TEAM CODE: 007

BEFORE THE HON’BLE SUPREME COURT OF NASHVILLE

IN THE MATTER OF:

MS. RACHEL GREEN AND ANOTHER. ... PETITIONER

V.

THE UNION OF NASHVILLE ... RESPONDENT

WRIT PETITION NOS. ___/2016

CLUBBED WITH

WRIT PETITION NOS. ___/2017

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF NASHVILLE

UNDER ARTICLE 32 OF THE CONSTITUTION OF NASHVILLE

WRITTEN MEMORANDUM ON BEHALF OF THE PETITIONER

 TABLE OF CONTENTS

INDEX OF AUTHORITIES............................................................................................... 3
STATEMENT OF JURISDICTION ............................................................................................ 5
SUMMARY OF FACTS .............................................................................................................. 6
STATEMENTS OF ISSUES ........................................................................................................ 7
SUMMARY OF PLEADINGS .................................................................................................... 8
ARGUMENTS ADVANCED ...................................................................................................... 9
1. THE SUPREME COURT HAS THE JURISDICTION TO LOOK INTO THE PARLIAMENTARY
PROCEDURE INVOLVED IN THE PASSING OF THE NASHVILLE DNA PROFILING ACT, 2016 ...... 9
1.1 Limited Scope of Article 122........................................................................................ 9
1.2 Article 122 does not refer to the procedure laid down by the Constitution with regard
to money bills .................................................................................................................... 10
1.3 Judicial review is not restricted by the finality clause under Article 110(3) .............. 11
2. THE NASHVILLE DNA PROFILING ACT IS UNCONSTITUTIONAL ON THE GROUND OF
PROCEDURAL IRREGULARITY .................................................................................................... 13
2.1 The certification of the bill by the Speaker of the House of the People is unlawful .. 13
2.2 It is necessary for the State legislature to pass the bill to permit the appropriation of
moneys from the Consolidated Fund of State ................................................................... 15
3. THE NASHVILLE DNA PROFILING ACT, 2016 AND THE RULES MADE UNDER THE ACT ARE
VIOLATIVE OF THE PROVISIONS OF THE CONSTITUTION OF NASHVILLE ............................. 16
3.1 The Parliament lacks Legislative Competency to pass the said Act ........................... 17
3.2 The DNA Profiling Act and Rules violates Fundamental Rights Enshrined in the
Constitution ....................................................................................................................... 18
3.3 The Provisions of the Act cannot be Severed ............................................................. 21
4. THERE IS EXCESSIVE DELEGATION OF POWERS UNDER THE SCHEME OF NASHVILLE
DNA PROFILING ACT 2016 ....................................................................................................... 22
4. 1 Essential Legislative function entrusted upon delegate ............................................. 22
4.2 Legislature has failed to enunciate the policy and principle for guidance to the
executive ........................................................................................................................... 23
4.3 That There Is No Reasonable Nexus Between The Objects Of The Act And The Rules
Made Therein. ................................................................................................................... 24
PRAYER .................................................................................................................................... 25

MEMORANDUM ON BEHALF OF THE PETITIONER Page 2 of 25

 INDEX OF AUTHORITIES

JUDGMENTS
1. Agricultural Market Committee v Sahlimar Chemical Works. Ltd., (1997) 5 S.C.C. 516 (India)23
2. Alika Khosla v. Thomas Mathew, 2002 (62) D.R.J. 851 (India). ................................................. 20
3. Ashok Kumar v. Union of India, (1991) 3 S.C.C. 498 (India). .................................................... 17
4. Automobile Transport Rajasthan Ltd. v. State of Rajasthan, (1963) 1 S.C.R. 491(India). .......... 16
5. B.R. Shankaranarayana v. State of Mysore, A.I.R. 1966 S.C. 1571 (India) ................................. 17
6. Babulal v. State of Bombay, A.I.R. 1960 S.C. 51 (India)............................................................. 10
7. Balkishen v. State of Maharashtra, A.I.R. 1981 S.C. 379 (India)................................................. 19
8. Bhairendendra Narayan Bhup v. State of Asam, A.I.R. 1956 S.C. 503 (India). .......................... 17
9. Bhim Singh v. Union of India & Ors., (2010) 5 S.C.C. 513 (India) ............................................ 15
10. Bijoe Emmanuel v. State of Kerala, (1986) 3 S.C.C. 615 (India). ............................................... 20
11. Cellular Operators Association of India v. T.R.A.I., (2016) 7 S.C.C. 703 (India). ...................... 20
12. E.V. Chinnaiah v. State of A.P., (2005) 1 S.C.C. 394(India) ....................................................... 17
13. Gauri Shankar v. Union of India, A.I.R. 1995 S.C. 55 (India)......................................................18
14. Hamdard Dawakhana v. Union of India A.I.R. 1960 S.C. 554 (India)......................................... 23
15. I.C. Golak Nath and Ors. v. State of Punjab and Anr., A.I.R. 1967 S.C. 1643 (India) ................ 11
16. In the matter of: Under Article 143 of the Constitution of India, A.I.R. 1965 S.C.745 (India). .... 9
17. Indra Sawhney (II) v. Union of India, (2000) 1 S.C.C. 168 (India) ............................................. 18
18. Jai Singh v. State of Haryana, A.I.R. 1970 P&H 379 (India) ....................................................... 10
19. Jalan Trading Co.(P) Ltd. V Mill Mazdoor Sabha A.I.R. 1967 S.C. 691 (India). ........................ 23
20. Jaswant Singh Gurjar v. Hon'ble Speaker, Rajasthan Vidhansabha, A.I.R. 2011 Raj. 1 (India) .... 9
21. Jyoti Pershad v. Administrator, Union Territory of Delhi, A.I.R. 1961 S.C. 160 (India). ........... 22
22. Kartar Singh v. State of Punjab, (1994) 2 S.C.R. 375 (India). ..................................................... 11
23. Kedar Nath Bajoria v. State of West Bengal, A.I.R. 1953 S.C. 404 (India). ................................ 18
24. Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225 (India) ........................................... 9
25. Kihoto Hollohan v. Zachillhu and Ors., (1992) 1 S.C.R. 686 (India)........................................... 10
26. Kishan Prakash Sharma v. Union of India, (2001) 5 S.C.C. 212(India). ...................................... 24
27. M. P. Sharma v. Staish Chandra, A.I.R. 1954 S.C. 300 (India).............................................. 19, 20
28. Mathialagan v. Srinivasan, A.I.R. 1973 Mad. 371 (India)............................................................ 10

MEMORANDUM ON BEHALF OF THE PETITIONER Page 3 of 25

29. Piarelal v. State of Madya Pradesh, A.I.R. 1955 Nag. 11(FB) ..................................................... 10
30. R. Rajagopal v. State of Tamil Nadu, (1994) 6 S.C.C. 632 (India) .............................................. 20
31. R.M.D. Chamarbaugwalla v. Union of India, A.I.R. 1957 S.C. 628 (India). ............................... 21
32. Raj Narain v. Smt. Indira Nehru Gandhi, A.I.R. 1975 S.C. 2299 (India). .................................... 10
33. Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Others, (2007) 3 S.C.C. 18 (India) ................... 9
34. Registrar, Co- operative Societies v. K. Kunjabmu, A.I.R. 1980 S.C. 350 (India ....................... 23
35. S. R. Bommai and Ors. v. Union of India and Ors., (1994) 3 S.C.C. 1(India) ............................. 16
36. St. Johns teachers training institute v. Regional Director, NCTE, (2003) 3 S.C.C. 321(India)....22

37. State of Bombay v. Narsu Appa Mali, A.I.R 1952 Bom. 84 (India) ............................................ 14
38. State of Karnataka v. B. Suvarna Malini, A.I.R. 2002 S.C. 606 (India). ...................................... 18
39. State of M.P. v. Mahalaxmi Fabric Mills Ltd., A.I.R. 1995 S.C. 2213 (India) ............................ 17
40. State of M.P. v. Ranojirao Shinde, A.I.R. 1968 S.C. 1053 (India). .............................................. 21
41. State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 75 (India)...................................... 18
42. Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 S.C.C. .............. 13
43. The State of Bombay v. Kathi Kalu Oghad and Ors, 1961 A.I.R. 1808 (India). .......................... 20
44. Yogendra Kumar Biswal v. State of Bihar, (2016) 3 S.C.C. 183 (India). ...................................... 9

BOOKS AND OTHER SOURCES

1. Constituent Assembly Debates, Book No. 8, 23 May 1949, 199-201 (1999). ............................. 12
2. Dr. Durga Das Basu, Commentary on Constitution of India 715 (Lexis Nexis Butterworths
Wadhwa Nagpur, 8th ed. 2008) ......................................................................................... 10, 11, 13
3. M.P JAIN & SN JAIN, PRINCIPLES OF ADMINISTRATIVE LAW (Lexis Nexis Butterworths
Wadhwa Nagpur, 5th ed. ) ............................................................................................................. 22
4. Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial Review and Money Bills 10 NUJS L.
Rev. (2017). .................................................................................................................................. 12

MEMORANDUM ON BEHALF OF THE PETITIONER Page 4 of 25

 STATEMENT OF JURISDICTION

The Counsel for the Petitioner humbly submits that the Petitioner has approached this Hon’ble
Court under Article 32 of the Constitution of Nashville.

MEMORANDUM ON BEHALF OF THE PETITIONER Page 5 of 25

 SUMMARY OF FACTS
Enactment of the Nashville DNA Profiling Act, 2016
1. The Government of Nashville proposed a centralized DNA database to ensure better law
enforcement and convictions in criminal cases. In 2016, the cabinet approved Nashville DNA
Profiling Bill (NDPA), 2016. The Government introduced the bill as a Money bill. The
Speaker of the lower house held that the introduction of the Bill as a money Bill is
procedurally correct and was passed by the lower house with majority but objections were
raised by the opposition party in the way the bill was passed.
2. The opposition refused to be part of the discussion of the Bill in the upper house and they
staged a walk out. Since the required quorum wasn’t available, the Bill was deemed to be
passed by both the houses. The Bill was sent to President Gunther for his approval and was
signed on 09.08.2016.
3. Aggrieved by this decision and subsequent passing of the Bill as an Act, Ms. Rachel Green,
the Leader of the Opposition party approached the Supreme Court challenging the NDPA,
2016 on the basis of procedural irregularities which were patently illegal. The Supreme Court
admitted the matter.
Arrest of Dr. Ross Gellar
4. Dr. Ross Geller was arrested and convicted for drunk and reckless driving. As per the Rules
under the NDPA, 2016 DNA samples were collected from him. Dr. Ross opposed the
collection of DNA sample but was coerced by the police officials to cooperate. Subsequently,
Dr. Ross was released with a mere warning.
5. On 14.02.2017, Ms. Phoebe Buffay, was raped and murdered. The DNA material that was
found on the body matched with that of Dr. Ross was collected. While running the profile
through the Centralized DNA Bank they arrived at a very high percentage of similarity match
with the DNA record of Dr. Ross Geller. He was arrested. On 15.05.2017, Mr. Russ Geller,
the twin brother of Dr. Ross Geller confessed to the murder.
6. Once he was released, Dr. Ross Geller approached the Superior Court of Nashville and
challenged the provisions of the Nashville DNA Profiling Act, 2016 and its Rules as violative
of the Constitution of Nashville. The petition was admitted and clubbed with the petition filed
by Ms. Rachel Green regarding the procedural discrepancies in the introduction of the Act.

MEMORANDUM ON BEHALF OF THE PETITIONER Page 6 of 25

 STATEMENTS OF ISSUES
1. Does the Supreme Court have the jurisdiction to look into the Parliamentary Procedure
involved in passing of the Nashville DNA Profiling Act, 2016?

2. Is Nashville DNA Profiling Act, 2016 unconstitutional on the ground of procedural

irregularity as challenged by Ms. Rachel Green?

3. Is Nashville DNA Profiling Act, 2016 and the Rules made under the Act violative the
provisions of the Constitution of Nashville?

4. Is there excessive delegation of powers under the scheme of Nashville DNA Profiling Act,
2016?

MEMORANDUM ON BEHALF OF THE PETITIONER Page 7 of 25

 SUMMARY OF PLEADINGS

1. The Petitioner humbly submits before the Hon'ble Court that the Supreme Court has jurisdiction
to review and question the Parliamentary Procedure involved in passing of Nashville DNA
Profiling Act, 2016. The Petitioner contends the same on three limbs: firstly, that the scope of
Article 122 is limited to procedural irregularity and not illegality; secondly, the immunity under
Article 122 is restricted to the procedure provided by the Parliament and not the procedure
contemplated by the Constitution and thirdly, that the finality clause under Article 110(3) does
not apply to judicial review.
2. The Nashville DNA Profiling Act suffers from the vice of irregularity on the following grounds:
firstly, the certification of the Nashville DNA Profiling Bill as money bill under Article 110 is
unlawful; and secondly, it is necessary for the State legislature to pass the bill to permit the
appropriation of moneys from the Consolidated Fund of State.
3. It is humbly submitted before this Hon’ble Court that the Nashville DNA Profiling Act, 2016 and
the rules made there under are unconstitutional as firstly, the said Act and Rules have been
passed with a lack of legislative competency, secondly, the said Act and Rules are in
contravention with various provisions of the constitution and thirdly, the provisions of the Act in
contravention cannot be severed from the Act to preserve the constitutionality of the remainder
of the Act. Therefore, the said Act and Rules made there under deserves to be struck down as
unconstitutional.
4. In order to determine whether a delegated legislation suffers from excessive delegation it has to
satisfy the two prong test of whether the essential legislative power has been delegated or
whether the legislature has enunciated its policy and principle for the guidance of the executive.
The power delegated to the board created under the Nashville DNA Profiling Act, 2016 exceeds
the permissible limits. Further, the Rules created thereunder, are ultra vires the Constitution and
the Parent Act. It is thereby submitted that there exists excessive delegation of powers under the
scheme of the Act.

MEMORANDUM ON BEHALF OF THE PETITIONER Page 8 of 25

 ARGUMENTS ADVANCED
1. THE SUPREME COURT HAS THE JURISDICTION TO LOOK INTO THE PARLIAMENTARY
PROCEDURE INVOLVED IN THE PASSING OF THE NASHVILLE DNA PROFILING ACT, 2016

5. The Petitioner humbly submits before the Hon'ble Court that the Supreme Court has jurisdiction
to review and question the Parliamentary Procedure involved in passing of Nashville DNA
Profiling Act, 2016. The Petitioner contends the same on three limbs: firstly, that the scope of
Article 122 is limited to procedural irregularity and not illegality;[1.1] secondly, the immunity
under Article 122 is restricted to the procedure provided by the Parliament and not the procedure
contemplated by the Constitution[1.2] and thirdly, that the finality clause under Article 110(3)
does not apply to judicial review[1.3].

1.1 LIMITED SCOPE OF ARTICLE 122

6. The judiciary is the guardian of the Constitution of India. All organs of a government stem from
and owe their existence to the Constitution. Each organ has to function within the four corners of
the constitutional provisions and must be tested against the touchstone of the Constitutional
principles. The judiciary is entrusted with the task of construing the provisions of the
Constitution and safeguarding the fundamental rights. 1
7. Article 122 of the Constitution provides that the validity of any proceedings in the Parliament
shall not be called in question on the ground of any alleged irregularity of procedure. 2 The
immunity granted by clause (1) of Article 122 has been expressly limited to 'irregularity of
procedure' and not to substantive illegality or unconstitutionality. 3 If the action taken or order
passed is ex facie illegal, unlawful or unconstitutional, the Parliament cannot prevent judicial
scrutiny thereof. 4 A citizen can challenge the validity of proceedings within a legislative
chamber if the proceedings suffer from illegality and not mere irregularity. 5 The Article is a
check on the role of judicial organ vis-à-vis proceedings in the Parliament and must be treated as
a constitutional mandate on the subject. 6

1
Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225 (India).
2
Jaswant Singh Gurjar v. Hon'ble Speaker, Rajasthan Vidhansabha, A.I.R. 2011 Raj. 1 (India).
3
Ramdas Athwale v. Union of India, (2010) 4 S.C.C. 1 (India).
4
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha & Others, (2007) 3 S.C.C. 18 (India).
5
In the matter of: Under Article 143 of the Constitution of India, A.I.R. 1965 S.C.745 (India).
6
Yogendra Kumar Biswal v. State of Bihar, (2016) 3 S.C.C. 183 (India).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 9 of 25

8. The privilege and immunity in Article 122 also extends to the decisions of the speaker. This is
because the Speaker is the chief officer and highest authority of the House and remains
politically impartial at all times. The concept of statutory finality embodied in Article 122 does
not detract from or abrogate judicial review under the Constitution in so far as infirmities based
on violations of constitutional mandates, mala fides, non-compliance with rules of natural justice
and perversity, are concerned. Thus, the decision of the speaker is subject to judicial review on
grounds of such illegalities or perversity. 7

1.2 ARTICLE 122 DOES NOT REFER TO THE PROCEDURE LAID DOWN BY THE CONSTITUTION
WITH REGARD TO MONEY BILLS

9. The Supreme Court has stated that the powers and privileges of the parliamentary procedure are
beyond the scope of the Judiciary when it is with regard to irregularities in procedure 8. This is
for the reason that the legislative body must have complete independence over its rules and
procedures 9. This irregularity of procedure, however, refers only to irregularity of observation of
rules of procedure and conduct of business under Article 118, and not to violation of the
provisions of the Constitution as to powers of the legislature or the capacity of the legislature to
function. 10 The Supreme Court cannot be barred when it comes to matters which are illegal or
unconstitutional 11 or in cases where the proceedings are held without jurisdiction i.e. in defiance
of the mandatory provisions of the Constitution 12 or by exercising powers which the Legislature
does not, under the Constitution, possess.13
10. Article 212(1) allows for a citizen to call in question in the appropriate court of law the validity
of any proceedings inside the legislative chamber if the said proceedings suffer not from mere
irregularity of procedure, but from an illegality. The interpretation that the Supreme Court has
laid down for Article 122 can be imported into the interpretation of Article 212 as the two
provisions are identical. 14 If the impugned procedure is illegal and unconstitutional, it would be

7
Kihoto Hollohan v. Zachillhu and Ors., (1992) 1 S.C.R. 686 (India).
8
M.S.M. Sharma v. Sri Krishna, A.I.R. (1960) S.C. 1189 (India).
9
Piarelal v. State of Madya Pradesh, A.I.R. 1955 Nag. 11(FB) (India); Jai Singh v. State of Haryana, A.I.R. 1970
P&H 379 (India); Mathialagan v. Srinivasan, A.I.R. 1973 Mad. 371 (India).
10
Vinod Kumar v. State of Himachal Pradesh, A.I.R. 1959 S.C. 223 (India).; Raja Ram Pal v. Hon’ble Speaker, Lok
Sabha, (2007) 3 S.C.C. 184 (India).
11
Raj Narain v. Smt. Indira Nehru Gandhi, A.I.R. 1975 S.C. 2299 (India).
12
Babulal v. State of Bombay, A.I.R. 1960 S.C. 51 (India).
13
M.S.M. Sharma v. Sri Krishna (II), A.I.R. 1960 S.C. 1189 (India).
14
1 DR. DURGA DAS BASU, COMMENTARY ON CONSTITUTION OF INDIA 715 (Lexis Nexis Butterworths Wadhwa
Nagpur, 8th ed. 2008).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 10 of 25

 open to be scrutinised in a court of law, though such scrutiny is prohibited if the complaint
against the procedure is no more than this that the procedure was irregular.” 15
11. Article 118 to Article 122 have been classified under the heading ‘Procedure Generally’. Article
118(1) empowers each House of the Parliament to make rules for regulating ‘its procedure and
conduct of its business’ subject to the provisions of the Constitution of India. Article 119
empowers Parliament to enact laws to regulate the ‘procedure’ in Parliament in relation to
financial business. Such law overrides any rule made under Article 118. 16 Here ‘procedure’
refers only to procedure in rules made under Article 118 or in a law under Article 119.
Effectively, if the House chooses to make a procedure for itself, violation of such procedure by
the House itself cannot be questioned in a court of law.
12. However, if the Constitution of India prescribes a procedure to be followed by a House (as in the
case of money bills under Article 110), violation of such constitutional procedure cannot be
afforded protection under Article 122. In other words, the phrase ‘irregularity of procedure’ in
Article 122 does not include procedure mandated by the constitution. Therefore, the protection
from judicial review granted by Article 122 cannot be stretched to protect non-compliance or
breach of a constitutional procedure such as the special procedure for money bills under Articles
109 and 110.

1.3 JUDICIAL REVIEW IS NOT RESTRICTED BY THE FINALITY CLAUSE UNDER ARTICLE 110(3)
13. Article 110 provides for the an exclusive definition of money bill. The Constitution also provides
that the decision of the Speaker of the House of the People shall be final with regard to
certification of the bill. 17 It is the basic postulate under the Indian Constitution that the legal
sovereign power has been distributed between the legislature to create the law, the executive to
implement the law and the judiciary to interpret the law. These functions must be exercised
within the limits set down by the Constitution. 18
14. The Constituent Assembly while envisioning the jurisdiction for the Hon'ble Court in the draft
constitution provided Article 101 for immunity of Parliamentary proceedings from judicial
intervention on grounds of ‘alleged irregularity of procedure’. This article was finally

15
In Re. Powers Privileges and Immunities of State Legislatures, Special Reference No. 1 of 1964, (1965) 1 S.C.R.
413.
16
BASU, supra note 14.
17
INDIA CONST. art. 110, cl. 3.
18
I.C. Golak Nath and Ors. v. State of Punjab and Anr., A.I.R. 1967 S.C. 1643 (India); Kartar Singh v. State of
Punjab, (1994) 2 S.C.R. 375 (India).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 11 of 25

 incorporated into the Constitution of India as Article 122. During the debates of the Constituent
Assembly, Shri H.V. Kamath suggested an amendment to draft Article 101 to clarify that the
validity of any Parliamentary proceedings shall not be called in question in any court. 19
15. Accordingly, he suggested that the words ‘called in question’ be replaced with ‘called in
question in any court’. Refuting this suggested amendment, Dr. B.R. Ambedkar categorically
stated:
Sir, with regard to the amendment of Mr. Kamath, I do not think it is necessary, because
where can the proceedings of Parliament be questioned in a legal manner except in a
court? Therefore the only place where the proceedings of Parliament can be questioned
in a legal manner and legal sanction obtained is the court. Therefore it is unnecessary
to mention the words which Mr. Kamath wants in his amendment.
For the reason I have explained, the only forum there the proceedings can be questioned in
a legal manner and legal relief obtained either against the President or the Speaker or
any officer or Member, being the Court , it is unnecessary to specify the forum. Mr.
Kamath will see that the marginal note makes it clear. 20
16. This is a categorical clarification that Article 122 of the Constitution of India contemplates
judicial review by courts over legality of Parliamentary proceedings except on ‘the ground of any
alleged irregularity of procedure’. 21 It is contended that the meaning of the word ‘procedure’ in
this provision would constitute to mean the procedure laid down by the Parliament and not the
procedure as contemplated by the Constitution.
17. The Constitution of India grants the status of finality to various types of decisions made by
different constitutional authorities, including the Supreme Court, the President, the Governor and
the Speaker. In three instances – Article 163(2) and the provisos to Articles 371A(1)(b) and
371H(a) – the Constitution of India explicitly provides that such final decisions cannot be
questioned. Article 110(3) has not been included within the abovementioned category. 22
18. Moreover, Article 255 of the Constitution of India protects any central or state legislation from
being rendered invalid merely because ‘some recommendation or previous sanction required
under this Constitution’ was not given, if the President or Governor had subsequently given their

19
Constituent Assembly Debates, Book No. 8, 23 May 1949, 199-201 (1999).
20
Id.
21
Constituent Assembly Debates, supra note 19.
22
Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial Review and Money Bills 10 NUJS L. Rev. (2017).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 12 of 25

 assent respectively. Effectively, Article 255 treats ‘requirements as to recommendations and
previous sanctions’ as ‘matters of procedure only’ and therefore, outside the purview of judicial
review. 23 However, Article 255 does not treat the requirement of certification of a bill as ‘money
bill’ by the Speaker under Article 110(4) as a ‘matter of procedure’. This is because Article 255
uses the words "recommendation" and "sanction" only; not "certificate" or "certification." This
assumes significance because in the Constitution of India, recommendation" and "sanction" are
given primarily by the President and Governors; never by the Speaker. 24
19. Judicial review of a legislation is unrelated to the wisdom of the legislature or the majority with
which it was passed. The only concern is whether it infringes the basic structure of the
Constitution or any other relevant part of the Constitution. The issue is whether the procedure
prescribed by the Constitution was duly followed. 25 Hence it is humbly submitted that the
Nashville DNA Profiling Act, 2016 was wrongly certified as a money bill and due procedure as
provided for money bill in Article 110 was not followed. This violation is unconstitutional and is
susceptible to review.

2. THE NASHVILLE DNA PROFILING ACT IS UNCONSTITUTIONAL ON THE GROUND OF

PROCEDURAL IRREGULARITY

20. The Nashville DNA Profiling Act suffers from the vice of irregularity on the following grounds:
firstly, the certification of the Nashville DNA Profiling Bill as money bill under Article 110 is
unlawful; [2.1] and secondly, it is necessary for the State legislature to pass the bill to permit the
appropriation of moneys from the Consolidated Fund of State. [2.2]

2.1 THE CERTIFICATION OF THE BILL BY THE SPEAKER OF THE HOUSE OF THE PEOPLE IS

UNLAWFUL

21. The Constitution of India provides for the special procedure in respect of money bills. 26 The
Constitution provides for an exclusive definition of money bill. 27 The Constitution of India
defines a bill to be a money bill 'if it contains only' specific provisions as mentioned therein. 28

23
8 BASU, supra note 14, at 9060.
24
Pratik Datta, Shefali Malhotra & Shivangi Tyagi, supra note 22.
25
Supreme Court Advocates-on-Record Association v. Union of India, (2016) 5 S.C.C. 1 (India).
26
INDIA CONST. art. 109.
27
INDIA CONST. art. 110.
28
INDIA CONST. art. 110, cl. 1.

MEMORANDUM ON BEHALF OF THE PETITIONER Page 13 of 25

22. The intention of the Constituent Assembly was made clear when the Hon'ble Shri Ghanshyam
Singh Gupta moved for an amendment seeking that the word "only" to be removed. The
amendment was not passed as the intention was that if there is a bill that has other provisions
than the ones relating to taxation or borrowing etc., it will not be treated as a money bill. 29
23. In the present matter, the Nashville DNA Profiling Bill was certified as a money bill by the
Speaker of the House of the People. The objective of the Act cannot be classified as those
pertaining to any of the clauses that exclusively qualify a bill to be a money bill as per Article
110. Primarily, the purpose of the Act is to establish and regulate the Nashville Human DNA
Board for the purpose of regulating the use of human DNA Profiles for lawful purposes of
establishing identity in a criminal or civil proceeding.
24. Article 110(3) of the Constitution provides that if any question arises whether a Bill is a money
bill or not, the decision of the Speaker of the House of the People thereon shall be final. It is
contended that the finality clause is with respect to the proceedings in the Parliament and can be
subject to judicial review. For the purpose of interpretation, the intention of the Constituent
Assembly should be taken into consideration to determine the history and the object of a
provision or legislation. 30
25. The Parliament Act, 1911 provided for the procedure of the pre-independence Parliament. The
Parliament Act, 1911 consciously and explicitly prevented judicial review of the Speaker’s
certificate under Section 3 of this Act. It made it abundantly clear that “any certificate of the
Speaker of the House of Commons given under this Act shall be conclusive for all purposes, and
shall not be questioned in any court of law”. The Constitution of India incorporated the
conclusive nature of the Speaker’s decision into Article 110(3) by using the words ‘shall
be final’, but varies substantially from the Parliament Act, 1911. The Houses have to follow not
only procedures laid down by their own legislation and rules, but also by the Constitution itself.
Incorporating absolute immunity from judicial review from the Parliament Act, 1911 would have
rendered the constitutional supremacy redundant in the Indian context.

29
Constituent Assembly Debates, supra note 19.
30
State of Bombay v. Narsu Appa Mali, A.I.R. 1952 Bom. 84 (India).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 14 of 25

 2.2 IT IS NECESSARY FOR THE STATE LEGISLATURE TO PASS THE BILL TO PERMIT THE

APPROPRIATION OF MONEYS FROM THE CONSOLIDATED FUND OF STATE

26. The statement of objectives of the Nashville DNA Profiling Act, 2016 provides for the
distribution and allotment of financial burden of the cost of creation of the DNA database
between the Central and State Governments. The Act also provides that the cost of establishing
DNA Data Banks will be borne by both the Centre and State on equal sharing basis.
27. The Constitution, in the spirit of quasi-federal structure of governance, provides for elaborate
and clear provisions with regard to management of finance and also provides for two separate
accounts for the Union Government and State Governments to each manage their finances
independently through the Consolidated Fund of India and Consolidated Fund of the States
respectively. 31
28. Article 113 refers to the procedure in Parliament with respect to the estimate of appropriation of
funds on demand of the executive. The said Article provides lucidly that there can be no voting
in relation to expenditure charged upon the Consolidated Fund of India. However, such
expenditure can be discussed in either House of Parliament. It is also clear that besides the
expenditure charged upon the Consolidated Fund of India under Article 112(3), the demands for
grants sought by the Union Executive are also met from the Consolidated Fund of India.
29. The demands for grants are voted in Parliament as per Article 113(2). The said sub-clause
contains the plenary power of the House of the People to assent or to refuse to assent to any
demand subject to a reduction of the amounts specified therein. Elaborate procedure has been
provided in the "Rules of Procedure and Conduct of Business in Lok Sabha". Rules 206 to 217
deal with "Demands for Grants". The above-mentioned Rules make it clear that the Demands for
Grants are discussed and voted upon. 32 The Articles 202 to Article 205 of the Constitution confer
similar powers on the State Legislature with regard to appropriation of any money from the
Consolidated Fund of the State.
30. Article 266(1) provides for Consolidated Funds and public accounts of India and of the States.
Article 266(3) provides that no money from Consolidated Fund of the state shall be appropriated
except in accordance with law and for the purposes and in the manner provided in this
Constitution. The procedure for appropriating from the public account of State is provided in

31
INDIA CONST. art. 283.
32
Bhim Singh v. Union of India, (2010) 5 S.C.C. 513 (India).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 15 of 25

 Article 203 and Article 204 of the Constitution. Article 283 (2) provides that the consolidated
fund of the State is in custody of the state government and all other matters connected with or
ancillary to matters aforesaid shall be regulated by law made by the Legislature of the State.
31. Merely on the basis of conferring greater power upon the Central Government by the
Constitution vis--vis the States does not lead to the conclustion that States are mere appendages
of the same. Within the Constitutional limits of each state, the State legislature, executive and
judiciary are supreme. The Central Government cannot interfere or tamper in such powers. More
particularly, the Courts should not adopt an approach, an interpretation, which has the effect of
or tends to have the effect of whittling down the powers reserved to the States and they must put
the Court on guard against the same. The federalism in the Indian Constitution is not a matter of
administrative convenience, but one of principle the outcome of our own historical process and a
recognition of the ground realities. 33 The Courts should be careful not to upset the delicately
crafted constitutional scheme by a process of interpretation. 34
32. The Nashville DNA Profiling Act, 2016 seeks to dilute such quasi-federal system of governance
that has been established by the Constitution by permitting the Central Government to
appropriate funds from the Consolidated Fund of the State in furtherance of the ‘DNA Bank’.
Furthermore, the State legislature, in pursuance of Article 204 , has not passed the said Bill
allowing the appropriation of its funds.
33. The State legislative assemblies did not have an opportunity to debate on the bill and appropriate
the requisite money for the purpose of the Nashville DNA Profiling Act, 2016. Hence the assent
of the President to the bill is non est and this is a substantial irregularity. The Nashville DNA
Profiling Act, 2016 is unlawful and the validity of President's assent to the bill without prior
ratification by the State Legislatures is non est.

3. THE NASHVILLE DNA PROFILING ACT, 2016 AND THE RULES MADE UNDER THE ACT ARE
VIOLATIVE OF THE PROVISIONS OF THE CONSTITUTION OF NASHVILLE

34. It is humbly submitted before this Hon’ble Court that the Nashville DNA Profiling Act, 2016 and
the rules made there under are unconstitutional as firstly, the said Act and Rules have been
passed with a lack of legislative competency [3.1], secondly, the said Act and Rules are in

33
S. R. Bommai and Ors. v. Union of India and Ors., (1994) 3 S.C.C. 1 (India).
34
Automobile Transport Rajasthan Ltd. v. State of Rajasthan, (1963) 1 S.C.R. 491 (India).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 16 of 25

 contravention with various provisions of the constitution [3.2] and thirdly, the provisions of the
Act in contravention cannot be severed from the Act to preserve the constitutionality of the
remainder of the Act [3.3]. Therefore, the said Act and Rules made there under deserves to be
struck down as unconstitutional.

3.1 THE PARLIAMENT LACKS LEGISLATIVE COMPETENCY TO PASS THE SAID ACT
35. It is submitted that a legislative enactment can be struck down by the court only on two grounds,
namely (i) that the appropriate legislature does not have the competence to make the law, and (ii)
that it takes away or abridges any of the fundamental rights enumerated in Part III or any other
constitutional provisions. 35 The Constitution enumerates various items of legislation in three
lists: List I – the Union List; List II – the State List; List III – the Concurrent List. 36 Thus, the
Nashville DNA Profiling Act, 2016 must fall within the entries of Schedule VII, List I in order
for it to be competent. It is submitted that the impugned enactment is colourable in nature and
thus deserves to be struck down as unconstitutional.
36. It is submitted that the concept of colourable legislation has a well-defined connotation so far as
parent legislation is concerned, 37 and is only relevant in connection with the question of
legislative competency. 38 The doctrine conveys that a legislature in passing a statute purports to
act within the limits of its powers yet in substance and in reality it transgresses those powers. 39
37. It is pertinent to note that no entry in the Lists as provided under the Constitution provides for a
collection of biometrics of individuals and creating of a centralized data bank of the same. In the
present matter at hand, the DNA Profiling Act has been passed as per Entry 65 of List I of the
Constitution for establishing an agency in providing scientific or technical assistance in the
investigation or detection of crime; however, the contents of the Act point towards compulsory
collection of biometrics of persons alleged of having committed crimes. On application of the
doctrine of “Pith and Substance”, 40 and on perusal of the object of the impugned Act, the
provisions of the Act fall outside the ambit of the object and legislative competence of the

35
State of M.P. v. Rakesh Kohli, (2012) 6 S.C.C. 312 (India); State of A.P. v. McDowell & Co. (1996) 3 S.C.C. 709
(India).
36
V.N.SHUKLA, CONSTITUTION OF INDIA 787 (Eastern Book Company 12th ed. 2013).
37
State of M.P. v. Mahalaxmi Fabric Mills Ltd., A.I.R. 1995 S.C. 2213 (India).
38
Bhairendendra Narayan Bhup v. State of Assam, A.I.R. 1956 S.C. 503 (India). ; B.R. Shankaranarayana v. State
of Mysore, A.I.R. 1966 S.C. 1571 (India).
39
Ashok Kumar v. Union of India, (1991) 3 S.C.C. 498 (India).
40
E.V. Chinnaiah v. State of A.P., (2005) 1 S.C.C. 394 (India).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 17 of 25

 Parliament. The Legislature, thus, under the guise of establishing a union agency has passed an
enactment for collection of biometrics of accused persons without their consent and as such the
Act deserves to be struck down as unconstitutional.

3.2 THE DNA PROFILING ACT AND RULES VIOLATES FUNDAMENTAL RIGHTS ENSHRINED IN

THE CONSTITUTION

(a) The DNA Profiling Act and Rules framed there under violates Article 14
38. The right to equality under Article 14 is recognized as one of the basic features of the
Constitution 41 Equality before the law means that equals should not be treated unlike and unlikes
should not be treated alike; likes should be treated alike; 42 treating unequals as equals is against
the objective of Art. 14. 43 In the present matter at hand, it is submitted that the Nashville DNA
Profiling Act, 2016 violates this essential provision of the Constitution. Section 2(e) of the
aforementioned Act provides for the definition of “offender,” and the said definition includes
both “under trials” and “convicted” under the same header. This inclusion of both under trial and
convicted under the same header treats unequals as equals; thereby, violating “equality before
law” as prescribed by Art. 14 of the Constitution. Further, the failure of the Act to provide for the
consequences of the subsequent acquittal of the accused and indefinite detention of the samples
strike at the root of Art. 14 as no procedure is provided for and is thus unconstitutional.
39. The petitioners submit that Art. 14 does not rule out classification for the purposes of legislation
as laid down by the Hon’ble Supreme Court itself. 44 However, it is submitted that this power to
classify is not unfettered and absolute. The Court has opined that in order to pass the test for
permissible classification, two conditions must be fulfilled, namely, 1) the classification must be
founded on an intelligible differentia which distinguishes persons or things that are grouped
together from others left out of the group; and 2) the differentia must have a rational relation
(nexus) to the object sought to be achieved by the statute in question. 45
40. It is submitted that in the present matter at hand, the impugned Act does not fulfill the two
conditions for it to be categorized as permissible classification legislation. The intelligible

41
Indra Sawhney (II) v. Union of India, (2000) 1 S.C.C. 168 (India).
42
Gauri Shankar v. Union of India, A.I.R. 1995 S.C. 55 (India).; State of Karnataka v. B. Suvarna Malini, A.I.R.
2002 S.C. 606 (India).
43
All India Sainik Schools Employees’ Association v. Defence Minister, 1989 S.C.C. (L&S) 264 (India).
44
Kedar Nath Bajoria v. State of West Bengal, A.I.R. 1953 S.C. 404 (India).
45
State of West Bengal v. Anwar Ali Sarkar, A.I.R. 1952 S.C. 75 (India).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 18 of 25

 differentia is the basis of classification. 46 The classification made by the impugned Act is that it
is applicable only for persons related to criminal or civil proceedings. This classification must be
in nexus with the object of the Act. 47
41. It is submitted that the object of the impugned Act points towards assistance in criminal and civil
proceedings. However, the Act and the Rules formed there under provides that the data collected
(DNA) shall be detained indefinitely of all persons who are arrested in relation of a crime. A
person who is arrested for a crime is not necessarily a part of criminal proceedings; and further
the Act and the Rules fail to take into consideration that once an “offender” is acquitted of all
charges his/her DNA is still retained. Thus, the initial classification only for persons who are
related to criminal proceedings is not maintained and as such the said Act is violative of “equal
protection of laws” as prescribed by Art. 14.
42. It is submitted that equality is antithetic to arbitrariness. 48 Ss. 2(a)(iv), 7, 20, 30, and 39 of the
Act are ambiguous and unguided in nature. Further, the Rules providing for retention and
collection of DNA from all persons arrested makes it arbitrary and thus violating equality as
principle of reasonableness is an essential ingredient of equality. 49 Further, the Act provides the
board with enough power to act capriciously and in an arbitrary and unquestioned manner. These
provisions taken together empower the government to conduct genetic testing on almost anyone
in any way connected with even minor infractions of the criminal law. Therefore, it is submitted
that impugned Act and the Rules there under are violative of Art. 14.
(b) The DNA Profiling Act and the Rules are violative of Art. 20
43. It is submitted that Art. 20 (3) provides protection only on fulfilling of three ingredients, namely,
(i) protects a person accused of an offence, (ii) protects against compulsion “to be a witness”,
and (iii) against himself. 50 It is further laid down that Art. 20 (3) can only be invoked if all the
aforementioned three ingredients exist. 51 This testimonial compulsion is not merely in respect of
testimonial compulsion in Court but could well extend to compelled test previously obtained

46
R. K. Garg v. Union of India, (1981) 4 S.C.C. 675 (India).
47
Leelabai Gajanan Pansare v. Oriental Insurance Co. Ltd., (2008) 9 S.C.C. 720 (India).
48
E. P. Royappa v. State of Tamil Nadu, (1974) 4 S.C.C. 3 (India).
49
Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248 (India).
50
M. P. Sharma v. Staish Chandra, A.I.R. 1954 S.C. 300 (India).
51
Balkishen v. State of Maharashtra, A.I.R. 1981 S.C. 379 (India).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 19 of 25

 after a formal accusation had been leveled. 52 Further, this Hon’ble Court has held that nobody
can be compelled to submit to DNA Test. 53
44. In the present matter at hand, any person who falls under the ambit of “offender” as per Section
2(e) of the impugned Act is compelled to provide his DNA sample. This compulsion attracts the
defense of Art. 20(3) and is thus violative of the same.
(c) The DNA Profiling Act and the Rules are violative of Arts. 19(1)(a) and 21
45. The right to freedom of speech and expression has been described as the touchstone of individual
liberty. 54 This freedom of speech and expression includes the right to acquire information and to
disseminate it. 55 This right, thus, comprehends the freedom to be free from what one desires to
be free from. 56 It is also pertinent to note that right to remain silent is impliedly a part of freedom
of speech. 57 It is thus submitted that the compulsory to dissemination of information violates the
Constitution. 58 In the present matter it is submitted that compulsion of DNA samples mandates
“offenders” to provide information without their consent, thereby violating their inherent right
not to provide information under Art. 19(1)(a) of the Constitution. It is submitted that the
restrictions placed under Art. 19(2) must not be arbitrarily or excessively invade the rights
conferred. 59 The Act and the rules is not reasonable as it arbitrarily takes away the rights
guaranteed under Art. 19(1)(a).
46. Right to privacy and the right to be left alone are implicit in the right to life and liberty
guaranteed to the citizens under Art. 21. 60 Further, it has been held that it is not open to any or
every person, to violate any persons’ privacy, as when the person would deem fit. 61 Therefore,
the compulsory collection of DNA of “offenders” by the State is violative of Art. 21 of the
Constitution.

52
M. P. Sharma v. Satish Chandra, A.I.R. 1954 S.C. 300 (India).
53
Alika Khosla v. Thomas Mathew, 2002 (62) D.R.J. 851 (India).
54
2 BASU, supra note 14, at 2380.
55
Secretary, Ministry of Information & Broadcasting, Govt. of India v. Cricket Association of Bengal, (1995) 2
S.C.C. 161 (India).
56
2 BASU, supra note 14, at 2386.
57
Bijoe Emmanuel v. State of Kerala, (1986) 3 S.C.C. 615 (India).
58
The State of Bombay v. Kathi Kalu Oghad and Ors., 1961 A.I.R. 1808 (India).
59
Cellular Operators Association of India v. T.R.A.I., (2016) 7 S.C.C. 703 (India).
60
R. Rajagopal v. State of Tamil Nadu, (1994) 6 S.C.C. 632 (India).
61
State of Maharashtra v. Madhukar Narayan Mardikar, (1991) 1 S.C.C. 57 (India).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 20 of 25

47. It is trite law that right to privacy is recognized under Art. 19(1)(a) and Art. 21. 62 It is submitted
that the expression “personal liberty” in Art. 21 constitute the personal liberty of man and some
have been given additional protection under Art. 19. 63 Thus a law relating to collection of
personal information would be interfering with personal liberty qua the right to privacy, and
therefore, must fulfill the triple test: (i) it must prescribe procedure, (ii) the procedure must
withstand the test of one or more rights under Art. 19 which may be applicable to a given
situation and (iii) it must be liable to tested under Art. 14. 64
48. It is submitted that the impugned Act does not fulfill the aforementioned triple test. The act at the
outset does not provide for the procedure that is to be followed to collect the data and further
does not provide for the deletion of data. It merely provides for the need of data. Additionally,
the said Act provides for unreasonable restriction on Art. 19(1)(a); and finally, the Act is
violative of Art. 14 (as already provided for under 3.2.(b)). Thus, the said Act and the rules
formed thereunder violate Arts. 19, 21 and 14 of the Constitution.

3.3 THE PROVISIONS OF THE ACT CANNOT BE SEVERED

49. The doctrine of severability rests on a presumed intention of the legislature that if a part of a
statute turns out to be void, that should not affect the validity of the rest of it, and that the
intention is to be ascertained from the terms of the statute. 65 If it is not possible to separate the
legal from the unconstitutional portion, the entire provision has to be struck down as
unconstitutional. 66
50. In the present matter at hand, it is submitted that the provisions of the Act that are violative of the
Constitution form the essential part of the impugned Act and as such the Act cannot sustain
without the aforementioned provisions. As such the Nashville DNA Profiling Act, 2016 deserves
to be struck down as unconstitutional. It is submitted that Rules formed under an Act that is
unconstitutional shall also be deemed to be unconstitutional and as such the Rules for the
Regulation of Collection, Storage and Destruction of Human DNA obtained for Criminal
Investigation, 2016 deserves to be struck down as unconstitutional.

62
People’s Union of Civil Liberties v. Union of India, (1997) 1 S.C.C. 301 (India).
63
Maneka Gandhi v. Union of India, (1978) 1 S.C.C. 248 (India).
64
Id.
65
R.M.D. Chamarbaugwalla v. Union of India, A.I.R. 1957 S.C. 628 (India).
66
State of M.P. v. Ranojirao Shinde, A.I.R. 1968 S.C. 1053 (India).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 21 of 25

 4. THERE IS EXCESSIVE DELEGATION OF POWERS UNDER THE SCHEME OF NASHVILLE DNA
PROFILING ACT 2016

48. It is humbly submitted that there is excessive delegation Nashville DNA Profiling Act 2016 as
the legislation encompasses provisions wherein essential legislative functions are entrusted upon
the delegates[4.1] and the legislature has failed to enunciate the policy and principle for guidance
to the executive.[4.2]

4. 1 ESSENTIAL LEGISLATIVE FUNCTION ENTRUSTED UPON DELEGATE

49. The question whether there is excessive delegation has to be examined in the light of three broad
principles. 67 Essential legislative functions to enact laws and to determine legislative policy
cannot be delegated. Essential legislative functions consist of the determination of the legislative
policy, and the legislature cannot abdicate these essential legislative functions in favour of
another. However, the legislature may delegate certain functions provided it lays down a policy.
If the power is conferred on the executive in a manner which is lawful and permissible, the
delegation cannot be held to be excessive merely on the ground that the legislature could have
made more detailed provisions. 68
50. It is submitted that a statute challenged on the ground of excessive delegation must be subjected
to two tests, namely, (i) whether it delegates essential legislative function; and (ii) whether the
legislature has enunciated its policy and principle for the guidance of the executive. 69 Further,
the Supreme Court held that in order to determine whether a particular law suffers from
‘excessive delegation’ is a question to be decided with reference to certain factors which may
include, (I) subject matter of the law, (II) provisions of the statute including its preamble, (III)
scheme of the law, (IV) factual and circumstantial background is which law is enacted. 70
51. It is submitted that Section 7(j) of the Nashville DNA Profiling Act, 2016 suffers from excessive
delegation as the provision endows the power to enumerate guidelines for storage of biological
substances and their destruction. This power to enunciate guidelines vests solely with the

67
Jyoti Pershad v. Administrator, Union Territory of Delhi, A.I.R. 1961 S.C. 160 (India).
68
Id.
69
Vasantlal v. State of Bombay, A.I.R. 1961 S.C. 4 (India).
70
St. Johns teachers training institute v. Regional Director, NCTE, (2003) 3 S.C.C. 321 (India).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 22 of 25

 legislature. It further gives scope for the delegate to widen the scope of the act in the garb of
making rules which is unconstitutional. 71
52. The Supreme Court has held that where the Act authorises the executive authority to determine
for itself what the purposes of the Act are which in substance would amount to exercise of
72
legislative power that cannot be delegated. Section 20(2)(g) of the Act provides for powers
entrusted upon the Board to make rules and regulations for such “other purposes” in addition to
identification of victims of accidents, disasters or missing persons or for purposes related to civil
disputes when the objective of the Act is to identify persons for civil and criminal proceedings.
In the present instance, the legislature has not only entrusted essential legislative functions on the
board but also a discretionary power to enact such rules and regulations for those purposes in
addition to those which the Act aims to achieve.

4.2 LEGISLATURE HAS FAILED TO ENUNCIATE THE POLICY AND PRINCIPLE FOR GUIDANCE TO
THE EXECUTIVE

53. Legislature, while delegating, must declare the policy of the law, lay down legal principles and
provide standards for the guidance of the delegate to promulgate delegated legislation, otherwise
the law will be bad on account of “excessive delegation”. 73 Thus the theory has been evolved
that the legislature cannot delegate its essential legislative function. Legislate it must, by laying
down policy and principle and delegate it may to fill in detail and carry out policy… If guidance
there is, wherever it may be found , the delegation is valid”. 74
54. The Apex Court struck down an Act on the ground of excessive delegation and held that
nowhere had the legislature laid down any policy for guidance to the government in the manner
of selection of diseases for being included in the list. 75 It is submitted that Section 7(e) (iv) of
the aforementioned Act provides “that the Board shall take any other necessary steps required to
be taken to protect privacy” is ultra vires on the ground of excessive delegation as there exists no
guidelines regarding steps that are required to be taken to protect privacy. Such discretionary,
unguided and uncanalised powers conferred on the board by the legislative wing vest arbitrary
power and hence excessive in nature.

71
Agricultural Market Committee v. Sahlimar Chemical Works. Ltd., (1997) 5 S.C.C. 516 (India).
72
Jalan Trading Co.(P) Ltd. v. Mill Mazdoor Sabha A.I.R. 1967 S.C. 691 (India).
73
M.P JAIN & SN JAIN, PRINCIPLES OF ADMINISTRATIVE LAW 55 (Lexis Nexis Butterworths Wadhwa
Nagpur, 5th ed., 2005).
74
Registrar, Co- operative Societies v. K. Kunjabmu, A.I.R. 1980 S.C. 350 (India).
75
Hamdard Dawakhana v. Union of India, A.I.R. 1960 S.C. 554 (India).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 23 of 25

55. In the present matter, by virtue of section7(i) and section 20(2)(a) the board is empowered to
make “lists of applicable instances of human DNA profiling and the form and manner in which
samples can be collected”. In light of the decision of the apex court, it is therefore submitted that
the legislature has failed to provide for such policy for guidance to the board and has further
authorised the Board to so. Therefore fulfilling both the tests for determination of excessive
delegation.

4.3 THAT THERE IS NO REASONABLE NEXUS BETWEEN THE OBJECTS OF THE ACT AND THE
RULES MADE THEREIN.
56. The question whether a particular legislation suffers from excessive delegation, the scheme of
the Statute including the Preamble, the background in which the Statute is enacted, the history of
the legislation, the complexity of the problems which a modern State has to face and host of
other considerations have to be kept in mind. 76
57. It is submitted that Rule (a) of the Rules provides for samples being mandated to be obtained
from a person arrested for any crime under the Nashville Code of Crime, 1900, makes an
arbitrary classification of any crime which is an excessive delegated by the Legislature. Rule (f)
provides for The DNA profile of a person arrested for a crime under the Nashville Code of
Crime, 1900 is detained indefinitely as a part of the data bank which is ultra vires to the
Constitution and ultra vires to the Parent Act for it provides for timely disposal of obsolete,
expunged or inaccurate DNA information. Rule (g) provides for The DNA profile, once it
becomes a part of the Nashville Human DNA Data Bank can be used for other purposes as
mentioned under the Nashville DNA Profiling Act, 2016 which makes it ambiguous and confers
wide powers to use it for any other purposes and opens a scope for misuse of the same. Rule (h)
provides for The information in the DNA Data Bank must be accessible only by the personnel
authorized by the Nashville DNA Profiling Act, 2016. But the definition of personnel has not
been laid down and being uncertain, there is scope of misuse and unauthorised access to the
DNA Data Bank.
58. Therefore, it is submitted that the impugned Act suffers from infructuous provisions being ultra
vires on grounds of excessive delegation and should therefore be held unconstitutional.

76
Kishan Prakash Sharma v. Union of India, (2001) 5 S.C.C. 212 (India).

MEMORANDUM ON BEHALF OF THE PETITIONER Page 24 of 25

 PRAYER

Wherefore in the light of the issues raised, the arguments advanced and the authorities cited, it is
humbly prayed that this Honourable Court may be pleased to adjudge and declare that:

1. To adjudge that Supreme Court has jurisdiction to look into the Parliamentary Procedure.
2. To declare that the Nashville DNA Profiling Act, 2016 is unconstitutional on the ground
of procedural irregularity.
3. To declare that the Nashville DNA Profiling Act rules are violative of the Constitution.

And pass any other order that this Honourable Court deems fit in the interest of justice, equity
and good conscience.

All of which is humbly prayed.

Counsels for Petitioners.

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