Sanathanam udayanithi rejoinder Hence in light of the above, it is humbly prayed that this Hon’ble Court may be pleased to reject the reply affidavit of the petitioner to the counter affidavit filed by the 1st respondent and consequently dismiss the above Writ Petition and devoid of merits, not maintainable with exemplary costs and pass such further or other orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and thus render justice. Solemnly affirmed at Chennai on this DEPONENT the 8th day of November, 2023 and signed his name in my presence BEFORE ME ADVOCATE – CHENNAI

IN THE HIGH COURT OF JUDICATURE AT MADRAS
(Special Original Jurisdiction)

W.P.No.29205 of 2023

T. Manohar
S/o. Thangavel,
No.147, R.K Nagar, Perumal Koil Street,
Periyaekkadu, Madhavaram Milk Colony,
Chennai- 600051
…Petitioner
Vs.

1. Mr. Udhayanidhi Stalin
S/o. M.K.Stalin,
Hon’ble Minister for
Youth Welfare & Sports Development,
Government of Tamil Nadu,
Secretariat, Fort St. George,
Chennai- 600 009

2. The Secretary-General,
Lok-Sabha,
18, Parliament House,
103, Parliament House Annexe,
New Delhi – 110 003
…Respondents

SUR-REJOINDER FILED BY THE 1ST RESPONDENT TO THE REPLY TO THE COUNTER AFFIDAVIT FILED BY THE PETITIONER DATED 31.10.2023
I, Udhayanidhi Stalin, s/o. M.K.Stalin, Indian, aged about 46 years, residing at 25/9, Chitranjan Salai, Alwarpet, Chennai-600 018, do hereby solemnly and sincerely state as follows:
1. I submit that I am the 1st respondent in the above writ petition and as such I am well acquainted with the facts and circumstances of this case. I am competent to swear to this affidavit.
2. I state that I had filed a detailed counter affidavit dated 16.10.2023 (hereinafter referred to as “counter affidavit”) to which the petitioner has filed his reply dated 31.10.2023 (hereinafter referred to as “reply affidavit”).
3. I humbly submit that the said reply affidavit must not be accepted by this Hon’ble Court for the following reasons:
(i) The petitioner has pleaded new facts and raised new grounds in order to project a new case and take different grounds from what was raised in the affidavit filed by him in support of the Writ Petition.
(ii) The petitioner has also attempted to give a new colour and direction to the case after listening to the arguments of the learned senior counsel appearing for the 1st Respondent.
(iii) In the original Writ Petition, the only ground alleged by the petitioner was that my alleged speech hurt his religious sentiment and could lead to an offence u/s 153(A), 505(ii) and 295(A) of the IPC. Nowhere in the original Writ Petition, the petitioner had raised a ground of “constitutional fraud”. After completion of arguments by the learned senior counsel for the petitioner and after filing of the counter affidavit filed by the 1st respondent, the petitioner is now attempting to create a foundation in pleadings for his argument of “constitutional fraud”. Though it has been elaborately argued by the learned Senior Counsel for the 1st respondent that no such ground of “constitutional fraud” is available to the petitioner to seek disqualification of an MLA/Minister under Articles 164 or 191 of the Constitution of India, be that as it may, Courts have often held that by way of a subsequent pleadings, the writ petitioner cannot drastically alter his case and introduce new grounds after arguments have commenced.
(iv) The reply filed by the petitioner is also now equating Sanathana Dharma to Hinduism which is a whole different argument. Nowhere in the original Writ Petition did the petitioner contend that the 1st respondent has called for eradication of Hinduism. However, now at this belated juncture, the writ petitioner is setting up a new case on facts that the 1st respondent has called for “eradicating Hinduism” for which there is no material proof filed by the petitioner.
(v) Thirdly, the reliance on Venkatachalam case as a ground was not found in the original Writ Petition. In any case, such reliance is misplaced since the fraud committed by the candidate in Venkatachalam’s case was directly traceable to his qualification prescribed under Article 173 of the Constitution of India viz., being a voter in a particular constituency.
4. With the above preliminary submissions, I hereby give para-wise reply to the reply affidavit filed by the petitioner.
5. I deny the allegations in Paragraphs 1-4 as false and incorrect.
6. I humbly submit that with regard to the averments in paragraph-5, I am advised to state that merely producing a certificate under Section 65(B) of the Indian Evidence Act, 1872 does not mean that the document contained within the electronic storage device is proved in a manner known to law. In any civil or criminal proceedings, the certificate under Section 65(B) only deals with the question of admissibility of the document. Admissibility and proof are two different facets of evidence and the person tendering the certificate has still to prove that the electronic evidence contained in the storage device was:
(a) Created or received by him.
(b) Was within his custody till the computer output was made and
(c) Has to vouchsafe the authenticity of the output.
These are the matters of evidence and cannot be gone into in a Writ Petition because I would not have an opportunity to cross-examine the person tendering such electronic evidence.
7. I humbly submit that the averments in paragraph 6 are denied as false and incorrect. When I deny the allegations made by the petitioner in his affidavit, there results disputed questions of fact (that is very meaning of disputed question of fact) and this Hon’ble Court cannot adjudicate such disputed questions of facts without receiving evidence.
8. I humbly submit that with the regard to the averment in paragraph 7, it is humbly submitted that the petitioner has filed W.M.P.No.31023 of 2023 to amend the cause title which is still not allowed by this Hon’ble Court. So long as it is not allowed, it is a misjoinder and cannot be treated otherwise. That apart, even the Secretary, Tamil Nadu Legislative Assembly is not a necessary party when it comes to quo-warranto proceedings against a MLA or Minister. It is not for this respondent to teach law to the petitioner as to who should be arrayed as necessary party. The consequence of non-joinder of an necessary party is dismissal of a suit under Order 1 Rule 9 proviso of the CPC, which principle has been imported into Writ Petitions as well. In the case Chief Conservator of Forests vs. Collector & Ors. (2003) 3 SCC 472, it has been held by the Hon’ble Supreme Court that non-joinder of necessary party is fatal to a suit and the said principle is also applied to Writ Petitions.
9. I humbly submit that with regard to the averments in paragraph-8, the same are denied as false and incorrect. counter affidavit has sufficient averments to show that this is an ideological and political battle.
10. It is humbly submitted that with regard to the averments in paragraph-9, the same are denied as false and incorrect. The petitioner has again falsely implied that this respondent spoke about eradicating Hinduism. The counter affidavit is clear about the speech of Dr.Ambedkar and the speech of the 1st respondent which is about eradicating social evils and practices like untouchability.
11. It is humbly submitted that with regard to the averments in paragraphs 10-12, the same are denied as false and incorrect. The petitioner is perhaps unacquainted with Indian history and would be well advised to brush upon the history of the social justice movement which fought tooth and nail to eradicate the social evils prevalent in society.
12. It is humbly submitted that with regard to the averments in paragraphs 13 and 14, the same are denied as false and incorrect. The petitioner is thoroughly confused about the ratio in Venkatachalam’s case. As stated earlier, the question in Venkatachalam’s case directly pertains to the eligibility of an elected MLA under Article 173 which is one of the qualifications prescribed for the Members of the Legislature. Failure to qualify under Article 173 would mean that the very election as MLA is legally ab initio void. It was in that context that the Hon’ble Supreme Court held that the candidate was disqualified as he had not possessed the sufficient qualification under Article 173. It has been elaborately argued by this respondent that in the present case, even assuming but not admitting, there is a breach of Article 25(1), the same will not amount to a disqualification under Article 191 or 164. Similarly, in so far as Article 25(1) is concerned, the petitioner has not understood the nuanced argument that Article 25(1) is not the sole preserve of theists but also the right of those who are atheist i.e., who believe that there is no God. If people can believe that there is no God itself, and practice and propagate that belief, it is but obvious that they can also practise and propagate their opposition to Sanathana Dharma and the social inequality that is inherently contained within it. That apart, Article 25(1) is subject to Article 25(2). Article 25(2) says that Article 25(1) is subject to public order and morality and will not prevent State from making laws to throw open Hindu religious institution to all classes of the society. Therefore, the right of the petitioner under Article 25(1) is subject to the right of the 1st respondent to advocate for equality, eradication of caste discrimination, further gender justice etc. In this context, recently in the case of Supriyo @ Supriya Chakraborty & Anr. V. Union of India, 2023 INSC 920 , the Hon’ble Supreme Court was considering the constitutional rights of the LGBTQ+ community with regard to forming relationships, civil union and marriage. Though there was a difference of opinion on right to marriage, all five Hon’ble Judges have concurred that the right of LGBTQ+ persons to form relationships in inherent in Article 21 of all citizens. In this case as well, the opponents attempted to project their right of religion and religious belief and social morality flowing from Article 25(1). The Hon’ble Supreme Court has categorically rejected this argument and held that constitutional Courts will be guided by constitutional morality and not social morality.
13. It is humbly submitted that with regard to the averments in paragraphs 15-17, the same are denied as false and incorrect. The petitioner has not understood that Article 25 cannot be enforced against an individual. In the recent judgment of the Constitutional Bench authored by Hon’ble Justice V.Ramasubramaniam in Kaushal Kishore Vs. State of Uttar Pradesh & Ors (2023) 4 SCC 1, it has been categorically held that a speech by an individual Minister is not an actionable constitutional tort and that the remedy cannot be a Writ Petition. It is only when a speech is followed by some manner of Government order or act, the same can be challenged in a Writ Petition. Further, the Hon’ble Supreme Court has held that the rights under Articles 19 and 21 alone are enforceable against individuals, not other fundamental rights.
14. It is humbly submitted that with regard to the averments in paragraph 19, the same are denied as false and incorrect. It is not clear as to why the petitioner has picked and chosen a book published by Benaras Hindu University from the year 1902, whereas the University has been publishing subsequent versions of the same book as well. This shows the lethargic attitude of the petitioner and the meagre effort put into the case by the petitioner, who has not even bothered to file the updated version of the book. That apart, the 1902 book uses the term Shudra in many places. Whereas after the coming into force of Article 17 the very use of the word Shudra would constitute untouchability and would be unconstitutional. Therefore, the 1902 book is alien to the constitutional democracy founded under our Constitution which guarantees equality to all.
15. It is humbly submitted that with regard to the averments in paragraph 20, the same are denied as false and incorrect. It is always open to the petitioner to talk about reformation of American or European society if he is so pleases and if any audience is ready to listen to his expertise on the subject. In fact, the point being made by this respondent is that speaking for social reformation is always welcome.
16. It is humbly submitted that with regard to the averments in paragraphs 21 and 22, the same are denied as false and incorrect. The petitioner is under some illusion that Sanathana Dharma does not refer to Manu Smriti. In page No.4 of the book which is relied upon by the petitioner, it is stated that Hindu society is “founded on and governed by (a)Manu Smriti”. If the petitioner is an expert in the translation of Manu Smriti, it was the duty of the petitioner (who filed the Writ Petition) to file an authentic translation of the Manu Smriti. It is humbly submitted that the book The Law Code of Manu, that has been filed by this respondent has been written by Patrick Olivell and published by Oxford World Classics. The author Patrick Olivell is the chair of Sanskrit literature in Oxford University. Therefore he is far better placed to translate the Manu Smriti than the petitioner who has not even averred whether he even knows to read Sanskrit. If the petitioner thinks he can translate the Manu Smriti better than a renowned professor of Sanskrit who has authored several books on the subject, it is open to the petitioner to file his translation of the slokas mentioned in the counter affidavit.
17. It is humbly submitted that with regard to the averments in paragraph 23 the same are denied as false and incorrect. The averments in this para are contrary to the Sanathana Dharma book filed by the petitioner itself. The book has a whole chapter on castes which notes the division and social hierarchy between the Brahmins, Kshatriyas, Vyshas and Shudras, which is the basis of the caste system. It is not the petitioner’s case that he is subscribing to the book on Sanathana Dharma without chapter 7 of the book. Therefore, either the petitioner has not read the whole book or is feigning ignorance.
18. It is humbly submitted that with regard to the averments in paragraphs 24-26, the same are denied as false and incorrect.
19. It is humbly submitted that with regard to the averments in paragraph 27, the same are denied as false and incorrect. It is almost as if the petitioner is suggesting that the revolution brought by Dr.Ambedkar is due to charity given by persons like him. Such a suggestion is so atrocious that it does not even warrant a response.
20. It is humbly submitted that with regard to the averments in paragraphs 28-30, the same are denied as false and incorrect. These are not replies to the averments in the counter affidavit but rather new facts surreptitiously included into the reply affidavit in order to project a whole new case.
21. It is humbly submitted that with regard to the averments in paragraph 31 is concerned, the same are denied as false and incorrect. The petitioner is nobody to pity the people of Tamil Nadu. It is clear that by referring to the people of Tamil Nadu in third person the petitioner does not consider himself part of Tamil society, which in a way explains his outlook. This paragraph also proves my allegation that people who cannot even beat “NOTA” in elections are using the platform of this Hon’ble Court to do politics.
22. It is humbly submitted that with regard to the averments in paragraph 32, the refence to a “U-turn” echoes the language of Thiru.K.Annamalai, the BJP State President, who had tweeted in similar language on the evening of 16.10.2023, when my counter affidavit was filed before this Hon’ble Court. This itself is enough proof that the invisible hand of the BJP is behind the petitioner.
23. It is humbly submitted that with regard to the averments in paragraph 33, it is denied as false and incorrect. It is not clear how the petitioner got the statistic of 80% of the population of the country when the book filed by the petitioner itself says that Santhana Dharma is a religion for Aryans. The introduction of the Sanatana Book line 4 reads as follows: “Sanathana Dharma means the eternal religion the ancient law and is based on the Vedas sacred books given to men many long ages ago. This religion has also been called the Aryan religion because it is the religion that was given to the first nation of the Aryan race.” I humbly submit that I do not know whether the petitioner belongs to the Aryan race but the people of South India most certainly do not. South Indian Hindus practiced Hinduism far before the Aryan race settled in India. Therefore, when the book filed by the petitioner itself says it is a religion for the Aryan race, it is not clear how the petitioner can import it into Tamil Nadu and claim it is followed by 80% of the population of the country. That apart, it is reiterated in the book in all places that it is should be read and followed by “Hindu boys”. It is abundantly clear that the book filed by the petitioner is not even meant to be read by Hindu girls or women. In such circumstances, the claim that Sanathana Dharma is followed by the 80% of the population is without basis.
24. It is humbly submitted that with regard to the averments in paragraph 34, the same is denied as false, irrelevant and petty.
25. It is humbly submitted that with regard to the averments in paragraphs 35 – 38, the same are denied as false and incorrect.
26. Hence in light of the above, it is humbly prayed that this Hon’ble Court may be pleased to reject the reply affidavit of the petitioner to the counter affidavit filed by the 1st respondent and consequently dismiss the above Writ Petition and devoid of merits, not maintainable with exemplary costs and pass such further or other orders as this Hon’ble Court may deem fit and proper in the facts and circumstances of the case and thus render justice.

Solemnly affirmed at Chennai on this DEPONENT
the 8th day of November, 2023 and signed
his name in my presence
BEFORE ME
ADVOCATE – CHENNAI