Statement of Jurisdiction

The petitioner has filed this writ petition before the Hon’ble Supreme Court of India under
Article 32 of the Constitution of India.

The Hon’ble Supreme Court has the jurisdiction in this matter under Article 32 of Constitution of
India, which
reads as under:-

Article 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 clauses (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.

Statements of facts
1. The Constitution of India as originally enacted, India was declared to be a Union of State. The
States and their territories were specified in Parts A, B and C of the First Schedule. The
territory of India consisted of the territories of the States, the territories specified in Part D
of the First Schedule and such other territories as may be acquired article.
2. The Parliament enacted the Pondicherry Administration Act. 1962 which provided that all
laws in force immediately before August 19 1962, when Pondicherry became a Union
territory, were to continue to be in force until amended or repealed by a competent
legislature or other competent authority.
3. The President, in exercise of the powers conferred on him by Art. 240 of the
Constitution to make regulations of "peace, progress and good government" of the Union
territories promulgated the Tax Laws (Extension to UnionTerritories) Regulation. 1963.
4. By this Regulation the laws in force in relation to income tax in Union territory of
Pondicherry were repeated and the Indian Income-tax Act, 1961 was made applicable. The
petitioners then challenged the rites of the Regulation and it was held valid.
5. The power of the President to make regulations under Art. 240 is not limited to
the subject of law and order. Authority to make regulations for "peace. progress and
good government" is a common form of grant of legislative power and the expression
"peace, progress and good government" is of very wide import giving wide discretion to the
authority empowered to pass laws for such purposes.
6. The President can make regulations with respect to a Union territory occupying the same
field on which Parliament can also make laws. Such a regulation may repeal or amend any
Act made by Parliament or any existing law which is for the time being applicable to the
Union territory and when promulgated has the same force and effect as an Act of
Parliament which applies to that territory.
7. After the passing of this Act, the petitioners continued to be subject to the existing French
laws relating to income tax.
8. On March 30, 1963, the President in the exercise of the powers conferred on him by Article
240 of the Constitution promulgated the impugned Regulation No. 3 of 1963. The Regulation
extended certain Indian Acts relating to taxation to the Union territories mentioned therein.
9. Section 3(2) of the Regulation extended the Income Tax Act, 1961, subject to the
modifications mentioned in Part II of the Schedule, to Pondicherry as from April 1, 1963.
10. Section 4(1) provided that any law in force in Pondicherry corresponding to the Income Tax
Act, 1961 would stand repealed on April 1, 1963.
11. The petitioners carried on business at Pondicherry and are being assessed to income tax
under the Income Tax Act, 1961.
12. A writ petition is filed by the petitioner under Section 32 of the Constitution of India in the
Supreme Court of India, asking for a declaration that the Income-tax Act, 1961 was not
legally extended to Pondicherry and a direction prohibiting the respondents from
implementing that Act in relation to Pondicherry. T.M. Kanniyan vs income-tax officer,
Pondicherry and Anr is due for hearing in the Supreme Court of India.
Issues Raised

1. Whether the writ petition filed under Article 32 of the Constitution of India before the
Hon’ble Supreme Court of India is maintainable or not?

The writ petition is maintainable under Article 32 as there has been a violation of
fundamental rights of the public at large.

1. The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of the Constitution
for the violation of fundamental rights guaranteed under Part – III of the Constitution.
2. The sole objective of Art. 32 is the enforcement of the fundamental rights guaranteed by the
Constitution of India. The original jurisdiction of the Supreme Court can be invoked in any
case of violation of a fundamental right guaranteed by part III of the Constitution of India as
has been observed in the case of Chiranjit Lal Chowdhury v. Union of India1 amongst the
many others. The constitution makers conferred on the Supreme Court the power to issue
writs for the speedy enforcement of fundamental rights and made the right to approach the
Supreme Court for such enforcement itself a fundamental right. 2
3. The Fundamental Rights provided in the Indian Constitution are guaranteed against any
executive and legislative actions. Any executive or legislative action, which infringes upon
the Fundamental Rights of any person or any group of persons, can be declared as void by
the Courts under Article 14 of the Constitution.
4. Dr. B.R.Ambedkar described Article 32 as the most important one, without which the
Constitution would be reduced to nullity. It is also referred to as the heart and soul of the
Constitution. By including Article 32 in the Fundamental Rights, the Supreme Court has been
made the protector and guarantor of these Rights.
5. A Public Interest Litigation can be filed before the Supreme Court under Article 32 of the
Constitution.
6. In this case the Income Tax Act of 1961 was not lawfully extended to Pondicherry, and the
respondents were barred from enforcing that Act with reference to Pondicherry. Hence the
petitioner is justified in challenging the authority of the Central Government and filing a writ
petition for the same under Art. 32.
I.A. MAINTAINABILITY OF PUBLIC INTEREST LITIGATION

7. In 1981 Justice P. N. Bhagwati in S. P. Gupta v. Union of India 3, articulated the concept of PIL
as follows, “any member of public can maintain an application for an appropriate direction,
order or writ in the High Court under Article 226 and in case any breach of fundamental
rights of such persons or determinate class of persons, in this court under Article 32 seeking
judicial redress for the legal wrong or legal injury caused to such person or determinate class
of persons.”

1
AIR 1951 SC 41
2
Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA 3711 (8rd Ed., Lexis Nexis
Butterworths Wadhwa 2008).

3
AIR 1982 SC 149
8. That the president does not have the power to promulgate the Regulation under Article 240
of the Constitution and the Income Tax Act, 1961 was not legally extended to Pondicherry.
Therefore, the petitioner has filed a Public Interest Litigation for protection and enforcement
of rights of public at large and seeks remedy for the fundamental right that has been
deprived.

The right under Art. 32 is not subject to the exhaustion of local remedies
The right to approach this Hon'ble Court in case of violation of fundamental rights is itself a
fundamental right enshrined in Art. 32.1 In Prem Chand Garg, it was held that this right is
absolute and may not be impaired on any ground.2 Further, unlike in Art. 226, the remedy
provided by Art. 32 is a fundamental right and not merely a discretionary power of the
Court.3 Moreover, this Hon’ble Court has on multiple occasions expressly rejected an
argument that called for exhaustion of local remedies.4 . Therefore, it submitted that it is
not open to this Court to carve out exceptions when there are none in the text. 3.
Furthermore, judicial orders are not amenable to writ jurisdiction under Art. 32.5
Consequently, if a violation of Art. 32 takes place by this Court's rejection of the instant
petition, the petitioners will have absolutely no remedy for such violation of their
fundamental right. Hence, the Petitioner submits that a liberal approach should be adopted,
erring on the side of caution, in cases where the Court rejects a petition under Art. 32.

b) The rule of exhaustion of local remedies is not binding on this Hon'ble Court 4.
Admittedly, cases such as Paul Manickam, 6 Kanubhai,7 and PN Kumar8 require the
exhaustion of local remedies before approaching the Court under Art. 32. However, it is
submitted that this Hon'ble court must not be constrained by these decisions for the
following reasons: First, this self-imposed restraint is merely a rule of convenience and
discretion9 and does not oust the jurisdiction of this Court under Art. 32.10 Secondly, these
cases are per incuriam as they were rendered in ignorance of previous decisions by higher
benches of this Hon'ble Court that expressly rejected such a rule. Finally, Art. 32(4)
specifically provides that this right may not be suspended except by a constitutional
provision.11 A rule of self-imposed restraint by the judiciary that requires exhaustion of local
remedies constitutes an extra-constitutional partial suspension and is therefore,
unconstitutional.

c) This Hon'ble Court has a constitutional duty to entertain the instant petition 5. The
Constitutional obligation of this Hon'ble Court as the guarantor of fundamental rights has
been interpreted broadly12 and as one that exists independent of any other remedy that
may be available.13 This is particularly true in cases of grave public importance, such as
environmental litigation where relief may not be denied on mere technical grounds.
Consequently, it is submitted that a refusal to entertain the instant petition would be
inconsistent with the aforesaid obligation.14

https://www.lawctopus.com/wp-content/uploads/2014/09/SLCUNM-Petitioner.pdf
 2. Whether the president had power to promulgate the Regulation under Article 240 of the
Constitution of India.

1. Article 240 of the Constitution gives right to the President for making Regulations for the
Union Territories specified in the Schedule.

2. The Rights given under the Article 240(1) are for issue of Regulation for reason of peace,
progress and good government. Acts and Regulations are quite different and it can be
confusing as they often have similar titles and obviously deal with the same subject.
However, the finer aspects of difference between Act and Regulation. An Act sets out the
legal principles of the subject matter and is primary legislation that describes the
applicability, definitions, governing provisions, fines and the way it is to be implemented.

3. An Act is passed by both the Houses of the Parliament It will be approved by the President to
become a law and then it is termed as Act. Regulations are always secondary legislation and
commonly known as “subsidiary legislation” in the sense they don’t have an independent
existence of their own. Most of the laws are not complete code in themselves i.e. certain
provisions as to their application or procedure will be deliberately left out. That is where
Regulations come into picture and help to govern the law.

4. Hence Regulation is required to fine tune the operational aspects of the primary legislation
and are guidelines that dictate how the provisions of the Act are to be applied. Regulations
are made to make the parent Act work. However Regulations have to be within in the
authority of the primary legislation and by no means can go beyond the power conferred by
the Act, or extend the same.

5. In the English translation of the constitution, the conditions that have been prescribed for
issue of Regulation under Article 240 are Peace, Progress and Good Government. Peace and
Progress are commonly used words and the meaning of those terms is very well known in
public domain. The Regulation currently issued for amending the definition of Union
Territory under Article 240 does not mention any reason for which it has been issued,
thereby providing that the basic conditions prescribed under Article 240 does not gets
satisfied.

6. The meaning of the term ‘Good Government’ is not accessible in the constitution and even
the general meaning is not defined. Hence, with reference to the Constitution of India in
Hindi, the term Good Government is defined as ‘Sushashan’. The dictionary meaning of
 ‘Sushashan’, which means ‘Governance’. The word “Governance” came from the Latin verb
“gubernare” or more originally from the Greek word “kubernaein” which means “to steer.”

7. Based on the study of origin of words and the way in which its meanings has changed over a
period of time, governance refers to the manner of steering or governing or directing and
controlling a group of people or a state. Governance is generally attached to the concept of
democracy on how the government and the civil society arrive at a decision in meeting their
needs. Hence the intention of Governance in Article 240 has more to do with the Public
Administration and not with the amendment in tax laws.

8. Hence it can very well be concluded that the Regulation No. 3 of 1963 which was also
extended to the Income Tax Act 1961 is not required for Peace, Progress & Good
Government.

9. Moreover, under Article  246(4) states that Parliament has plenary authority to enact
legislation for Union territories on any subject. Parliament may, by statute, apply the
Income-tax Act of 1961 to a Union territory with such adjustments as it deems appropriate.
In exercising his duties under Art. 240, the President may issue rules that have the same
force and effect as an Act of Parliament applicable to that area. As a result, the President
may, by regulation established under Art. 240, extend the Income-tax Act of 1961 to that
territory with such changes as he deems necessary. Thus, under Art. 240, the President may
issue rules with regard to a Union territory occupying the same field on which Parliament
may pass legislation. Therefore, such a conflation of powers would result in a conflict
between the President and the Parliament.

10. When a legislature for the Union territory of Goa, Daman and Diu, or Pondicherry is
established, the President's ability to promulgate rules for the territory expires, with effect
from the date set for the first sitting of the legislature. However, until such a legislature is
established, the President has complete authority to set regulations for such areas.

11. The proviso does not limit the President's overall authority to issue rules for Union territory
while no legislative for that region is established. The proviso does not enact, as requested
by the petitioners, that the President's jurisdiction is limited to passing laws concerning the
topics included in the State List and the Concurrent List. As a result, the legislature
established under Art. 239A is authorised to adopt legislation exclusively with reference to
those topics. The President's ability to enact rules under Art. 240(1) is similarly limited by the
proviso to Art. 240(1).