Professional Documents
Culture Documents
MATTER CONCERNING:
AND
10th NALSAR - JUSTICE B.R. SAWHNY MEMORIAL MOOT COURT COMPETITION, 2016
TABLE OF CONTENTS
TABLE OF ABBREVIATIONS ........................................................................................... IV
INDEX OF AUTHORITIES ................................................................................................. V
STATEMENT OF JURISDICTION ................................................................................... VIII
STATEMENT OF FACTS .................................................................................................. IX
STATEMENT OF ISSUES .................................................................................................. XI
I.
WHETHER
THE
PETITION
FILED BY
II.
KING BIRD
III. WHETHER
THE
ARTICLE 32
IS NOT
UNDER
THROUGH THE
LT. GOVERNOR
HAD THE
PROHIBITION ORDER
PASSED BY THE
LT. GOVERNOR
IS NOT
THAT
THE
PETITION
FILED BY
II.
KING BIRD
UNDER
ARTICLE 32
IS NOT
IS VESTED WITH
POWERS
TO PASS THE
DILLI PRADESH
B.
i.
Union Government is vested with power to make laws in State of NCT. .................... 4
ii. Lt. Governor acts in his discretion on the directions of the Union Government......... 5
iii. Lt. Governor is not bound by the aid and advice clause of the President. .................. 5
iv. The Dilli Pradesh Prohibition Order 2016 is valid. .................................................... 7
III. THAT THE PROHIBITION ORDER IS NOT VIOLATIVE OF THE FUNDAMENTAL RIGHTS.
................................................................................................................................ 8
A.
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i.
ii. Existence of Rational nexus b/w the classification & the objective of the order. ...... 10
iii. That the Prohibition Order is not arbitrary. ............................................................. 12
B.
i.
ii. Order imposes reasonable restriction on the Fundamental Right to Trade. ............. 14
iii. That the order is not arbitrary in nature. .................................................................. 15
PRAYER FOR RELIEF .................................................................................................. XIII
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TABLE OF ABBREVIATIONS
ABBREVIATION
DEFINITION
&
And
Para
Section
U/
Under
i.e.
That is
AIR
Anr.
Another
Approx.
Approximately
Art.
Article
Const.
Constitution
Hon'ble
Honourable
Lt.
Lieutenant
Ltd.
Limited
M.P.
Madhya Pradesh
N.C.T.
Ors.
Others
Pvt.
Private
SC
Supreme Court
SCC
SCR
U.P.
Uttar Pradesh
v.
Versus
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INDEX OF AUTHORITIES
-STATUTES REFERRED1.
2.
3.
4.
5.
1.
2.
Avinder Singh v. State of Punjab & Anr, 1979 (1) SCC 137 .......................................... 7
3.
B. Krishna Murthi v. State of Andhra Pradesh, 2005 (2) ALT 342 ................................. 9
4.
Balco Employees Union (Regd.) v. Union Of India & Ors (2002) 2 SCC 333 ............. 13
5.
6.
7.
8.
D.S. Nakara & Others v. Union of India, 1983 SCR (2) 165 ........................................... 9
9.
Devji Vallabhbhai Tandel v. Administrator of Goa, Daman & Diu, (1982) 2 SCC 222 . 5
10.
11.
G.V.K. Industries Ltd. & Anr. v. The Income Tax Officer & Anr. (2011) 4 SCC 36 ..... 2
12.
Govt. of N.C.T. Delhi v. Union of India, 2016 SCC OnLine Del 4308 ........................... 6
13.
Har Shankar & Ors. v. The Dy. Excise & Taxation Commr, AIR 1975 SC 1121 ......... 17
14.
15.
Indian Express Newspapers (Bom.) Pvt. Ltd. & Ors. v. UoI & Ors.,1985 SCR (2) 287 . 7
16.
Indian Nut Products & Ors. v. UOI & Ors., (1994) 4 S.C.C. 269 .................................... 7
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17.
Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr., (1973) 4 SCC
225) ................................................................................................................................... 2
18.
Khoday Distilleries Ltd. v. State of Karnataka (1995) 1 SCC 574 .......................... 15, 16
19.
20.
Nabam Rebia and Bamang Felix v. Deputy Speaker & Ors., S.L.P. (C) No.12591260/2016 ......................................................................................................................... 5
21.
22.
23.
24.
25.
26.
Shashikant Laxman Kale and Anr. v Union of India, 1990 AIR 2114 ............................ 9
27.
28.
State of Andhra Pradesh and Ors. v. McDowell & Co., (1996) 3 SCC 709 .................. 14
29.
State of Andhra Pradesh v McDowell & Co. AIR 1996 SC 1627 ................................. 16
30.
31.
32.
33.
Tej Bahadur Singh and Ors. v State Through Data Din, 1954 CriLJ 1399 ...................... 9
34.
U.P. Power Corpn. Ltd v Ayodhya Prasad Mishra, (2008) 10 SCC 139 ....................... 10
35.
Ugar Sugar Works Ltd. v. Delhi Administration, AIR 1975 SC 1121 ........................... 15
36.
Union Of India & Ors v M.V.Valliappan & Ors (1999) 6 SCC 259 .............................. 13
37.
Vasu Dev Singh & Ors. v. Union of India (UOI) & Ors. (2006) 12 SCC 753................. 7
-BOOKS REFERRED-
1.
DR. DURGA DAS BASU, The Indian Constitutional Law (3rd Ed Kamal Law House, 2011).
2.
KD GAUR, Criminal Law: Cases and Materials (6th Ed. LexisNexis 2013).
3.
10th NALSAR - JUSTICE B.R. SAWHNY MEMORIAL MOOT COURT COMPETITION, 2016
4.
C.K. THAKKER, M.C. THAKKER & V.G. RAMACHANDRAN, LAW OF WRITS, Vol. 1 & 2,
(6th ed., 2006).
5.
DURGA DAS BASU, SHORTER CONSTITUTIONAL LAW OF INDIA, Vol. 1 & 2. (14th ed.,
2009).
6.
H.M SEERVAI., CONSTITUTIONAL LAW OF INDIA, Vol. 1 & 2 (4th ed., 2006).
7.
L.M SINGHVI & JAGDISH SWARUP, CONSTITUTION OF INDIA, Vol. 1, 2 & 3 (2nd ed., 2007).
-ARTICLES REFERRED-
1.
Shubhomoy Sikdar, Drunk Driving Behind 70% Accidents In Delhi: Survey. The Hindu,
June 16, 2016.
2.
Dara Lee Luca, Emily Owens & Gunjan Sharam, The Effect of Alcohol Regulation on
Violence Against Women: Evidence from India, Social Science Research Network.
3.
Chapter 5, Crime in India 2015 Statistics, National Crime Records Bureau, Ministry of
Home Affairs.
4.
Murthy Pratima, Culture And Alcohol Use In India. World Cultural Psychiatry Research
Review, 2015.
5.
Pia Mkel, A Bottle Of Beer, A Glass Of Wine Or A Shot Of Whiskey? Can The Rate Of
Alcohol-induced Harm Be Affected by Altering the Populations Beverage Choices?
Contemporary drug problems, National Centre for Biotechnology Information, U.S
National Library of Medicine.
6.
WC Kerr & Y. Ye, Beverage-Specific Mortality Relationships In US Population Data. Pubmed - NCBI, Contemplated Drug Probl. 2011 Winter, 561-578.
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STATEMENT OF JURISDICTION
The writ petition has been filed before the Hon'ble Supreme Court of Indus under Art.
321seeking appropriate remedy for violation of Fundamental Rights guaranteed u/Art. 14, 19(1)
(g) and 21 of The Constitution of Indus. The Respondents reserve the right to object to the
maintainability of present petition.
The Supreme Court has suo-motu transferred the petition pending before the High Court of
Dilli Pradesh.2 The Respondents humbly submit to the Jurisdiction.
Article 32, Constitution of Indus, 1950 reads
Remedies for enforcement of rights conferred by this Part
1)
The right to move the Supreme Com by appropriate proceedings for the enforcement of
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 ill or any of the powers exercisable by the Supreme Court under clause (2).
The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.
1
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STATEMENT OF FACTS
~ Introduction to Indus and Dilli Pradesh ~
Indus is a Republic in the continent of Asia which is divided into various states and union
territories. Dilli Pradesh is one such union territory which is situated in the central part of Indus.
It enjoys rich cultural and historical importance. It has also been given special status under the
Constitution of India. Dilli Pradesh has been entitled to have a legislative assembly and to enact
laws subject to Art. 239AA of the Constitution of Indus.
~ Menace of Alcohol in Dilli Pradesh ~
There had been various incidents caused due to excessive consumption of alcohol in Dilli
Pradesh, since 2015. The citizens of Dilli Pradesh raised several concerns regarding the issue.
Agitations were also organized by various NGOs and international organizations. The
Government of Dilli Pradesh, run by Aap Ki Party took no action in relation to the matter. The
Health Minister in his public announcements said that the Government is in deliberations to
deal with the problem in the best possible manner. But, no action was taken by them.
~ The General Election of 2016 ~
The General elections were held in March, 2016 and Moody Janta Party formed the Union
Government. The party had promised in its manifesto to completely prohibit the sale of alcohol
in Dilli Pradesh, if elected. The party won all the 8 seats on Dilli Pradesh.
~ Issuance of the Prohibition Order~
As there is no central law enacted by the Government of Indus that restricts the production,
sale, or consumption of alcohol, the government issued a notification through the Lt. Governor
of Dilli Pradesh to completely prohibit the sale, distribution, marketing and consumption of
whisky, wine, rum, vodka, gin, tequila or any other alcohol within the territory of Dilli Pradesh.
The Order excluded Beer and any other alcoholic beverage where the alcohol content is less
than 5%. The Order was notified and came into effect from 1 August 2016.
~ Impact of the order ~
The Prohibition Order was acclaimed by the people of Dilli Pradesh. It was welcomed as a
move to completely eradicate the consumption of alcohol. After the notification of the
Prohibition Order, the Lt. Governor stated that the order has been passed considering the
directive principles of state policy. The order was criticized by the State Government of Dilli
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Pradesh on the account of loss to state exchequer. It was also stated that the Lt. Governor was
not competent to enact the order.
~ Impact on King Bird Liquor Pvt. Ltd. ~
There was complete embargo on the sale, distribution, marketing and consumption of alcohol
from 1August, 2016 in Dilli Pradesh. King Bird Liquor Pvt. Ltd, a company dealing with
manufacture of premium whiskeys and vodkas was affected due to the ban.
~ Filing of the Present Petition ~
King Bird Pvt. Ltd. filed a petition under Art. 32 of the Constitution of Indus before the Honble
Supreme Court of Indus alleging that the Prohibition Order violated its fundamental Art. 14
and 19 of the Constitution of Indus. The State Government of Dilli Pradesh also filed a petition
under Art. 226 of the Constitution before the High Court of Dilli Pradesh challenging the
legislative competence of the Central Government to enact such a law. The Supreme Court suo
motu transferred the petition pending before the High Court of Dilli Pradesh and tagged both
the petitions.
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STATEMENT OF ISSUES
I.
WHETHER
THE
PETITION
FILED BY
II.
KING BIRD
III. WHETHER
THE
ARTICLE 32
IS NOT
HONBLE COURT?
UNDER
THROUGH THE
LT. GOVERNOR
HAD THE
PROHIBITION ORDER
PASSED BY THE
LT. GOVERNOR
IS NOT
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SUMMARY OF ARGUMENTS
I.
THAT
THE
PETITION
FILED BY
KING BIRD
UNDER
ARTICLE 32
IS NOT
HONBLE COURT.
It is humbly submitted that the Petition filed by King Bird is not maintainable under Article 32
of the Indus Constitution. As a company is not the citizen of the country, it has no Fundamental
Right under Article 19. Art. 14 cannot be used to invoke the jurisdiction of this Court as it and
it is not permissible to the court to speculate about the legislative intent. Even though
corporations are recognised, they cannot claim rights equivalent to citizens.
II.
THAT
THE
CENTRAL GOVERNMENT
THROUGH THE
LT. GOVERNOR
HAD THE
It is submitted that the Central Government had the power to issue the Prohibition Order
in Dilli Pradesh via the Lt. Governor. Firstly, the National Capital Territory of Dilli
Pradesh is a Union territory; Secondly, the Lt. Governor is the Administrative Head of
Dilli Pradesh as it has the power to make laws regarding it, he acts in his discretion on the
directions of the Union Government and he is not bound by the aid and advice of the
ministers; Thirdly, the Dilli Pradesh Prohibition Order, 2016 is valid.
III. THAT THE PROHIBITION ORDER PASSED BY THE LT. GOVERNOR IS NOT VIOLATIVE
OF THE
FUNDAMENTAL RIGHTS
OF THE
CONSTITUTION .
GUARANTEED UNDER
ART. 14
AND
ART. 19(1)(G)
It is submitted that the Order does not violate any Fundamental Right of any individual. Firstly,
it does not violate Art. 14 as the classification created by the order is based on reasonable
differentiation, this classification has a direct nexus with the objective sought to be achieved
by the act and it is not arbitrary. Secondly, the order does not violate any right under Art.
19(1)(g) as there is no fundamental right to trade in alcohol and the order puts reasonable and
logical restrictions on the liquor trade.
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ARGUMENTS ADVANCED
I.
THAT THE PETITION FILED BY KING BIRD UNDER ARTICLE 32 IS NOT MAINTAINABLE
BEFORE THE HONBLE COURT.
It is humbly submitted that the writ petition filed under Article 32 by King Bird Liquor Pvt.
Ltd. (hereinafter referred as King Bird) is not maintainable because the incorporated company
is not a citizen thus, freedom guaranteed by Article 19(1)(g) is not secured to it. It is well settled
that a company cannot maintain a petition under Article 32 of the constitution for enforcement
of Fundamental Rights guaranteed under Art.32 of the Constitution. A company, being not a
citizen, has no Fundamental Rights under Art. 19 of the Constitution.3
In Tata Engineering & Locomotive Co. v. State of Bihar4 the Honble Court held that a
Corporation was not a citizen within the comprehension of Article 19 and therefore, could not
complain of denial of fundamental freedom guaranteed by Article 19 to a citizen of this country.
These two decisions are an authority for the proposition that an incorporated company being
not a citizen could not complain of violation of fundamental freedom guaranteed to citizens
under Article 19.
Furthermore, it is contended that the situation would not be improve merely by impleading a
Director or a shareholder as one of the petitioners because company has a juristic personality
independent of the shareholders and the Directors. Trade or business carried on by the company
cannot be said to be the trade or business carried on by the Director or Shareholders.5 Art. 14
is merely a facade to invoke the jurisdiction of this Court and it is submitted that when the court
is construing a statutory enactment, the intention of the Legislature should be gathered from
the language used by it and it is not permissible to the court to speculate about the legislative
intent.6
In State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatnam7,
the court has held that no doubt the existence of corporations as entities is recognised but the
entity obtains only such rights as the law confers on it. This entity cannot claim other rights as
a matter of course or by standing side by side with citizens.
Shree Sidhbali Steels Ltd. and Ors. v. State of U.P. and Ors.
Tata Engineering & Locomotive Co. v. State of Bihar (1964) 6 SCR 885.
5
Delhi Cloth & General Mills Co. Ltd. and Ors. v Union of India and Ors., (1983) 4 SCC 166.
6
Polestar Electronic (Pvt.) Ltd. v. Additional Commissioner, Sales Tax and Anr.,(1978 )1 SCC 636.
7
State Trading Corporation of India Ltd. v. The Commercial Tax Officer, Visakhapatnam, (1964) 4 SCR 99.
4
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Thus, the writ petition filed by the King Bird is not maintainable in the Honble Court and is
liable to be dismissed.
II.
IS VESTED WITH
POWERS
TO PASS THE
DILLI PRADESH
It is submitted before this Hon'ble Court that Dilli Pradesh is a Union Territory under the
Constitution of Indus devoid of any special status.
As according to Art. 1 of the Constitution of Indus, Indus is a Union of States and further
Clause (2) and (3) classify the distinction between the States and Union Territories specified
in the first schedule. Moreover Clause (30) in Art. 366 defines the Union Territory means the
territory specified in the first schedule and includes any other territory. 8Dilli Pradesh is
categorised as a Union Territory under the same.
Since 1911-12 the territory of Dilli Pradesh has been under the control of the Central
Government and after the Constitutional Seventh Amendment Act, 1956 it was specified as a
Union territory. It was by the Constitution Sixty Ninth (Amendment) Act, 1991,
Art. 239AA was inserted in Part VIII of the Constitution9 and added that the Union Territory
of Dilli Pradesh shall be called the National Capital Territory of Dilli Pradesh (hereinafter
referred to as N.C.T of Dilli Pradesh).
Federal Structure is part of the basic structure of the Constitution10 and as according to the
Supreme Court the basic structure of the Constitution shall not be altered.11Also the power to
make changes to the basic structure of the Constitution vests only in the people sitting, as a
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nation, through its representatives in a Constituent assembly.12 But as far as Delhi is concerned
the Parliament may, by law, make provisions for giving effect to, or supplementing the
provisions contained in the foregoing clause and any such law shall not be deemed to be an
amendment of this constitution for the purpose of Art. 368 notwithstanding that it contains any
provisions which amends or has the effect of amending Constitution.13 Therefore, it is
submitted that the status of Dilli Pradesh does not commensurate to that of a state. Hence it is
a territory governed under the complete autonomy of the Union.
Dilli Pradesh shall be governed under Art. 239AA however, Clauses 3(b) and 3(c) of
Art. 239AA make it abundantly clear that the plenary power to legislate upon matters affecting
Delhi still vests with Parliament as it retains the power to legislate upon any matter relating to
Delhi and, in the event of any repugnancy, it is the Parliamentary law which prevails. It is,
therefore, clear that Union Territories are in fact under the supervision of the Union
Government and it cannot be contended that their position is akin to that of the States.14 Thus
Art. 239 continues to be applicable to it.15
There are certain Union Territories for which there can is no Legislature. There is a second
category of Union Territories as under Art. 239A (i.e., Pondicherry), which has legislatures
conferred Parliament. The third category is Delhi. Indeed, a reference to Art. 239B read with
clause (8) of Art. 239AA shows how the Union Territory of Delhi is in a class by itself but is
certainly not a State within the meaning of Art. 246 or Part VI of the Constitution. As the
federal structure presupposes that power to tax is an incident of sovereignty that is one
sovereign cannot tax the other sovereign. In other words the property of the state shall be
exempt from Union Taxation as a mutual regard and immunity has been provided but in a
manner peculiar to our constitutional scheme. Therefore as it was held in case of Delhi the
taxes levied by the Delhi Municipal Corporation Act, 1957 enactments constitute Union
taxation within the meaning of Art. 289(1) and these are Parliamentary laws enacted under
and by virtue of the legislative power vested in Parliament by Clause (4) of Art. 246. In sum,
it is also a territory governed by clause (4) of Art. 246.16
12
G.V.K. Industries Ltd. & Anr. v. The Income Tax Officer & Anr. (2011) 4 SCC 36.
INDIA CONST. art. 239AA, cl. 7.
14
N.D.M.C. v. State of Punjab, AIR 1997 SC 2847. [Hereinafter referred as N.D.M.C ]
15
Balakrishnan Committee Report on Delhi Set-up, 1989.
16
N.D.M.C., Supra at 7.
13
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B.
The Lt. Governor is not bound by the aid and advice of the Council of Ministers.
The Counsel humbly submits before this Hon'ble Court that the Lt. Governor is the
Administrative Head, directed by the President, of the N.C.T. of Dilli Pradesh. The Lt.
Governor is not bound by the aid and advice of the Council of Ministers of N.C.T. of Dilli
Pradesh. . In the following sub contentions, the same is sought to be put forth.
i.
The counsel humbly submits before this Hon'ble Court that the Parliament has the power under
the Constitution to make laws with respect to any matters for N.C.T. Dilli Pradesh. According
to Art. 239AA (3)(b), the parliament has the power under the Constitution, to make laws with
respect to any matters for a Union Territory or any party thereof notwithstanding anything in
sub-clause (a). In case of a repugnancy it is the Parliament Law that shall prevail.17 This
necessarily means that so far as the Union Territories are concerned, there is no such thing as
List I, List II or List III. The only legislative body is Parliament - or a legislative body created
by it.18
In the Parliamentary debate of Rajya Sabha when 69th amendment was tabled in the Parliament
it was said, "At no time in the past has it ever been considered possible to make Delhi a fullfledged State. The Constituent Assembly went into the matter in great depth. It was observed
during debates that "in the capital city of a large federation like ours the arrangement should
be that in the area over which the federal Government has to function daily, practically in all
details, that Government should have unfettered power, power which is not contested by
another and subordinate Legislature."19
Also as rightly pointed out by a Constitution Bench of this Court in T.M. Kanniyan v. IncomeTax Officer20, the context of Art. 246 excludes Union territories from the ambit of the
expression "State" therefore parliament has the legislative power vested in it by Clause (4) of
Art. 246 to make laws for the Union territories. Through the bare interpretation of Art. 246(4)
and Art. 239AA (3) it is directed that former is subject to no restriction of the Constitution
whereas the latter is subject to the provisions of the Constitution. Therefore, Art. 246(4) is
17
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subject to no limitation from Art. 239AA (3). Thus, it proves that the Union of Indus is the
sovereign authority in case of matters relating to Dilli Pradesh.
ii.
Lt. Governor acts in his discretion on the directions of the Union Government.
It is submitted that the Lt. Governor acts in his discretion on the directions of the Union
Government. According to Art. 239 (1) of the Constitution the Union territory shall be
administered by the President acting, to such extent as he thinks fit, through an administrator
to be appointed by him with such designation as he may specify. Now Art. 239 AA (4) mentions
about the executive power of the Lt. Governor with which the Legislative Assembly has power
to make laws and also matter in which he is required to act in his discretion provided that in
case of a difference of opinion the Lt. Governor shall refer it to the President and shall act
accordingly.
According to Section 41(1)(i) of the G.N.C.T.D. Act these Lt. Governor shall act in his
discretion which fall outside the purview of Legislative Assembly but in respect of which are
delegated to him by the President. If any question arises as to whether any matter is or is not a
matter as respects which the Lieutenant Governor is by or under any law required to act in his
discretion, the decision of the Lieutenant Governor thereon shall be final.21
Now as Clause (3) of Art. 239AA of the Constitution makes it clear that the Parliament will
have legislative supremacy with respect to any laws made in Delhi. As a natural corollary, the
Central Government will also have executive supremacy over the NCT of Delhi.22 Also as the
satisfaction of the President is not the personal satisfaction, it is the satisfaction of Council of
Ministers on whose aid and advise the President generally exercises all his powers.23
Therefore as the Legislative power is co-extensive with Executive power of the Union and the
Lt. Governor is bound to follow the President, he acts in his discretion with the directions of
the Union Government.
iii.
Lt. Governor is not bound by the aid and advice clause of the President.
The counsel humbly submits before this Hon'ble Court that the Lt. Governor is not bound by
the aid and advise clause of the President. In Devji Vallabhbhai Tandel v. Administrator of
Goa, Daman & Diu And Anr24 it was stated that the Administrator even in matters where he is
21
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not required to act in his discretion under the Act or where he is not exercising any judicial or
quasi-judicial function, is not bound to act according to the advice of the Council of Ministers.
Section 44(1) of the Government of Union Territories Act, 1963 which is pari materia with Art.
239AA (4). The proviso to Art. 239 (4) talks about the difference of opinion between the Lt.
Governor and his ministers on any matter, thus it provides for a situation where the Lt.
Governor can put forth a contrary opinion and is not bound by the aid and advise clause of the
President in any matter.
Though in Nabam Rebia and Bamang Felix v. Deputy Speaker & Ors.25 the Constitutional
Bench held that even though the Governor is authorized to exercise some functions under
different provisions of the Constitution, the same are required to be exercised only on the basis
of the aid and advice rendered by him under Art. 163 unless the Governor has been expressly
authorized by or under a Constitutional provision to discharge the concerned function in his
own discretion. The case with the Lt. Governor is different because the matters involving which
he has to act in his discretion are wider than the Governor.26
As according to Art. 239AA (4) the Lt. Governor has the Council of Ministers to aid and advise
the Lt. Governor in exercise of his functions in relation to matters with respect to which the
Legislative Assembly has power to make laws, except in so far as he is, by or under any law,
required to act in his discretion. Now as according to Section 41(2) of The Government of
National Capital Territory of Delhi Act, 1991 that if any question arises as whether any matter
is or is not a matter as respects with which the Lt. Governor is by or under any law required to
act in his discretion, the decision of the Lt. Governor thereon shall be final.
In this regard, it is also relevant to refer to Chapter V of the Transaction of Business Rules27
which prescribed the procedure to be followed in case of difference of opinion between the Lt.
Governor and the Council of Ministers. Rule 51 the Lt. Governor is competent to direct that
action shall be suspended pending the decision of the President on such case or in any case.
Rule 52 further provides that where a direction has been given by the Lt. Governor in terms of
Rule 51, the Minister concerned shall take action to give effect to such direction. Rule 56 also
states that when a matter has been referred by the Lieutenant Governor for the decision of the
President further action thereon shall not be taken except in accordance with the decision of
the Central Government. It is clear from the above provisions of the Transaction of Business
25
Nabam Rebia and Bamang Felix v. Deputy Speaker & Ors. S.L.P. (C) No.1259-1260/2016.
INDIA CONST. art. 239AA, cl. 4.
27
Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993.
26
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Rules that it is always open to the Lt. Governor to differ with the decision of the Council of
Ministers, in which event, he has to follow the procedure as prescribed under Chapter V of the
Transaction of Business Rules. Moreover, Rule 23 makes clear the legislative intent that the
proposals specified (i) to (viii) therein are not exhaustive.28 Therefore the Lt. Governor is not
bound by the aid and advice of the Council of Ministers decision to act in his own discretion is
justified.
iv.
The counsel humbly submits before this Hon'ble Court that the Dilli Pradesh Prohibition Order
is valid. The Supreme Court had held in the case of Ram Jawaya Kapur v. State of Punjab29,
that the federal principle or doctrine of separation of powers is not incorporated in the Indian
Constitution in the strict and rigid form. The executive indeed can exercise the powers of
departmental or subordinate legislation when such powers are delegated to it by the legislature.
Delegated legislation, however, involves delegation of rule-making power of legislation and
authorises an executive authority to bring in force such an area by reason thereof. The discretion
conferred on the executive by way of delegated legislation is much wider. Such power to make
rules or regulations, however, must be exercised within the four corners of the Act.30 Similarly
in Avinder Singh v. State of Punjab & Anr,31 the validity of tax on foreign liquor imposed by
the Municipalities in the State of Punjab on the strength of a Government Notification issued
under Section 90(5) of the Punjab Municipal Corporation Act, 1976 was upheld, explaining
the concept of excessive delegation to mean that ... however numerous and significant they be,
may well be made over to appropriate agencies because the delegate is subject to the authority
and control of the principal and exercise of delegated power can always be directed, corrected
or cancelled by the principal.
Indian Nut Products & Ors. v. UoI & Ors.,32 holds that it is imperative upon the Government
to disclose the grounds of its satisfaction enabling it to exercise its statutory power and to
disclose the reasons and the existence of circumstances as these are open to judicial review.
The Dilli Pradesh Prohibition Order is within the boundaries of Law as the menace was being
caused due to high proliferation of alcohol as for instance, according to a survey 70% accidents
28
Govt. of N.C.T. Delhi v. Union of India, 2016 SCC OnLine Del 4308.
Ram Jawaya Kapur v. State of Punjab, (1955) 2 SCR 225.
30
Vasu Dev Singh & Ors. v. Union of India (UOI) & Ors. (2006) 12 SCC 753.
31
Avinder Singh v. State of Punjab & Anr, 1979 (1) SCC 137.
32
Indian Nut Products & Ors. v. UOI & Ors., (1994) 4 S.C.C. 269.
29
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in Dilli Pradesh were caused by drunk driving.33 Also according to Section 76 of Delhi Excise
Act The Government may issue such order and take such measures as may be deemed
appropriate to regulate drinking or to enforce prohibition in whole or in any part of Delhi.34
On the facts and circumstances of a case, a subordinate legislation may be struck down as
arbitrary or contrary to statute if it fails to take into account very vital facts which either
expressly or by necessary implication are required to be taken into consideration by the statue
or, say, the Constitution.35 Since the subordinate legislation took into both matters into account
i.e. the Constitution or the Delhi Excise Act, 2010 therefore the present order is valid. Thus the
counsel on behalf of the Respondents humbly submit before this Hon'ble Court that the Central
Government through the Lt. Governor had the capacity to pass the Dilli Pradesh Prohibition
Order 2016.
III. THAT THE PROHIBITION ORDER IS NOT VIOLATIVE OF THE FUNDAMENTAL RIGHTS.
It is humbly submitted that the Prohibition Order passed by the Lt. Governor does not violate
any Fundamental Right. That the Prohibition Order is not violative of the fundamental right
as established in the following submissions:
A.
It is humbly submitted that the principle underlying guarantee of Art. 14 is not that the same
rules of law should be applicable to all persons within the Indian Territory or that the same
remedies should be made available to them irrespective of differences of circumstances. 36 It
only means that all persons similarly circumstanced shall be treated alike both in privileges
conferred and liabilities imposed.37 Equal laws would have to be applied to all in the same
situation, and there should be no discrimination between one person and another if as regards
the subject-matter of the legislation their position is substantially the same.38 It does not mean
33
Shubhomoy Sikdar,. Drunk Driving Behind 70% Accidents In Delhi: Survey, The Hindu. 16 June, 2016.last
accessed on 24 Sept. 2016.
34
Delhi Excise Act, 76, (2010).
35
Indian Express Newspapers (Bombay) Pvt. Ltd. & Ors. v. Union of India and Ors., 1985 SCR (2) 287.
36
Chiranjit Lal Choudhuri v Union of India, 1950 SCR 869; B. Krishna Murthi v. State of Andhra Pradesh, 2005
(2) ALT 342.
37
Shashikant Laxman Kale and Anr. v. Union of India, 1990 AIR 2114.
38
D.S. Nakara & Others v. Union of India, 1983 SCR (2) 165; Tej Bahadur Singh and Ors. v. State through Data
Din, 1954 CriLJ 1399.
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The Prohibition Order state that there was a complete prohibition on the sale, distribution,
marketing and consumption of whisky, wine, rum, vodka, gin, tequila or any other alcohol40
within the territory of Dilli Pradesh. However, it expressly excluded Beer and any other
alcoholic beverage where the alcohol content is less than 5 % from the ambit of prohibition.
Art. 14 permits reasonable classification for the purpose of disposition.41 The classification
must be rational, that is to say, it must be based on some qualities or characteristics which are
to be found in all the persons grouped together and not in others who are left out. The condition
that the classification must be founded on an intelligible differentia which distinguishes those
that are grouped together must be fulfilled.42The subject matter of legislation should be a welldefined class founded on an intelligible differentia which distinguishes that subject matter from
the others left out.
43
39
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The rates at which the duty is charged on these beverages has been mentioned separately. The
Indian Liquor and Foreign Liquor (including whisky, vodka, gin etc.) are charged 400 per cent
of the wholesale price. Beer and Cider (Indian and Foreign) is charged 200 per cent of the
wholesale price. Even though according to the Schedule, wine also has a separate entry, it is
prohibited under the order because its alcohol content is more than 5%.
The Order has created a separate class of Liquor with alcohol content lower than 5%, (which
includes Beer- a fermented alcohol) within the larger category of Potable Alcohol. The separate
class has been created on the basis of alcohol content. Hard liquor like whisky, vodka etc. is
different from Beer which is manufactured using Fermentation.
Thus, the subject matter of legislation is based on an intelligible differentia which distinguishes
the subject matter included from the others left out.
ii.
Existence of Rational nexus between the classification & the objective of the order.
The condition that the differentia adopted as the basis of classification must have a rational or
reasonable nexus with the object sought to be achieved by the statute in question is also
fulfilled. It is submitted before the court that there is a connection between alcohol consumption
and menaces caused due to it, like drunken driving46, violent sexual crimes47, and other crimes
against women like domestic violence etc.48The harmful impact on health due to excessive
alcohol consumption has also been observed.49
It is humbly submitted before the Court that the distinction and the classification made in the
order has a reasonable nexus with the objectives it aims to achieve. The order aims to reduce
the menaces caused due to excessive alcohol consumption in Dilli Pradesh. Different types of
alcohol have different effects on human mind and body.
In the study conducted on the effect of different alcoholic beverages on Human Behaviour, it
was found that there is strong relation between violence and spirits (the distilled liquor). It was
observed-
46
Sikdar, Shubhomoy. "Drunk Driving Behind 70% Accidents In Delhi: Survey". The Hindu. N.P., 2016. Web.
24 Sept. 2016.
47
Biswas, Tanima and Shamik Ghosh. "Delhi Gang-Rape Case: Bus Driver Was Often Drunk, Picked
Fights". NDTV.com. N.p., 2016. Web. 24 Sept. 2016.
48
85% Crime against Women Due To Alcoholism: NCRB - Times Of India". The Times of India. N.P., 2016.
Web. 24 Sept. 2016.
49
Murthy, Pratima. Culture And Alcohol Use In India. World Cultural Psychiatry Research Review, 2015. Web.
24 Sept. 2016.
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There are a few types of problems where spirits, when consumed in concentrated
form, seem to have a special association with harm. The most unarguable of
these is overdose or poisoning; it is very difficult to die of an overdose of 2.8%
beer, but not so hard with a beverage with 40% ethanol content. Particularly
where there is a strong cultural association of alcohol and violence, spirits also
seem to be particularly implicated.50
In the study conducted by Kerr & Ye (2011), based on the evidence from a number of time
series studies carried out in the US, spirits were found to be more strongly related to, or the
only beverage type with a significant detrimental association with, cirrhosis, IHD and head and
neck cancer mortality.51
The standard drink of 12 fl oz of regular beer with about 5 % alcohol is equivalent to 1.5 fl oz
of spirits like whisky, gin, rum, vodka, tequila etc with alcohol content 40%. It may be argued
that the prohibition of liquor with alcohol more than 5% would fail as an individual may drink
more beer which may have the same impact as the hard liquors. However, even if substitution
effects may potentially lessen the intended effects of policies directed at problems associated
with one beverage type, marked effects may still be achieved sometimes. Also evidence from
economic studies lends support to the idea that substitution is likely to be partial but not
complete: cross-price elasticises for different beverage types in comparison to own-price
elasticises are small and unsystematic.52
The order does not violate the Fundamental Right to Equality under Art. 14. The order is an
endeavour by the Government to reduce the menace caused due to alcohol consumption and
maintain the peace in the society. The order in no manner attempts to create a separate class of
beer manufacturers. The order aims to slowly limit the consumption and then phase out alcohol
consumption completely. It can also be seen as a preventive measure to avoid the deaths that
may be caused due to sale of Hooch as observed in other states who have initiated Prohibition.
50
Pia. Mkel, A Bottle Of Beer, A Glass Of Wine Or A Shot Of Whiskey? Can The Rate Of Alcohol-Induced
Harm Be Affected By Altering The Populations Beverage Choices?". Contemporary drug problems 38.4 (2011)
last accessed on 24 Sept. 2016.( Hereinafter referred to as Altering Choices).
51
WC Kerr and Y Ye. Beverage-Specific Mortality Relationships In US Population Data. - Pubmed NCB", Ncbi.nlm.nih.gov. last accessed on 24 Sept. 2016.
52
Altering Choices, Supra at 45.
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It is further contended before the Honble Court that as the Order is not arbitrary and does not
violate the Art. 14. In the case of Census Commissioner & Ors v. R. Krishamurthy53, the
Supreme Court heldThe court can only interfere if the policy framed is absolutely capricious or not
informed by reasons or totally arbitrary and founded ipse dixit offending the basic
requirement of Art. 14 of the Constitution.
It is submitted before the court that the Supreme Court has held that it is settled law that
differentiation is not always discriminatory. If there is a rational nexus on the basis of which
differentiation has been made with the object sought to be achieved by particular provision,
then such differentiation is not discriminatory and does not violate the principles of Art. 14 of
the Constitution.54
In the case of BALCO Employees Union (Regd.) v. Union Of India & Ors55, the Supreme Court
held,
In a democracy, it is the prerogative of each elected Government to follow it's own
policy. Often a change in Government may result in the shift in focus or change in
economic policies. Any such change may result in adversely affecting some vested
interests. Unless any illegality is committed in the execution of the policy or the
same is contrary to law or mala fide, a decision bringing about change cannot per
se be interfered with by the Court.
It is humbly submitted before the Court that there is a reasonable nexus between the
classification and the objectives sought to be achieved by the Order.
iii.
It is humbly submitted before the Honble Court that the Prohibition Order is not arbitrary.
Moreover, no enactment can be struck down by saying that it is arbitrary or unreasonable. 56
The Order has been issued to bring about a change in the society. It aims to rid the National
Capital Territory of Dilli Pradesh from all the menaces associated with the alcohol
53
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consumption. It has been passed keeping in mind the Directive Principles of State Policy which
every Government should aim to achieve.
The order is not arbitrary as firstly, only alcoholic beverages with alcohol content over 5%
(including beer) are banned. Secondly, it does not ban alcohol used for industrial, medicinal
and toilet preparations.
It is respectfully submitted that the order does not violate the Fundamental Right to Equality
under Art. 14.
Prohibition Order is not violative of Art. 19(1)(g).
B.
It is humbly submitted before the Honble Court that Art. 19(1)(g) grants a fundamental right
to practice any profession or to carry on any occupation, trade or business. The restrictions
that can imposed on the right to freedom of trade have been stated in Art. 19(2) to 19(6).
i.
It is humbly submitted that no individual has a fundamental right to trade in liquor and other
intoxicating substances under Art. 19(1) (g). It has been declared and established by the
Supreme Court in plethora of cases.
The Supreme Court has held that no one has an inherent right to sell intoxicating liquors in
retail sale. A citizen has no such privilege. The State may entirely prohibit it or permit it under
conditions. The manner and extent of regulation rest within the discretion of the State as it is a
business which is harmful for the society.57
The Supreme Court has held that there is no Fundamental Right to carry on trade in liquor. The
Court has said that the state has the police power to enforce public morality and to prohibit
trades in noxious or dangerous goods.58
Reliance has been placed on Art. 47, a Directive Principle, in support of this view. Art. 47 reads
which enumerates as:
in particular, the State shall endeavour to bring about prohibition of the consumption except
for medicinal purposes of intoxicating drinks and of drugs which are injurious to health
The State reserves the right to restrict and even prohibit the liquor trade to enforce this Directive
Principle and for the betterment and well being of the society. In State of Bombay v. F.N.
57
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Balsara59 the Honble Supreme Court while deciding the validity of the Bombay Prohibition
Act, 1949 held that in view of the provisions of Art. 47 of the Constitution, the total prohibition
on potable liquor would be reasonable.
The Court has observed that a citizen has no Fundamental Right to trade or business in
intoxicating liquors and that trade or business in such liquors can be completely prohibited.
Because of its pernicious and vicious nature, dealing in intoxicating liquors is considered to be
res extra commercium. 60
Res extra commercium is a doctrine introduced by Chief Justice Das of the Supreme Court in
the case, State of Bombay v. R.M.D. Chamarbaugwala61, which has the effect of constricting
the scope of fundamental rights by rendering as constitutional outcasts certain purportedly
immoral or noxious activities. It does this by blocking these activities from falling within
the purview of the protection of fundamental rights.
The Supreme Court has held that the state can create a monopoly either in itself or in an agency
created by it for manufacture, possession, sale and distribution of liquor as a beverage. The
state may impose restrictions, limitations and even prohibition on intoxicating liquors.62
ii.
On the other hand in even if it were to be argued that trade in intoxicating liquors falls within
the scope of Art. 19(1)(g), the State could still impose severe restrictions, or even prohibition,
on the trade in intoxicating liquors under Art. 19(6). It can be done to achieve the Directive
Principle enumerated in Art. 47.63
In Nashirwar v. State of Madhya Pradesh.64 while dealing with the question whether the State
has power to grant liquor licence by public auction and whether the said power violated
fundamental right under Art. 19(1)(g) of the Constitution, the Court stated three reasons for
why there is no fundamental right to trade in Liquor:
First, there is the police power of the State to enforce public morality to prohibit
trades in noxious or dangerous goods. Second, there is power of the State to
59
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It is also submitted before the court that the order does not prohibit manufacturing of alcohol.
65
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The order prohibits sale, distribution, marketing and consumption of whiskey, wine, rum,
vodka, gin, tequila or any other alcohol. This implies that the prohibition is only on the Hard
Potable liquor with alcohol content more than 5%. However, there is no prohibition on alcohol
used in medicinal and toilet preparations. It does not infringe upon the rights of individuals in
the liquor industry involved in production of alcohol for any purpose except as a beverage. It
is contended that the order is not arbitrary and discriminatory. The restrictions imposed are
well founded and reasonable.
It is humbly submitted before the Honble Court that the Prohibition Order does not violate any
Fundamental Right enshrined in the Constitution.
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That the Dilli Prohibition Order, 2016 passed by Lt. Governor of Dilli Pradesh
shall be upheld as valid as the Lt. Governor has exercised this power within the
scope of its jurisdiction and without violating any Fundamental Rights of the
King Bird or any other citizen/person of Indus.
And any other relief that the Honble Court may be pleased to grant in the interests of
justice, equity and good conscience.
All of which is humbly submitted.
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