TEAM CODE - MMC10

6TH MAHAMANA MALAVIYA NATIONAL

MOOT COURT COMPETITION, 2018

IN THE HON’BLE SUPREME COURT OF ARYAVART

UNDER ARTICLE 32 OF THE CONSTITUTION OF ARYAVART, 1950

IN THE MATTER OF

ARTICLE 14, 21 OF THE CONSTITUTION OF ARYAVART, 1950

SHWETA CHANDRA.……………………...………………….………… PETITIONER I

DEVENDRA SINGH…………………...………………….………………PETITIONER II

VERSUS

UNION OF INDIA…………….………...………………….………………RESPONDENT

BEFORE SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND

HIS COMPANION JUSTICES OF

THE HON’BLE SUPREME COURT OF ARYAVART

MEMORIAL ON BEHALF OF THE RESPONDENT

 TABLE OF CONTENTS

LIST OF ABBREVIATIONS ................................................................................................ II

INDEX OF AUTHORITIES ................................................................................................ IV

STATEMENT OF JURISDICTION .................................................................................. VII

STATEMENT OF FACTS ................................................................................................ VIII

STATEMENT OF ISSUES .................................................................................................... X

SUMMARY OF ARGUMENTS .......................................................................................... XI

ARGUMENTS ADVANCED.................................................................................................. 1

I. WHETHER THE PRESENT PETITIONS ARE MAINTAINABLE IN THE

SUPREME COURT OF ARYAVART .................................................................................. 1

I.A. THE PETITIONER LACKS LOCUS STANDI .......................................................................... 1

I.B. MERGER OF TRIBUNALS AND PASSAGE OF CONTENDED BILL DO NOT VIOLATE

FUNDAMENTAL RIGHTS ............................................................................................................ 2

I.C. THERE IS A SETTLED QUESTION OF LAW WHICH DOES NOT NEED TO BE DELIBERATED
UPON .......................................................................................................................................... 2

I.D. THE PRESENT PETITION CANNOT BE TREATED AS A PUBLIC INTEREST LITIGATION. ... 3

II. WHETHER THE AMENDING PROVISIONS OF THE FINANCE ACT 2017

VIOLATE THE ESSENCE OF THE CONSTITUTION OF ARYAVART ...................... 3

II.A. PROVISIONS NOT VIOLATIVE OF FUNDAMENTAL RIGHTS.............................................. 3

II.A.1. Not Violative of Article 14 ..................................................................................... 4

II.A.2. Not Violative of Article 21 ..................................................................................... 5

II.B. INVOLVEMENT OF EXECUTIVE IN RELATION TO TRIBUNALS IS REASONABLE AND NOT

VIOLATIVE OF SEPARATION OF POWERS ................................................................................. 6

III. WHETHER THIS ACT OF THE SPEAKER AMOUNTS TO COLOURABLE

EXERCISE OF LEGISLATION. .......................................................................................... 7

IV. WHETHER THE ACT OF THE SPEAKER WAS ARBITRARY, MALA-FIDE

AND UNCONSTITUTIONAL. .............................................................................................. 8

PRAYER ................................................................................................................................. 12
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LIST OF ABBREVIATIONS

& And

AIR All India Reporter

Anr. Another

AP Andhra Pradesh

Art. Article

Asst. Assistant

AWC Allahabad Weekly Cases

Corp. Corporation

Ed./Edn. Edition

FC Federal Court

Govt. Government

Ltd. Limited.

No. Number

Ors. Others

¶ Page

PIL Public Interest Litigation

SC Supreme Court

SCC Supreme Court Case

SCR Supreme Court Reporter

§ Section

U/A Under article

UOI Union of India

UP Uttar Pradesh

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v. Versus

Vol. Volume

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INDEX OF AUTHORITIES

[A] CASES

1. AK Roy v Union of India AIR 1982 SC 710 ................................................................. 6

2. Anita Kushwaha v Pushap Sudan Transfer Petition (C) No. 1343 of 2008 ................... 6
3. BALCO Employees Union v. Union of India, (2002) 2 SCC 333 ................................ 7
4. EV. Chinnaiah v State of A.P. (2005) 1 SCC 394 ......................................................... 4
5. GC College Silchar v. Guahati University, AIR 1973 SC 761 ...................................... 1
6. Gwalior Rayon Co. v Asst. Commnr. Of Sales Tax AIR 1974 SC 1660 ...................... 6
7. Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta and Ors, AIR
1955 SC 367................................................................................................................... 1
8. Hindu Hitrakshak Samiti v. Union of India, AIR 1990 SC 851 .................................... 2
9. In Re Delhi Laws Act 1951 SCR 747: AIR 1951 SC 332 ............................................. 6
10. Jagjit Singh v State of Haryana and Others, (2006) 11 SCC 1 .................................... 10
11. Jasbhai Motibhai Desai v. Roshan Kumar, AIR 1976 SC 578 ...................................... 1
12. Jatendra Nath v Province of Bihar AIR 1949 FC 175 ................................................... 6
13. L. Chandrakumar v Union of India AIR 1997 SC 1125 ................................................ 6
14. M.S.M. Sharma V. Dr. Shree Krishna & Others, 1960 (8) TMI 69 .............................. 7
15. Mafatlal Industries Ltd. v Union of India (1997) 5 SCC 536 ........................................ 8
16. Maneka Gandhi v Union of India 1978 AIR 597 .......................................................... 4
17. Mangalore Ganesh Beedi Works v. State of Mysore (1962) 1963 AIR 589…………..7

18. Manoj Narula v Union of India (2014) 9 SCC 1 ........................................................... 6

19. Mohd. Saeed Siddiqui v State of U.P. and Anr 1 W.P. (C) No. 410 of 2012…………7

20. Nabam Rebia And Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative
Assembly and Others, (2016) 8 SCC 1 ........................................................................ 10
21. Naveen Chandra Gupta, Advocate v. Union of India and Ors. 1999 (2) AWC 1679.... 7
22. P.C. George vs The Hon’ble Speaker, Kerala Legislative Assembly ............................ 8
23. P.N. Kumar v. Municipal Corporation, Delhi, (1987) 4 SCC 609 ................................ 3
24. Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996 .................................... 2
25. Rajasthan State Road Transport Corp. v. Bal Mukund Bairwa (2009) 4 SCC 299 ....... 4
26. Ramdas Athawale vs Union of India & Ors (2010) 4 SCC 1: AIR 2010 SC 1310 ....... 9
27. S.P. Gupta v. President of India and Ors, AIR 1982 SC 149......................................... 7
28. Sharma Transport v. Government of A.P. and others .................................................... 8

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29. State of Karnataka v. Union of India, AIR 1978 SC 68 ................................................ 7

30. Upendra Baxi v. State of U.P, (1981) 3 SCC 516.......................................................... 2
31. Y. Theclamma v. Union of India, (1987) 2 SCC 516 .................................................... 3
32. Yogendra Kumar Jaiswal v. State of Bihar Civil Appeal no. 6448-6452 of 2011…….7

[B] Statutes

1. Airports Economic Regulatory Authority of India Act, 2008 ..................................... 5

2. Constitution (42nd Amendment) Act, 1976 .................................................................. 3
3. Employees Provident Funds and Miscellaneous Provisions Act, 1952 ....................... 6
4. Information Technology Act, 2000 ............................................................................. 5
5. Part XIV of Finance Act, 2017 .................................................................................... 4
6. Telecom Regulatory Authority of India Act, 1997 ...................................................... 5
7. The Finance Act, 2017 ................................................................................................. 1

[C] Other Authorities

1. Curzon, Dictionary of Law, 1994, p387 ...................................................................... 3

2. Black's Law Dictionary (7th ed. 1999). ........................................................................ 8

[D] Rules

1. § 341, Rules of Procedure and Conduct of Business in Lok Sabha, Fifteenth Edition9
2. § 373, Rules of Procedure and Conduct of Business in Lok Sabha, Fifteenth Edition9
3. § 376, Rules of Procedure and Conduct of Business in Lok Sabha, Fifteenth Edition9
4. § 41, Rules of Procedure and Conduct of Business in Lok Sabha, Fifteenth Edition . 9
5. § 5, The Houses of Parliament (Joint Sittings and Communications) Rules ............... 9
6. Role of The Speaker, Office of the Speaker Lok Sabha,
http://speakerloksabha.nic.in/roleofthespeaker.asp ..................................................... 9
7. The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985
................................................................................................................................... 10

[E] Constitutional Provisions

1. INDIA CONST. art. 110, cl. 1 ................................................................................... 11

2. INDIA CONST. art. 110, cl.3 .................................................................................... 11
3. INDIA CONST. art. 110, cl.4 ................................................................................ 9, 11
4. INDIA CONST. art. 14................................................................................................ 3
5. INDIA CONST. art. 21................................................................................................ 5

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6. INDIA CONST. art. 122 ………………………………………………………..…2

7. INDIA CONST. art. 32 …………………………………………………………....1
8. INDIA CONST. art. 226 ….……………………………………………………….3

[F] Articles and Reports

1. Justice R.P. Sethi, Supreme Court on Words & Phrases (1950-2004), edn. 2004 ...... 8
2. Report no. 272, Assessment of Statutory Frameworks of Tribunals in India, Law
Commission of India................................................................................................ 4, 6
3. Sarayu Satish, The Tribunal System in India- Increasing in Importance but Increasing
in Effectiveness?, http://www.westminsterlawreview.org ........................................... 3

[G] Books

1. MP JAIN, Indian Constitutional Law, 7th edn., 2014 .............................................. 6, 8

[H] Websites

1. Airports Economic Authority of India, Objectives & Functions,

http://aera.gov.in/content/innerpage/objective--and-functions.php ............................. 5
2. Cyber Appellate Tribunal, History, http://cyatindia.gov.in/History.aspx ................... 5
3. Telecom Disputes Settlement and Appellate Tribunal: A Brief Introduction,
http://www.tdsat.gov.in/admin/introduction ................................................................ 5

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STATEMENT OF JURISDICTION

The Counsel has the honour to submit before the Hon’ble Supreme Court of Aryavart, has the
jurisdiction to hear the matter under article 32.

Article 32 of the constitution of Aryavart, 1950 read as:

“32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of any
of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1)
and (2), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause (2)

(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.”

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STATEMENT OF FACTS

1. Aryavart is a sovereign republic situated in South East Asia and had formerly been a colony
of the Imperial Kingdom for roughly 200 years. The legal system developed in the country
was broadly based on laws formulated by the Parliament of the Imperial Kingdom and the
Judiciary of Aryavart interpreted these laws in the light of interpretations made by the
courts in the Imperial Kingdom. Immediately after becoming independent, Aryavart
proceeded to formulate its own Constitution and recognized it as the Supreme Law of the
land. The Legislature, Judiciary, and Executive were bestowed independent functions by
the Constitution with appropriate checks and balances. The Parliament consists of two
Houses, Council of States (indirect election for 6 years) and The House of the People (direct
election for 5 years). To make a law, the Bill has to be introduced into either House and
shall be passed only when agreed to by both houses, without amendment or only such
amendment as agreed to by both Houses. There is, however, a provision for money bills
under Articles 110 and 199 of the Constitution to facilitate smooth transactions. Aryavart
has a multi-party system and after the General Elections in 2014, the Aryavart Jan Party
(AJP) won with simple majority. They do not enjoy the same in the Upper House, which is
composed of members of various regional parties.

2. A Financial Bill cited as a Money Bill, was tabled in the Lower House wherein amendments
to a number of Acts including the "Merger of Cyber Appellate Tribunal with Telecom
Disputes Settlement & Appellate Tribunal (TDSAT)" were proposed to be made. The
Hon`ble Speaker exercising speaker's discretionary powers provided under the Constitution
certified the Bill as a Money Bill. When the Bill was put to vote, a situation arose wherein
the total votes in favour and the total votes against the Bill came to a tie. The Speaker
refused requests to hold a re-vote later (as many members of AJP were absent) and instead
made use of his ‘casting vote’ in favour of passing the Bill. The Bill received assent of
President and was consequently notified in the official gazette.

3. The Act included the merger of various prominent tribunals such as the Competition
Appellate Tribunal and the National Company Law Appellate Tribunal. The Cyber
Appellate Tribunal and the Airports Economic Regulatory Authority Appellate Tribunal

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were merged with the Telecom Disputes Settlement and Appellate Tribunal. The
Employees' Provident Funds Appellate Tribunal was merged with the Industrial Tribunal.

4. Some provisions of the Act were challenged before the Hon’ble Supreme Court by an
Upper House member, Mr. Devendra Singh. He contended that this was a colourable
exercise of legislation as the Act in question was unrelated to Art. 110(1), and thus couldn’t
be a termed as a Money Bill. He claimed that this was done to erode the supervisory role
of the Upper House. He further stated that the Speaker had acted arbitrarily and in a mala
fide fashion, violating the very spirit of the Constitution

5. A public-spirited lawyer, Ms. Shweta Chandra, also filed a PIL before the Hon'ble Supreme
Court of Aryavart for setting aside the impugned provisions of the Finance Act, 2017. She
contended that the proposed Amendments would lead to grave injustice to the thousands
who had pending cases with tribunals that are now to be merged. She stated that this would
require greater executive involvement in prescribing qualification, appointment, and
removal of chairpersons and members of merged tribunals. She further contended that this
would compromise independent character of tribunals, which is entirely against the idea on
which tribunals are constituted. She also questioned how an Act that was amended as an
ordinary bill could now be amended as a Money Bill, defying all legislative precedents.

6. Both the cases were clubbed together by the Supreme Court and it was listed for hearing
before a division bench. During the initial hearing, it was brought to the knowledge of the
Court that a division bench had already decided on a similar matter wherein the court had
expressed its inability to interfere with the discretion of the speaker of a Legislative
Assembly. However, the existing division bench was of the opinion that all the issues raised
by the petitioners, in this case, were not adequately addressed by the earlier division bench
judgment and hence required reconsideration by a larger bench.

7. Acting upon the request of the Hon'ble Division Bench, the Chief Justice of Aryavart has
formed a Constitutional bench and the case is now listed for hearing.

8. All laws of Aryavart are in pari materia to the laws of India.

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STATEMENT OF ISSUES

ISSUE I: WHETHER THE PRESENT PETITIONS ARE MAINTAINABLE IN THE

SUPREME COURT OF ARYAVART.

ISSUE II: WHETHER THE AMENDING PROVISIONS OF THE FINANCE ACT

2017 VIOLATE THE ESSENCE OF THE CONSTITUTION OF ARYAVART.

ISSUE III: WHETHER THE ACT OF THE SPEAKER AMOUNTS TO

COLOURABLE EXERCISE OF LEGISLATION.

ISSUE IV: WHETHER THE ACT OF THE SPEAKER WAS ARBITRARY,

MALAFIDE AND UNCONSTITUTINAL.

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SUMMARY OF ARGUMENTS

I. WHETHER THE PRESENT PETITIONS ARE MAINTAINABLE IN THE SUPREME COURT OF

ARYAVART.

It is humbly submitted before the Hon’ble Supreme Court of Aryavart that the present petitions
filed by the petitioners are not maintainable in the court under Article 32 of the Constitution of
Aryavart, as the petitioner lacks locus standi to file the petition. The bill certified by the speaker
as a money bill is in substance a money bill and is also in the welfare of the state, hence it does
not violate any Fundamental Rights. The provisions of the Finance Act,2017 too do not violate
any Fundamental Rights as they are created in order to streamline administration and enhance
the efficiency of the tribunals. Therefore, altogether there is a settled question of law which
does not need to be deliberated upon.

II. WHETHER THE AMENDING PROVISIONS OF THE FINANCE ACT 2017 VIOLATE THE
ESSENCE OF THE CONSTITUTION OF ARYAVART.

It is humbly submitted to the Hon’ble Supreme Court of Aryavart that the amending provisions
of the Finance Act, 2017 are not violative of the Fundamental Rights granted to citizens under
of the Constitution of Aryavart. The transfer of power from enabling Acts to Executive is also
not a violation of the doctrine of Separation of Powers as it is simply an exercise of delegated
legislation.

III. WHETHER THE ACT OF THE SPEAKER AMOUNTS TO THE COLOURABLE EXERCISE OF
LEGISLATION.

It is humbly submitted before the Hon’ble Supreme Court of Aryavart that the question of
whether the act of the Speaker was Colourable Exercise of Legislation or not cannot be inquired
into as the question is regarding parliamentary proceedings and Art.122 of the Constitution of
Aryavart bars the courts from inquiring into the proceedings of any house of the parliament.

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IV. WHETHER THE ACT OF THE SPEAKER WAS ARBITRARY, MALA-FIDE AND
UNCONSTITUTIONAL.

It is humbly submitted to the Hon’ble Supreme Court of Aryavart that the act of the Speaker
certifying the bill as a money bill was not arbitrary, mala-fide or unconstitutional as he was
well within the authority of his discretionary powers as given by Art. 110(4) while certifying
the bill as a money bill.

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ARGUMENTS ADVANCED

I. WHETHER THE PRESENT PETITIONS ARE MAINTAINABLE IN THE

SUPREME COURT OF ARYAVART

¶ 1. It is humbly contended before the Hon’ble Supreme Court of Aryavart that the present
petitions are not maintainable in the court under Article 321 of the Constitution of Aryavart.
This contention shall be substantiated in a four-fold manner. (I.A.) The petitioners lack Locus
Standi (I.B.) Merger of tribunals as given in the Finance Act, 20172 is not violative of any
Fundamental rights guaranteed under part III of the Constitution (I.C.) There is a settled
question of law which does not need to be deliberated upon and (I.D.) Consequently, the present
petitions cannot be treated as public interest litigation.

I.A. THE PETITIONERS LACK LOCUS STANDI

¶ 2. It is a general principle that only a person whose fundamental rights have been infringed
has locus standi to move to the Supreme Court under Art. 32 for the enforcement of his right.
It was held in the case in GC College v. Guahati University3 that, it is not permissible for a
person to seek the enforcement of the rights of another except when the law permits him to do
so.

¶ 3. Further as held in, Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta
and Ors.4 the Hon’ble Supreme Court observed that only an aggrieved person can impugn any
given piece of legislation under Art. 32 of the Constitution.

¶ 4. Similarly, in the case, Jasbhai v. Roshanthe5 the Hon’ble Supreme Court held that only a
person with direct interests in the subject matter may file for infringement of fundamental
rights. The court further held that the right could not be assigned to someone else to file a Writ
Petition save in the case of Public Interest Litigation. In the case of Ms. Shweta Chandra, there

1
INDIA CONST. art. 32.
2
The Finance Act, 2017.
3
GC College Silchar v. Guahati University, AIR 1973 SC 761.
4
Hans Muller of Nurenberg v. Superintendent, Presidency Jail, Calcutta and Ors, AIR 1955 SC 367.
5
Jasbhai Motibhai Desai v. Roshan Kumar, AIR 1976 SC 578.

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are other alternatives available for a person to seek justice if she/he feels that her/his rights
have been violated while in the case of Mr. Devendra Singh, a request for inquiry regarding
parliamentary procedure has been placed in this Hon’ble Court which is explicitly barred by
Art.1226 of the Constitution of Aryavart.
¶ 5. Hence, the petitioners in the present matter lack locus standi and hence, the petitions are
not maintainable.

I.B. MERGER OF TRIBUNALS AND PASSAGE OF CONTENDED BILL DO NOT VIOLATE

FUNDAMENTAL RIGHTS

¶ 6. Art. 32 can be invoked for the enforcement of Fundamental Rights and violation of a
Fundamental Right is sine qua non for the enforcement of the right conferred by Art. 327. It is
submitted that neither the passage of the money bill nor the merger of tribunals infringes any
fundamental rights guaranteed under part III of the Constitution. It is observed through the
various decisions of this Hon’ble Court that, if there is no violation of a fundamental right, a
petition filed under Art. 32 is not maintainable before the Supreme Court8.

¶ 7. In the case at hand, no violation of Fundamental Rights is occurring as the passing of the
contended bill as a money bill is procedurally correct and constitutional and the merger of
tribunals has been done to stream line administration and increase efficiency of the tribunals
being merged. Enhancing the efficiency of the tribunals and streamlining administration will
only benefit the public not infringe its fundamental rights. Hence, the petitions are not
maintainable by the Hon’ble Supreme Court.

I.C. THERE IS A SETTLED QUESTION OF LAW WHICH DOES NOT NEED TO BE DELIBERATED
UPON

¶ 8. Public Interest Litigations are intended at targeting the unaddressed substantial questions
of law which are of constitutional significance9. However, the instant petition intends at
revisiting the impugned provisions of the Finance Act, 2017 which include the merger of

6
INDIA CONST. art. 122.
7
Hindu Hitrakshak Samiti v. Union of India, AIR 1990 SC 851.
8
Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.
9
Upendra Baxi v. State of U.P, (1981) 3 SCC 516.

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Tribunals which has already been certified by the speaker and passed by lower house of
parliament. The other questions raised by the petitioner are already settled as, the Act and the
merger of tribunal has taken into consideration adequate measures to ensure fairness and
provide for the Welfare of the citizens at the same time.

I.D. THE PRESENT PETITION CANNOT BE TREATED AS PUBLIC INTEREST LITIGATION.

¶ 9. This Hon’ble Court has rejected applications under Article 32 when there exists an
alternate remedy10. It is only in exceptional circumstances that such jurisdiction can be invoked
without resorting to Article 22611 first12. It is contended that the issues raised in the present
petition do not demonstrate exceptional circumstances.

¶ 10. It is most humbly submitted that the petitioner is not an aggrieved party and this petition
amounts to abuse of PIL under Art. 32. The challenged statute has adequate provisions to
protect the fundamental rights of the citizens. Further individual citizens have separate
remedies against the state in case of violation of their fundamental rights as result of state
actions. Hence the present petition cannot be treated as a Public Interest Litigation and therefore
is not maintainable before this Hon’ble Court.

II. WHETHER THE AMENDING PROVISIONS OF THE FINANCE ACT 2017

VIOLATE THE ESSENCE OF THE CONSTITUTION OF ARYAVART

¶ 11. It is contended before the Hon’ble Court that none of the provisions of the Finance Act,
2017 violate the essence of the Constitution and all provisions have been made for the benefit
of the citizens of Aryavart.

II.A. PROVISIONS NOT VIOLATIVE OF FUNDAMENTAL RIGHTS

¶ 12. Tribunals have been defined as "Bodies outside the hierarchy of the courts with
administrative or judicial functions"13. They were constituted by the Constitution (42nd

10
Y. Theclamma v. Union of India, (1987) 2 SCC 516.
11
INDIA CONST. art. 226.
12
P.N. Kumar v. Municipal Corporation, Delhi, (1987) 4 SCC 609.
13
Curzon, Dictionary of Law, 1994, p387.

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Amendment) Act, 197614 as Part XIV-A of the Constitution in order to resolve disputes
between citizens and government departments, requiring application of specialised knowledge
or expertise15.

II.A.1. NOT VIOLATIVE OF ARTICLE 14

¶ 13. It is submitted that Article 1416 of the Constitution of Aryavart details the Right to
Equality among citizens of Aryavart. While dealing with equality and arbitrariness, the
Supreme Court states that “Article 14 strikes at arbitrariness in State action and ensures
fairness and equality of treatment.”17 The Supreme Court has held that the expression
“arbitrarily” means “in an unreasonable manner, as fixed and done capriciously, or at
pleasure, without adequate determining principle, not founded in the nature of things, non-
rational, not done or acting according to reason or judgement, depending on the will alone”18.

¶ 14. In the present petition, Sections 156 to 189 of the Finance Act, 201719 have been brought
into question as they deal with amendments to certain Acts to provide for merger of tribunals
and other authorities and conditions of service of chairpersons, members, etc20. These
amendments have, however, been made in order to bring uniformity in administrative rules and
streamline the functioning of quasi-judicial bodies. It is therefore imperative for the Central
Government to bestow the function of monitoring the working of tribunals to a single agency
in order to ensure uniformity in all affairs of the tribunals.21 Furthermore, it has been previously
held by the courts that a legislation cannot be challenged on grounds of violation of Art. 14
when it does not speak of differentiation that is unreasonable or arbitrary22. The right mandates
the establishment of a reasonable nexus between the objective of the act and its methods to
achieve the objective. The object of the Finance Act is to give effect to the financial proposals

14
Constitution (42nd Amendment) Act, 1976.
15
Sarayu Satish, The Tribunal System in India- Increasing in Importance but Increasing in Effectiveness? in
http://www.westminsterlawreview.org
16
INDIA CONST. art. 14.
17
Maneka Gandhi v Union of India 1978 AIR 597.
18
Sharma Transport v Govt. of Andhra Pradesh and Ors (2002) 2 SCC 188.
19
Supra. note 2.
20
Part XIV of Finance Act, 2017.
21
Report no. 272, Assessment of Statutory Frameworks of Tribunals in India, Law Commission of India (Oct
2017) pg. 45.
22
EV. Chinnaiah v State of A.P. (2005) 1 SCC 394.

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of the Central Government for the financial year 2017-18.23 The method involves amendments
to provisions of various Acts in furtherance of this objective. Whereby, the aim of the Act is to
foster governance and facilitation of services, the method of deliverance of which allows
discretionary power to the administrators hence rests on rational basis.24

¶ 15. Thus, it is submitted that the amending provisions are not violative of the rights under
Article 14 as they are not unreasonable or arbitrary.

II.A.2. NOT VIOLATIVE OF ARTICLE 21

¶ 16. Article 2125 of the Constitution defines the Right to Life and Personal Liberty.

¶ 17. In the present petition, various tribunals with similar functions are being merged into one
consolidated body. For instance, the Cyber Appellate Tribunal (CyAT)26 established under
Information Technology (IT) Act, 200027 and Airports Economic Regulatory Authority
Appellate Tribunal (AERAAT)28 established under Airports Economic Regulatory Authority
of India Act, 200829 are to be merged with Telecom Disputes Settlement and Appellate
Tribunal (TDSAT)30 established under Telecom Regulatory Authority of India Act, 199731. All
three of these tribunals are similar in their functions of adjudication. The CyAT was constituted
to adjudicate issues relating to any provisions of the IT Act which broadly deals with
transactions carried out by means of electronic data inter change and other means of electronic
communication, commonly referred to as “electronic commerce”.32 The AERAAT was
constituted to deal with economic and viable operation of major airports, revenue received from
services other than the aeronautical services, etc.33 Meanwhile, TDSAT adjudicates upon
disputes among Service Providers or between the Service Providers and a group of Consumers

23
Supra. note 2.
24
Rajasthan State Road Transport Corp. v. Bal Mukund Bairwa (2009) 4 SCC 299.
25
INDIA CONST. art. 21.
26
Section 48(1), IT Act, 2000.
27
Information Technology Act, 2000, Act 21 of 2000.
28
Sec 17, Airports Economic Regulatory Authority of India Act, 2008.
29
Airports Economic Regulatory Authority of India Act, 2008, Act 27 of 2008.
30
Sec 14, Telecom Regulatory Authority of India Act, 1997.
31
Telecom Regulatory Authority of India Act, 1997 .
32
Cyber Appellate Tribunal, History, http://cyatindia.gov.in/History.aspx
33
Airports Economic Authority of India, Objectives & Functions, http://aera.gov.in/content/innerpage/objective-
-and-functions.php

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on matters relating to technical compatibility and interconnection between the Service

Providers, revenue sharing arrangement between Service Providers and quality of
telecommunication services and interests of consumers.34 This implies that these tribunals are
similar enough to be able to work in harmony as a single unit under the TDSAT.

¶ 18. This merger has another benefit, i.e., now a plaintiff with a complex issue detailing facets
from telecom and cyber law need approach only one authority that is the TDSAT. This will
allow the plaintiff to access justice35 more easily and fairly. The Right to Fair Trial36 is a right
granted in public interest and follows the Latin maxim salus populi suprema lex37, i.e., the
welfare of people is supreme law.

II.B. INVOLVEMENT OF EXECUTIVE IN RELATION TO TRIBUNALS IS REASONABLE AND NOT

VIOLATIVE OF SEPARATION OF POWERS

¶ 19. Sections 156 to 189 of the Finance Act, 2017 also has provisions that transfer power of
appointment from the relevant enabling Acts to the Executive. For instance, in the Employees
Provident Funds Appellate Tribunal38 constituted under Employees Provident Funds and
Miscellaneous Provisions Act (EPFMPA), 195239, sections 7E to 7Q of the EPFMPA used to
define the qualifications, term of office, salary, etc. of the judges and members of the tribunal.
These powers have now been granted to the Executive through Sec 169 of the Finance Act,
2017.

¶ 20. The courts have stated that the numerous Tribunals with lack of uniformity in the matter
of qualifications, appointments, tenure and service conditions are causing a major concern in
effective working of the present Tribunal system.40 The Law Commission is of the opinion that
uniformity in the service conditions of the Chairman and other Members of the Tribunals is
one of the most significant requirements to ensure smooth working of the system.41

34
Telecom Disputes Settlement and Appellate Tribunal: A Brief Introduction,
http://www.tdsat.gov.in/admin/introduction
35
Anita Kushwaha v Pushap Sudan Transfer Petition (C) No. 1343 of 2008.
36
MP JAIN, Indian Constitutional Law, 7th edn., 2014, p. 1132.
37
Manoj Narula v Union of India (2014) 9 SCC 1.
38
Sec 7D, Employees Provident Funds and Miscellaneous Provisions Act, 1952.
39
Employees Provident Funds and Miscellaneous Provisions Act, 1952.
40
L. Chandrakumar v Union of India AIR 1997 SC 1125.
41
Supra note 21 at pg. 51.

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¶ 21. This transfer of power of appointment from enabling Acts to the Executive is in
furtherance of the objective of ensuring efficient working of the various tribunals. This transfer
is not in violation of the doctrine of separation of powers as it is simply an exercise of delegated
legislation42. Courts have further reiterated this principle numerous times through
judgements.43

III. WHETHER THIS ACT OF THE SPEAKER AMOUNTS TO THE COLOURABLE

EXERCISE OF LEGISLATION.

¶ 22. It is humbly contended before the Hon’ble Supreme Court of Aryavart that the court
cannot call into question any proceedings of the parliament under Art. 122 of Constitution of
Aryavart.44 The court must take adequate care to ensure that it does not overstep the limits of
its judicial function and trespass into areas which are explicitly reserved to the executive and
the legislature by the Constitution45 as this will amount to encroachment of separation of
powers46.

¶ 23. The Finance Act being a legislation is meant for the greater welfare of the citizens and is
the outcome of the legislator’s function. The Hon’ble Supreme Court observed in BALCO v.
Union of India47, that it was beyond the domain and the scope of judicial review to embark
upon an enquiry as to whether a particular public policy was wise or whether something better
could be evolved.
¶ 24. It is stated in Naveen Chandra Gupta, Advocate v. Union of India and Ors. 48' that the
validity of any proceedings of the parliament shall not be called into question on the ground of
any alleged irregularity of procedure. In view of this specific provision in the Constitution, the
question whether the certification of the Speaker of the Lower House was valid or not is beyond
the scope of judicial review. We are of the view that the prayer made in this petition is outside

42
In Re Delhi Laws Act 1951 SCR 747: AIR 1951 SC 332.
43
Jatendra Nath v Province of Bihar AIR 1949 FC 175; AK Roy v Union of India AIR 1982 SC 710; Gwalior
Rayon Co. v Asst. Commnr. Of Sales Tax AIR 1974 SC 1660.
44
Mohd. Saeed Siddiqui v State of U.P. and Anr 1 W.P. (C) No. 410 of 2012., Mangalore Ganesh Beedi Works v.
State of Mysore (1962) 1963 AIR 589, Yogendra Kumar Jaiswal v. State of Bihar Civil Appeal no. 6448-6452 of
2011.
45
S.P. Gupta v. President of India and Ors, AIR 1982 SC 149.
46
State of Karnataka v. Union of India, AIR 1978 SC 68.
47
BALCO Employees Union v. Union of India, (2002) 2 SCC 333.
48
Naveen Chandra Gupta, Advocate v. Union of India and Ors. 1999 (2) AWC 1679.

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the purview of judicial review. The Constitution strikes a delicate balance between matters
pertaining to the legislature. executive and the judiciary, and court should exercise self-restraint
in matters which are outside its jurisdiction.
¶ 25. It is stated in M.S.M. Sharma V. Dr. Shree Krishna & Others 49 that even if the legislature
does not strictly comply with the requirements of the procedural law laid down for conducting
its business the Courts cannot interference under Article 32 of the Constitution. Courts have
always recognized the basic difference between complete want of jurisdiction and improper or
irregular exercise of jurisdiction. Mere non-compliance with rules of procedure cannot be a
ground for issuing a writ under Article 32 of the constitution.

IV. WHETHER THIS ACT OF THE SPEAKER IS ARBITRARY, MALA-FIDE AND

UNCONSTITUTIONAL.

¶ 26. It is humbly contended before the Honourable Court that the act of the speaker certifying
the contended bill as a money bill is not Arbitrary, Mala-fide or Unconstitutional.

¶ 27. In Sharma Transport v. Government of A.P. and others50 the Supreme Court held that
expression ‘arbitrarily’ meant ‘in an unreasonable manner, as fixed and done capriciously or at
pleasure, without adequate determining principle, not founded in the nature of things, non-
rational, not done or acting according to reason or judgement, depending on the will alone.’51
The meaning of arbitrary is depending on individual discretion. 52

¶ 28. Furthermore, an act violating a provision of the Constitution is held to be

unconstitutional53.

¶ 29. In P.C. George vs The Hon’ble Speaker, Kerala Legislative Assembly,54 Justice V.
Chitambaresh of the Kerala High Court had held that an action taken by the speaker of the
Kerala legislative assembly was mala as he deliberately and consciously violated a
constitutional provision. As the position of the Speaker of the Lower House is very similar to

49
M.S.M. Sharma V. Dr. Shree Krishna & Others, 1960 (8) TMI 69.
50
(2002) 2 SCC 188.
51
Justice R.P. Sethi, Supreme Court on Words & Phrases (1950-2004), edn 2004, p. 93.
52
Black's Law Dictionary (7th ed. 1999).
53
Mafatlal Industries Ltd. v Union of India (1997) 5 SCC 536.
54
2016 SCC OnLine Ker 7918.

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that of the Speaker of the State Legislative Assembly55, the same line of reasoning can be
applied to the Parliament’s Lower House Speaker.

¶ 30. In the immediate petition, the act of the Speaker of the Lower was not arbitrary or
unconstitutional or mala fide as the speaker neither acted unreasonably or without determining
principle nor did he violate a provision of the Constitution and as the violation of a provision
of the constitution is a prerequisite to determine mala fide intentions as per P.C. George v The
Hon’ble Speaker, Kerala Legislative Assembly56, the speaker cannot be held liable for mala
fide intentions either.

¶ 31. While certifying the contended bill as a money bill, the speaker was well within the limits
of his authority as Art.110(4)57 delivers to the speaker discretionary powers just like: -

 he has a general discretion in regard to the admissibility of resolutions58.

 it is he who decides whether amendments to various clauses of the Bill should be
allowed to be moved or not in case a bill is pending before the House.59
 As regards regulating discussions in the House, it is the Speaker who decides as to
when a member shall speak and how long he shall speak.60
 If the Speaker is of opinion that a motion for the adjournment of a debate is an abuse
of the rules of the House, the Speaker may either forthwith put the question thereon or
decline to propose the question.61
 If he is satisfied, the Speaker can direct a member to withdraw from the House for a
specific period of time.62
 All matters which are not specifically provided under the rules and all questions
relating to the working of the rules are regulated by him.63

55
Supra. note 36 at pg. 313.
56
Supra. note 54.
57
INDIA CONST. art. 110, cl.4.
58
§ 41, Rules of Procedure and Conduct of Business in Lok Sabha, 2014, Fifteenth Edition.
59
Role of The Speaker, Office of the Speaker Lok Sabha, http://speakerloksabha.nic.in/roleofthespeaker.asp
60
Ibid.
61
§ 341, Rules of Procedure and Conduct of Business in Lok Sabha, 2014, Fifteenth Edition.
62
§ 373, Rules of Procedure and Conduct of Business in Lok Sabha, 2014, Fifteenth Edition.
63
Role of The Speaker, Office of the Speaker Lok Sabha, http://speakerloksabha.nic.in/roleofthespeaker.asp

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 On matters regarding interpretation of constitutional provisions relating to the House

or the Rules of Procedure, he often gives rulings which are respected by members and
are binding in nature64. He is the interpreter of its rules and procedure and is invested
with the power to control and regulate the course of debate and to maintain order.65
 It is the Speaker of the Lower House who presides over joint sittings called in the event
of disagreement between the two Houses on a legislative measure66.
 Even the Governor cannot require the Speaker to discharge his functions in the manner
he considers constitutionally appropriate.67
 Following the 52nd amendment of the Constitution, the Speaker is vested with the
power relating to the disqualification of a member of the Lower House on grounds of
defection.68

¶ 32. It is humbly contended that Art.110(4) endows to the Speaker discretionary power
because if Art.110(4) was not made to provide discretionary powers to the Speaker then there
is no rationale behind its existence.

¶ 33. Art.110(1) already lays down what a money bill is. One can conveniently examine if a
bill is a money bill or not with the help of sub sub-clauses (a)-(f) of Art.110(1). There remains
no necessity for the speaker to uphold or reject the correctness of a bill by certifying it as a
money bill or not because Art.110(1) already does that.

¶ 34. There is only one ground on which the presence of Art.110(4) can be justified and that is
if it is an exception to Art.110(1). Thus, Art.110(4) is an exception to Art.110(1) and as it talks
about the Speaker certifying a bill as a money bill, it allocates discretionary power to the
Speaker.

¶ 35. The endorsement of such discretionary powers to the speaker has been justified by the
constitutional scheme of ours. The courts too have held that the Speaker enjoys high

64
§ 376, Rules of Procedure and Conduct of Business in Lok Sabha, 2014, Fifteenth Edition.
65
Ramdas Athawale vs Union of India & Ors (2010) 4 SCC 1: AIR 2010 SC 1310.
66
§ 5, The Houses of Parliament (Joint Sittings and Communications) Rules*, Rules of Procedure and Conduct
of Business in Lok Sabha, 2014, Fifteenth Edition.
67
Nabam Rebia And Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly and Others,
(2016) 8 Supreme Court Cases 1.
68
The Members of Lok Sabha (Disqualification on Ground of Defection) Rules, 1985, Appendix IV, Rules of
Procedure and Conduct of Business in Lok Sabha, 2014, Fifteenth Edition.

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constitutional status and the Constitution reposes immense faith in him.69 The position of the
Speaker is and has been held by people of outstanding ability and impartiality.70

¶ 36. Therefore, it is contended hereunder that the Speaker of the Lower house in the case at
hand was well within his authority in utilising the discretionary power given to him under
Art.110(4) and hence his act of certifying the contended bill as a money bill was neither
arbitrary nor was it mala fide.

¶ 37. Art.110(1)71 itself allows the expansion of the definition of a money bill through
Art.110(1)(g). Additionally, Art.110(3)72 and Art.110(4)73 explicitly give scope to widen the
ambit of a Money bill. Hence, by widening the scope of a money bill, the Speaker has not
violated Art.110(1)74. Thus, the act of the Speaker was not unconstitutional either.

Hence, the act of the Speaker was not Arbitrary, Mala-fide or Unconstitutional.

69
Nabam Rebia And Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly and Others,
(2016) 8 SCC 1.
70
Jagjit Singh v State of Haryana and Ors., (2006) 11 SCC 1.
71
INDIA CONST. art. 110, cl. 1.
72
INDIA CONST. art. 110, cl.3.
73
INDIA CONST. art. 110, cl.4.
74
Supra. note 71.

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PRAYER

Wherefore, it is humbly prayed that in the light of issues raised, arguments advanced and

authorities cited, may this Hon’ble Court be please to;

1. DECLARE that the present petition is not maintainable

2. DECLARE that provisions 156 to 189 of the Finance Act, 2017 are not Violative of

Art. 14, 19 and 21

3. UPHOLD that the matter regarding the Colourable Exercise of Legislation by the

Speaker is beyond the purview of this Hon’ble Court

4. UPHOLD that the act of the Speaker was not Arbitrary, Mala-Fide or Unconstitutional

AND / OR

Pass any order that this Hon’ble Court may deem fit in the interest of

Justice, Equity and Good Conscience.

And for this act of kindness, the counsel for the respondent shall duty bound forever pray.

(Counsel for Respondent)

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