MEMORANDUM ON BEHALF OF PETITIONER

IN THE HON’BLE SUPREME COURT OF INDUSTAN

WRIT PETITON NO………………/ 2013

IN THE MATTER OF

STATE OF VIHAR…………………………………….……………..PETITIONER

VERSUS
UNION OF INDUSTAN……………………………………………RESPONDENT

MEMORANDUM SUBMITTED ON BEHALF OF PETITIONER

Name:- Vijay bishnoi

Roll NO. 146 Sec. A

II SEMESTER

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 MEMORANDUM ON BEHALF OF PETITIONER

TABLE OF CONTENTS

INDEX OF AUTHORITIES.................................................................................................. 3
LIST OF ABBREVIATIONS................................................................................... 3
STATUTES............................................................................................................... 4
TABLE OF CASES................................................................................................... 4
BOOKS ..................................................................................................................... 4
DICTIONARIES........................................................................................................ 4
STATEMENT OF JURISDICTION....................................................................................... 5
STATEMENT OF FACTS .................................................................................................... 6
STATEMENT OF ISSUES .....................................................................................................7
SUMMARY OF ARGUMENTS............................................................................................. 8
ARGUMENTS ADVANCED ................................................................................................ 9
PRAYER………………………………………..……………………………………………15

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 MEMORANDUM ON BEHALF OF PETITIONER

INDEX OF AUTHORITIES

LIST of ABBREVIATIONS

AIR - All India Reporter

All - Allahabad

CLT - Cuttack Law Times

Del - Delhi

Ed. - Edition

eds. - editors

HC - High Court

Hon’ble - Honourable

Kant. - Karnataka

P&H - Punjab and Haryana

Rep. - Reprint

SC - Supreme Court

SCALE - Supreme Court Almanac

SCC - Supreme Court Cases

SCR - Supreme Court Reporter

Sec. - Section

Vol. - Volume

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 MEMORANDUM ON BEHALF OF PETITIONER

LIST OF STATUTES REFERRED

1. National Investigation Agency Act, 2008 

2. Armed Forces (Special Powers) Act,1958

CASES REFERRED

1. Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124(1138)

2. Manmohan v. State of Bihar, AIR 1961 SC 189

3. Dwarkadas v. Sholapur Co., (1954) SCR 674 (683)

4. K.C. Gajapati Narayana Deo v. State of Orissa, AIR 1953 SC 375: 1954 SCR
5. G.W. Saddlery v. The King,(1921) AC 91; Board of Trustees v. Investment Orders,
(1940) AC 514.
6. K. T. Moopil Nair v. State of Kerala, AIR 1961 SC 552: (1961) 3 SCR 77.
7. State of Bihar v. Kameswar, AIR 1952 SC 252 (292), DAS J.
8. State of M.P. v. Mandawan,(1955) 1 SCR 599 (606).
9. Naga People’s Movement for Human Rights v. Union of India, AIR 1998 SC 431,
451 : (1998) 2 SCC 109.
BOOKS REFERRED

1. M.P.JAIN, INDIAN CONSTITUTIONAL LAW, 6TH ED., LEXIS NEXIS

BUTTERWORTHS WADHAWA NAGPUR, (2010)
2. HM SEERVAI, „CONSTITUTIONAL LAW OF INDIA‟, VOLUME 3,4TH ED.,
UNIVERSAL LAW PUBLISHING COMPANY PVT. LTD.(1996)
DICTIONARIES

1. WORDS AND PHRASES. Volume 27A, at page 348

2. WEBSTER‟S NEW ENCYCLOPEDIC DICTIONARY, BLACK DOG AND
LEVENTHAL PUBLISHERS, (1993)

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 MEMORANDUM ON BEHALF OF PETITIONER

STATEMENT OF JURISDICTION

Appeal has been filed in Hon’ble court under Art. 131 of the Constitution of Industan which
reads as under: Subject to the provisions of this Constitution, the Supreme Court shall, to the
exclusion of any other court, have original jurisdiction in any dispute –

(a) Between the Government of India and one or more States; or

(b) Between the Government of India and any State or States on one side and one or more
other States on the other; or
(c) Between two or more States

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 MEMORANDUM ON BEHALF OF PETITIONER

STATEMENT OF FACTS

 Parliament of Industan passed the National Investigation Agency Act 2008

 Agency by suo moto conducted investigation in State of Vihar without informing the
State government.
 Agency arrested some individual accused of committing the scheduled offences under
the Bill.
 State of Vihar filed a suit before Supreme Court questioning the Constitutionality of
the Act.
 The issue of Public order and Police are the areas the State Government has exclusive
right over in State List.

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 MEMORANDUM ON BEHALF OF PETITIONER

ISSUES OF CONSIDERATION

1. Whether the National Investigation Agency Act, 2008 is ultra vires to the
Constitution of Industan?

SUMMARY OF ARGUMENTS

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 MEMORANDUM ON BEHALF OF PETITIONER

1. Whether the National Investigation Agency Act, 2008 is ultra vires to the
Constitution of Industan?

Yes, The National Investigation Agency Act, 2008 is ultra vires to the Constitution of
India according to the Doctrine of Colourable legislation. Hence, the Parliament is not
competent to make a law authorizing the Union Government to constitute a “Central”
Investigation Agency therefore Centre has no power to make law on such matters.

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 MEMORANDUM ON BEHALF OF PETITIONER

ARGUMENTS ADVANCED

ISSUE No. 1

 Whether the National Investigation Agency Act, 2008 is ultra vires to the
Constitution of Industan?

It is humbly contended before the Hon’ble court that in 7 th Schedule, List II (State list)
Entry 1, public order in aid of the civil power and Entry 2, police have been exclusively
given the power to make laws to the state.

Article 246(3) provides that;

Subject to clauses (1)and (2), the legislature of any State has exclusive power to make
laws for such state or any part thereof with respect to any of the matters enumerated in list
II in the 7th Schedule (in this Constitution referred to as the ‘State List’)

Therefore, Centre has no power to make law on such matters. Centre is transgressing the
limits imposed on it by the constitution by passing the National Investigation Agency Act
2008 as its subject matters is Police.

The Rules made under the statute may, however, be looked into when the vires of the
statute is challenged,- (i) to determine ‘pith and substance’; or (ii) to determine whether it
is a ‘Colourable legislation’ or Constitute a fraud on the power of the State legislature1

When controversy is as to the scope of two competing legislative Entries, the ‘Pith and
Substance’ of the impugned enactment is to be ascertained in order to determine whether
it would fall under either of the two Entries. From this stand point, it is the subject matter
of the enactment which is of primary importance not the nominal, but the real subject
matter: if it is found that the legislation is in substance of first matter assigned to
legislation then it is valid though it might incidentally encroach on matters which are
beyond its competence2. To ascertain the true character of the legislation in question, one
must have regard to it as a whole, to its objects and to the scope and effect of its
provisions. It must be looked into organic whole. It would be a wrong approach to view it
as set of Sections, to disintegrate it into part then to examine under which entry each part
would fall and then to determine which part of is valid and which invalid.

The validity of the legislation is not determined by the degree of invasion into the field
assign to the other legislature though it is a relevant factor to determine its ‘Pith and
Substance’, as the legislation in question may advance so far into other sphere as to show

1
Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124(1138)
2
Manmohan v. State of Bihar, AIR 1961 SC 189

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 MEMORANDUM ON BEHALF OF PETITIONER

that it’s to nature in character is not concerned with the matter falling within the domain
of the enacting legislature, in which case it will not be valid.

As it is quite obvious by taking the Act as whole its objective is to strengthen the police to
stop terrorist attacks, bomb blasts and other serious offences in country for enhancing
security which is specially covered under the State List. The Pith i.e. the matter of
consideration has been conferred the exclusive right to legislate on the state not the
centre. So, the Parliament has no competency to make such an enactment. As regarding
police the state has full power and authority but NIA Act deprives State Police to proceed,
investigate, search, seize in cases. Also without the information to the State Government,
this investigation team can arrest anybody, raid, siege, confiscate and detent. Thus this
law is shaking the cornerstone of federalism i.e. the separation of power between State
and Centre.

Mahajan J. in Dwarkadas v. Sholapur Co.3Doctrine of Colourable legislation says that it

is not permissible to do indirectly what is prohibited directly. A legislature lacking
legislative power or subject to a Constitutional prohibition may frame its legislation so as
to make it appear to be within its legislative power or to be free from the Constitutional
prohibition. Such a law is “Colourable” legislation, meaning thereby that while
pretending to be a law in the exercise of undoubted power; it is in fact a law as a
prohibition field. The idea conveyed by the expression “Colourable legislation” was that
although apparently the legislative in passing a statute purported to act within the limits of
its power, yet in substance and in reality, it transgressed those powers , the transgression
being veiled by what appears as a proper examination to be a mere pretence or disguise. It
means a legislation which is in appearance only and not in reality what its purpose to be.

As explained in Gajapati’s case4, the principle is the same in either case:

“if the Constitution of a State distribute the legislative power amongst different bodies
which have to act within their respective spheres marked out by specific legislative
entries, or if there are limitation on the legislative authority in the shape of fundamental
rights, questions do arise as to whether the legislative in a particular case has or has not,
in respect to the subject-matter of the statute or in method of enacting it, transgressed the
limits of its Constitutional powers. Such transgression may be patent, manifest or direct,
but it may also be disguised, covert and indirect and it is to this latter class or cases that
the expression “Colourable legislation” has been applied in certain judicial
pronouncements. The idea conveyed by the expression is that although apparently a
legislature in passing a statute purported to act within the limits of its powers. Yet in
substance and in reality it transgressed these powers, the transgression beings veiled by
what appears, on proper examination, to be a mere pretence or disguise”5

3
Dwarkadas v. Sholapur Co., (1954) SCR 674 (683)
4
K.C. Gajapati Narayana Deo v. State of Orissa, AIR 1953 SC 375: 1954 SCR
5
G.W. Saddlery v. The King,(1921) AC 91; Board of Trustees v. Investment Orders, (1940) AC 514.

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 MEMORANDUM ON BEHALF OF PETITIONER

In present situation, the centre purports to be making law under the limits prescribed by
the Constitution but it has in substance in reality has transgressed the boundary of its
power as the matter of State List cannot be encroached unless emergency no matter
whatever the legislative motive or purpose of the enactment is. This disguised
encroachment shows that the Parliament cannot enact this law directly because doing this
it has to go for Amendment under Art. 368 (2) of the Constitution which is very lengthy
and difficult process, instead it has indirectly made law over Public order and Police. In a
federal country like India the union cannot take away the rights and powers of State in
such way.
In one case the Supreme Court held that “a tax imposed on land measured with reference
to or on the basis of its yield, is certainly a tax on the land. Apart from income yield or
produce there can perhaps be no other basis for levy… There cannot be uniform levy
unrelated to the quality, character on income / yield of the land. Any such levy has been
held to be arbitrary and discriminatory.” In that case, a person who was getting only an
income of Rs. 3,100/- was liable to pay a tax of Rs. 54,000/- under the operative portion
of the statute. It was therefore held that the provisions of the Act were confiscatory in
character and reached the conclusion to confiscate the property of the citizen taxed.6
In the words of DAS J., in State of Bihar v. Kameswar7 -
“The failure to comply with the Constitutional condition for the exercise of legislative
power may be overt or it may be covert.(a) when it is overt, we say the law is obviously
bad for non – compliance with the requirements of the constitution, that is to say, the law
is ‘ultra-vires’. (b) When, however, the non- compliance is covert, we say that it is a
fraud on the constitution, the fraud complained of being that the legislature pretends to act
within its power while in fact it is not so doing”.8
An application of this doctrine was made by our Supreme Court in testing the validity of
the Zemindary Abolition and Kindred legislation providing for the acquisition of estates.
At the time of these pronouncements, the obligation to lay down the “principles on which
compensation was to be given” was a condition of the legislative power under Entry 42 of
List III, relating to ‘acquisition and requisition’. It was held by the Court that any
legislation which provided for confiscation or the payment of something which amounted
to no compensation was a fraud on the above legislative power and was bound to be
struck down as a Colourable legislation.9
In this case, the Government of India prescribed certain rates of dearness allowance for its
employees. The Government of C.P. & Berar adopted the Central rates for its employees
drawing pay over Rs. 400/- but adopted a lower rate for employees drawing less than Rs.
400/-; as a result of which there was an unequal treatment as between the provincial
Government servants and the Central Government servants, serving in the same state. It
was alleged that the State Government’s resolution fixing the dearness allowance, as
above should be struck down as discriminatory. The Supreme Court rejected this
contention on the ground that the Central and Provincial Governments were distinct

6
K. T. Moopil Nair v. State of Kerala, AIR 1961 SC 552: (1961) 3 SCR 77.
7
State of Bihar v. Kameswar, AIR 1952 SC 252 (292), DAS J.
8
Ibid.
9
See Supra note 7.P. 12

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 MEMORANDUM ON BEHALF OF PETITIONER

entities under the constitution and that. Accordingly, the scale sanctioned by the Central
Government could not furnish ground for holding that the scale adopted by the provincial
Government could not furnish ground for holding that the scale adopted by the Provincial
Government was repugnant to Art. 14, even though the employees of the two
Governments were doing similar work at the same place.10
In a recent case,11 the Supreme Court rejecting the argument that the Armed Forces
(Special Powers) Act, 1958, enacted by Parliament is Colourable legislation and a fraud
on the Constitution has observed in this connection:
“the use of the expression ‘Colourable legislation ’seeks to convey that by enacting the
legislation in question the legislature is seeking to do indirectly what it cannot do directly.
But ultimately the issue boils down to the question whether the legislature had the
competence to enact the legislation because if the impugned legislation falls within the
competence of the legislature the question of doing something indirectly which cannot be
done directly does not arise.”
Therefore, the Parliament has been no competence to encroach upon the rights of the
State the Bill in question is unconstitutional and should struck down.

10
State of M.P. v. Mandawan,(1955) 1 SCR 599 (606).
11
Naga People’s Movement for Human Rights v. Union of India, AIR 1998 SC 431, 451 : (1998) 2 SCC 109.

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PRAYER

In the lights of facts stated, issues raised, arguments advanced, statues referred and cases
cited, it is prayed on behalf of the appellants, that this Hon’ble Court may be pleased to
adjudicate and declare that:

 The National Investigation Agency Act 2008 is ultra virus of the constitution as it violates
the mandate of Art. 246.
 Section 6(4),6(5),& 6(6) of the Act violates the principle of federalism.

The Court may also be pleased to pass any other order, which the court may deem fit in light
of justice equity and good conscience.

All of which is humbly submitted.

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(On behalf of Petitioner)

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