BEFORE

THE HONOURABLE SUPREME COURT OF

INDUS
WRIT JURISDICTION
WRIT PETITION FILED UNDER ARTICLE 32 OF
INDIAN CONSTITUTION

W.P.N.O------------------OF 2023
IN THE MATTER BETWEEN

MRS. VEENA---------------------- PETITIONER

VS

UNION OF INDUS ---------------------RESPONDENT

SUBMISSION ON BEHALF OF THE

RESPONDENT
 TABLE OF CONTENTS

LIST OF ABBREVIATIONS……………………………………………..3

TABLE OF CASES……….………………………………………………4

STATEMENT OF JURISDICTION……………………………………....5

STATEMENT OF FACTS………………………………………………...6

ISSUES RAISED…………………………………………………………..7

SUMMARY OF ARGUMENTS PLEADINGS…………………………...8

PRAYER…………………………………………………………………….23
 LIST OF ABBREVIATIONS

Hon‘ble Honourable
AIR All India Reporter
ILR Indian Law Rules
SC Supreme Court
Ors Others
SCC Supreme Court Cases
UOI Union Of India
WP Writ Petition
 LIST OF CASES

1. Shah Bano Begum vs. Union of India

2. A.K Roy vs. Union of India
3. Krishna Kumar Singh vs. State of Bihar
4. T.Venkata Reddy vs. State of Andra Pradesh
5. D.C. Wadhwa v. Union of India
6. Keshavanadha Bharathi Vs Union of India
7. Minervamills vs. Union of India
 STATEMENT OF JURISDICTION

THE HONOURABLE SUPREME COURT IS EMPOWERED TO

HEAR THIS WRIT PETITION UNDER ARTICLE 32 OF THE
CONSTITUITION OF INDIA. THE PETITIONER MOST
HUMBLY AND RESPECTFULLY APPROACH THIS COURT
UNDER THE SAME JURISDICTION.
 STATEMENT OF FACTS

Indus is a secular country with cultural, religious and linguistic diversities.

Different communities like Hindus, Muslims and Christians freely live and
practice their respective religions. There is no intervention of the State in the
religious matters. The Constitution of Indus provides for the right to Freedom of
Religion as a Fundamental Right. Indus, being a secular country, every religion
has a personal law governing the matters like Marriage, Divorce, and
Succession etc.

In a landmark judgement1 in August 2017 the Supreme Court had set aside
Talaq-e-bidaat or Triple Talaq, a type of unilateral, instantaneous and
irrevocable divorce by Muslim husband as unconstitutional. To give effect to
that judgment, the Cabinet Committee chaired by the Prime Minister has
decided to introduce the Bill ―The Muslim Women (Protection of Rights on
Divorce) Bill, 2018‖ in the House of People.

The draft Bill in its statement of objects and reason states ―In spite of Supreme
Court setting aside Talaq—e- biddat, and the assurance of All Indus Muslim
Personal Law Board, there have been reports of divorce by way of Talaq-e-
biddat, hence there is a need for the State action to give legal effect to the order
of the Supreme Court and to redress the grievances of victims of illegal
divorce‖. It was further stated that urgent suitable legislation was necessary to
give some relief to the hapless married Muslim women who suffer from
harassment due to Talaqe-biddat and this is essential to prevent this form of
divorce, wherein the wife does not have any say in severing the marital
relationship.
Minister of Law and Justice claims that this Legislation would help in ensuring
the larger constitutional goals of gender justice and gender equality of married
Muslim women and help sub serve their fundamental rights of non-
discrimination and help empowerment of women.

However, due to paucity of time, Parliament could not take up the Bill for
consideration in the Monsoon Session (18th July 2018 -10th August 2018) of
Parliament. Therefore, President has promulgated an Ordinance on 12
September, 2019. The Ordinance makes all declarations of talaq, including in
written or electronic form, to be void (i.e. not enforceable in law) and illegal. It
defines talaq as talaq-e-biddat or any other similar form of talaq pronounced by
a Muslim man resulting in instant and irrevocable divorce. The Ordinance also
declares the pronouncement of such Talaq an offence, punishable with
imprisonment which may extend up to 3 years. Talaq-e-biddat refers to the
practice under Muslim personal laws where pronouncement of the word ‗talaq‘
thrice in one sitting by a Muslim man to his wife results in an instant and
irrevocable divorce. Even such triple Talaq by Phone or What‘s App were
earlier held to be valid.

When Parliament reassembled for the Winter Session (11th December 2018-8th
January 2019), the Bill was introduced in Lower House of Parliament on 27 th
December 2018. It was passed in the said house by overwhelming majority.
However, same was not introduced in the Council of States in the winter
session. Again, President re-promulgated the Ordinance on 12th January 2019.

During Budget Session (31st January- 13th February 2019), Government failed
to introduce the Bill passed by House of the People in the Council of States,
because majority of members of the Council of States issued public statements
opposing the Bill. On 2nd April 2019, President has re-promulgated an
Ordinance.
Mrs Veena, a renowned advocate and a former Central Minister has challenged
the Government action of Ordinance by filing a writ petition before the
Supreme Court of Indus on the ground that such re-promulgation would amount
to a fraud on the Constitution as opined by the Supreme Court in its earlier
decision.

ISSUES RAISED
1. Whether it is necessary for the President to take immediate action by
promulgating this Ordinance?

2. Whether the President can promulgate an Ordinance on any matter,

when Parliament was not willing to approve the same in the form of a
Law?

3. Whether the Ordinance can be subjected to Judicial Review, on the

ground that the manner in which the Ordinance was promulgated is
violative of the Parliamentary Democracy?(Basic structure)
 SUMMARY OF ARGUMENTS
1. Whether it is necessary for the President to take immediate action by Re-
promulgating this Ordinance?

Yes, it is necessary for the president to take immediate action by re-

promulgating the ordinance, because even after the judgement of Shah Bano
Begum vs Union of India1 which declares Triple Talaq as unconstitutional and
illegal, the practice of triple talaq still exist in India. And it may not be possible
for everyone to approach the court and seek remedy.

2. Whether the President can Re-promulgate an Ordinance on any matter,

when Parliament was not willing to approve the same in the form of a
Law?

Yes, the president can promulgate an ordinance on any matters when the
parliament is not willing to approve the same in the form of a law. Because the
ordinance was promulgated for the welfare of the state and to protect the
interest of the minorities and president has the power to re-promulgate the
ordinance under D C Wadwa vs Union of India2.

3. Whether the Re- promulgation of Ordinance can be subjected to Judicial

Review, on the ground that the manner in which the Ordinance was
promulgated is violative of the Parliamentary Democracy?

No, there is no violation of parliamentary democracy.The president has the

power to promulgate and re-promulgate the ordinance in emergency situations.
This ordinance has been promulgated for the welfare of the people and to
prevent the violation of fundamental right and to uphold the fundamental right.

1
1985 SCC(2)556
2
1987 AIR 579
 ARGUMENTS IN ADVANCED

1. Whether it is necessary for the President to take immediate action by Re-

promulgating this Ordinance?

The power of the President to promulgate ordinances, including re-

promulgation, is meant to be used in extraordinary situations when immediate
action is required, and waiting for the next session of Parliament would cause
undue delay and harm. The intent of the constitutional provision is not to bypass
the regular legislative process but to address urgent situations. The legitimacy of
re-promulgation would depend on the specific circumstances and whether they
meet the constitutional requirements. The President of India does have the
authority to re-promulgate an ordinance on any matter, even if the Parliament
was not willing to approve the same in the form of law. In D C Wadwa vs.
Union of India3 the court held that repeated re- promulgation of ordinance
would constitute fraud on the constitution and specifically mentioned that the
president can re-promulgate the ordinance in emergency situations.

In the present case the President had re-promulgated the ordinance to protect the
rights of Muslim Women. Even after the judgement of Shah Bano Begum vs.
Union of India4 which declares Triple Talaq as unconstitutional and illegal, the
practice of triple Talaq still exist in India and there was clear violation of
fundamental rights. The Constitutional validity of the sinful practice of Triple
Talaq was challenged on the grounds of violation of Article 14, 15 and 21.

ARTICLE 14 states that ―The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India‖.

3
1987 AIR 579
4
1985 SCC(2)556
Article 15(1) states that ―The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them‖.

ARTICLE 21 states that ―No person shall be deprived of his life or personal
liberty except according to procedure established by law.‖

So there is a clear violation of basic fundamental rights enumerated in the

Constitution of India which is a serious issue faced by the country. It is the duty
of the legislature or parliament to take immediate action on this issue.
So in order to solve this issue Prime Minister has decided to introduce the Bill
―The Muslim Women (Protection of Rights on Divorce) Bill, 2018‖ in the
House of People. However, due to paucity of time, Parliament could not take up
the Bill for consideration in the Monsoon Session (18th July 2018 -10th August
2018) of Parliament. Therefore, President has promulgated an Ordinance on 12
September, 2018. The Ordinance makes all declarations of Talaq, including in
written or electronic form, to be void (i.e. not enforceable in law) and illegal.
When Parliament reassembled for the Winter Session (11th December 2018-8th
January 2019), the Bill was introduced in Lower House of Parliament on 27 th
December 2018. It was passed in the said house by overwhelming majority.
However, same was not introduced in the Council of States in the winter
session. Again, President re-promulgated the Ordinance on 12th January 2019.

During Budget Session (31st January- 13th February 2019), Government failed
to introduce the Bill passed by House of the People in the Council of States,
because majority of members of the Council of States issued public statements
opposing the Bill. On 2nd April 2019, President has re-promulgated an
Ordinance. This ordinance has been re-promulgated second time due to the
emergency situation prevailing in the country.it is the duty of the legislature to
enact laws or to make Acts to prevent the violation of fundamental rights
against the women. Fundamental rights are the basic human rights enshrined in
the constitution of India which guaranteed to all citizen of India and it is back
born of our country. So it is necessary to up hold the fundamental rights
available to the citizen.

The petitioner had filed writ on the ground that the re-promulgation amounts to
fraud on the constitution but according to the fact of this case the parliament had
failed to enact a law which protect the fundamental right of women and there
was no necessary time to call for a joint session of Rajyasabha and Loksabha
under Article 108 to have a discussion on the bill. In order to have a joint
session the president have to issue a notification and summon the houses to
meet joint sitting and it may take a reasonable time to go through all this
procedure.so the re-promulgation was necessary to protect the rights of the
citizens of the country and it is the duty of the government to protect the rights
of citizen.so it will not amount to fraud on the constitution.The repromulgation
of ordinance was made for the welfare of the public state,not to commit fraud
which is evident from the facts of the case.The repromulgation ordinance was
made to protect the fundamental rights of women which may get violated by the
practice of Triple Talaq. Fundamental rights act as the foundation that upholds
the democratic system and secularism in India. They establish the essential
conditions for an individual‘s material and moral protection ensuring social
justice and equality. They also PTOTECT the rights of minorities and other
weaker sections of society. Fundamental rights also ensure individual liberty.
These rights establish the rule of law thereby keeping a check on the
absoluteness of the government‘s authority. Constitution was enacted to protect
the rights of citizen.

And there are many other ordinances which has been re-promulgated in the past
years considering the welfare of the citizens some of them are:

2013-2014: the securities laws ordinance was re-promulgated for 3 years

2014-2015: The land acquisition act which was issued in the year 2014 was re-
promulgated twice in the year 2015

2016-2019: the Indian medical council ordinance was issued in 2018 and was
re-promulgated in 2019

2020-2021: the Commission for Air Quality Management in the National

Capital Region and Adjoining Areas Ordinance has recently in this year been
re-promulgated.

And there are several judgements pronounced by the supreme court which
favours the re-promulgation of ordinances in emergency situations.

The Supreme Court of India, in the case of Krishna Kumar Singh v. State of
Bihar (2017)5, held that the re-promulgation of ordinances without getting them
placed before the legislature is unconstitutional and an abuse of power. The
court stated that re-promulgation of ordinances should be an exception and not a
rule, and that the same subject matter should not be repeatedly re-promulgated
without being approved by the Parliament and also stated that re-promulgation
of ordinance is ―conditional upon satisfaction that circumstances exist rendering
it necessary to take immediate action‖.

In A.K. Roy v. Union of India (1982)6: This case challenged the National
Security Ordinance, 1980, which provided for preventive detention of persons
for up to one year without trial.

The Supreme Court upheld the validity of the ordinance but laid down some
safeguards for its operation, such as periodic review by an advisory board,
communication of grounds of detention to the and opportunity for
representation against detention.

5
WRIT PETITION (C) NO. 580 OF 1995
6
AIR 1982 SC 710
The Court also observed that an ordinance should not be used as a substitute for
parliamentary legislation and should be resorted to only in cases of extreme
urgency or unforeseen emergency. In accordance with all the judgements
mentioned above the Honourable Supreme Court had stated that the president
can re-promulgate an ordinance in emergency situations but it should not be
done to commit fraud on the constitutions there is no absolute bar on the
repromulgation but the restriction was made only for re-promulgations inorder
to commit fraud. It is necessary to re-promulgate the ordinance as the bill has
been rejected by the council of stated and the president has to call for a joint
session to arrive at a conclusion on this issue. It is not possible to have a pause
on this issue because there is an emergency situation prevailing in the country
and the repromulgation was not to commit fraud on the constitution. Earlier,
various legislations had been brought in the country to abolish social evils such
as Sati Pratha and Child Marriage. Triple Talaq law has nothing to do with
religion, the law has been made purely to ensure gender equality by ending a
social evil, inhuman, cruel and unconstitutional practice. Instant divorce by
verbally saying Talaq thrice is illegal. There were several incidents coming
where women had been given Talaq through letter, phone or even through
message and whatsapp. Such incidents are unacceptable to a sensitive country
and to a government committed to inclusive development.

Several Muslim-majority nations of the world had declared Triple Talaq as

illegal and un-Islamic much earlier. Egypt was the first Muslim nation which
abolished this social evil in 1929. Sudan in 1929, Pakistan in 1956, Bangladesh
in 1972, Iraq in 1959, Syria in 1953, Malaysia in 1969 had abolished the
practice of Triple Talaq. Besides, countries such as Cyprus, Jordan, Algeria,
Iran, Brunei, Morocco, Qatar, and UAE also ended this social evil many years
ago. But it took 70 years for India to get rid of this inhuman and cruel practice.
2. Whether the President can Re-promulgate an Ordinance on any matter,
when Parliament was not willing to approve the same in the form of a
Law?
Yes, in some countries, including India, the president (or equivalent authority)
can re-promulgate an ordinance on the same matter if the Parliament is not
willing to approve it as a law the president or equivalent authority can re-
promulgate an ordinance on the same matter if they believe it is necessary, even
when the Parliament is not willing to approve the same as a law. This is usually
done to address urgent situations or to ensure the continuity of certain
provisions.
The president has the power to promulgate the ordinance under Article 123
Article 123 states that 123. Power of President to promulgate Ordinances during
recess of Parliament (1) If at any time, except when both Houses of Parliament
are in session, the President is satisfied that circumstances exist which render it
necessary for him to take immediate action, he may promulgate such Ordinance
as the circumstances appear to him to require
(2) An Ordinance promulgated under this article shall have the same force and
effect as an Act of Parliament, but every such Ordinance
(a) shall be laid before both House of Parliament and shall cease to operate at
the expiration of six weeks from the reassemble of Parliament, or, if before the
expiration of that period resolutions disapproving it are passed by both Houses,
upon the passing of the second of those resolutions; and
(b) may be withdrawn at any time by the President Explanation Where the
Houses of Parliament are summoned to reassemble on different dates, the period
of six weeks shall be reckoned from the later of those dates for the purposes of
this clause
(3) If and so far as an Ordinance under this article makes any provision which
Parliament would not under this Constitution be competent to enact, it shall be
void CHAPTER IV THE UNION JUDICIARY. And it is no where mentioned
in the constitution about the repromulgation of ordinance.
The President had reissued the ordinance in this occurrence to safeguard the
rights of Muslim women. The practice of triple talaq continues in India despite
the Shah Bano Begum v. Union7 of India ruling declaring it to be
unconstitutional and unlawful, and there was a clear breach of fundamental
rights. On the basis of Articles 14, 15, and 21, the wrongful practice of Triple
Talaq's constitutional legality may be contested.
Fundamental rights act as the foundation that upholds the democratic system
and secularism in India. Fundamental rights also ensure individual liberty. They
are essential for a person to attain his full intellectual, moral and
spiritual character. In the case of ‗D.C. Wadhwa v. Union of India8, (1986)‘ is a
landmark case on the powers of Governor, especially his power of Ordinance, in
other words, the prerogative of State government to issue ordinance. The case
arise when four writ petition were filed under Article 32 of Indian Constitution,
before the supreme court to consider a question of great constitutional
importance relating to the power of the Governor under Article 213 of the
Constitution to re-promulgate ordinances from time to time without getting
them replaced by Acts of the Legislature.
ARTICLE 14 states that ―The State shall not deny to any person equality before
the law or the equal protection of the laws within the territory of India‖.
Article 15(1) states that ―The State shall not discriminate against any citizen on
grounds only of religion, race, caste, sex, place of birth or any of them‖.
Article 15(3) states nothing in this article shall prevent the State from making
any special provision for women and children
ARTICLE 21 states that ―No person shall be deprived of his life or personal
liberty except according to procedure established by law.‖

7
1985 SCC (2) 556
8
1987 AIR 579
Therefore, there is clear violation of the fundamental rights listed in the Indian
Constitution, which is a severe problem for the nation. The legislature or
parliament must act quickly to address this problem. The Muslim Women
(Protection of Rights on Divorce) Bill, 2018, has therefore been introduced in
the House of People by the Prime Minister. However, due to a lack of time,
Parliament was unable to discuss the Bill during the Monsoon Session (18 July
2018 – 10 August 2018). Therefore, on September 12, 2018, the President
promulgated an Ordinance. The Ordinance declares all talaq declarations to be
invalid and unlawful, regardless of whether they are made orally or in writing
once Parliament.
Because the majority of Council of States members publicly opposed the bill
during the budget session (31 January–13 February 2019), the government was
unable to propose the House of the People bill. The President re-promulgated an
Ordinance on April 2, 2019.Due to the country's emergency circumstances, this
ordinance has been reissued a second time. It is the responsibility of the
legislature to pass laws or create Acts to stop the abuse of women's fundamental
rights. Fundamental rights are the fundamental human rights guaranteed to all
Indian citizens by the constitution and are a founding principle of our nation.
Therefore, it is essential to protect the fundamental rights that are
The petitioner filed a writ claiming that the re-promulgation violates the
constitution, but the facts of the case show that the parliament failed to pass a
law protecting women's fundamental rights, and there was not enough time to
call a joint session of the rajya sabha and lok sabha as required by Article 108 to
discuss the bill. The president must send out a notice and call a joint meeting of
the houses in order to hold a joint session, and it may take some time to
complete all of these steps. Therefore, the purpose of the revision was to
preserve the rights of the nation's residents, and it is the government's
responsibility
According to Article 29 of the Indian Constitution
Protection of interests of minorities. - (1) Any section of the citizens residing in
the territory of India or any part thereof having a distinct language, script or
culture of its own shall have the right to conserve the same. So it is the duty of
the state to enact laws to protect the minorities.
In the case of T Venkata Reddy vs. State of Andhra Pradesh (1985)9, the Court
held that the motives behind the exercise of this power cannot be questioned,
just as is the case with legislation by the Parliament and state legislatures.

3. Whether the Ordinance can be subjected to Judicial Review, on the

ground that the manner in which the Ordinance was promulgated is
violative of the Parliamentary Democracy? (Basic structure)

1. India after independence opted for a parliamentary system. While drafting the
Indian constitution the drafting committee had separated and specified the
function of the different organs of the government namely executive, legislative
and judiciary this leads to separation of power. The doctrine of separation of
power ensures that the functions, duties and powers of all three branches are
distinctly established. It also acts as a form of checks and balances to ensure
that the powers are not misused/exploited by any one of the organs. The law
making process lies with the legislature, considering the country's vast and
diverse population there is a need for deliberation, discussion and a debate on
very issue of mass concern however there is an exception to this, the
constitution under article 123 and 213 allows the executive to step in and pass a
law in case of an emergency when the parliament isn't in a session. Ordinances
have the same effect of law passed by the legislature; this ordnance making
power is one of the most important powers of the executive. Even though
ordinances were originally considered to be an emergency provision, over the
9
1985 AIR 724
past few years the number of ordinances passed had been increased. Along with
an increase in the ordinances passed there has also been a gradual increase of
ordinances being repromulgated.

2. The constitution under article 123 and 213 gives the president as well as the
governor the authority to pass laws in case of emergencies/cases requiring
immediate effect while the parliament isn't in session, these laws passed are
known as ordinances or in other words ordinances are the laws which are
promulgated by the executive authority when the houses are not in sessions.
These ordinances passed by the executive will have the same effect of as the
laws passed by the legislature. The ordinances are bound to lapse after period of
6 weeks from the reassembly of the parliament. Article 123 of the constitution
provides the president of the nation to pass ordinances while article 213 of the
constitution provides the governor of the state the authority to pass laws in case
of emergencies.

3. Re-promulgation of Ordinances: Violation to the Spirit of Constitution?

The ordinance route is bad, Re-promulgation worse Re-promulgation of the
ordinances has always consistently been a major topic for discussion and debate
and during the recent times it has become an extremely important topic
considering the fact that over the past few years the number of ordinances being
repromulgated has been drastically increased.Re-promulgation of ordinances
can be determined by the following 3 steps:

Title of the both the Ordinances

By analyzing the contents of both the Ordinances: to see if the context and the
contents are similar
• Tracing the legislative entries of the original and latter version of the
Ordinance, if they belong to the same legislative entry, then it's a re-
promulgation.
• Recently the central government had decided to repromulgate an
ordinance which establishes the commission for air quality management in the
National Capital Region, or the Commission for Air Quality Management in
National Capital Region and Adjoining Areas Ordinance, 2020[2]

• This recent decision has once again led to the several questions being
raised on the practice of issuing ordinances and the repromulgating them.

A quick glance to the timeline of ordinances issued since independence helps in

clearly determining that this power of issuing ordinances has been used quite
frequently instead of it being used as an emergency provision or as a last resort.

Timeline of ordinances issued and repromulgated:

1950s:
In the early 1950s ordinances passed especially the central ordinances were
issued at an average of almost 7.1 ordinances per year.
1970s:
1980s:
In late 1960s and beginning 1970s saw a gradual increase in the number of
ordinances being issued. For example in Bihar 256 ordinances were passed
1990s:
1990s saw a massive increase in the number of ordinances being issued; the
average of the ordinances had increased to almost 19.6 per year.
2010s :
It was in the 2010s that the issue of the ordinances saw a gradual decline, the
number of ordinances dropped to an average of 7.9
2019-20:
The nation has experienced a spike in the issuing of ordinances, the ordinance
increased to 16
2020-21:
The ordinances issued in 2020 become 15 and in 2021 till now 4 ordinances has
been issued

4. With the increase in the ordinances being issued every year the number of
ordinances being repromulgated has also increased tremendously. Especially in
the last 8 years it can be said that India is experiencing an ordinance Raj which
has subsequently led to the sudden wave of Re-promulgation of ordinances
which can be seen as mentioned below:

Re-promulgation of an ordinance by the Centre in the recent years

2013-2014: the securities laws ordinance was repromulgated for 3 years
2014-2015: The land acquisition act which was issued in the year 2014 was
repromulgated twice in the year 2015
2016-2019: the Indian medical council ordinance was issued in 2018 and was
repromulgated in 2019
2020-2021: the Commission for Air Quality Management in the National
Capital Region and Adjoining Areas Ordinance has recently in this year been
repromulgated

5. The first step toward constitutional law wisdom is realising that the
Constitution founded a self-governing republic. The Constitution is a natural
law. As said by Edmund Burke (the Father of Conservatism), ―A Constitution is
an ever developing thing and is continuously on-going as it embodies the spirit
of the nation. The impact of the past enriches it now and makes the future richer
than the present.‖Article 368 falls under Part XX of the Constitution. It provides
for three kinds of amendments, i.e., amendment by simple majority; amendment
by a special majority; and amendment by special majority along with
ratification by the States. The Constitution must be amended on a regular basis
based on the dynamic nature of society. A stagnant constitution puts a
significant barrier in the way of the country‘s advancement. A provision for
amending the Constitution has been made in order to address any challenges
―We the People‖ may face in the future as the Constitution functions, since time
is not static; it is always changing, just as the political, economic, and social
circumstances of the people do.

6. If there were no provision for the Constitution‘s revision, citizens would have
turned to extra-constitutional means, such as war, to alter it. Our Constitution‘s
authors were so concerned with preserving India‘s integrity that they provided
us with a system through which, if a citizen had a claim against the government
(whether it be Central or State), even if it were only for 100 rupees, they would
issue a decree against the government; this decree would then be charged to the
Consolidated Fund of India and would be due and payable without any right of
appeal on the part of any State Legislature or Parliament. The judiciary, as well
as Parliament, has not provided an exhaustive or exclusive definition of the
fundamental structure. The doctrine of basic structure has been defined by the
judiciary using a case-by-case approach.

7. The Constitution‘s framers had a feeling of India‘s integrity and honour

before 73 years, but today Parliament is doing everything it can to avoid falling
under the jurisdiction of the court, which serves as the Constitution‘s custodian.
This concept, as it was defined in Kesavananda Bharati v. State of Kerala10 and
Another (1973), aims to address a legal issue that occurs in written constitutions
as a result of the interaction between the sections that protect fundamental rights
and those that give Parliament the authority to change the Constitution.

8. In Minerva Mills‘ judgement (1980)11, the judiciary had very loosely defined
the basic framework by stating that Parliament has the authority to amend the
Constitution, which was made with the utmost care by the founding fathers,
whenever societal needs call for it. But it is to be remembered that the
Constitution is a cultural heritage and its integrity and identity should not fall
under the purview of questions.

9. The basic structure of the Indian Constitution is federal, and it is

distinguished by the traditional features of a federal system, including the
supremacy of the Constitution, the division of powers between the Union and
State governments, the existence of an independent judiciary, and a strict
process for amending the Constitution. It creates a dual polity where the Union
and the States have distinct spheres of authority that they can exert in the
domains that are entrusted to them. There is an independent judicial system that
can be used in the areas that have been delegated to it to decide disputes
between the Union and the States. Only by using a distinctive parliamentary
procedure and having a majority of the States ratify it, an amendment is made in
the respective spheres of the Union and the States.

10. Kesavananda Bharati case

On April 24, 1973, the landmark decision in the ―Essential Features Case‖ was
handed down. In the official law reports, the verdict filled more than 700

10
AIR 1973 SC 1461
11
1980 AIR 1789
densely printed pages. Despite its length, Kesavananda is not regarded as a case
that specifically addresses the issues raised by the parties; rather, it takes on the
duty of extensively describing the constitutional jurisprudence surrounding
amendments in the Indian legal system. The thirteen-judge Constitutional Bench
responded with eleven judgements, only two of which were written jointly by
Shelat J. and Mukerjea J. (first) and Hegde J. and Grover J. (second).

What is interesting to know about this case is that out of the 13 judges, 6 ruled
in favour of the petitioners while the other 6 ruled against them, leaving the
13th judge, Justice Khanna, with a neutral position. He decided on a mid-away
between the two conflicting opinions of the rest of the judges. The most
interesting part is that the opinion of Justice Khanna, to which none of the other
12 judges fully agreed, has actually become the law of the land. He held that the
power of amending is limited and that Parliament is not enabled to alter the
basic structure of the Constitution. The substantive portion of Article 31-C,
which repealed the fundamental rights, was constitutional since it did not
change the Constitution‘s fundamental framework, which is its basic structure.
Whereas, the remaining part of the article which ousted the judicial jurisdiction
was held to be invalid. Lastly, on the issue of amending power under Article
368, he held that parliament does not enjoy unlimited power in this situation
either.
 PRAYER
WHEREFORE IN THE LIGHT OF ISSUES RAISED, ARGUMENTS
ADVANCED AND AUTHORITIES CITED, IT IS HUMBLY PRAYED
THAT THIS HONOURABLE COURT MAY BE PLEASED TO ADJUDGE
AND DECLARE THAT:

1. There is no necessary for the President to take immediate action by Re-

promulgating this Ordinance.

2. The President cannot Re-promulgate an Ordinance on any matter, when

Parliament was not willing to approve the same in the form of a Law

3. Re- promulgation of Ordinance can be subjected to Judicial Review, on the

ground that the manner in which the Ordinance was promulgated is violative of
the Parliamentary Democracy

4. The ordinance is invalid on the ground that the repromulgation of ordinance

is unconstitutional.

5. The president has used excessive power under Article 123.

AND PASS ANY OTHER ORDER, DIRECTION, OR RELIEF THAT IT

MAY DEEM FIT FOR THE RESPONDENT IN THE INTEREST OF
JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE RESPONDENT AS IN DUTY

BOUND SHALL FOREVER PRAY.

ON BEHALF OF THE RESPONDENT, COUNSELS:

Dated this ………… Day of …………..2023