Participant Code: C-95

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

CONCOURS, 2019
Before,
THE HON’BLE SUPREME COURT OF KASHISTAN
SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF
KASHISTAN

HIS HOLINESS HARSH ACHARYA & PUSHKARITE MATTH ….….........PETITIONER

v.

STATE OF MRINALKHAND......................…………………………………RESPONDENT

CLUBBED WITH

SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF CONSTITUTION OF

KASHISTAN

MS. PINKA PAI.............………………………………………………………. PETITIONER

v.

STATE OF MRINALKHAND..................……………………………………RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

 Memorial on behalf of Petitioner

TABLE OF CONTENT

INDEX OF AUTHORITIES...................................................................................................... 4
STATEMENT OF JURISDICTION.......................................................................................... 6
STATEMENT OF FACTS ........................................................................................................ 7
ISSUES RAISED ....................................................................................................................... 9
SUMMARY OF ARGUMENTS ............................................................................................. 10
ARGUMENTS ADVANCED ................................................................................................. 11
[1] THAT MRINALKHAND FREEDOM OF RELIGION ACT, 2018 IS
UNCONSTITUTIONAL DUE TO VIOLATION OF ARTICLE 25 AND ARTICLE 26 OF
THE CONSTITUTION. .......................................................................................................... 11

[1.1] THAT THE MRINALKHAND FREEDOM OF RELIGION ACT, 2018 INFRINGES

ARTICLE 25 AND ARTICLE 26 WHICH ARE GUARANTEED UNDER
CONSTITUTION. ................................................................................................................... 11

[1.2] THAT THE STATE LEGISLATURE HAS NO LEGISLATIVE COMPETENCY TO

LEGISLATE ON MATTERS COVERED BY THE ACT. .................................................... 12

[1.3] THAT THE TERMINOLOGY USED IN THE ACT IS VAGUE AND ARBITRARY
AND IS VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION.................................... 12

[1.4] THAT SECTION 8(3) OF MRINALKHAND FREEDOM OF RELIGION ACT, 2018

IS VIOLATIVE OF RIGHT TO PRIVACY GUARANTEED UNDER ARTICLE 21. ........ 14

[2] THAT PROHIBITION OF BLOOD TRANSFUSION IS AN ESSENTIAL

RELIGIOUS PRACTICE OF THE PUSHKARITE MATTH. ............................................... 14

[2.1] THE ESSENTIAL PART OF A RELIGION IS TO BE DECIDED BASED ON THE

BELIEFS OF THE RELIGION ITSELF. ................................................................................ 15

[2.2] THAT BAN ON BLOOD TRANSFUSION IS AN ESSENTIAL PART OF THE

RELIGIOUS DENOMINATION BASED ON THE TENETS OF THE COMMUNITY...... 15

[3]THAT FREEDOM OF RELIGION OF MS. PINKA PAI UNDER ARTICLE 25 AND 26

OF THE CONSTITUTION WILL TAKE PRECEDENCE OVER RIGHT TO LIFE AND
PERSONAL LIBERTY UNDER ARTICLE 21. .................................................................... 16

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[3.1] THAT THE PETITIONERS RIGHT GUARANTEED UNDER ARTICLE 25 AND 26

HAS BEEN INFRINGED DUE TO THE RIGHT TO LIFE. ................................................. 16

[3.2] ONE FUNDAMENTAL RIGHT MAY EXIST IN HARMONY WITH ANOTHER

FUNDAMENTAL RIGHT. ..................................................................................................... 17

PRAYER .................................................................................................................................. 18

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INDEX OF AUTHORITIES

Cases

Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj and ors v State of Gujarat
and ors AIR 1974 SC 209. ................................................................................................... 17
Alabama v NAACP 357 US 449 (1958) ................................................................................... 14
Commr, HRE, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC
282........................................................................................................................................ 15
Consumer Action Group v State of Tamil Nadu (2000) 7 SCC 425. ....................................... 13
Justice puttaswamy (Retd) and Avr v Union of India & ors (2019) 1 SCC 1 . ........................ 14
N Adithayan v Travancore Devaswom Board (2002) 8 SCC 106 ......................................... 11
Onkar Lal Balaji v Union of India (2003) 2 SCC 673............................................................. 13
Ratilal Panachand Gandhi v State of Bombay AIR 1954 SC 388 . ........................................ 16
Second Gift Tax Officer v D H Nazareth AIR 1970 SC 999. .................................................. 12
Seshammal v State of Tamil Nadu (1972) 2 SCC 11 ............................................................... 15
Shrilekha Vidyarthi v State of UP (1991) 1 SCC 212 .............................................................. 13
Sri Adi Visheshwara of Kashi Vishwananth Temple v State of Uttar Pradesh (1997) 4 SCC
606........................................................................................................................................ 15
State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75 ..................................................... 13
Tilakayat Shri Govindalji Maharaj v State of Rajasthan AIR 1963 SC 1638 ......................... 15

Statutes

Constitution of India 1950 , art 14 . ......................................................................................... 13

Constitution Of India 1950 , art 21 .......................................................................................... 14
Constitution of India 1950 , art 25 ........................................................................................... 11
Constitution of India 1950 , art 25 . ................................................................................... 16, 17
Constitution of India 1950 , art 25(1). ..................................................................................... 16
Constitution of India 1950 , art 26 ........................................................................................... 11
Constitution of India 1950 , art 26 . ......................................................................................... 16
Constitution of India 1950, art 248 .......................................................................................... 12

Moot proposition

Moot proposition , annexure 2. ................................................................................................ 11

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Books

Durga Das Basu, Shorter Constitution of India (first published 1958, Vol 2, 15th edn, Lexis
Nexis 2018) 2016. ................................................................................................................ 16
H M Seervai , Constitutional law of India (vol 1 , 3rd edn, 1986 ) 906. .................................. 12
H M Seervai, Constitutional Law of India (vol 3, 3rd edn, 1983) 907. .................................... 13

Online Material

‘Anti- Conversion Laws: Challenges To Secularism And Fundamental Rights’ (2008) vol 43,
Economic and Political Weekly <www.jstor.org/stable/40276904> accessed 18
september 2019. ............................................................................................................... 12

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STATEMENT OF JURISDICTION

THE COUNSEL FOR THE PETITIONER HUMBLY SUBMITS BEFORE THE HON’BLE
SUPREME COURT OF KASHISTAN, THE MEMORANDUM ON BEHALF OF THE
PETITIONERS.

Hon’ble Supreme Court of Kashistan has the inherent jurisdiction to try, entertain and dispose
off the suit under Article 136 of The Constitution of Kashistan.

The present Memorandum memorial sets forth the facts, contentions and arguments in the
present case.

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STATEMENT OF FACTS

I. Republic of Kashistan is a Sovereign, Secular, Socialist, Democratic Republic. More

than 80% of people in Kashistan follow religion Vinism. The Constitution gives due
importance to secularism. Pushkarism is a minority religion followed by approximately
9% population of Kashistan. The followers believe Lord Pushkar to be one of the true
God and preach his message of equality, love and harmony. Proselytizing is essential
to the practice of this religion. Mrinalkhand is a state in Kashistan and 46% of
population of Pushkarism in Kashistan resides in State of Mrinalkhand. It is known to
be holy ground of Vinism as their supreme deity Sri Kisen was born in Lohiya , a city
in Mrinalkhand.
II. Pushkarite Matth is a religious denomination in Pushkarism. Matth emphasises on strict
observance of the teachings of Lord Pushkar, one of which is proselytizing. Pushkarite
Matth holds a sermon every evening in their ‘House of Worship’. One such ‘House of
Worship’ is located in the outskirts of Lohiya. The sermons are open to everyone
irrespective of their religion. These sermons are conducted by leader His Holiness
Harsh Acharya. His Holiness talks about Lord being accepting and forgiving without
any judgments. He also explains that everything happens for a reason and the current
misery will lead to prosperity and happiness. Conversion to Pushkarism has increased
in the past one and half year in the area. This angered certain groups and they started
assaulting people who converted to Pushkarism. In order to prohibit conversions
Government of Mrinalkhand brought the Mrinalkhand Freedom of Religion Act, 2018
and His Holiness Harsh Acharya was prosecuted under section 5 of the Act. A writ
under Article 226 was filed by His Holiness Harsh Acharya and Pushkarite Matth
stating the Act unconstitutional as it violates the rights provided under Article 25 and
26 of the Constitution of Kashistan. The High Court dismissed this petition holding the
Act constitutionally valid. The petitioner approached the Supreme Court of Kashistan
through Special Leave Petition No. 111 of 2019 and has prayed for quashing the
judgment of the High Court of Mrinalkhand and to declare The Mrinalkhand Freedom
of Religion Act, 2018 unconstitutional.
III. Meanwhile, on 1st January 2019 Ms. Pinka Pai of the Pushkarite Matth met with an
accident in Lohiya. She was rushed to Swarnikaben Memorial Hospital which is a State
Government run hospital. A bracelet on her arm identified her as a member of
Pushkarite Matth. The members of Pushkarite Matth carry such bracelets so that the

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people around them can identify them as being a part of the denomination and treat
them accordingly. They have strict practices and one of such practice was their refusal
of blood transfusion even if there was a danger of loss of life. Ms. Pinka Pai was taken
to the trauma specialists of Swarnikaben Memorial Hospital, Dr. KD Ja and Dr. Raul.
The doctors declared her condition critical that required immediate surgery. The doctors
opined that an operation would in all probability save the life of patient. Even if she
survived without the operation, the chances of organ failure were extremely high.
Although the doctors had the knowledge of the bracelet and what it entailed, they
decided to proceed with the operation and the blood transfusion in their medical
opinion. The operation was successful and Ms. Pinka Pai regained consciousness.
IV. As soon as she was informed of the blood transfusion, she went into a state of shock
about her religion being violated. She demanded an explanation from the administration
and was informed by the doctors about the conditions of her surgery. Dr. KD Ja and Dr.
Raul admitted that they knew about her being a member of Pushkarite Matth. Ms. Pinka
Pai filed the Special Leave Petition No. 261 of 2019 claiming her fundamental right to
religion has been violated by the State.

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ISSUES RAISED

I. WHETHER THE MRINALKHAND FREEDOM OF RELIGION ACT, 2018 IS

UNCONSTITUTIONAL DUE TO VIOLATION OF ARTICLE 25 AND ARTICLE
26 OF THE CONSTITUTION.

II. WHETHER PROHIBITION OF BLOOD TRANSFUSION IS AN ESSENTIAL

RELIGIOUS PRACTICE OF THE PUSHKARITE MATTH.

III. WHETHER FREEDOM OF RELIGION UNDER ARTICLE 25 AND ARTICLE 26

OF THE CONSTITUTION CAN BE SUBJECTED TO RIGHT TO LIFE AND
PERSONAL LIBERTY UNDER ARTICLE 21 OF THE CONSTITUTION.

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SUMMARY OF ARGUMENTS

I. THAT MRINALKHAND FREEDOM OF RELIGION ACT, 2018 IS

UNCONSTITUTIONAL DUE TO VIOLATION OF ARTICLE 25 AND
ARTICLE 26 OF THE CONSTITUTION.
Article 25 and 26 of the Constitution of Kashistan talks about Freedom of conscience
and free profession, propagation of religion and Freedom to manage religious affairs
to every person, and not only to citizen of Kashistan. This however, is not absolute and
subjected to public order, health, morality and other provisions relating to Fundamental
Rights. The preliminary objection is that state is not competent to make the law as the
concerned subject is mentioned in the List I of the Seventh Schedule. Also, the
provisions of sections 2(e) , 3 and 8(3) of the act is violative of fundamental rights of
the Constitution and are unconstitutional. Also, the terminology used in the Act is vague
and imprecise which gives rise to arbitrariness. So it is humbly contended that The
Mrinalkhand Freedom of Religion Act, 2018 is violative of article 14, 25 and 26 and is
hence unconstitutional.
II. THAT PROHIBITION OF BLOOD TRANSFUSION IS AN ESSENTIAL
RELIGIOUS PRACTICE OF THE PUSHKARITE MATTH.
Religion is certainly a matter of faith with individuals or communities and it is not
necessarily theistic. Religious Denomination is a collection of people classed under the
same name, having same faith and believe but designated by a distinctive name. What
constitutes the essential part of the religious denomination is to decided based on the
tenets, doctrines, historical background, practices, etc of the religious denomination. It
is humbly contended that prohibition on blood transfusion is an essential part of the
religious denomination based on the tenets of the community.
III. THAT FREEDOM OF RELIGION UNDER ARTICLE 25 AND ARTICLE 26 OF
THE CONSTITUTION CANNOT BE SUBJECTED TO RIGHT TO LIFE AND
PERSONAL LIBERTY UNDER ARTICLE 21 OF THE CONSTITUTION.
It is humbly contended that the personal liberty and the right to choice of the petitioner
has been infringed. It is also contended that one fundamental right cannot exist in
isolation and the state of conflict may arise. At the time of conflict of the two or more
Fundamental Rights, the doctrine of Harmonious Construction applies and the
conflicting fundamental rights have to exist in harmony with each other.

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ARGUMENTS ADVANCED

[1] THAT MRINALKHAND FREEDOM OF RELIGION ACT, 2018 IS

UNCONSTITUTIONAL DUE TO VIOLATION OF ARTICLE 25 AND
ARTICLE 26 OF THE CONSTITUTION.
It is humbly submitted before the Hon’ble Supreme court of Kashistan that The Mrinalkhand
Freedom of Religion Act, 2018 is unconstitutional as it infringes the fundamental rights
guaranteed under Article 251 of the Constitution of India which guarantees Freedom of
conscience and free profession, practice, propagation of religion and Article 262 guarantees
Freedom to manage religious affairs to every person, and not only to citizen of Kashistan.
This however, is not absolute and subjected to public order, health, morality and other
provisions relating to Fundamental Rights. The Act curtails various fundamental rights
provided in our constitution and is hence unconstitutional .

[1.1] THAT THE MRINALKHAND FREEDOM OF RELIGION ACT, 2018

INFRINGES ARTICLE 25 AND ARTICLE 26 WHICH ARE GUARANTEED UNDER
CONSTITUTION.

Pushkarite Matth as a religious denomination is known for proselytizing. What constitutes

essential part has to be decided by the court with reference to the doctrine of a particular
religion or practices regarded as part of religion3. As per the commandments of the
Pushkaraan4, proselytizing is an essential part of the religion given in the words of, “thou shalt
spread my word.”5 article 25 guarantees freedom of propagation to every citizen as noted by
an eminent legal scholar, H.M Seervai, who, in his interpretation of article 25, wrote: “Article
25(1) confers freedom of religion- a freedom not limited to the religion in which a person is
born. Freedom of conscience harmonizes with this, for its presence in Art. 25(1) shows that our
Constitution has adopted a “system which allows free choice of religion. “To propagate
religion is not to impart knowledge and to spread it more widely, but to produce intellectual
and moral conviction leading to action, namely, the adoption of that religion.”6 The

1
Constitution of India 1950 , art 25.
2
Constitution of India 1950 , art 26.
3
N Adithayan v Travancore Devaswom Board (2002) 8 SCC 106.
4
Moot proposition , annexure 2.
5
Moot proposition , annexure 2.
6
H M Seervai , Constitutional law of India (vol 1 , 3rd edn, 1986 ) 906.

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aforementioned act puts unreasonable restrictions of this essential religious practice and hence
should be declared unconstitutional.

[1.2] THAT THE STATE LEGISLATURE HAS NO LEGISLATIVE COMPETENCY

TO LEGISLATE ON MATTERS COVERED BY THE ACT.

To find out whether a piece of legislation falls within any entry its true nature and character
must be in respect to that particular entry. The entries must of course receive a large and liberal
interpretation because the few words of the entry are intended to confer vast and plenary
powers. If, however, no entry in the three Lists covers it, then it must be regarded as a matter
not enumerated in any of the three lists. Then it belongs exclusively to Parliament under Entry
97 of the Union List as a topic of legislation7.

But in the present case , the piece of legislation under discussion , i.e. religion , does not falls
under the ambit of list II and list III of the 7th schedule of the constitution , and is covered by
entry 97 of the list I of the 7th schedule and hence state legislature lacks necessary legislative
competence and the act is ultra vires.

Article 2488 also provides that parliament has exclusive power to make any law with respect
to any matter not enumerated in the concurrent list or state list.

[1.3] THAT THE TERMINOLOGY USED IN THE ACT IS VAGUE AND ARBITRARY
AND IS VIOLATIVE OF ARTICLE 14 OF THE CONSTITUTION.

A Pushkarite Matth is known for performing charity(citation )and they were following the
same. But as inducement is defined in annexure 2 , point 2 (e) , it impinges upon many
legitimate methods of proselytising because of its vague nature and has many interpretations
which may restrict the freedom of the followers of the denominations to meaningfully practice
their religious beliefs . it is also uncertain that how the definition of the term “force” with
reference to the forced conversion will operate in nature. For example – if a religion teaches

7
Second Gift Tax Officer v D H Nazareth AIR 1970 SC 999.
8
Constitution of India 1950, art 248.

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that non – adherents risk divine displeasure (as with Christianity, Islam and Judaism) the act
of imparting this article of faith may constitute an act of force under the legislation under
discussion9. This definition will have problematic ramifications on conversions given in the act
lately. As the eminent legal scholar H.M Seervai stated on his evaluation of right to
propagation, “The right to propagate religion gives a meaning to freedom of choice, for
choice involves not only knowledge but an act of will. A person cannot choose if he does not
know what choices are open to him.”10 Reasonable and non-arbitrary exercise of discretion is
an inbuilt requirement of law and any unreasonable or arbitrary exercise of it violates Article
1411.

The counsel would now like to refer to State of West Bengal vs. Anwar Ali Sarkar12 , in which
this Hon’ble supreme court ruled that, “The court will strike down the legislation if it does not
lay down any principle or policy for guiding the exercise of discretion in the matter of selection
or classification. The reason for unconstitutionality is that legislation gives arbitrary and
uncontrolled power to the authority which would enable it to discriminate between persons or
things similarly situated. Discrimination in other words is inherent in the legislation itself.”

Discretion must be exercised reasonably in furtherance of public policy, public good and for
public cause13. Discretionary action taken without application of mind will be annulled as an
arbitrary exercise of power14. Hence the Mrinalkhand Freedom of Religion Act, 2018 must be
declared unconstitutional due to violative of article 1415.

9
‘Anti- Conversion Laws: Challenges To Secularism And Fundamental Rights’ (2008) vol 43, Economic and
Political Weekly <www.jstor.org/stable/40276904> accessed 18 september 2019.
10
H M Seervai, Constitutional Law of India (vol 3, 3 rd edn, 1983) 907.
11
Shrilekha Vidyarthi v State of UP (1991) 1 SCC 212.
12
State of West Bengal v Anwar Ali Sarkar AIR 1952 SC 75.
13
Consumer Action Group v State of Tamil Nadu (2000) 7 SCC 425.
14
Onkar Lal Balaji v Union of India (2003) 2 SCC 673.
15
Constitution of India 1950 , art 14.

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[1.4] THAT SECTION 8(3) OF MRINALKHAND FREEDOM OF RELIGION ACT,

2018 IS VIOLATIVE OF RIGHT TO PRIVACY GUARANTEED UNDER ARTICLE
21.

It is humbly submitted before this Hon’ble court that section 8(3) is violative of right to privacy.
Privacy is essential to the exercise of freedom of conscience and the right to profess, practice
and propagate religion given under article 2516.

Section 8(3) states that, “the district magistrate shall put information upon the notice board of
its office on the day the conversion is completed.” This section clearly infringes upon the right
to privacy guaranteed under article 2117 as it puts the personal data related to the conversion in
the public domain hence putting the person under constant fear of threat.

While India hasn’t seen such a case yet to test the boundary of the newly formed right to privacy
, supreme court of US in a strikingly similar facts back in 1958 invoked this right in the case
of Alabama vs. NAACP18in which the court told the state of Alabama that it couldn’t actually
require the National Association for the Advancement of Colored People (NAACP), a civil
rights group that helmed the massive social justice movement for African-Americans at that
time, to make their membership lists public.

Pointing out that members were likely to be targeted by violence and other forms of societal
retribution, the court ruled that such a stipulation would therefore discourage people from
joining. This would in turn violate their right to privacy or to make private decisions freely.

Justice Puttaswamy (Retd) and Anr v Union of India & ors (2019) 1 SCC 1.

[2] THAT PROHIBITION OF BLOOD TRANSFUSION IS AN ESSENTIAL

RELIGIOUS PRACTICE OF THE PUSHKARITE MATTH.

The counsel would here like to highlight that Article 26 lays down that every denomination or
a section thereof has the right to manage its own affairs in the matter of religion. Article 26

16
Justice puttaswamy (Retd) and Avr v Union of India & ors (2019) 1 SCC 1 .
17
Constitution Of India 1950 , art 21.
18
Alabama v NAACP 357 US 449 (1958).

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thus guarantees collective freedom of religion. The words “religious denomination” take their
colour from the word ‘religion’. Therefore, in case of a denomination there must be a common
faith of the community based on religion, and the community members must have common
religious tenets peculiar to themselves19.

[2.1] THE ESSENTIAL PART OF A RELIGION IS TO BE DECIDED BASED ON THE

BELIEFS OF THE RELIGION ITSELF.

Religion is certainly a matter of faith with individuals or communities and it is not necessarily
theistic. Essential practice means those practices that are fundamental to follow a religious
belief. The essential part of religion is primarily to be ascertained with reference to the doctrines
of that religion itself. 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 mode of worship which
are regarded as integral part of religion and these forms and observances might even extend to
matters of food and dress20. In the same way the religious denomination- The Pushkarite Matth
based on the faith of the whole denomination prescribed a mode of following their belief by
banning the blood transfusion. The mere fact that the ban on the blood transfusion is based on
the belief of the Pushkarite Matth makes it an integral part of their religion.

[2.2] THAT BAN ON BLOOD TRANSFUSION IS AN ESSENTIAL PART OF THE

RELIGIOUS DENOMINATION BASED ON THE TENETS OF THE COMMUNITY

The test of deciding the question as to whether a given religious practice is an integral part of
the religion or not always would be whether it is regarded as such by the community following
it and it will depend upon the evidence adduced before the court as to the conscience of the
community and the tenets of its religion21. Also, religious practices or performance of acts in
pursuance of religious beliefs are as much a part of religion as faith or belief in particular
doctrine. What constitutes an integral or essential par of the religion has to be determined with
refrence to the doctrines, practices, tenents, historical background, etc22. As per the
Commandments of the God as stated in the ‘The History of Pushkarism’ “Thou Shalt Keep

19
Sri Adi Visheshwara of Kashi Vishwananth Temple v State of Uttar Pradesh (1997) 4 SCC 606.
20
Commr, HRE, Madras v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt AIR 1954 SC 282.
21
Tilakayat Shri Govindalji Maharaj v State of Rajasthan AIR 1963 SC 1638.
22
Seshammal v State of Tamil Nadu (1972) 2 SCC 11.

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Yourself Pure”, the purity of the body and the blood of humans is an essential and integral part
of the religion as the forgiveness would be achieved if they follow these commandments. In
pursuance of this commandment, Pushkarite matth banned the transfusion of blood. Hence, if
we remove this prohibition on blood transfusion, then the basic believe of the Pushkarism will
dissolve.

[3] THAT FREEDOM OF RELIGION OF MS. PINKA PAI UNDER ARTICLE 25 AND
26 OF THE CONSTITUTION WILL TAKE PRECEDENCE OVER RIGHT TO LIFE
AND PERSONAL LIBERTY UNDER ARTICLE 21.
Article 21 lays down that, “no person shall be deprived of his life or personal liberty except
according to procedure established by law.”23 In the case in hand, the personal liberty and the
Freedom of choice of the petitioner has been infringed. The prohibition on blood transfusion is
an essential religious practice of Pushkarite Matth and the government hospital by conducting
the blood transfusion violated her Right to Religion under Article 25 24. Also, by conducting
the blood transfusion the state interfered with the “Matters of religion” provided under Article
2625 of the constitution.

[3.1] THAT THE PETITIONERS RIGHT GUARANTEED UNDER ARTICLE 25

AND 26 HAS BEEN INFRINGED DUE TO THE RIGHT TO LIFE.
The purpose of individual right under article 25(1)26 the definition represents the correct
approach in so far as it leaves the choice to the individual to decide what he considers to be the
matter of ultimate concern for himself27 For the petitioner, Ms. Pinka Pai the meaning of
dignified life is to follow the tenets and the beliefs of her religion which prohibits blood
transfusion. “Freedom of conscience connotes person’s right to entertain beliefs and doctrines
concerning matters which are regarded by him to be conducive to his spiritual well being”28
But, the government hospital by doing the blood transfusion has violated her fundamental right
guaranteed under article 25(1)29.

23
Durga Das Basu, Shorter Constitution of India (first published 1958, Vol 2, 15th edn, Lexis Nexis 2018)
2016.
24
Constitution of India 1950 , art 25.
25
Constitution of India 1950 , art 26.
26
Constitution of India 1950 , art 25(1) .
27
S P Mittal v Union of India AIR 1983 SC 1.
28
Ratilal Panachand Gandhi v State of Bombay AIR 1954 SC 388.
29
Constitution of India 1950 , art 25(1).

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[3.2] ONE FUNDAMENTAL RIGHT MAY EXIST IN HARMONY WITH ANOTHER

FUNDAMENTAL RIGHT.
“A particular Fundamental Right cannot exist in isolation in water tight compartment. One
fundamental right of a person may have to coexist in harmony with the exercise of another
fundamental right by other and also with reasonable and valid exercise of power by the state in
the light of the Directive Principles of State Policy in the interest of society welfare as a whole.
The court’s duty is to strike a balance between competing claims of different interests”30. In
this case conflict arises between the two Fundamental Rights guaranteed under Article 2131 and
Article 25 and 26 and they have to coexist in harmony with each other. Furthermore, Right to
Life under Article 21 would not always take precedence over Freedom of Religion enshrined
in Aritcles 25 and 26 of the constitution.

30
Acharya Maharajshri Narendra Prasadji Anandprasadji Maharaj and ors v State of Gujarat and ors AIR
1974 SC 209.
31
Constitution of India 1950 , art 21.

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PRAYER

Wherefore in the light of the facts of the case, issues raised, arguments advanced and
authorities cited, may this Hon’ble court be pleased to adjudge and declare that:

1. In the case of His Holiness Harsh Acharya v. State of Mrinalkhand, The Mrinalkhand
Freedom of Religion Act, 2018 violates Article 14, 25 and 26 of the Constitution of Kashistan
which guarantees Right to Equality, Right to Freedom of conscience and free profession,
propagation of religion and Freedom to manage religious affairs to every person, and not only
to citizen of Kashistan, and doesn’t lies in the purview of the mentioned article.

2. In the case of Ms. Pinka Pai v. State of Mrinalkhand, the Fundamental right guaranteed
under article 21 conflicts with those guaranteed under article 25 and 26 of the Constitution of
Kashistan. The right to personal liberty and the right to choice of Ms. Pinka Pai has been
infringed due to article 21.

And /Or

Pass any other order that it may deem fit in the interest of justice, equity, and good conscience.

Sd/-

-Respectfully submitted by the Counsel for the Respondent

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