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4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT
COMPETITION – 2014
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MEMORIAL ON BEHALF OF RESPONDENT
BEFORE THE HON’...
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TABLE OF CONTE...
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LIST OF ABBRE...
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Ors……………………………...
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INDEX OF AUTHOR...
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22. Divisional...
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50. Laxmanapp...
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77. Sachidan...
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BOOKS:
1. Blac...
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3. Internationa...
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STATEMENT OF J...
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QUESTIONS PRE...
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STATEMENT OF...
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like food, wa...
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SUMMARY OF PLE...
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PLEADINGS
1. Wh...
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instead of disp...
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of unwanted pro...
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It has been cla...
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of a fundamenta...
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not be crossed ...
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the authority a...
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been infringed....
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2.1. The Act is...
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It was held th...
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It is humbly s...
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representative...
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In adjudging t...
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The Act is in ...
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The legislativ...
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constitutional...
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It is pertinen...
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The Food For A...
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persons with d...
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The only contr...
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PRAYER
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ALS, noida - memo - R MK Nambyar

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ALS, noida - memo - R MK Nambyar

  1. 1. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 i MEMORIAL ON BEHALF OF RESPONDENT BEFORE THE HON’BLE SUPREME COURT OF INDUS PUBLIC INTEREST LITIGATION W.P. (CIVIL) NO. ____ OF 2014 UNDER ARTICLE 32 OF THE CONSTITUTION OF INDUS IN THE MATTER OF ARTICLE 21 OF THE CONSTITUTION OF INDUS SAMAJH SEVA SANGH………………………………………………………...…….. PETITIONER V. UNION OF INDUS……………………………………………………………..……. RESPONDENT UPON SUBMISSION TO THE HON‟BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDUS MEMORIAL ON BEHALF OF THE RESPONDENT Amity Law School, Noida
  2. 2. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 ii MEMORIAL ON BEHALF OF RESPONDENT TABLE OF CONTENTS Table of contents…………………………………………………………..………………………ii List of Abbreviations……………………………………………………….…………………….iii Index of Authorities……………………………………………………………………………….v Statement of Jurisdiction…………………………………………...…………………………….xi Questions Presented……………………………………………………………………………xii Statement of Facts………………………………………………………………………………xiii Summary of Pleadings……………………….xv Pleadings………………………….1 1. Whether the said petition is maintainable?..................1 1.1. Locus standi of the petitioner…………………………………………………….3 1.2. No violation of fundamental right………………………………………………4 1.3. Judiciary has no say in policy decisions of the legislative authority…………….5 2. Whether the impunged Act is violation of the Constitution…………………………….7 2.1. The Act is in compliance with Part III of the Constitution………………………….9 2.2. The Act is in compliance with Part IV of the Constitution………….14 2.3. Power of judiciary to interfere in the administrative order of legislative Acts……..14 3. Whether the impugned legislation is violative of international human rights instruments....................................................................................................................15 3.1. International treaties not an obligation on the legislature…………………….16 3.2. Impugned legislation is in accordance with international human rights instruments………………………………………………………………………..17 3.3. Intent of the legislature………………………………………………………19 Prayer……………………………………………………………………xvi
  3. 3. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 iii MEMORIAL ON BEHALF OF RESPONDENT LIST OF ABBREVIATIONS &………………………………………………………………………..………………………And AC……………………………………………………………………………………Appeal Cases AIR …………………………………………………………………………..…All India Reporter All ER………………………………………………………..……………. All England Reporters App………………………………………………………………………………………….Appeal Art…………………………………………………………………………………………...Article cl……………………………………………………………….…………………………….Clause CRC………………………………………………………………...Convention of Rights of Child DB………………………………………………………………..………………Divisional Bench Ed…………………………………………………………………………………………...Edition FAO…………………………………………………………..Food and Agricultural Organisation Hon‟ble…………………………………………………………………………………Honourable i.e………………………………………………………………………………………….therefore ibid………………………………………………………………………………………….Ibidium ICESCR……………..…………International Covenant on Economic, Social and Cultural Rights ILR…………………………………………………………………………….Indian Law Reports LR……………………………………………………………………………………..Law Reports No…………………………………………………………………………………………..Number
  4. 4. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 iv MEMORIAL ON BEHALF OF RESPONDENT Ors…………………………………………………………………………………………...Others PC……………………………………………………………………………………Privy Council PIL………………………………………………………………………..Public Interest Litigation SC……………………………………………………..……………………………Supreme Court SCC…………………………………………………….……………………Supreme Court Cases SCR……………………………………………………………………….Supreme Court Reporter U/A…………………………………………………………………………………...Under Article UNDHR……………………….……………………United Nations Declaration of Human Rights UOI …………………………………………………………………………………Union of India V……………………………………………………….…………………………………….Versus
  5. 5. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 v MEMORIAL ON BEHALF OF RESPONDENT INDEX OF AUTHORITIES CASES: 1. A.K. Gopalan v. State of Madras AIR 1950 SC 27………………………...……………..8 2. ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207 ………………………………..12 3. Ashoka Kumar Tahakur v. Union of India & Ors (2008) 6 SCC 1…………………...…20 4. Ashuthosh Gupta v. State of Rajasthan (2002) 4 SCC 34, AIR 2002 SC 1533………….10 5. B. Krishna Bhat v. Union of India AIR 1990 SC 851……………………………….........8 6. Badhua Mukti Morcha v. Union of India (1984) 3 SCC 161…………………………..…2 7. BALCO Employees Union (Regd.) v. Union of India & Ors., AIR 2002 SC 350………3,4 8. Birma Ram v. state of Rajasthan 1977 WLN UC 497…………………………..………16 9. Chandra Bhavan Boarding v. State of Mysore, AIR 1970 SC 2042……………………14 10. Charanjit Lal Chowdhury v. Union of India 1951 SC 41…………………………...…4,15 11. Chhetriya Pardushan Mukti v. State Of Uttar Pradesh And Ors 1990 AIR 2060……..............................................................................................................................2 12. Chintamandrao v. State of Madhya Pradesh 1950 SCR 759……………………….…...12 13. Coffee Board v. Jt. C.T.O., Madras AIR 1971 SC 870 (877)……………………….….…8 14. Confederation of Ex-serviceman Association v. Union of India, (2006) 8 SCC 399 AIR 2006 SC 2945 …………………………………………………….……………………..11 15. Council of Civil Service Unions and Others v. Minister For The Civil Service (1985 A.C. 374)……………………………………………………………………....………………13 16. D.A.V. College v. State of Punjab AIR 1971 SC 1737, (1971) 2 SCC 269……..……….15 17. D.C. Bhatia v. Union of India (1995) 1 SCC 104…..……………………………………..9 18. D.C. Wadhwa v. State of Bihar AIR 1982 SC 579……………………………….……3,15 19. Daryao v State of Uttar Pradesh AIR 1961 SC 1457……………………………………..8 20. Deep Chand v. State of Uttar Pradesh 1959 AIR 648…………………………..……..5,17 21. Dharam Dutt v Union of India AIR 2004 SC 1295………………………………............8
  6. 6. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 vi MEMORIAL ON BEHALF OF RESPONDENT 22. Divisional Manager, Aravali Golf Club and Anr. v. Chander Hass and Anr. 2008 (3) 3JT 221…………………………………………………………………………...…………….5 23. Dwarkadas v. Bombay Port Trust (1989) 2 SCC 293…………………………………...10 24. Esmail v. Competent Officer AIR 1967 SC 1244…………………………………………8 25. Express Newspaper v. Union of India, (1986) 1 SCC 633………………………………..8 26. Federation of Bar Assns. v. Union of India (2000) 6 SCC 715…………………………...4 27. Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries 1993 (1) SCC 71..13 28. Garg, R.K. v. Union of India, AIR 1981 SC 2138 ……………………………………...10 29. Goodyear India v. State of Haryana AIR 1990 SC 781…………………………………15 30. Government of Andhra Pradesh and Ors. v. Smt. P. Laxmi Devi 2008(2) 8 JT 639.…….5 31. Guruvayur Devaswom Managing Committee v. C.K. Rajan, & Ors AIR 2004 SC 561.....3 32. Hamdard Dawakhana v. Union of India AIR 1960 SC 554…………………………..…13 33. Hanif Quareshi Mohd. v. State of Bihar AIR 1958 SC 731……………………………..12 34. Hindi HitrakshakSamiti And Ors v. Union Of India And Ors 1990 AIR 851…………….4 35. Hughes v. Superior Court (1950) 339 US 460 ……………………………………….…10 36. Inderjeetv. State of U.P., AIR 1979 SC 1867……………………………………………11 37. J.P.Bansal v. State of Rajasthan,2003(3) SCALE 154……………………………………6 38. Janata Dal v. H.S. Chowdhary and Ors. (1992) 4 SCC………………………………...1,3 39. Jasbhai Motibhai Desai v. Roshan Kumar, Haji Basheer Ahmed and others (1976) 1 SCC 671………………………………………………………………………………………....4 40. Jolly Jeorge Vs. Bank of Cochin, AIR 1980 SC 470…………………………………….16 41. Kartar Singh v. State of Punjab, (1994) 3 SCC 569 …………………………………….11 42. Kathi Ranning Rawat v.State of Saurashtra, AIR 1952 SC 123…………………….........5 43. Kaushal P.N. v. Union of India, AIR1978 SC1457…………………………………….…5 44. Kesavananda Bhartiv. State of Kerala, (1973) 4 SCC 225, AIR 1973 SC 1461………...14 45. Khyerbari Tea Co. v. State of Assam AIR 1964 SC 925………………………………….8 46. Kochuni K.K. v State of Madras AIR 1960 SC 1080……………………………............12 47. Kochunni v. State of Madras AIR 1959 SC 725…………………………………….........8 48. Krishna Chandra v. State of Madhya Pradesh AIR 1965 SC 307………………………11 49. KushumLata v. Union Of India And Ors MANU/SC/8225/2006…………...........2
  7. 7. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 vii MEMORIAL ON BEHALF OF RESPONDENT 50. Laxmanappa v. Union of India, AIR 1955 SC 3, (1955) 1 SCR 769…………………..…8 51. Maganbhai v. Union of India (1970) 3 SCC 400…………………………......................16 52. Maneka Gandhi v. Union of Gandhi, AIR1978 SC 597…………………………………..9 53. Messrs Shanti Vijay and Company and Others v. Princess Fatima Fouzia and Others, 1980 (1) SCR 459……………………………………………………………..................13 54. Minerva Mills v. Union of India, AIR 1980 SC 1789 ………………………..………….14 55. Mortensen v. Peters (1906) 14 Scots LTR 227……………………………………….….16 56. Muneeb v. Govt. of Jammu and Kashmir AIR 1984 SC 1585…………………………….8 57. NandLal Bajaj v. State of Punjab, AIR 1981 SC 2041 ………………………………....11 58. Narinderjit Singh Sahni v Union of India (2002) 2 SCC 210……………………………11 59. National Council For Civil Liberties v. Union Of India & Ors MANU/SC/2993/2007.…7 60. Nirmal Chand v. Union of India 1966 SCR (1) 986 ……………………………….……16 61. Om Kumar v. Union of India, (2001) 2 SCC 386, AIR 2000 SC 3689 ……………........11 62. P.M. Ashwathanarayana Setty v State of Karnataka AIR 1989 SC 100………………...11 63. P.Ramachandra Rao v. State of Karnataka(2002) 4 SCC 578………………………….6,7 64. Pannalal Binjraj v. Union of India, AIR 1957 SC 397……………………………...……5 65. Papsanam Labour Union v Madura Coats Ltd AIR 1995 SC 2200, (1995)1 SCC 501...12 66. Parent of a student of Medical College, Shimla v State of Himachal Pradesh AIR 1985 SC 910……………………………………………………………………………………..2 67. Pathuma v State of Kerala AIR 1978 SC 771…………………………………………...13 68. People’s Union for Civil Liberty v. Union of India, 2003 (10) SCALE 967…………...…6 69. Poonam v. Sumit Tanwar AIR (2010) SC 1384, (2010) 4 SCC 460, JT (3) SC 259…...…1 70. Preston v. Inland Revenue Commissioners (1985 A.C. 835)…………………………....13 71. Ram Bachan Lal v. State of Bihar, AIR 1967 SC 1404………………………………..…5 72. Ramesh v. Union of India AIR 1988 SC 775…………………………………………….15 73. Ramjilal v. ITO AIR 1951 SC 97……………………………………………………….…8 74. Ramsharam Autyannuprasi v. Union of India (1989) Supp 1 SCC 251…………………..2 75. Ranjit D. Udeshiv. State of Maharashtra, AIR 1965 SC 881………………………...…11 76. Reliance Energy Ltd. v. Maharashtra State Road Development Corporation Ltd.(2007)8 SCC 1, 21, 36……………………………………………………………………………...9
  8. 8. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 viii MEMORIAL ON BEHALF OF RESPONDENT 77. Sachidanand Pandey v. State of West Bengal (1987) 2 SCC 295 p 331; AIR 1987 SC 1109, (1987), (1987) 2 SCR 223…………………………………………………………..1 78. Sadhu Singh v. Delhi Administration AIR 1966 SC 91 (95)………………………….…15 79. Samdasani P.D v. Central Bank of India, AIR 1952 SC 59 : 1952 SCR 391…….....12, 14 80. Shiv Bahadur Singh Raov. State of U.P., AIR 1953 SC 394…………………………….11 81. Shri Krishna Sharma v. State of West Bengal AIR 1954 Cal. 598………………………16 82. Star Sugar Mills v. State of Uttar Pradesh AIR 1984 SC 37………………………..……8 83. State (Govt of NCT of Delhi) v. Prem Raj(2003) 7 SCC 121……………………………..5 84. State of Bihar v. Bihar distillery Ltd. AIR 1997 SC 1511…………………………….…11 85. State of Gujarat v. Shantilal Mangaldas- AIR 1969 SC 634……………………………12 86. State of Kerala v. Thomas,N.M., AIR 1976 SC 490……………………………………..14 87. State of Madras v V.G. Rao AIR 1952 SC 196…………………………………………..13 88. State of Orissa v. B.K. Bose, AIR 1962 SC 945………………………………………....10 89. State of Tamil Nadu v. Anarthi Ammal AIR 1995 SC 2114…………………………..…10 90. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75…………………………....10 91. Subhash Kumar v. State of Bihar, AIR 1991 SC 420………………………………..........3 92. Supdt, Central Prison, Fatehgarhv. Ram ManoharLohia, AIR 1960 SC 633……..........11 93. Supreme Court Employees Welfare Association v. Union of India(1989) 4 SCC 187……6 94. Syed Quasim Razvi v. State of Hyderabad (1953) SCR 589………………………………9 95. Syed T.A. Haqshbandi v. State of Jammu and Kashmir, (2003) 9 SCC 592……………...6 96. Tika Ramji Ch. v. State of Uttar Pradesh., AIR 1956 SC 676…………………………....5 97. U.P. State co-operative Land Development Bank Ltd. v. Chandrabhan Dubey (1999) 1 SCC 741………………………………………………………………………………….15 98. Ujjain Bhai v. State of Uttar Pradesh AIR 1962 SC 1621………………………………..8 99. Union of India and Another v. Deoki Nandan Aggarwal1992 Supp. (1) SCC 323…….…6 100. Villianur Iyarkkkai Padukappu Maiyam v. Union of India (2009) 7 SCC 561…...4 101. Williamson v. Lee Optical (1954) 384 US 483…………………………………..10 102. Zahir v. Union Of India (1993) 23 ATC 812………………………………......….8
  9. 9. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 ix MEMORIAL ON BEHALF OF RESPONDENT BOOKS: 1. Black‟s Law Dictionary, 8th edition 2. Cambridge Learners Dictionary, 1st edition 3. Constitution of India by J.N. Pandey,44th edition 2007 4. Constitution of India by D.D. Basu, 14th edition 2009 5. Constitution of India by V.N. Shukla,10th edition 2006 6. Constitutional of India by H.M. Seervai, Vol. I & II, 4th edition 2006 7. Public Interest Litigation in India by Videh Upadhyay 8. Shorter Constitution of India by D.D. Basu in the , Fourteenth Edition, 2009 9. Ultra vires by B. C. Sarma LEGAL DATABASES: 1. Hein Online 2. Manupatra 3. SCC Online 4. West Law LEXICONS: 1. Aiyar Ramanathan P, Advanced Law Lexicon, 3rd edition, 2005, Wadhwa Nagpur. 2. Garner Brayana, Black‟s Law Dictionary, 7th edition, 1999. LEGISLATIONS: 1. The Constitution of India, 1950. 2. The National Food Security Act, 2013. INTERNATIONAL INSTRUMENTS: 1. Convention of Rights of Child 2. Food and Agricultural Organisation
  10. 10. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 x MEMORIAL ON BEHALF OF RESPONDENT 3. International Covenant on Economic, Social and Cultural Rights 4. United Nations Declaration of Human Rights, 1948 ARTICLES: 1. David Deener, Judicial Review in Modern Constitutional Systems, 46 (4) Am. Pol. Sc. Rev. 1079 (1952). 2. E. S. Crown, Essay on the Judicial Review in Encyclopedia of Social Sciences. Vol. VIII 3. Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 AM. POL. SC REV. 853(1962) 4. S.P. Sathe, Judicial Review in India: Limit and Policy, 35 Ohio St. L.J. 870 (1974).
  11. 11. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 xi MEMORIAL ON BEHALF OF RESPONDENT STATEMENT OF JURISDICTION The Hon‟ble Supreme Court of Indus has the jurisdiction in this matter under Article 32 of the Constitution of Indus which reads as follows: “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.”
  12. 12. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 xii MEMORIAL ON BEHALF OF RESPONDENT QUESTIONS PRESENTED If it may please this Hon’ble court, in the interest of justice and on account of the reason of necessity and brevity, this Hon’ble bench is empowered to address the following issues, provided as hereunder: ISSUE 1: Whether the said petition is maintainable? ISSUE 2: Whether the impugned Act is violative of the Constitution of Indus? ISSUE 3: Whether the impugned Act is violative of the International Human Rights instruments?
  13. 13. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 xiii MEMORIAL ON BEHALF OF RESPONDENT STATEMENT OF FACTS I Due to a survey result that was published it came to the notice of the government that while there being a surplus stock of food grains lying unused & rotted in the government go downs, there were still a large number of people who were dying due to starvation. Therefore, the government decided to enact the Food For All Act, 2013. II The main objectives of this Act were: (a) To give effect to the various International Instruments on “Right to food”. (b) To have sufficient and nutritious food at affordable price for all the family members. III Each member belonging to “deserved family” shall be entitled to sufficient food but: (a) Exclusion of one member is deemed to be exclusion of other members of family from the purview of this Act. (b) Farmers shall contribute 50% of these food grains for the purpose of this Act, for which they shall be paid minimum price by the government. IV Cases mentioned are: (a) A five year old girl Soadha in Ghasibpur village died due to starvation, as her poor father could not get benefit of the said Act as he didn‟t fall within the definition of “deserved family”. (b) Ghazaginagar village faced deluge, which swept away innumerable villagers and the one who survived were trapped in water and were unable to get essential commodities
  14. 14. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 xiv MEMORIAL ON BEHALF OF RESPONDENT like food, water because of the flood. The private shops operating in that village provided the survivors with food which were not only inadequate but also too costly. V Samaj Seva Sangh, a Non Governmental Organization espousing the cause of those deprived & hapless people, filed a Public Interest Litigation before the Supreme Court.
  15. 15. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 xv MEMORIAL ON BEHALF OF RESPONDENT SUMMARY OF PLEADINGS 1. Whether the said petition is maintainable? In the present matter as the fundamental rights of the petitioner has not been infringed. The same does not grant them a locus standi to file for PIL in this petition and the courts should be cautious while deciding the maintainability of the petition. 2. Whether the impugned Act is violative of the Constitution? The Act is constitutionally valid as it does not violate the Part III and is in pursuance of Part IV of the Constitution. The court will not interfere with the administrative order of the legislature. 3. Whether the impugned legislation is violative of International Human Rights instruments? The Food For All Act, 2013 is not violating any international human rights instrument because each clause of the statute is in accordance with the covenants. The intent of the legislature was bonafide and that following an international treaty is not fully obligatory on the legislature.
  16. 16. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 1 MEMORIAL ON BEHALF OF RESPONDENT PLEADINGS 1. Whether the said petition is maintainable? In accordance to the fact sheet, the Petition was filed by Samajh Seva Sangh, 1 A Non- Government Organisation before the Hon‟ble Supreme Court of India praying for the Food For All Act, 2013 to provide food for all under all circumstances. The petitioners are entitled to appropriate relief under the provisions of Article 322 of the Constitution of India, provided it is proved to the satisfaction of the Hon‟ble Court that the petitioners have a sufficient interest in the matter and that their Fundamental Rights have been violated3 The Hon‟ble Court has laid down a chain of notable decisions with all emphasis at their command about the importance and significance of this newly developed doctrine of Public Interest Litigation, it has also hastened to sound a red alert and a note of severe warning that courts should not allow their process to be abused.4 Justice Khalid in Sachidanand Pandey v. State of West Bengal5 said “today public spirited litigants rush to courts to file cases in profusion under this attractive name. They must inspire confidence in courts and among the public. They must be above suspicion. I will be second to none to help when such help is required. But this does not mean that the doors of this court are always open for anyone to walk in. It is necessary to have some self-imposed restraint on public interest litigants” It was also held in the same case6 that, "If Courts do not restrict the free flow of such cases in the name of public interest litigation, the traditional litigation will suffer and the Courts of law, 1 The petitioner in the instant case 2 Constitution of Indus PariMateriato Constitution of India (hereafter referred to as Constitution of India) 3 Poonam v. Sumit Tanwar AIR (2010) SC 1384, (2010) 4 SCC 460, JT (3) SC 259 4 Janata Dal v. H.S. Chowdhary and Ors. (1992) 4 SCC 5 (1987) 2 SCC 295 p 331; AIR 1987 SC 1109, (1987), (1987) 2 SCR 223 6 ibid
  17. 17. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 2 MEMORIAL ON BEHALF OF RESPONDENT instead of dispensing justice, will have to take upon themselves administrative and executive functions". In the instant matter, the Non-Government Organisation, Samajh Seva Sangh has no sufficient interest whatsoever. The petitioner‟s interest and the subject matter of the complaint clearly do not coincide. There must be real and genuine public interest involved in the litigation and not merely an adventure of knight errant borne out of wishful thinking. Public Interest Litigation which has now come to occupy an important field in the administration of law should not be "publicity interest litigation" or “private interest litigation” or “politics interest litigation”.7 The courts of justice should not be allowed to be polluted by unscrupulous litigants by resorting to an extra ordinary jurisdiction. Public interest litigation is a weapon which has to be used with great care and circumspection and the judiciary has to be extremely careful to see that behind the beautiful veil of public interest an ugly private malice, vested interest and/or publicity seeking. It is to be used as an effective weapon in the armory of law for delivering social justice to the citizens.8 It has been said that Public Interest Legislation is a weapon that has to be used with great care and circumspection. 9 Elsewhere it has been added that public interest legislation‟ is an instrument for the administration of justice to be used properly in proper cases.10 Further, it has been clarified that, „while it is the duty of this court to enforce fundamental rights, it is also the duty of the court to ensure that this weapon under Article 32 should not be misused or permitted to be misused creating a bottleneck in the superior court preventing other genuine violation of Fundamental Rights being considered by the court.11 The courts have also noted that on account 7 ibid 8 KushumLata v. Union Of India And Ors MANU/SC/8225/2006 9 Parent of a student of Medical College, Shimla v State of Himachal Pradesh AIR 1985 SC 910 10 Ramsharam Autyannuprasi v. Union of India (1989) Supp 1 SCC 251; Badhua Mukti Morcha v. Union of India (1984) 3 SCC 161 11 Chhetriya Pardushan Mukti v. State Of Uttar Pradesh And Ors 1990 AIR 2060
  18. 18. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 3 MEMORIAL ON BEHALF OF RESPONDENT of unwanted proceedings under frivolous public interest legislation a lot of time gets wasted which could otherwise has been spent for the disposal of cases of genuine litigants.12 1.1.Locus standi of the petitioner Supreme Court in Guruvayur Devaswom Managing Committee v. C.K. Rajan, & Ors.,13 has observed that any member of public having „sufficient interest‟ may maintain petition by way of Public Interest Litigation provided there is an injury to a disadvantaged section of the population for whom access to legal justice system is difficult.14 The petitioner in the present case has to show their sufficient interest in the present petition. Samaj Seva Sang is just a voluntary organisation and does not necessarily have a genuine interest in this matter. It is a settled principle that a Public Interest Litigation can only be filed by a person who has a genuine interest in the matter.15 The Supreme Court in Janata Dal v. H. S. Chowdhary,16 has observed that the process of Public Interest Litigation has been abused by persons who do not have any interest or concern with the issue except for some oblique consideration. The Court went on saying that such suits should not be entertained by the courts as it does not fall under the category of public interest litigation.17 The Supreme Court has said that if the executive is not carrying out any duty laid upon it by the constitution or the law, the court can certainly require the executive to carry out such duty and this is precisely what the court does when it entertains public interest legislation. But at the same time the court cannot unsurp the functions assigned to the executive and the legislature under the constitution and it cannot even indirectly require the executive to introduce a particular legislation or the legislature to pass it or assume to itself a supervisory role over the law making activities of the executive and the legislature.18 12 ibid 13 AIR 2004 SC 561; B. P. Banerjee, Writ Remedies, (4th ed. rep. 2008)). 14 BALCO Employees Union (Regd.) v. Union of India & Ors., AIR 2002 SC 350; Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors., AIR 1987 SC 579. 15 Subhash Kumar v. State of Bihar, AIR 1991 SC 420 16 Supra note 4 17 Supra note 8 18 Supra note 9
  19. 19. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 4 MEMORIAL ON BEHALF OF RESPONDENT It has been clarified that in context of locus standi an applicant may ordinarily fall in any of these categories: (i) „persons aggreived‟ (ii) „stranger‟ (iii) „busybody or meddlesome interloper‟. Persons in the last category usually interfere in things that do not concern them. They masquerade as crusaders for justice. They pretend to act in the name of pro bono public, though they have no interest of the public or even of their own to protect.19 Thus in the present case if the Samaj Seva Sang fails to prove sufficient and genuine interest of their organization in the writ petition than the petition is not maintainable before the court. 1.2. No violation of fundamental rights The jurisdiction vested in the Supreme Court is exercisable only for the enforcement of fundamental rights conferred by Part III of the Constitution. Where there is no question of the enforcement of a Fundamental right, Article 32 has no application.20 In the present case there is neither a violation of fundamental rights of the petitioner nor of the people on behalf of whom this particular petition is filed. Relying on BALCO Employees’ Union (Regd.) v. Union of India21 , the court has again reminded that only the only ground in which a person can maintain Public Interest litigation is where there has been an element of violation of Article 21 on human rights or where the litigation has been initiated for the benefit of the poor and the underprivileged who are unable to come to the court due to some disadvantage.22 Article 32 of the Constitution of India guarantees enforcement of fundamental rights. It is well- settled that the jurisdiction conferred on the Supreme Court under Article 32 is an important and integral part of the Indian Constitution but violation of a fundamental right is the sine qua non for seeking enforcement of those rights by the Supreme Court. In order to establish the violation 19 Jasbhai Motibhai Desai v. Roshan Kumar, Haji Basheer Ahmed and others (1976) 1 SCC 671 20 Charanjit Lal Chowdhury v. Union of India AIR 1951 SC 41,60; Federation of Bar Assns. v. Union of India (2000) 6 SCC 715 21 Supra note 14 22 Villianur Iyarkkkai Padukappu Maiyam v. Union of India (2009) 7 SCC 561
  20. 20. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 5 MEMORIAL ON BEHALF OF RESPONDENT of a fundamental right, the Court has to consider the direct and inevitable consequences of the action which is sought to be remedied or the guarantee of which is sought to be enforced.23 Also, the Directive Principles of State Policy are not enforceable. Article 37 read with the case Deep Chand v. State of Uttar Pradesh 1959 AIR 648 it was held that the directive principles of the State Policy, which by Article 37 are expressly made unenforceable by a Court, cannot override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate Writs, Orders or directions under Article 32. It is submitted by the counsel for respondent that there is no violation of fundamental rights and hence there is no way of approaching the court on under Article 32 of the Constitution of India which provides remedies in terms of violation. 1.3.Judiciary has no say in policy decisions of the legislative authority In such a petition, the Court cannot interfere in matters of legislative policy.24 The Court must maintain judicial restraint in matters relating to the legislative or executive domain.25 The policy of a law may be gathered from the Preamble,26 read in the light of the circumstances in which it was passed,27 or its object,28 with its provisions read together.29 In the case of State (Govt of NCT of Delhi) v. Prem Raj30 , the Court held that “Where the words are clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is no scope for the court to innovate or to take upon itself the task of amending or altering the statutory provisions. In that situation the judge should not proclaim that they are playing the role of lawmaker merely for an exhibition of judicial valour. They have to remember that there is a line, though thin, which separates adjudication from legislation. That line should 23 Hindi HitrakshakSamiti And Ors v. Union Of India And Ors 1990 AIR 851 24 ibid 25 Divisional Manager, Aravali Golf Club and Anr. v. Chander Hass and Anr. 2008 (3) 3JT 221; Government of Andhra Pradesh and Ors. v. Smt. P. Laxmi Devi 2008(2) 8 JT 639; 26 Kaushal P.N. v. Union of India, AIR1978 SC1457 27 Kathi Ranning Rawat v.State of Saurashtra, AIR 1952 SC 123; Pannalal Binjraj v. Union of India, AIR 1957 SC 397 28 Tika Ramji Ch. v. State of Uttar Pradesh., AIR 1956 SC 676 29 Ram Bachan Lal v. State of Bihar, AIR 1967 SC 1404 30 (2003) 7 SCC 121
  21. 21. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 6 MEMORIAL ON BEHALF OF RESPONDENT not be crossed or erased.”31 “Moreover, mere possibility of abuse cannot be counted as a ground for denying the vesting of powers or for declaring a statute unconstitutional.” 32 The Supreme Court under Article 32 is empowered to issue any of the five prerogative writs or any other order for the enforcement of rights guaranteed under Part III of the Constitution. It has been held that even though the recourse to remedy under Article 32 is extraordinary in nature, the ordinary rules of procedure will continue to apply and there is nothing in the Constitution which merits a different stance,33 Mr. A.S. Chandhiok, learned Additional Solicitor General, submitted that under the Constitution it is only the Legislature which has the power to make law and amend the law and the Court cannot in exercise of its judicial power encroach into the field of legislation. In support of this submission, he relied on the decision of a seven-Judge Bench of this Court in P.Ramachandra Rao v. State of Karnataka34 in which this Court has recognized the limits of judicial power in a constitutional democracy. He also cited the decision in Union of India and Another v. Deoki Nandan Aggarwal 35 for the proposition that courts cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. Further, it was held in Supreme Court Employees Welfare Association v. Union of India36 that the court cannot direct the legislature and delegated authority to make any particular law. It is well-settled that judicial review, in order to enforce a fundamental right, is permissible of administrate, legislative and governmental action or non-action, and that the rights of the citizens of this country are to be judged by the judiciary and judicial forums and not by the administrators or executives. But it is equally true that citizens of India are not to be governed by the Judges or judiciary. If the governance is illegal or violative of rights and obligations, other questions may arise out whether, as mentioned hereinbefore, it has to be a policy decision by the Government or 31 J.P.Bansal v. State of Rajasthan,2003(3) SCALE 154 32 People’s Union for Civil Liberty v. Union of India, 2003 (10) SCALE 967; Syed T.A. Haqshbandi v. State of Jammu and Kashmir, (2003) 9 SCC 592. 33 Supra note 33 34 (2002) 4 SCC 578 35 1992 Supp. (1) SCC 323 36 (1989) 4 SCC 187
  22. 22. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 7 MEMORIAL ON BEHALF OF RESPONDENT the authority and thereafter enforcement of that policy, the Court should not be, and we hope would not be an appropriate forum for decision.37 Judgment of the seven-Judge Bench in P. RamachandraRao v. State of Karnataka:38 “Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature.” The Latin maxim of ubi jus ibi remedium would work here as there is absolutely no legal wrong, thus there can be no question of any remedy. It is submitted that looking to judicial precedent, even after the matter has been posted for final hearing, The court may hear counsel on the issue of maintainability of the petition and if it is found to be non-maintainable, then the same is liable to be dismissed.39 Thus it is submitted, that the petitioner had no requisite locus standi and sufficient interest in the present case, hence the petition is not maintainable and should be dismissed. 2. Whether the impugned Act is violative of the Constitution? The impugned Food For All Act, 2013 is not violative of the Constitution. It is well settled that the jurisdiction conferred on the Supreme Court under Article 32 is an important and integral part of the Constitution but violation of a Fundamental Right is the sine qua non for seeking enforcement of those rights by the Supreme Court.40 Whatever other remedies may be open to a person aggrieved, he has no right to complain under Article 32 where no „Fundamental‟ right has 37 Supra note 23 38 Supra note 34 39 National Council For Civil Liberties v. Union Of India & Ors MANU/SC/2993/2007 40 Supra note 23
  23. 23. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 8 MEMORIAL ON BEHALF OF RESPONDENT been infringed.41 A remedy under Article 32 would not lie for enforcement of government policy42 or a Directive Principle,43 including interlocutory reliefs.44 Since Article 32 is concerned only with the enforcement of Fundamental rights, it is not directly concerned with the determination of the legislative competence or ultra virus of a particular enactment. To make out a case under this Article, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competency of the particular legislature as not being covered any of the items in the legislative lists, but also that is affects or invades his Fundamental Rights guaranteed by the Constitution of which he could seek enforcement by an appropriate writ or order. The Court confines itself to the question of infringement of Fundamental Rights and does not go into any other question.45 It is well settled that while dealing with a challenge to the constitutional validity of any legislation, the court should prima facie lean in favor of constitutionality and should support the legislation, if it is possible to do so, on any reasonable ground and it is for the party who attacks the validity of the legislation to place all materials before the court which would make out a case for invalidating the legislation.46 Further this argument is threefold, firstly, that the Food For All Act, 2013 is in compliance with Part III of the Constitution of India; secondly, that the Food For All Act, 2013 is in compliance with Part IV of the Constitution of India; thirdly, power of Judiciary to interfere in the administrative order of legislative Acts 41 Zahir v. Union Of India (1993) 23 ATC 812; Esmail v. Competent Officer AIR 1967 SC 1244; Muneeb v. Govt. of Jammu and Kashmir AIR 1984 SC 1585; Ujjain Bhai v. State of Uttar Pradesh AIR 1962 SC 1621; A.K. Gopalan v. State of Madras AIR 1950 SC 27; Ramjilal v. ITO AIR 1951 SC 97; Daryao v State of Uttar Pradesh AIR 1961 SC 1457; Kochunni v. State of Madras AIR 1959 SC 725 42 Supra note 23 43 B. Krishna Bhat v. Union of India AIR 1990 SC 851 44 Coffee Board v. Jt. C.T.O., Madras AIR 1971 SC 870 (877); Star Sugar Mills v. State of Uttar Pradesh AIR 1984 SC 37; Express Newspaper v. Union of India, (1986) 1 SCC 633; Laxmanappa v. Union of India, AIR 1955 SC 3, (1955) 1 SCR 769 45 Khyerbari Tea Co. v. State of Assam AIR 1964 SC 925 46 Dharam Dutt v Union of India AIR 2004 SC 1295
  24. 24. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 9 MEMORIAL ON BEHALF OF RESPONDENT 2.1. The Act is in compliance with Part III of the Constitution of India The validity of the provisions of a law is to be tested on the cornerstones of the Golden Triangle of the Constitution enshrined under Article 14, Article 19 and Article 2147 which cover the various facets of life.48 It is humbly submitted that the provisions of Food for all Act, 2013 are in compliance with Part III of the Constitution of India. For the purpose of this argument, the Fundamental Rights are dealt with in detail. 2.1.1. No violation of Article 14 Article 14 states that, “The state shall not deny to any person equality before the law and equal protection of the laws within the territory of India”. Article 14 confers a personal right by enacting a prohibition; the only question which has to be determined when a law is said to violate the right is to inquire whether the prohibition has been violated.49 In the present case, there isn‟t even slight inequality that springs from Food for all Act, 2013 and any of its provisions. The legislature has rightly distinguished the people who require food, neither is the law discriminatory nor is it derogatory. It is for the legislature to decide what should be the cut off point for making classification for legislation and whether a section of the people should be protected by law. The Legislature has a lot of latitude for making classification keeping in view the attendant facts and circumstances. The safeguard provided by Article 14 may be invoked only if the classification has been made on grounds which are not at all relevant to the object of the statute. The court will not question the validity of the legislation on the legislation on the ground of lack of legislative wisdom. 50 47 Maneka Gandhi v. Union of Gandhi, AIR1978 SC 597 48 Reliance Energy Ltd. v. Maharashtra State Road Development Corporation Ltd.(2007) 8 SCC 1, 21, 36 49 Syed Quasim Razvi v. State of Hyderabad (1953) SCR 589. 50 D.C. Bhatia v. Union of India (1995) 1 SCC 104.
  25. 25. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 10 MEMORIAL ON BEHALF OF RESPONDENT It was held that when a law is challenged as violation of Article 14, it is necessary in the first place to ascertain the policy underlying the statute and the object intended to be achieved by the legislation.51 A law does not become invalid because it is not all-embracing52 and that it is limited as at the territory, persons, or objects to which it is applied or the evils to be remedied.53 The presumption is always in the favor of the Constitutionality of an enactment, since it must be assumed that the Legislature understands and correctly appreciates the needs of its own people, that its laws are directed to problems made by manifest by experience and its discrimination are based on adequate grounds.54 When a statute is alleged to be violative of Article 14 of the Constitution, the Court has to decide whether the statute is so arbitrary or unreasonable that it must be struck down. The Constitutional validity of a statute cannot be challenged as discriminatory by comparing it with another statute of similar subject which derives its authority from another source. 55 Article 14 cannot be construed as a charter for judicial review of state action, to call upon the state to account for its action in its manifold activities by stating reasons for such actions.56 It is submitted that in order to pass the test of permissible classification two conditions must be fulfilled namely: the classification must be founded on an intelligible differentia which distinguishes persons grouped together from others left out of the group; and the differentia must have a rational nexus with the object sought to be achieved by the statute in question. It is important to note that although Article 14 forbids class legislation, it does not forbid classification which rests upon reasonable grounds of distinction.57 If the legislature takes care to reasonable classify persons for legislative purposes and if it deals equally with all persons belonging to a „well defined class‟, it is not open to the charge of denial of equal protection on the ground that the law does not apply to other persons.58 51 Ashuthosh Gupta v. State of Rajasthan (2002) 4 SCC 34, AIR 2002 SC 1533 52 Hughes v. Superior Court (1950) 339 US 460 53 Williamson v. Lee Optical (1954) 384 US 483 54 Garg, R.K. v. Union of India, AIR 1981 SC 2138 55 State of Tamil Nadu v. Anarthi Ammal AIR 1995 SC 2114. 56 Dwarkadas v. Bombay Port Trust (1989) 2 SCC 293. 57 State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75. 58 State of Orissa v. B.K. Bose, AIR 1962 SC 945
  26. 26. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 11 MEMORIAL ON BEHALF OF RESPONDENT It is humbly submitted by the Respondent in the instant matter, that the Act in question has created a reasonable classification and a basis of distinction which is in consonance with the object of the Act. The Legislature controls the policy and enacts laws in the best interest of the safety and security of the State. The measures taken by the Government is for the welfare of its people. As a result it cannot be said the Act is violative of Article 14. 2.1.2. No violation of Article 21 On account of liberal interpretation of the words „life‟ and „liberty‟ in Article 21 of the Constitution of India, the said Article has now come to be invoked almost as a residuary right, even to the extent which the founding father of the Constitution never dreamt of.59 The Supreme Court has held that the lack of perfection in a legislative measure does not necessarily imply its unconstitutionality.60 Mere allegation of an Act being discriminatory is not sufficient for the Supreme Court to strike down legislation as ultra vires, some constitutional infirmity has to be shown and established.61 A law is a valid law if it is enacted by a competent legislature and if it does not violate any of the other Fundamental Rights declared by the Constitution like Article 14 62 or Article 19. 63 Individual rights cannot be absolute in a welfare state. It has to be subservient to the Rights of the public at large.64 The right of life and liberty so guaranteed under Article 21 is also subject to the rule of proportionality.65 Liberty is the right of doing an act which the law permits.66 Liberty is confined and controlled by law as it is regulated freedom. It is not an abstract or absolute freedom. The safeguard of liberty is in the good sense of the people and in the system of 59 Narinderjit Singh Sahni v Union of India (2002) 2 SCC 210. 60 P.M. Ashwathanarayana Setty v State of Karnataka AIR 1989 SC 100. 61 State of Bihar v. Bihar distillery Ltd. AIR 1997 SC 1511 62 Shiv Bahadur Singh Raov. State of U.P., AIR 1953 SC 394; NandLal Bajaj v. State of Punjab, AIR 1981 SC 2041 63 Inderjeetv. State of UttarPradesh., AIR 1979 SC 1867; Ranjit D. Udeshiv. State of Maharashtra, AIR 1965 SC 881; Supdt, Central Prison, Fatehgarhv. Ram ManoharLohia, AIR 1960 SC 633; Krishna Chandra v. State of Madhya Pradesh., AIR 1965 SC 307. 64 Confederation of Ex-serviceman Association v. Union of India, (2006) 8 SCC 399, AIR 2006 SC 2945 65 Om Kumar v. Union of India, (2001) 2 SCC 386, AIR 2000 SC 3689 66 Kartar Singh v. State of Punjab, (1994) 3 SCC 569
  27. 27. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 12 MEMORIAL ON BEHALF OF RESPONDENT representative and responsible Government which has been evolved. Liberty is itself the gift of law and may by law be forfeited or abridged.67 Therefore, the Food for all Act, 2013 does not violate Art 14 and 21 of the Constitution. The state is acting as the guardian of these very fundamental rights and hence, their intention cannot be questioned. 2.1.3. No violation of Article 19 Article 19(1) guarantees certain fundamental rights, subject to the power of the State to impose restrictions on the exercise of those rights. The Article was thus intended to protect these rights against State action other than in legitimate exercise of its power to regulate private rights in the public interest.68 Reasonable restriction in the instant matter fall within the guidelines set by this court in Papsanam Labour Union v Madura Coats Ltd.69 If, however, the respondent shows that the impugned law is covered by one of the permissible grounds of restriction, e.g. interests of the general public, public order or the like, then the onus to show that restriction is unreasonable would shift back to the petitioner.70 Reasonableness of a restriction has to be determined in an objective manner and from the standpoint of the interests of the general public and not from the point of view of the persons upon whom the restrictions are imposed or upon abstract considerations71 . In other words a law cannot be said to be unreasonable merely because, in a given case it operates harshly.72 It is the effect of a law which constitutes the test of its reasonableness, its object whether good or bad, is immaterial for this purpose.73 67 ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207 68 Samdasani P.D v. Central Bank of India, AIR 1952 SC 59, 1952 SCR 391 69 AIR 1995 SC 2200, (1995)1 SCC 501. 70 Chintamandrao v. State of Madhya Pradesh 1950 SCR 759. 71 Hanif Quareshi Mohd. v. State of Bihar AIR 1958 SC 731. 72 State of Gujarat v. Shantilal Mangaldas- AIR 1969 SC 634 73 Kochuni K.K. v State of Madras AIR 1960 SC 1080.
  28. 28. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 13 MEMORIAL ON BEHALF OF RESPONDENT In adjudging the validity of a restriction, the courts have necessarily to approach it from the point of view of furthering the social interest which it is the purpose of the legislation74 . And the situation which presented itself to the legislature when the impugned law was enacted75 . For the same reason corresponding laws of other countries, made under different conditions cannot be referred to for the purpose of determining the reasonableness of our laws. 76 Hence it doesn‟t violate Article 19(1)(a), Article 21 or Article 14 of the Constitution of India. 2.1.4. The government has met the doctrine of legitimate expectation: The doctrine of legitimate expectation has been explained in Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries77 as under: “…the mere reasonable or legitimate expectation of a person, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision-making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.” 74 Pathuma v State of Kerala AIR 1978 SC 771 75 State of Madras v V.G. Rao AIR 1952 SC 196. 76 Hamdard Dawakhana v. Union of India AIR 1960 SC 554. 77 1993 (1) SCC 71; Messrs Shanti Vijay and Company and Others v. Princess Fatima Fouzia and Others, 1980 (1) SCR 459; Preston v. Inland Revenue Commissioners (1985 A.C. 835); Council of Civil Service Unions and Others v. Minister For The Civil Service (1985 A.C. 374)
  29. 29. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 14 MEMORIAL ON BEHALF OF RESPONDENT The Act is in accordance with the legitimate expectation and within the public interest at large. 2.2. The Act is in pursuance of Part IV of the Constitution of India Part IV of the Constitution78 encompasses the Articles which contain directives stating the duties of the States in the matter of administration as well as law-making. The Directives and the Fundamental Rights supplement79 each other at the goals of bringing about social revolution as well as to establish a welfare state which is enshrined in our Preamble80 and thus there should be no disharmony81 between the Directives and the Fundamental Rights.82 It is the principal duty of the State separates the judiciary from the executive where public service is concerned, and hence it is submitted that the said Act is in pursuance of Article 37, Article 39(a) and Article 47 of the Directive Principles of State Policy. The legislation had been made, it is the duty of the executive to implement it perfectly. In the Minerva Mills’ Case83 it was held that, Directive Principles are "nevertheless fundamental in the governance of the country and it shall be the duty of the State to apply those principles in making laws." The Constitution overtly states that the Directive Principles are binding on the State and the State is under a constitutional obligation to carry out this mandate contained in Article 37. Article 37 clearly states that the Directive Principles of State Policy are not enforceable. Non-compliance with the Directive Principles would be unconstitutional on the part of the State only and would also render a vital part of the Constitution meaningless and futile. In light of the above stated, it is submitted that the Act seeks to uphold the ideals of Part III and IV of the Constitution of India. 2.3.Power of Judiciary to interfere in the administrative order of legislative Acts 78 Directive Principles of State Policy 79 Chandra Bhavan Boarding v. State of Mysore, AIR 1970 SC 2042;State of Kerala v. Thomas,N.M., AIR 1976 SC 490. 80 Samdasani P.D v. Central Bank of India, AIR 1952 SC 59 : 1952 SCR 391; KesavanandaBhartiv. State of Kerala, (1973) 4 SCC 225 (para 134, 139, 1714) : AIR 1973 SC 1461; Sapru Committee Report, 1948. 81 Minerva Mills v. Union of India, AIR 1980 SC 1789 82 Kesavananda Bharti v.State of Kerala, (1973) 4 SCC 225, AIR 1973 SC 1461. 83 Minerva Mills Ltd. & Ors. v. Union of India AIR 1980 SC 1789
  30. 30. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 15 MEMORIAL ON BEHALF OF RESPONDENT The legislative incompetence competence of any law will not be considered by the Supreme Court provided the Fundamental Right is violated and not otherwise.84 The court will not, under Article 32, interfere with an administrative order, however erroneous, where the constitutionality of the statute or the order made thereunder is not challenged on the ground of contravention of a Fundamental Right.85 If it is found that no fundamental Right of the petitioner has been infringed by the impugned law, the court cannot go into the legislative validity in the proceeding under Article 32.86 3) Whether the impugned legislation is violative of International Human Rights instruments? India advocates a holistic and integrated approach that emphasizes the interdependence, inter- relatedness, indivisibility and universality of human rights. India‟s position reinforces the inter- relationship between development, human rights, democracy and international cooperation. The Constitution is not to be construed as a mere law87 or simply a statute. It is the fountain head of all other statutes.88 Entering into international treaties and agreements is one of the attributes of State sovereignty.89 Though International law requires a State to recognize its international obligations undertaken by it by ratifying international treaties, but it does not govern the process of incorporating international law into municipal law. 90 In fact, the States follow different processes of incorporating international law into their domestic legal system, depending on their 84 D.A.V. College v. State of Punjab AIR 1971 SC 1737, (1971) 2 SCC 269; Charanjit Lal Chowdhury v. Union of India 1951 SC 41; D.C. Wadhwa v. State of Bihar AIR 1982 SC 579; Ramesh v. Union of India AIR 1988 SC 775 85 Sadhu Singh v. Delhi Administration AIR 1966 SC 91 (95) 86 D.A.V. College v. State of Punjab AIR 1971 SC 1737, (1971) 2 SCC 269 87 Goodyear India v. State of Haryana AIR 1990 SC 781 88 U.P. State co-operative Land Development Bank Ltd. v. Chandrabhan Dubey (1999) 1 SCC 741 89 UN Charter is the cornerstone of the international relations between the States. See Articles 2(1) and 2(2) of the UN Charter; R. P. Anand, Sovereignty of States in International Law, in: R.P. Anand, Confrontation or Cooperation: International Law and the Developing Countries (1987) 90 Dualism theory of relationship between international law and municipal law
  31. 31. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 16 MEMORIAL ON BEHALF OF RESPONDENT constitutional provisions in this respect.91 Thus, the process of implementation of international law at national level varies in different countries. The divergent State practices pertaining to incorporation of international law into municipal law have been explained by two schools of law – monist and dualist. India follows the dualist theory for the implementation of international law at domestic level.92 International treaties do not automatically become part of national law in India.93 It, therefore, requires the statute to be made by the Parliament for the implementation of international law in India. If there is a conflict then municipal law will prevail.94 In various cases95 it has been followed that the legislative power exclusively belongs to the Parliament. They relied on Article 252 of the Constitution of India which says that: “Parliament has power to make any law for whole or any part of the territory of India for implementing any treaty, agreement or convention with any country or countries or any decision made at any international conference, association or other body.” This means that it is only the legislature that has the power to enact a law. Therefore, looking at the current scenario of India and as an obligation to the international instruments like ICESCR, UDHR, CRC, FAO, etc after providing copious provisions for combating malnourishment and starvation deaths, took cognizance of the situation and responded by enacting a statute “Food For All Act, 2013”. 3.1.International treaties not an obligation on the legislature The basic provision of the Constitution of India, by virtue of which international covenant becomes implementable through municipal laws of India is Article 51 (c) of the Constitution of India. Article 51 (c) of the Constitution enjoins the State “to endeavour to foster respect for international law and treaty obligations in the dealings of organized peoples with one another.” 91 D.D. Basu, Commentary on the Constitution of India, Vol III 92 Jolly Jeorge Vs. Bank of Cochin, AIR 1980 SC 470 93 Birma Ram v. state of Rajasthan 1977 WLN UC 497 94 Mortensen v. Peters (1906) 14 Scots LTR 227 ; Shri Krishna Sharma v. State of West Bengal AIR 1954 Cal. 598 95 Maganbhai v. Union of India (1970)3 SCC 400;Nirmal Chand v. Union of India 1966 SCR (1) 986;Supra note 92
  32. 32. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 17 MEMORIAL ON BEHALF OF RESPONDENT It is pertinent to mention that Article 51 enshrines one of the Directive Principles of State Policy embodied in Part IV of the Constitution of India. As mentioned before as well, the Directive Principles of State Policy as per Article 3796 of the Constitution of India, are not enforceable through the Court of law Article 37 read with the case Deep Chand v. State of Uttar Pradesh97 it was held that the directive principles of the State Policy, which by Article 37 are expressly made unenforceable by a Court, cannot override the provisions found in Part III which, notwithstanding other provisions, are expressly made enforceable by appropriate Writs, Orders or directions under Article 32, nevertheless they are fundamental in the governance of the country and there is a „non-obligatory‟ duty on the part of the State to apply these principles in making of laws. Thus, the Article 51 of the Constitution of India and the international law per se are not justiciable in the realm of Indian municipal law. It is the municipal law that will prevail.98 It is submitted by the counsel for Respondent that it is not an obligation of the legislature to take into account the international treaties which it has signed while making legislations as the Directive Principles of State Policy are not enforceable. Nevertheless, the Food For All Act, 2013 is in accordance with the all signed covenants. Arguendo, even if the impugned legislation is in violation of any international instrument the said legislation cannot be questioned until and unless it is violating Part III of the Constitution, which is already dealt with by the counsel for Respondent. This is because any statute affecting the Fundamental Rights is void. 3.2.Impugned legislation is in accordance with the International Human Rights Instruments. 96 Article 37 of the Constitution of India: “Applications of the principles contained in this part – the provisions contained in this part shall not be enforceable by any court, but the principles therein laid down are nevertheless fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making laws.” 97 1959 AIR 648 98 Supra note 90
  33. 33. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 18 MEMORIAL ON BEHALF OF RESPONDENT The Food For All Act, 2013 is in accordance with the International Human Rights Instruments. Even clause (4)99 of the Food for All Act, 2013 clearly states that International Instruments on Human Rights were kept in mind for the execution of this Act. Hence, if there was any issue in the execution of the Act, it is the duty of the executive to implement it perfectly. The right to food is protected under international human rights and humanitarian law and the correlative state obligations are well-established under international law. The right to food is recognized in Article 25 of the Universal Declaration on Human Rights,100 Article 11 of the International Covenant on Economic, Social and Cultural Rights,101 Article 24102 and Article 27 103 of the Convention on Rights of Child, the Preamble of Food and Agricultural Organisation,104 as well as a plethora of other instruments. Noteworthy is also the recognition of the right to food in numerous national constitutions. After reading and analyzing these international covenants, it may be understood that these instruments include the key words of right to food, easy access to this food, right to a standard of living, nutritious food at a subsidized cost, etc. The key elements of right to food are are availability of food, accessibility of food and adequacy of food. Availability requires that food should be easily available from either cultivation or for sale in markets and shops. Accessibility requires economic and physical access to food to be guaranteed. Economic accessibility means that food must be affordable. Individuals should be able to afford food for an adequate diet without compromising on any other basic needs. Physical accessibility means that food should be accessible to all, including to the physically vulnerable, such as children, the sick, 99 Clause (4) of the Food For All Act,2013 : „The provisions of international instruments on Human Rights shall be taken into account while giving effect to the provisions of this Act.‟ 100 Article 25 of the UDHR state sthat everyone ahs the right to a standard of living adequate for the health and well- being of himself and his family, including food… 101 Article 11 of ICESR recognizes the right of everyone to an adequate standard of living for himself and his family, including adequate food. It also mentions that the State Parties will take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international cooperation based on free consent. 102 Article 24 of CRC states that State Parties recognize the right of the child to the enjoyment of the highest attainable standard of health and to facilitate for the treatment of illness and rehabilitation of health. State Parties shall strive to ensure that no child is deprived of his or her right of access to health care services. 103 Article 27 states that the State Parties, in accordance with national conditions and within their means… shall in case of need provide material assistance and support programmes, particularly with regard to nutrition… 104 The Preamble states that the Nations accepting this Constitution, being determined to promote the common welfare by furthering separate and collective action on their part for the purpose of raising levels of nutrition and standards of living... and thus... ensuring humanity's freedom from hunger
  34. 34. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 19 MEMORIAL ON BEHALF OF RESPONDENT persons with disabilities or the elderly, for whom it may be difficult to go out to get food. Adequacy means that the food must satisfy dietary needs, taking into account the individual‟s age, living conditions, health, occupation, sex, etc. For example, if children‟s food does not contain the nutrients necessary for their physical and mental development, it is not adequate. Food should also be safe for human consumption and free from adverse substances, such as contaminants from industrial or agricultural processes, including residues from pesticides, hormones or veterinary drugs. Adequate food should also be culturally acceptable. For example, aid containing food that is religious or cultural taboo for the recipients or inconsistent with their eating habits would not be culturally acceptable. It should be noted by the Hon‟ble Court that all of these provisions have been included in the Food For All, Act. The Act clearly states that there must be sufficient availability of food,105 which is adequate, nutritious and affordable.106 It even says that there must be an economic access107 through Public Distribution Shops108 of food at all times at a subsidized,109 minimum110 or reasonable price.111 International obligations once undertaken must be complied with, but International Law does not mention the manner in which compliance is to be carried out, with this perception, all the divergence of state practices are accommodated. 3.3. Intent of the Legislature The intent of the legislature is fully bonafide as each and every aspect is covered by the Act completely. The preamble of the Food For All Act, 2013 read with clause (4) clearly says that it must be in consonance of international treaties and shall be taken into account while giving effect. 105 Clause 2(a) of the Food For All Act, 2013 106 Clause 2(b) of the Food For All Act, 2013 107 Clause 2(g) of the Food For All Act, 2013 108 Clause 2(e) of the Food For All Act, 2013 109 Clause 2(f) of the Food For All Act, 2013 110 Clause 2(h) of the Food For All Act, 2013 111 Clause 2(i) of the Food For All Act, 2013
  35. 35. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 20 MEMORIAL ON BEHALF OF RESPONDENT The only controversial clause is 2(c) of the Act which defines “deserved family”. The legislature has made sure that this definition is given a broad perspective. The definition is limited only to the extent of the economic capacity of state. In Ashoka Kumar Thakur v. Union of India and Ors112 it is pointed out that our Constitution additionally enshrines Directive Principles of State Policy in Part-IV of the Constitution requiring the State to strive to promote justice social, economic and political and to minimize the inequalities in income and endeavour to remove inequalities in status, facilities and opportunities. Therefore, the counsel for respondents proves that the intention of legislature is bonafide and that the Food For All Act, 2013 covers all the provisions of the international covenants. 112 (2008)6SCC1
  36. 36. 4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT COMPETITION – 2014 xvi MEMORIAL ON BEHALF OF RESPONDENT PRAYER IN THE LIGHT OF THE ARGUMENTS ADVANCED, CASES AND AUTHORITIES CITED, THE COUNSEL FOR RESPONDENTS HUMBLY REQUESTS THE HON‟BLE SUPREME COURT OF INDUS TO UPHOLD THE FOOD FOR ALL ACT, 2013 AND ADJUDGE AND DECLARE THAT: 1. THE FOOD FOR ALL ACT, 2013 DOES NOT VIOLATE THE FUNDAMENTAL RIGHTS OF THE CONSTITUTION OF INDUS. 2. THE FOOD FOR ALL ACT, 2013 UPHOLDS THE PRINCIPLES OF SOCIAL JUSTICE ENSHRINED IN THE PREAMBLE OF THE CONSTITUTION OF INDUS. 3. THE FOOD FOR ALL ACT, 2013 IS NOT VIOLATIVE OF ANY INTERNATIONAL INSTRUMENT THAT INDUS IS A SIGNATORY TO. AND PASS ANY OTHER ORDER, DIRECTION OR RELIEF THAT THE COURT MAY DEEM FIT IN THE BEST INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE. FOR THIS ACT OF KINDNESS, THE RESPONDENT SHALL DUTY BOUND FOREVER PRAY. SD/- COUNSELS FOR RESPONDENT UNION OF INDUS

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