39 In the present instance, Art. 26

which embodies the principle of Secularism has been arbitrarily and unreasonably violated.

Furthermore, the Right to Life U/Art. 21 in its expanded horizon includes all

interpretations that give meaning to a person's life including the culture, heritage and tradition

with dignity of person and thus is a basic structure of The Constitution.40 Thus the Respondents

have violated the Basic Structure of the Constitution by introducing an Amendment to Art. 26.

36 Part III. Fundamental Rights. The Constitution of God’s Island, 195037 AIR 1973 SC 1461 (769)38 Sri Kanyaka Parameswari Anna Satram Committee & Ors. v. The Commissioner, Hindu Religious and Charitable Endowment & Ors., AIR 1999 SC 356739 Valsamma Paul v. Cochin University, AIR 1996 SC 1011; See also, Aruna Roy v. Union of India, AIR 2002 SC 3176; Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 229940 Madhu Kishwar & Ors. v. State of Bihar & Ors., AIR 1996 SC 1864 (¶ 12)


In light of the above, it is humbly submitted that in the instant matter, the Amendment

cannot be said to be valid in law as the Respondents have not followed the requisite procedure

and have grossly violated the Basic Structure of the Constitution.

______________________________________________________________________________

[III] WHETHER THE STATE LEGISLATION OF LEOLAND CONCERNING THE TAKEOVER AND


______________________________________________________________________________

It is humbly contended before this Hon’ble Court that the State Legislation concerning the

takeover and complete control of the Deer Temple establishment is unconstitutional. It is ultra

vires the power granted by The Constitution.

It is a well-settled rule that Legislation can be declared unconstitutional on two grounds

namely,

i. the lack of legislative competence to enact legislation over the subject-matter; and [3.1]

ii. violation of any Fundamental Rights guaranteed in Part III or any other provision of The

Constitution [3.2].41

[3.1] LEGISLATIVE COMPETENCE : STATE LEGISLATURE LACKS COMPETENCE TO ENACT

The Appellant most respectfully submits that a law passed without legislative

competence is a nullity ab initio42 and nothing can be done to cure that law.43 The legislative

powers of the Legislature of the Union and the States are limited by Chapter I, Part XI of The

Constitution.44 Both the Parliament as well as the State Legislatures may enact legislations with

41 Saksena, I.N. v. State of Madhya Pradesh, AIR 1976 SC 225042 R.M.D. Chamarbaugwala v. Union of India, AIR 1957 SC 62843 Rehman Shagoo v. State of Jammu & Kashmir, AIR 1960 SC 144 Durga Das Basu, Shorter Constitution of India, 1164 (13th ed. reprint 2006)


respect to any of the matters enumerated in List III of the Seventh Schedule.45 However, Art.

254,46 which enshrines the Doctrine of Repugnancy,47 states that where both the State

Legislatures and Parliament occupy the same field contemplated by List III then the legislation

passed by the Parliament being prior in point of time will prevail over the State Legislation.

Repugnancy in the context of statutes could be defined as an inconsistency or contradiction

between two or more parts of a legal instrument.48

In the present instance, the Central Legislation which has been passed prior to and

clashes with the State Legislation w.r.t. the acquisition and complete control of the Appellant’s

assets is the Antiquities and Art Treasures Act, 1972 (hereinafter referred to as the ‘Act of 1972’).

Repugnancy between the two legislations may thus be ascertained on the basis of the following

principles:49

a. the law made by Parliament and the law made by the State Legislature occupy the same

field; and [3.1.1]

b. there is direct conflict between the two provisions. [3.1.2]

It is also relevant to note that the requisite procedure has not been complied with [3.1.3].

3.1.1: OCCUPANCY IN THE SAME FIELD

The Preamble and a provision in the Act of 1972, clearly provides for the

acquisition of antiquities and art treasures. Similarly, Acquisition of property is a subject-

matter that falls under Entry 42 of List III. The property of the Appellant qualifies for the

definition of Antiquity under the Act, as an “article, object or thing of historical

45 Concurrent List, Seventh Schedule, The Constitution of God’s Island, 195046 Art. 254. “Inconsistency between laws, made by Parliament and laws made by the Legislatures of the State”. The Constitution of God’s Island, 195047 Government of Andhra Pradesh v. J.B. Educational Society, AIR 2005 SC 201448 Henry Campbell Black, Black’s Law Dictionary, 1457 (4th ed. revised 1968)49 Deep Chand v. State of Uttar Pradesh & Ors., AIR 1959 SC 648


interest”.50 Therefore, the State Legislation on the complete takeover and control of the

Deer Temple establishment51 is also a law w.r.t. Entry 42 of List III.

3.1.2: THERE IS DIRECT CONFLICT BETWEEN THE TWO PROVISIONS

The Act of 1972 provides that the Central Government has the authority to

compulsorily acquire antiquities or art treasure.52 Since the temple establishment falls

within the ambit of the Central Legislation, the subsequent State Legislation which

authorises the State Government to acquire the temple establishment is inconsistent and

absolutely irreconcilable to the Central Legislation. Therefore, the Central Legislation

will prevail and the State Legislation is violative of The Constitution.

3.1.3: REQUISITE PROCEDURE HAS NOT BEEN COMPLIED WITH

If law made by the State Legislature on a subject covered by the Concurrent List

is inconsistent with and repugnant to a previous law made by Parliament, then such a law

can be protected by obtaining the assent of the President U/Art. 254(2) of The

Constitution. The result of obtaining the assent of the President would be that so far as

the State Act is concerned, it will prevail in the State and overrule the provisions of the

Central Act in their applicability to the State only.53 However, since there is absence of

clear consent obtained from the President while passing the State Legislation, the State

Legislation is void in view of the repugnance.

[3.2] FUNDAMENTAL RIGHTS : VIOLATION OF PART III

50 §. 2(1)(a). “Antiquity”. Antiquities and Art Treasures Act, 197251 Moot Proposition, p. 3, ¶ 1052 §. 19. “Power of Central Government to compulsorily acquire antiquities and art treasures”. Antiquities and Art Treasures Act, 197253 M. Karunanidhi v. Union of India & Ors., AIR 1979 SC 898; See also M.P. Shikshak Congress v. R.P.F. Commissioner, Jabalpul & Ors., AIR 1999 SC 443


The Appellant most respectfully submits that when a statute contravenes a Fundamental

Right, it has to be declared unconstitutional and must cease to stand in the way of those who are

entitled to exercise the rights in question.54 In the present case, these rights would be Arts. 14,

15,55 21 & 26 of The Constitution.

The guarantee of equal protection and the right against discrimination envisaged U/Arts.

14 & 15 respectively, shall be limited only through the imposition of reasonable restrictions.56 By

‘reasonable’, it is meant that the classification must not be arbitrary but must be rational.57 The

discrimination which is prohibited is treatment in a manner prejudicial as compared with another

person or class similarly circumstanced by the adoption of a law different from the one

applicable to the other person or class.58 Therefore, the acquisition of property from the

Appellant alone without affecting the rights of any other religious denomination amounts to a

violation U/Arts. 14 & 15 and thereby violates the principle of Secularism, which constitutes the

basic structure of the Constitution.59

Art. 21 which protects life and personal liberty, is a foundation for a society where rule of

law has primacy and not arbitrary or capricious exercise of power.60 Life in its expanded horizon

includes culture, heritage and tradition of a person.61 Therefore, an unlawful intrusion into

activities of the religious denomination and curtailing the liberty to administer their property

would not only amount to the violation of Art. 21 of the Appellant but also would also violate the

rights of crores of devotees who are regular pilgrims of the Deer Temple.62

54 Bhikaji Narain Dhakras v. State of Madhya Pradesh, AIR 1955 SC 78155 Art. 15. “Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth”, The Constitution of God’s Island, 195056 Laxmi Khandsari & Ors. v. State of Uttar Pradesh, AIR 1981 SC 873 (¶ 16)57 Chinthaman Rao v. State of Madhya Pradesh, AIR 1951 SC 11858 Durga Das Basu, Case Book on Indian Constitutional Law, 52 (2nd ed. 2007)59 S.R. Bommai v. Union of India, AIR 1994 SC 191860 Kartar Singh v. State of Punjab, (1994) 3 SCC 56961 C. Masilamani Mudaliar v. Idol of Sri Swaminathaswami, AIR 1996 SC 169762 Moot Proposition, p. 1, ¶ 5


Art. 26(c) & (d) gives the freedom to religious denominations to own, acquire and

administer property. If any law were to take away the right of administration from the hands of

the religious denominations altogether and vests it in any other authority, it would violate Art.

26.63

The Appellant most humbly submits that in spite of there being a general presumption in

favour of the Constitutionality of a Legislation, if there is a prima facie case of a violation being

made out, then the onus shifts to the State to show that the Legislation comes within the

permissible restrictions and that the particular restriction is reasonable.64

3.2.1: SUBSEQUENT AMENDMENT TO THE CONSTITUTION DOES NOT VALIDATE THE

STATE LEGISLATION

The Respondents’ argument that the implied language of the Amendment to Art.

26 gives effect to the State Legislation will not hold good as the Supreme Court has

stated that a subsequent amendment of the Constitution cannot confer jurisdiction upon

the Legislature with retrospective effect, so as to validate the law,65 unless the

Amendment is expressly given retrospective effect.66 In the present case, there is absence

of any express provision giving retrospective effect to the Amendment.

In light of the above, it is humbly submitted that the State Legislation is unconstitutional

and ultra vires the Constitution and the enactment of Amendment cannot validate such a

Legislation.

63 Sri Kanyaka Parameswari Anna Satram Committee & Ors. v. The Commissioner, Hindu Religious and Charitable Endowment & Ors., AIR 1999 SC 356764 N.K. Bajpai v. Union of India & Anr., AIR 2012 SC 1210 (¶ 14)65 Veernath v. State of Hyderabad, AIR 1957 AP 103466 C.F.Dhirubha Dharangdhara Chemical v. State of Bombay, AIR 1955 SC 47


______________________________________________________________________________

[IV] WHETHER THE DEER TEMPLE PROPERTY CAN BE USED TO REDRESS THE FINANCIAL

CRISIS CAUSED BY THE LEOLAND LIQUOR CORPORATION.

______________________________________________________________________________

It is humbly contended before this Hon’ble Court that the Deer Temple property cannot be used

to cure the financial crisis of the Leoland Liquor Corporation (hereinafter referred to as ‘LLC’).

The acquisition of the Deer Temple property to fund the debt of LLC hurts the religious

sentiments of the Appellant [5.1] and violates the Fundamental Rights granted by The

Constitution. [5.2]

[5.1] ESSENTIALS OF RELIGION : PROHIBITION OF LIQUOR IS AN ESSENTIAL PART OF THE

RELIGION IN QUESTION

The Appellant most respectfully submits that the acquisition and conversion of the Deer

Temple property to fund the financial crisis caused by the bureaucratic mismanagement of the

LLC67 by Respondent No. 1 hurts the religious sentiments of not only the denominational sect

but crores of its devotees as well. Similar to the manner in which the Supreme Court pointed out

in P.N. Kaushal & Ors. v. Union of India & Ors.68 that there is a widespread religious

prohibition towards the consumption of liquor, the Appellant also considers the prohibition of

liquor as an essential part of its religion. For instance, in the abovementioned case even the touch

of a bottle containing alcohol pollutes the Mohammedans and the religion of Hinduism strictly

67 Moot Proposition, p.4, ¶ 1368 AIR 1978 SC 1457


prohibits the use of alcohol in any form whatsoever. The Respondents must, by furthering the

principle laid down in Art. 47,69 stop aiding and abetting the spread of liquor in the State.

[5.2] DPSP : IMPORTANCE OF ART. 47

Since 550 A.D., the Appellant has been enjoying its right to own, acquire and manage the

property without any disturbance from the Colonial Rulers and the Respondents until the LLC

faced a financial crisis in 2011.70 The LLC experienced social ruin and was marked by serious

opposition from the general public.71 Though the Respondents later nationalised the business, it

continued to experience wide spread bureaucratic mismanagement and official inefficiency that

resulted in a loss which was beyond the fiscal capacity of the Government.72

Bearing in mind the present scenario and the obligation of the State to further the

principles enunciated under Part IV,73 the State is required to bring about the prohibition of

consumption of intoxicating drinks and drugs which are injurious to health. The State has the

power U/Art. 47 to completely prohibit the manufacture, sale, possession, distribution and

consumption of liquor as a beverage, both because it is inherently a dangerous article of

consumption and also because of the directive principle contained in Art. 47.74 The

Constitutional Bench of this Hon’ble Court held that in view of the provisions of Art. 47 of the

Constitution, the total prohibition of manufacture or sale of liquor would be reasonable and

permissible and the only exception can be for medicinal preparations.75

69 Art. 47. “Duty of the State to raise the level of nutrition and the standard of living and to improve public health” . The Constitution of God’s Island, 195070 Moot Proposition, p. 3, ¶ 971 Moot Proposition, p.4, ¶ 1272 Ibid, ¶ 1373 Part IV. Directive Principles of State Policy. The Constitution of God’s Island, 195074 Khoday Distilleries Ltd v. State Of Karnataka, (1995) 1 SCC 57475 State of Bombay v. F.N.Balsara, (1975) 1 SCC 29


______________________________________________________________________________

[V] WHETHER THE OFFICIALS IN THE STATE GOVERNMENT OF LEOLAND ARE GUILTY OF

COMMITTING ANY OFFENCE UNDER THE GOD’S ISLAND PENAL CODE, 1860 FOR THE


______________________________________________________________________________

It is humbly contended before this Hon’ble Court that the Officials in the State Government

(hereinafter referred to as ‘Government Officials’) are guilty of committing an offence76 U/§.

295,77 of The God’s Island Penal Code, 1860 (hereinafter referred to as the ‘GPC, 1860’) for the

razing down of structures and the conversion of idols belonging to the Appellant.

In the present case, it is clear that the Government Officials are being implicated as

prosecuting the State Government would effectively mean prosecuting the Government Officials

who are the true perpetrators of the crimes. The Government Officials cannot hide behind the

guise of the body corporate, i.e. the State Government, and can be held liable by application of

the Doctrine of Lifting the Corporate Veil which has been upheld in cases such as Standard

Chartered Bank v. Directorate of Enforcement78 owing to the existence of provisions such as

s§. 279 & 1180 of the GPC, 1860.

In the present case, it is relevant to establish the following to determine the criminality of

the actions of the Government Officials in the process of taking over of the assets:

i. that the trial before the Magistrate Court be adjourned until the case before this Hon’ble

Court is decided; [5.1]

76 §. 3(38). “Offence”. The General Clauses Act, 189777§. 295. “Injuring or defiling place of worship with intent to insult the religion of any class” . The God’s Island Penal Code, 186078 AIR 2005 SC 262279 §. 2. “Punishment of offences committed within India”. The God’s Island Penal Code, 186080 §. 11. “Definition of Person”. The God’s Island Penal Code, 1860


ii. that the requisite procedure under The Code of Criminal Procedure, 1973 (hereinafter

referred to as ‘Cr.P.C., 1973’) has been complied with; and [5.2]

iii. that the essential elements of the offence have been proved beyond reasonable doubt

[5.3].

[5.1] ADJOURNMENT OF TRIAL PROCEEDINGS : §. 343 PERMITS ADJOURNMENT BY

MAGISTRATE

The Appellant most respectfully submits that U/§. 343(2)81 of the Cr.P.C., 1973, when

the Magistrate becomes aware of the pendency of an appeal against the decision arrived at in the

judicial proceeding out of which the present matter has arisen - in the present case the question

of commission of a penal offence has arisen out of the suit filed before the Hon’ble High Court -

the Magistrate may at any stage adjourn the hearing of the case until such appeal is decided. It is

evident that this provision would give this Hon’ble Court the power to decide on the question of

commission of a penal offence irrespective of the undecided nature of the matter in the

Magistrate Court.82

[5.2] PROCEDURAL CONFORMITY : REQUISITE PROCEDURE HAS BEEN COMPLIED WITH

The Appellant most respectfully submits that in the present case the requisite procedure

under the Cr.P.C., 1973 [5.2.1] has been complied with. This is relevant as §. 483 of the Cr.P.C.,

1973 mandates the trial of all offences under the GPC, 1860 to be conducted in accordance with

the provisions of the Cr.P.C., 1973.

81 §. 343. “Procedure of Magistrate taking cognizance”. God’s Island Penal Code, 186082 Moot Proposition, p. 5, ¶ 1683 §. 4. “Trial of offences under the Indian Penal Code and other laws”. The God’s Island Penal Code, 1860


5.2.1: THE MAGISTRATE HAS THE POWER TO TAKE COGNISANCE

The offence punishable U/§. 295 is triable by any of the Classes of Magistrate by

virtue of §. 2684 and The First Schedule85 of the Cr.P.C., 1973. Upon remanding to trial,

the Magistrate has taken cognisance of the offence U/§. 190(1)(c)86 of the Cr.P.C., 1973.

This is an instance wherein the Magistrate takes cognisance of the offence upon his own

knowledge that such offence has been committed.87 And therefore in the present instance,

cognizance has been taken as a prima facie case exists based on the belief of the Hon’ble

High Court that a criminal action is involved in the present case. Furthermore, the

Magistrate has the power to order an investigation U/§. 156(3)88 of the Cr.P.C., 1973.

5.2.3: SUFFICIENT EVIDENCE WAS COLLECTED & SUBMITTED

After the High Court remanded to trial the question of whether a penal offence

applies, evidences were collected and submitted before the proceedings of the Magistrate

and relying upon the same, the Magistrate has remarked that there was an active mens rea

in such conversion of idols.89 Therefore, the sufficiency of evidence cannot be questioned

in this Hon’ble Court.

[5.3] ESSENTIALS OF AN OFFENCE : §. 295 PROVED BEYOND REASONABLE DOUBT

The two constituent elements of a crime that can be understood by the maxim actus non

facit reum nisi mens sit rea. To establish a charge U/§. 295, the following elements have to be

proved:

84 §. 26. “Courts by which offences are triable”. The God’s Island Penal Code, 186085 §§. 295. Offences under the God’s Island Penal Code, Classification Of Offences, The First Schedule, The Code of Criminal Procedure, 197386 §. 190. “Cognizance of offences by Magistrate”. The God’s Island Penal Code, 186087 Moot Proposition, p. 5, ¶ 1688 §. 156. “Police Officer’s power to investigate cognizable case”. The God’s Island Penal Code, 186089 Moot Proposition, p. 5, ¶ 16


5.3.1: INTENTION OR KNOWLEDGE PRESENT

In the present instance, the knowledge that razing down certain structures and

converting the ancestral idols of worship would insult the religious feelings of the

Appellant is sine qua non to the commission of the offence U/§. 295.90 It is evident that

the religious sentiments of not only the Appellant, but also the devotees would be deeply

wounded when religious property that has been in possession for more than 1400 years is

destroyed.

5.3.2: DESTRUCTION & DEFILEMENT OF A PLACE OF WORSHIP OR AN OBJECT

HELD SACRED

The words ‘destroy or damage’ would mean physically or materially affecting the

property concerned or a place of worship or veneration.91 It would also mean a thing

destroyed by some external action upon it.92 Applying the said definition to this case, as

the Deer Temple is considered as a revered sacred shrine of God’s Island,93 any damage

to this temple would amount to an offence U/§. 295 of GPC, 1860.

5.3.3: TRESPASS INTO A PLACE OF WORSHIP

‘Trespass’ U/§. 295 implies any violent or injurious act or unjustifiable intrusion

upon a property in possession of another,94 with the intention or knowledge of wounding

feelings or insulting the religion of any person. In the present instance, the Government

Officials have entered the temple premises and damaged the temple wounding the

feelings of the Appellant and the devotees thereby committing an offence under §. 295 of

GPC, 1860.

90 P.S.A.Pillai, Criminal Law, 533 (12th ed. 2014)91 Ibid, 53592 P. Ramanatha Aiyar, Concise Law Dictionary (3rd ed. reprint 2007)93 Moot Proposition, p. 2, ¶ 394 Jhulan Sain v. Emperor, AIR 1920 Pat 349


5.3.4: ARGUENDO, CHARGE UNDER A MINOR OFFENCE IF INGREDIENTS OF §. 295

NOT FULFILLED

If the elements of §. 295 are not fulfilled for some reason, the Government

Officials should be charged U/§§. 426 or 447 of the GPC, 1860 as given U/§. 222(1) &

(2) of the Cr.P.C., 1973. The above provisions prescribe that when a person is charged

with an offence consisting of several particulars and a combination of some is proved

which constitutes a minor offence, then he may be convicted of the minor offence. Also,

if a person is charged with an offence and facts are proved which reduce it to a minor

offence, then he may be convicted of the minor offence, although he is not charged with

it.95

In light of the above, it is humbly submitted that in the instant matter, the Government

Officials are guilty of committing an offence U/§. 295 for the razing down of the religious

property belonging to the Appellant and the conversion of idols present in the Deer Temple.

95 §. 222. “When offence proved included in offence charged”. The Code of Criminal Procedure Code, 1973


PRAYER

WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, it is

humbly prayed before this Hon’ble Court to:

REVERSE the order of the High Court of Leoland and HOLD that:

1. The Agreement entered into in 1898 continues to have the force of law and is thus

binding upon the Union of God’s Island;

2. The Amendment to Art. 26 of The Constitution of God’s Island, 1950 is invalid;

3. The State Legislation of Leoland concerning the takeover and complete control of the

Deer Temple establishment is unconstitutional;

4. The prohibition of liquor is an ‘essential part’ of the religion in question and thus the

Deer Temple property cannot be used to redress the financial crisis caused by the Leoland

Liquor Corporation;

5. The Officials in the State Government of Leoland are guilty of committing an offence

U/§. 295 of The God’s Island Penal Code, 1860 for the razing down of structures and the

conversion of idols.

AND/OR pass any other order or orders as this Hon’ble Court may deem fit and proper in the

circumstances of the case and in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted.

Place: ________, God’s Island S/d_____________

Date: 9th September, 2015 COUNSEL FOR THE APPELLANTS


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