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Team Code- 7
BEFORE THE HON’BLE SUPREME COURT OF INDIGO
SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE
CONSTITUTION OF INDIGO
INDIAN COUNCIL OF LEGAL AID AND ADVICE……………….…APPELLANT
V.
BAR COUNCIL OF
INDIA……......................................................................RESPONDENT
BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS COMPANION
JUDGES OF
THE HON’BLE SUPREME COURT OF
INDIGO
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MEMORIAL ON BEHALF OF THE RESPONDENT
TABLE OF CONTENTS
LIST OF ABBREVIATIONS:........................................................................................................iii INDEX OF AUTHORITIES...........................................................................................................v STATEMENT OF JURISDICTION:.............................................................................................viii STATEMENT OF FACTS:...........................................................................................................ix STATEMENT OF ISSUES............................................................................................................x SUMMARY OF ARGUMENTS...................................................................................................xi ARGUMENTS ADVANCED ............................................................................................................ 1 ISSUE 1 .............................................................................................................................................. 1 WHETHER THE WRIT FILED UNDER ARTICLE 32 OF THE INDIAN CONSTITUTION IS MAINTAINABLE OR NOT? ......................................................................................................... 1 1.1 Article 226 has a wide ambit ............................................................................................... 1 1.2: Exhaustion of alternate remedies is not a bar .......................................................................... 2 ISSUE 2 .............................................................................................................................................. 4 WHETHER THERE IS ANY VIOLATION OF ARTICLE 14 OF THE CONSTITUTION OF INDIA? ................................................................................................................................. 4 2.1 The Court has exercised Judicial Review ................................................................................. 4
iv RLW Rajasthan Law Weekly Del. Delhi Co Company Ed. Edition Ltd Limited I.C. Indian Cases Mad. Madras Ori. Orissa DLT Delhi Law Times P&H Punjab and Haryana Pat. Patna ITR Income Tax Report r/w Read With Raj. Rajasthan S.C. Supreme Court S.C.C. Supreme Court Cases S.C.J. Supreme Court Journal S.C.R. Supreme Court Reporter
v Sec. Section u/s Under Section v. Versus INDEX OF AUTHORITIES [A] Indian Case Laws 1.SHEKHAR SETH V M P STATE BAR COUNCIL.......................................................
- PRIYA WART B.K.P DUBALDHAN AND OTHERS V STATE OF HARYANA AND OTHERS 1982 SCC 142 ...........
- AJARJEET SINGH V MUNICIPAL CORPORATION OF DELHI
- EX-CAPT HARISH UPPAL V UNION OF INDIA AND ANOTHER ........................ .....................................................................
vii [C] Statutes Bombay Public Trust Act, 1950........................................................................................ passim Karnataka Societies Registration Act, 1960 ..................................................................... passim The Constitution of India, 1950 ........................................................................................ passim Societies Registration Act, 1860 ....................................................................................... passim [D] Books Dr. Das, Durga , “Constitutional Law of India”, 8th^ Edn. 2008 ................................................. 1 M.P Jain ,”Indian Constitutional Law”, 7th edition ,1406…………………………………. 12
viii STATEMENT OF JURISDICTION: The Hon’ble Supreme Court of Indigo has jurisdiction to hear the instant matter under Article 136 of the Constitution of Indigo. Article 136 of the Constitution of Indigo reads as: “136. Special leave to appeal by the Supreme Court (1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India (2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces.”
x accounts and the appointment of an administrator. Aggrieved by the orders of the HC, the SCCI filed a Special Leave Petition in Supreme Court of Indigo. STATEMENT OF ISSUES ISSUE 1 WHETHER THE WRIT FILED UNDER ARTICLE 32 OF THE INDIAN CONSTITUTION IS MAINTAINABLE OR NOT? WHETHER THERE IS ANY VIOLATION OF ARTICLE 14 OF THE CONSTITUTION OF INDIA? ISSUE 3 WHETHER THERE IS ANY VIOLATION OF ARTICLE (19 ) (1 ) (g) OF THE CONSTITUTION OF INDIA ? ISSUE 4 WHETHER THERE IS ANY VIOLATION OF ARTICLE 21 OF THE CONSTITUTION OF INDIA? ISSUE 5. WHETHER BAR COUNCIL. OF. INDIA (BCI) HAVE POWER TO AMMEND ADVOCATES ACT. 1961
ISSUE 2
xi SUMMARY OF ARGUMENTS ISSUE 1 WHETER THE WRIT FILED UNDER ARTICLE 32 OF THE INDIAN CONSTITUTION IS MAINTAINABLE OR NOT? The PIL against SCCI has been filed under Article 226 of the Constitution. It is contended that the same is maintainable due to the wide ambit of the same and availability of alternative is no bar. ISSUE 2 WHETHER THERE IS ANY VIOLATION OF ARTICLE 14 OF THE CONSTITUTIIN OF INDIA? The decision passed by the High Court did not amount to Judicial Legislation since it was an exercise of Judicial Review and did not involve a policy decision. Arguendo, it was valid as the issue was unconstitutional in nature. ISSUE 3 WHETHER THERE IS ANY VIOLATION OF ARTICLE (19) (1) ( g) OF THE CONSTITUTION OF INDIA? A writ of mandamus may be issued against the SCCI since it is an instrumentality of state. Arguendo, it performs public functions and hence a writ may be passed. ISSUE 4 WHETHER THERE IS ANY VIOLATION OF ARTICLE 21 OF THE CONSTITUTION OF INDIA?
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- Similarly, assuming but not admitting that there has been no violation of fundamental rights, it is still maintainable as Article 226 may be invoked for any ‘other purpose’ as well.^3 The orders passed by the Court need not be restricted to the writs as the sole remedy; but may include any other such directions as the High Court may deem fit.^4
- Hence in light of the above it is contended that the wide ambit of Article 226 prima facie allows the petition to be maintainable. 1.2: Exhaustion of alternate remedies is not a bar
- It is contended that the PIL filed by Mr. Dev must not be barred on the basis of availability of alternate remedies as there were no alternate remedies and arguendo, even on existence of the same, a PIL cannot be barred. Section 92 of the Civil Procedure Code is not applicable since it vests authority to file a suit only with ‘persons having interest’ in the trust, which has been defined to be ‘members’ of SCCI in the instant case.^5 Even if it is to be considered a society then the Registrar, although empowered to enquire on his own motion has not done so and the members too have not filed a motion for the same.^6 Therefore, for Mr. Dev being a non-member but affected by SCCI’s activities, there was no remedy left to be exhausted. 3 Dr. Das, Durga , “Constitutional Law of India”, 8th^ Edn. 2008 4 Swayambar Prasad v. State of Rajasthan AIR 1972 Raj 69; Guajarat State Financial Corporation v. Lotus Hotel AIR 1983 SC 848; Air India Statutory Corporation v. United Labour Union AIR 1997 SC 645 5 Section 2 (10) – Bombay Public Trust Act, 1950. 6 Section 25 and 27 – Karnataka Societies Registration Act, 1960.
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- Arguendo, even if alternate remedies are available, it does not eliminate the option of filing a PIL, as the relief under Article 226 of the Constitution of India can be granted in spite of the availability of alternate remedy under a statute.^7
- It has been held that denying a petition due to the presence of an alternative remedy is a matter of discretion and not a rule of law.^8 Accordingly, it is a settled practice for the 7 Aditanar Educational Institution v. Assistant Director of Income-tax (297 I.T.R. 376) 8 A.V Venkateswaran v. R.S Wadhwani AIR 1961 SC 1506; Atulya Kumar De v. Director, AIR 1953 Cal 548; Harbans Lal Sahnia v. Indian Oil Corporation Ltd. , [2003] 2 SCC 107; Rashid Ahmad v. Municipal Board, Kairana, AIR 1960 SC 163;
4 1 ST^ SURANA & SURANA AND KLE LAW COLLEGE CONSTITUIONAL LAW MOOT COURT COMPETITION 2017 ISSUE 2 WHETHER THERE IS ANY VIOLATION OF ARTICLE 14 OF THE CONSTITUTION OF INDIA?
- It is contended that the decision passed by the High Court did not amount to Judicial Legislation. The Court exercised Judicial Review, which is part of the basic tenets of the Constitution [1] and the decision did not deal with a matter of policy. [2] 2.1 The Court has exercised Judicial Review
- It is contended that the Court in the instant case has exercised its function of judicial review as the actions of SCCI were affecting the public at large. The High Court under a Public Interest Litigation has adequate authority to pass such decisions as may cure the injustice faced by the petitioner, as it has the authority to mould the relief sought by the petitioners to meet the requirements of the country.^11
- Since the actions performed by SCCI were essentially public functions affecting the people at large, it is amenable to judicial review. The very principle of Public Interest Litigation is built on the modern legal jurisprudence practiced by Courts in many parts of the world, based on the principle of ‘Liberty and Justice for All’.^12 It is contended that the instant case is one of Judicial Review, which cannot be barred by any Statute.^13 It has been held to be a basic feature of the Constitution^1415 , and the heart and soul of the Constitutional Scheme.^16 11 Dwarka v. I.T.O, AIR 1996 SC 81 12 Janata Dal v. H.S Choudhary AIR 1993 SC 892 13 Surya Dev Rai v. Ram Chander Rai, (2003) 6 SCC 675 14 S.P Sampath Kumar v. Union of India (1987) 1 SCC 124; L. Chandra Kumar v. Union of India (1997) 3 SCC 15 ; Air India Statutory Corporation v. United Labour Union (1997) 9 SCC 377 16 Debu v. State of Maharashtra (2000) 8 SCC 437
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- It has also been held that law should move forward with changing socio-economic norms^17 , and it should assume a dynamic role in the process of social transformation.^18
- It is hence contended that the High Court holds sufficient power to review the prevailing social scenario and may mould the reliefs sought based on the same. Considering the wide spread corruption in SCCI and the effect of the same on Indigo, the High Court’s decision must not be set aside. 2.2 Not a matter of policy:
- In the instant case, the orders passed by the High Court did not deal with a matter of policy and hence, did not amount to judicial legislation. A remedy for a writ petition under Article 226 includes directions, orders, or writs.^19 Hence, the High Court may, in the exercise of its discretion, pass orders in terms of public interest and equity. Since it is a public interest litigation, the court may even go beyond the issues raised and grant unsought remedies as well.^20
- Even if any executive decision is termed to be a matter of policy, it is not beyond the pale of judicial review as long as it is unconstitutional. 21 Hence Arguendo, even if it does include a matter of policy, it cannot be held to be a case of judicial legislation since the constitutional and fundamental rights have been violated.^22 In light of the above it is contended that the decision passed by the High Court of Maha Pradesh was in line with its authority and did not constitute judicial legislation. 17 M.C Mehta v. Union of India AIR 1987 SC 1086 18 National Workers Union v. P.R Ramakrishnan, AIR 1983 SC 75 19 State of Uttar Pradesh and others v. Dr. Vijay Anand Maharaj AIR 1963 SC 946 20 Padma v. Hiralal Motilala Desarda (2002) 7 SCC 564 21 DDA v. Joint Action Committee, Allottee of SFS Flats (2008) 2 SCC 672; Associated Stone Industries (Kotah) Ltd. v. Union of India (UOI) and Anr RLW 2007 (2) Raj 1602 22 Memorial on behalf of Respondents - Issue 4
7 1 ST^ SURANA & SURANA AND KLE LAW COLLEGE CONSTITUIONAL LAW MOOT COURT COMPETITION 2017 over game of cricket in Indigo since they are the sole deciding body for selections to the Indigo Cricket Team and they have the authority to conduct International Cricket Tournaments.
- In furtherance of the same, even in the International Scenario, it has been held that where Sports Associations have the authority to dismiss and appoint the players, their decisions should be amenable to writ jurisdiction in the event where a grievance occurs.^29 It has also been held that where Sports Associations are supported by the Government financially, they are considered to be performing public functions and fall within the ambit of Article 12.^30 The SCCI has access to Government stadiums and lands at meagre prices and all hidden charges of the game like visa clearances are borne by the Government^31 , making it financially dependent on the Government and thereby an instrumentality of State under Article 12 of the Constitution. Accordingly, it is contended that the SCCI will be amenable to writ jurisdiction. 3.1.1: SCCI is amenable to Writ Jurisdiction since it performs a Public Function
- Arguendo, it is contended that even if the SCCI is a private body and not an instrumentality of State under Article 12, it is amenable to writ jurisdiction under Article 226 of the Constitution owing to the fact that it performs a public function.
- Determining amenability of writ jurisdiction on the sole basis of the nature of the body is incomplete. A body, public or private, cannot be categorised as ''amenable'' or ''not amenable'' to writ jurisdiction^32. The ''function'' test is the accepted method to test 29 St. Johnstone Football Club Ltd. v. Scottish Football Assn. Ltd., 1965 SLT 171. 30 Ajay Jadeja v. Union of India , (2002) 95 DLT 14 31 Moot Proposition, Paragraph 11 32 Ajay Jadeja v. Union of India , (2002) 95 DLT 14 (^32) Ibid
8 1 ST^ SURANA & SURANA AND KLE LAW COLLEGE CONSTITUIONAL LAW MOOT COURT COMPETITION 2017 maintainability.^32 If a public duty or public function is involved, any body, public or private, qua that duty or function, and limited to that, would be subject to judicial scrutiny under the extraordinary writ jurisdiction of article 226.^33 The SCCI is responsible for hosting International Cricket Tournaments and the selection decisions made by the SCCI are accepted by all sections of society for their collective benefit.
- Public function is not restricted only to Governmental bodies and may be extended to private bodies and registered societies as well.^34 The nature of duties performed by the body is relevant and not its form.^35 It can be reasonably said that such functions which are similar to or closely related to those performable by the State in its sovereign capacity are deemed to be public functions.^36 Where the duty performed by the body is for the collective benefit of the public and accepted by all sections of society, the function will be regarded as a public function.^37 The SCCI’s power to select cricket players to the National Team and host International Cricket Tournaments is a sovereign function that is accepted by all sections of the public. It is for the collective benefit of the country and not the personal benefit of the selectors. Therefore, it is contended that the SCCI performs a public function.
- A writ of Mandamus can be issued against a person or body to carry out the duties placed on them by the Statutes even though they are not public officials or statutory body.^37 It can be said that a writ of mandamus can be issued against a private body which is not a State within the meaning of Article 12 of the Constitution as long as a 33 Ajay Jadeja v. Union of India , (2002) 95 DLT 14 34 De Smith, Woolf & Jowell, Judicial Review of Administrative Action (1999) 35 Anadi Mukta Sadguru Shree Muktajee Vandas Swami Suvarna Jayanti Mahotsav Smarak Trust v. V.R. Rudani , 1989 (2) SCC 691 36 G. Bassi Reddy v. International Crops Research Institute , AIR 2003 SC 1764 37 Board of Control for Cricket in India v. Cricket Assn. of Bihar , (2015) 3 SCC 251. 37 Praga Tools Corporation v. Shri C.A. Imanual & Ors ., 1969 3 SCR 773
