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16 TH^ NALSAR-JUSTICE B.R SAWHNY MEMORIAL MOOT COURT COMPETITION MEMORIAL FOR PETITIONERS ,TABLE OF CONTENTS PAGE | I
UNIVERSITY OF LUCKNOW 4 TH^ NATIONAL MOOT COURT
COMPETITION 2023
IN THE HON’BLE SUPREME COURT INDIANA
IN CIVIL PLAINT / WRIT PETITION (CIVIL) NO.(XX) OF 2023
(CIVIL ORIGINAL JURISDICTION)
UNDER ARTICLE 131 R/W ORDER XXVI S.C.R, 2013 R/W ART. 32 OF
INDIANA CONSTITUTION
GOVT OF NCT OF SUPLEX CITY … PETITIONERS
VERSUS
UNION OF INDIANA …RESPONDENT
WITH REVIEW PETITION NO.(XX) OF 2023
UNDER ARTICLE 137 OF INDIANA CONSTITUTION R/W ORDER XLVII OF S.C.R,
UNION OF INDIANA … PETITIONERS
VERSUS
GOVT OF NCT OF SUPLEX CITY …RESPONDENT
TO, THE HON’BLE JUDGES OF SUPREME COURT OF INDIANA
WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS
TC-XX
TABLE OF CONTENTS PAGE | II
TABLE OF CONTENTS
TABLE OF CONTENTS................................................................................................................. II
LIST OF ABBREVIATIONS .......................................................................................................... IV
INDEX OF AUTHORITIES ............................................................................................................ VI
STATEMENT OF JURISDICTION ................................................................................................ VIII
STATEMENT OF FACTS .............................................................................................................. IX
ISSUE RAISED ............................................................................................................................. X
ARGUMENTS ADVANCED ........................................................................................................ - 1 -
I. WHETHER THE HON’BLE COURT ENTERTAIN A WRIT PETITION AGAINST AN
ORDINANCE ................................................................................................................. - 1 -
1. That the Ordinance is a law under Article 13 ..................................................... - 1 - II. WHETHER THERE ARE LIMITATIONS ON ORDINANCE MAKING POWER OF UNION GOVT AND WHETHER THE COURT CAN NULLIFY THE ABOVE ORDINANCE ................... - 3 - 1. That the ordinance is manifestly arbitrary ........................................................ - 3 -
(A) Ordinance suffers from Manifest Arbitrariness .................................. - 3 -
(B) Sections 41, 45E, 45H ......................................................................... - 4 -
(C) Sections 45K ........................................................................................ - 4 -
(D) Sections 45D ....................................................................................... - 5 -
2. Ordinance does not fulfill the requirements of Article 123 ............................... - 5 - 3. Ordinance overrules the judgement .................................................................... - 6 -
INDEX OF AUTHORITIES PAGE | IV
LIST OF ABBREVIATIONS
ABBREVIATION EXPANSION
& And ¶ Paragraph % Per cent § Section Sec. Section AIR All India Reporter Art. Article Anr. Another b/w Between Can’t Cannot Ch. Chapter Const. Constitution of Indiana Govt. Government HC High Court
INDEX OF AUTHORITIES PAGE | V Hon'ble Honourable i.e. That is IPC Indian Penal Code J. Justice Ors. Others r/w Read with SC Supreme Court of India SCC Supreme Court Cases UOI Union of India U/S Under Section v. Versus
INDEX OF AUTHORITIES PAGE | VII
STATUTES
1). Constitution of India, 1950 BOOKS AND JOURNAL
- Arvind P Datar, Commentary of the Constitution of India (2nd Ed. 2010)
- Durga Das Basu, Introduction to the Constitution of India (22nd Ed.,2015)
- Justice G. P. Singh, Principles of Statutory Interpretation , (8th Ed., 2001).
- M.P. Jain , Indian Constitutional Law (7th Ed., 2016) WEBSITES
- Hein online, https://www.heinonline.com
- Law Finder, https://www.lawfinderlive.com
- Lexis Nexis, https://www.lexisnexis.com
- Live Law , https://www.livelaw.in
- Manupatra, http://www.manupatra.co.in
- SCC Online, http://www.scconline.com
- The Judgment Information System, http://164.100.79.153/judis/ OTHER AUTHORITIES A. Black’s Law Dictionary (10th Ed, 2014). B. Oxford Dictionary, (3rd Ed., 2015).
STATEMENT OF JURISDICTION PAGE | VIII
STATEMENT OF JURISDICTION
IN THE CIVIL ORIGINAL PLAINT/ WRIT PETITION (CIVIL) NO. (XX) OF 2023
The Counsel for Petitioners i.e. Govt of NCT of Suplex City has approached the Hon’ble Supreme Court of Indiana in the case of ‘Government of NCT of Suplex City v. Union of Indiana’ Under Art. 131^1 r/w Order XXVI Supreme Court Rules, 2013 r/w Art. 32^2 of Indiana Constitution. IN REVIEW PETITION NO.(XX) OF 2023 In the matter of ‘ Union of Indiana v. Government of NCT of Suplex City’ The jurisdiction of this Hon’ble Court has been invoked by Union of Indiana Under Art. 1373 of the Constitution of Indiana r/w (^1) 131. Original jurisdiction of the Supreme - Court Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute (a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute. (^2) 32. Remedies for enforcement of rights conferred by this part “(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (1) and (2), Parliament may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme Court under clause (2). (4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.” (^3) 137. Review of judgments or orders by the Supreme Court. Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.
ISSUE RAISED PAGE | X
ISSUE RAISED
- Issue I - WHETHER THE APEX COURT CAN ENTERTAIN A WRIT PETITION AGAINST AN ORDINANCE? - Issue II– WHETHER THERE ARE LIMITATIONS ON ORDINANCE MAKING POWER OF THE UNION GOVT. AND WHETHER THE APEX COURT CAN NULLIFY THE ABOVE ORDINANCE? - Issue IV– WHETHER THE GOVT OF SUPLEX CITY CAN CONTROL THE ADMINISTRATION OF SUPLEX CITY?
ARGUMENTS ADVANCED PAGE |- 1 -
ARGUMENTS ADVANCED
I. WHETHER THE HON’BLE COURT ENTERTAIN A WRIT PETITION AGAINST AN
ORDINANCE (¶1.) It is humbly submitted that the Supreme Court of Indiana can entertain a writ petition against an ordinance. In the landmark case of D.C. Wadhwa v. State of Bihar^4 , the court held that, “ordinances are subject to judicial review, and the court has the authority to examine their validity, especially if they violate the Constitution's provisions.” Thus, the Apex Court can entertain a writ petition against an ordinance as (1) Ordinance is a law within the meaning of Article 13.
1. That the Ordinance is a law under Article 13 (¶2.) It is humbly submitted that art.13(3)(a) state that “the word law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.” (¶3.) In the case of A.K. Roy^5 , the Apex Court held that the ordinances by the president are made in the exercise of legislative power and stated that stated that ordinances must be treated as laws because they would otherwise be exempt from the requirements placed by Article 13(2) of the constitution. (¶4.) The court is empowered under Article 13 to strike down any law which is inconsistent with the Fundamental Rights contained under Part III of the Constitution. Thus, the Court possesses the power of Judicial review to adjudicate under its writ jurisdiction any matter involving a substantial question of law. (¶5.) In the case of R.K. Garg v. Union of India^6 , C.J. Chandrachud clarified that Article 123 confers “legislative power ... on the President.” The power to promulgate ordinance is a power to enact primary legislation, and Articles 13 and 367 in their definitions of law clarify this “legislative” label^7. (^4) D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579. (^5) A.K. Roy v. Union of India, AIR 1982 SC 710. (^6) R.K. Garg v. Union of India, AIR 1981 SC 2138. (^7) Supra, note 4.
ARGUMENTS ADVANCED PAGE |- 3 -
II. WHETHER THERE ARE LIMITATIONS ON ORDINANCE MAKING POWER OF UNION GOVT
AND WHETHER THE COURT CAN NULLIFY THE ABOVE ORDINANCE It is humbly submitted that as ordinance is covered under the meaning of law under Art.13 so the limitations on making law would apply to promulgation of ordinance and the above court has full authority to nullify the above ordinance(1) Ordinance is manifestly arbitrary (2) Ordinance has not fulfilled the requirements of Article 123 (3) Ordinance overrules the Judgement
1. That the ordinance is manifestly arbitrary (¶7.) It is humbly submitted that the The Impugned Ordinance is manifestly arbitrary in violation of Article 14. Since this Hon’ble Court’s decision in Shayara Bano v. Union of India^9 , it is settled law that even legislations may be held to be unconstitutional on the anvil of manifest arbitrariness. (¶8.) The ordinance violates and undermines core principles of democracy, representative governance, and a responsive administration. It is a universal truth that any functioning modern polity requires the performance of a vast range of daily administrative functions, which must be coordinated at multiple levels. This task is performed by the body known as ‘The Services’. (¶9.) Whatever policy or vision that elected legislators may formulate, what is actually implemented depends on who the services report to. For this reason, the default position has always been that it is the directly elected government that should have control over services. This ensures that the representatives whom the people elect upon a certain manifesto, actually have the ability to implement the policies and promises on the basis of which they have been elected.
(A) Ordinance suffers from Manifest Arbitrariness
(¶10.) It is a settled law that a legislation may be held to be unconstitutional under Article 14 if found to be “ done capriciously, irrationally and/or without adequate determining principle...when something is done which is excessive and disproportionate...” or if found to (^9) Shayara Bano v. Union of India, (2017) 9 SCC 1
ARGUMENTS ADVANCED PAGE |- 4 - be “not fair, not reasonable, discriminatory, not transparent, capricious, biased... and not in pursuit...equitable treatment. ..”^10 (¶1 1 .) It is humbly submitted before this hon’ble court that the Impugned Ordinance, particularly Sections 41, 45D, 45E, 45K, and 45H suffer from manifest arbitrariness.
(B) Sections 41, 45E, 45H
(¶1 2 .) This Hon’ble Court has noted that the civil service is the “soul” of any administration without which governance itself is impossible, democratic or otherwise.^11 By removing the civil service’s accountability to the government whose policies it is tasked with implementing, the Impugned Ordinance denudes the structure that holds up governance itself. By breaking the link that keeps the civil service accountable for its key role in governance, i.e. the efficient, unbiased, and timely administration of the government’s policies, the Impugned Ordinance erodes the civil service’s incentives for due and fair performance of their role. (¶1 3 .) Thus, in so far as the Impugned Ordinance, vide Sections 41, 45E and 45H, seeks to divorce control of the Government of the National Capital Territory of Suplex City from the civil service posted in its domain, it is evidently capricious and without determining principle
- it suffers from a lack of any plausible and legitimate objective.
(C) Sections 45K
(¶1 4 .) It is humbly submitted before this hon’ble court that Section 45K by allowing bureaucrats and LG to override decisions of the Council of Ministers and Ministers-in- charge, and empowering bureaucrats to block Cabinet notes is manifestly arbitrary. (¶1 5 .) Section 45K confers on civil servants within the Government of the National Capital Territory of Suplex City wide-ranging discretion to stall, disobey, and contradict the decisions taken by the Council of Ministers and Ministers-in- charge of Government of the National Capital Territory of Suplex City. By vesting control over civil servants in the hands of the Union, and then conferring wide discretionary powers on civil servants to override the Government of the National Capital Territory of Suplex City, the Impugned Ordinance in effect and design allows the Union to take over the governance of Suplex City. (^10) Ibid, para 95. (^11) State (NCT of Delhi) v. Union of India, 2023 SCC OnLine SC 606.
ARGUMENTS ADVANCED PAGE |- 6 - interests in the national capital territory. In such an event, there can be no ‘urgency’ or ‘necessity’ in overturning it. (¶ 24 .) Also, the promulgation of the present Ordinance is an apparent attempt to circumvent democratic and judicial deliberations. The unseemly hurry in reversing a ruling of this Hon’ble Court via Ordinance, and the timing of its promulgation, reveals a conscious intent to avoid democratic as well judicial deliberations that could safeguard the interests of the people of Suplex City.
3. Ordinance overrules the judgement (¶2 3 .) It is a well settled law that the legislature cannot override the effect of a judgment without altering the legal basis of the judgment.^13 (¶2 4 .) In State of Kerala vs State of Tamil Nadu^14 , a Constitution Bench of the Supreme Court held that a law enacted by the legislature can be invalidated if it is an attempt to interfere with judicial process by breaching the doctrine of separation of powers. (¶2 5 .) In the 2021 Madras Bar Association case^15 , the Supreme Court struck down the provisions of Tribunal Reforms Ordinance 2021 on the ground that they were contrary to an earlier judgment of the Court. In this case, the court observed that, “It is open to the legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court”^16 (¶ 26 .) In the impugned case, the ordinance is merely declaring that the judgment is ineffective, without disturbing its legal basis, which is an impermissible exercise. By doing so, the Ordinance is breaching the doctrine of separation of powers and is liable to be struck down as per the judgments in State of Kerala v. State of Tamil Nadu and Madras Bar Association cases^17. (^13) Madan Mohan Pathak vs. Union of India, AIR 1978 SC 803. (^14) State of Kerala vs State of Tamil Nadu, AIR 2014 SC 2407. (^15) Madras Bar Association v. Union of India, (2021) 7 SCC 369. (^16) Ibid (^17) Supra note 13, note 14
ARGUMENTS ADVANCED PAGE |- 7 -
III. WHETHER THE GOVERNMENT OF THE SUPLEX CITY CAN CONTROL THE
ADMINISTRATIVE CONTROL OF THE STATE?
(¶2 7 .) It is very humbly submitted that the keeping in mind the principles of federalism the Suplex city is entitled to control the administration of state.
1. Power of Lt. Governor Circumscribed by Article 239AA (¶2 8 .) The Counsel of Petitioner humbly submits that the power of Lt. Governor has been defined under Article 239AA. It can be observed that the under Article 239AA, there will be a council of ministers with chief minister at its head to Aid and Advise Lt. Governor in matters in which the Legislative Assembly has power to make law^18. It explains in the matters where the Legislative Assembly does not have competency to make law, only in those matter Lt. Governor has been given discretion^19. 2. Lt. Governor is Bound by the Aid and Advise Of Council of Ministers. (¶2 9 .) In further of the contention above, the Counsel of Petitioner wants to elaborate how the Lt. Governor in the present case is bound by the Aid and Advise of the Council of Ministers. This contention has been further submitted in twofold manner:
(A) Cabinet form of Government in State of Suplex City
(¶ 30 .) It is the contention that, in India we have Cabinet form of Government, wherein the real power has been entrusted with the Council of Ministers to represent the public by whom they have been elected^20. Cabinet form of Government is the heart and soul of our Constitution and the government is accountable through its elected representative^21. “The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet.” Further “The paramount convention is that the Sovereign must act on the advice tendered to her by her ministers, in particular the Prime Minister. She must appoint as Prime Minister that member of the House (^18) Constitution of India, 1950, Article 239AA (4) (^19) Government of National Capital Territory of Delhi Act, 1991, Sec. 41(1) (i) (^20) B.P. Singhal v. Union Of India & Anr., Writ Petition 296 of 2004; Manoj Narula v. Union of India, Writ Peition (Civil) No. 289 of 2005 (^21) P.V. Narsimha Rao v. State, (1998) 4 SCC 626; Ravi Yashwant Bhoir v. District Collector, Raigad, (2012) 4 SCC 407.
ARGUMENTS ADVANCED PAGE |- 9 - i.e. item 1, 2 and 18 which are out of competency of legislative assembly may act in his own discretion only after consultation with Chief Minister^31.
(D) In case of Difference between Lt. Governor and Council of Ministers.
(¶ 34 .) Counsel of Petitioner further intends that, even in case of difference of opinion between Lt. Governor and his ministers, he can refer the matter to the President for decision and act according to the decision given by the President^32. The Counsel humbly contends that it has been further explained in Transaction of Business Rules, in case of difference of opinion, Lt. Governor can refer the matter to President and act according to the decision of thereof^33. Hence the matter could not be referred to President for his decision. “ The power conferred by the proviso to Article 239AA(4) shall be exercised in accordance with the procedure prescribed by Rules 49 to 51 of the Transaction of Business Rules or not at all^34 ”
3. Executive Power Flows from Legislative Power (¶ 35 .) Article 239AA establishes a Legislative Assembly for NCTD. The seats in the Assembly are filled by a direct election from the constituencies of NCTD. The Legislative Assembly of NCTD embodies the constitutional principle of representative democracy similar to the Legislative Assembly of the State. The members of the Legislative Assembly of NCTD are selected by the electorate of Delhi to represent their interests.
(A) Inclusive interpretation of “in so far as any such matter is applicable to Union
Territories” (¶ 36 .) Article 239AA must be interpreted to further the principle of representative democracy.16 To interpret the phrase “insofar as any such matter is applicable to Union territories” in a restrictive manner would limit the legislative power of the elected members of the assembly. The members of the Legislative Assembly have been chosen by the electorate to act in their stead. Thus, the legislative competence of NCTD must be interpreted to give full impetus to the will of the electorate. Article 239AA also stipulates that the legislative power of NCTD is excluded with respect to entries 64, 65, and 66 of List II insofar as they relate to entries 1, 2, and 18. Entry 1 deals with (^31) Transaction of Business Rules, 1991, Proviso Rule 45 (^32) Constitution of India, 1950, Article 239AA(4) Proviso. (^33) Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, Rule 50 (^34) State of U.P. v. Singhara Singh & Ors. (1964) 4 SCR 485.
ARGUMENTS ADVANCED PAGE |- 10 - public order , Entry 2 deals with police , and Entry 18 deals with Land. Entry 64 deals with “ offences against laws with respect to any of the matters in this List ”, Entry 65 states “ jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List ”, and Entry 66 states “ fees in respect of any of the matters in this List, but not including fees taken in any court”. (¶ 37 .) The exclusion of entries 64,65, and 66 to the extent that it relates to entries 1,2, and 18 from the legislative competence of NCTD indicates that the governance structure envisaged in Article 239AA for NCTD was only to exclude the specific entries 1, 2, and 18 from its legislative competence. To read the phrase “ insofar as such matter is applicable to the Union Territories ” as introducing an implied exclusion of the legislative powers of NCTD with respect to certain other entries would be contrary to the plain meaning of the provision. We find that the phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239AA(3) cannot be read to further exclude the legislative power of NCTD over entries in the State List or Concurrent List, over and above those subjects which have been expressly excluded by the provision.
(B) Limitation of power of Central Government
(¶ 38 .) A combined reading of Articles 73 and 162 indicates that the Union has exclusive executive power over entries in List I. The States have exclusive executive power over entries in List II. With respect to List III, that is, the concurrent list, the Union shall have executive power only if provided by the Constitution or by a law of Parliament. The States shall have executive power over the entries in List III. (¶ 39 .) However, if a Central legislation or a provision of the Constitution confers executive power to the Union with respect to a List III subject, then the executive power of the State shall be subject to such law or provision. The executive power of the Union “in a State” over matters on which both States and the Union of India can legislate (that is, the concurrent list) is limited to ensure that the governance of States is not taken over by the Union. (¶ 40 .) It is with this objective in mind that the members of the Constituent Assembly thought it fit to limit the executive power of the Union in a State over matters on which the State also has legislative competence.
