GROUP NO: 3

CLASS: S10C

INTERNAL MOOT COURT ASSESSMENT

BEFORE THE HONOURABLE

SUPREME COURT OF ARYAVARTA

SPECIAL LEAVE PETITION

Special leave petition No.:_____ / 2012

In the matter of

ARTICLE 136 OF THE CONSTITUTION OF ARYAVARTA

Between

ANMOL, A CO-OPERATIVE BANKING SOCIETY ………………PETITIONER

V
UNION OF ARYAVARTA……………………………...RESPONDENT

MEMORIAL SUBMITTED BY COUNSEL FOR THE PETITIONER

Mahatma Gandhi university in partial fulfillment of Moot Court assessment for the
award of degree of bachelors of law

SUBMITTED BY:
NEERAJA DEVARAJAN
SREELAKSHMI KISHORE
MEMORIAL ON BEHALF OF PETITIONER
1
 TABLE OF CONTENT

SL.NO PARTICULAR PAGE NO

1 List of abbreviations 3

2 Index of authority 4

3 Statement of Jurisdiction 5

4 Summary of facts 6-7

5 Issues raised 8

6 Summary of arguments 9-10

7 Arguments advanced 11-14

8 Prayer 15

MEMORIAL ON BEHALF OF PETITIONER

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 LIST OF ABBREVIATIONS

AIR ALL INDIAN REPORT

Art ARTICLE

Hon’ble HONOURABLE

LTD LIMITED

Ors OTHERS

SC SUPREME COURT

SCC SUPREME COURT CASE

SCR SUPREME COURT REPORTS

V. VERSUS

MEMORIAL ON BEHALF OF PETITIONER

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 INDEX OF AUTHORITIES

STATUTES REFERRED

a. Constitution of India,1950
b. Co-operative Society Act, 1969

JUDICIAL DECISIONS

a. Indira Nehru Gandhi (Smt.) vs Raj Narain & Anr on 24 June, 1975 1
b. C. Golaknath & Ors vs State Of Punjab & Anrs. (With. on 27 February 21967
Equivalent citations: 1967 AIR 1643, 1967 SCR (2) 762
c. S.R. Bommai vs Union Of India on 11 March,1994 Equivalent citations: 1994 AIR
1918, 1994 SCC (3) 1
d. Laxmi & Co vs Dr. Anant R. Deshpande & Anr on 12 September 1972 3

BOOKS AND REPORTS

a. The Constitution of India by V.N. Shukla

b. The Constitution of India by P.M. Bakshi

LEGAL DATABASES

a. Manupatra
b. http://www.indiakanoon.com
c. https://www.nextias.com/current-affairs/22-07-2021/quashing-of-part-of-97th-
constitutional-amendment
d. http://www.legalserviceindia.com
e. https://www.drishtiias.com/daily-news-analysis/provisions-of-97th-amendment-
struck-down-sc

1
Appeal (civil) 887 of 1975
2
([1994] 2 SCR 644 : AIR 1994 SC 1918 : (1994)3 SCC1)
3
1973 AIR 171, 1973 SCR (2) 172
MEMORIAL ON BEHALF OF PETITIONER
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 STATEMENT OF JURISDICTION

The Hon'ble Supreme Court of Aryavarta has jurisdiction in this matter under Article 136 of
the Constitution of Aryavarta.

Article 136 in The Constitution Of Aryavarta, 1949

136. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion,
grant special leave to appeal from any judgment, decree, determination, sentence or
order in any cause or matter passed or made by any court or tribunal in the territory of
Aryavarta.
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the
Armed Forces

MEMORIAL ON BEHALF OF PETITIONER

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 STATEMENT OF FACTS

1. Aryavarta is a developing country situated in the continent of Asia. Aryavarta has been a
British Colony for approximately 190 years. It is one of the biggest countries of Asiaasia
having diversity in its population in terms of language, culture and geography. Aryavarta
became independent in the year 1947 from the British Empire and the people of Aryavarta
gave to themselves their own Constitution in the year 1950. The Constitution makers, after
referring to the Constitutions of different countries, gave to its people one of the most
unique Constitutions keeping in mind the population, demography, cultural and linguistic
diversity of Aryavarta.
2. Vijay-rashtra is one of the most developed states in Aryavarta. In the year 1978, a person
called Paschim Patel initiated a movement of co-operative society in Vijay-rashtra. He
stayed in a small village called “Dariya” from where he opened a small co-operative dairy
which today has become the country‟s biggest co-operative society. His colleague Purab
Shyam who was the village mukhiya helped him in connecting with the local people and
with the technological and management supervision of Paschim Patel, the co-operative
society “Grandmother Dairy” became the biggest co-operative society in Aryavarta.
3. In the year 1986, Vijay-rashtra assembly elections had taken place wherein for the first
time, the Government of Poora Vijay-rashtra Apna (“PGA”) political party came into
power. The ruling party of Aryavarta Kutch-Saurashtra-Bhuj (“KSB”) was thrown out of
power form Vijay-rashtra. Purab Shyam, who belonged to KSB was out of power in his
constituency and his control over the people and the cooperative society had reduced.
Meanwhile “Grandmother Dairy‟s” governing body‟s term which was supposed to be over
on 23.6.2012, was to face elections for the new governing body.
4. In backdrop of these events, the Parliament of Aryavarta brought about the constitutional
amendment in the co-operative society sector, inserting certain provisions in the
constitution called the 97th amendment. Due to the provisions of the new constitutional
amendment, the term of the governing body of “Grandmother Dairy” which was supposed
to be over on 23.06.2012, got extended for another two years. The Constitutional
amendment also mandated the states of Aryavarta including the state of Vijayrashtra to
amend their local acts pertaining to co-operative societies in conformity with the new
constitutional amendment. Mr. Paschim Patel, the pioneer in bringing the co-operative

MEMORIAL ON BEHALF OF PETITIONER

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 society reform in Vijay-rashtra, felt that the said amendment was brought about only to
save the representation of KSB political party in “Grandmother Dairy”. He filed a petition
in the High Court of Vijay-rashtra under Article 226 of the Constitution of Aryavarta
seeking a prayer inter alia for holding elections in “Grandmother Dairy” in conformity with
the local co-operative society act of Vijay-rashtra. He also prayed for quashing and setting
aside of the 97th Constitutional Amendment on several grounds, one of them being non-
conformity with the procedure laid down under Article 368 (2) of the Constitution of India.
5. The Hon’ble High Court of Vijay-rashtra dismissed the petition on all grounds and directed
“Grandmother Dairy” to hold elections after two years in conformity with the new
constitutional amendment. The said judgment was received well by the State of Aryavarta
and surprisingly Mr. Paschim Patel did not challenge the decision before the Hon’ble
Supreme Court. However, another co-operative banking society called “ANMOL” wanted
to challenge the same before the Hon’ble Court. Hence, “ANMOL” through its Managing
director filed a petition under Article 136 of the Constitution in the Hon’ble Supreme Court
of Aryavarta.

MEMORIAL ON BEHALF OF PETITIONER

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 ISSUES RAISED

ISSUE 1:

WHETHER THE PETITION FILED BY ANMOL UNDER ARTICLE 136 OF

THE CONSTITUTION OF ARYAVARTA IS MAINTAINABLE OR NOT?

ISSUE 2:

WHETHER 97TH AMENDMENT IS CONSTITUTIONALLY VALID OR

NOT?

ISSUE 3:

WHETHER PART IX B IS INVALID DUE TO THE LACK OF

RATIFICATION BY HALF OF THE STATES AS REQUIRED

ARTICLE 368(2)?

MEMORIAL ON BEHALF OF PETITIONER

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 SUMMARY OF ARGUMENTS

ISSUE 1: Whether the petition filed by Anmol under Article 136 of the Constitution of
Aryavarta is maintainable or not?

It is humbly submitted before this Hon'ble court that the special leave Petition filed under
Article 136 of the Constitution of Aryavarta is maintainable. The 97th Amendment Act was
ruled unconstitutional because inserting Part 1X B without the necessary ratification was ultra
vires. The Supreme Court of Aryavarta has been given extraordinary jurisdiction under Article
136 of the Constitution of Aryavarta. Under Article 136, the Supreme Court in its discretion
may grant special leave to appeal from any judgment, decree, determination, sentence or order
in any cause or matter, passed or made by any court or tribunal in the territory of Aryavarta.

ISSUE 2: Whether the 97th Amendment is constitutionally valid or not?

It is humbly submitted before this Hon'ble Court that the 97th Amendment provision was
approved by parliament without being rectified by the state legislature. The concerned subject
matter co-operative fell under the State List to the State legislature to legislate upon and any
change would require ratification by at least half of the State Legislature as per article 368 (2)
of the constitution. Therefore, the 97th Amendment is not valid.

ISSUE 3: Whether Part IXB is invalid due to lack of ratification by half of the State as
required by Article 368(2)?

It is humbly Submitted before the Hon'ble Court that Part IXB of the Constitution is invalid
due to the ratification prescribed in Article 368(2). Article 368(2) of the Constitution states that
amendments that affect the federal nature of the Constitution, such as the creation or abolition
of states, require the ratification of at least half of the states. However, it is important to note
that Part IXB, which deals with co-operative societies, may not fall under the purview of Article
368(2).

MEMORIAL ON BEHALF OF PETITIONER

9
 ARGUMENTS ADVANCED BY PETITIONER

 ISSUE 1: WHETHER THE PETITION FILED BY ANMOL UNDER ARTICLE

136 OF ARYAVARTA IS MAINTAINABLE OR NOT?

It is humbly submitted that the special leave petition filed by Anmol under Article 136 of the
constitution is maintainable. The Supreme Court of Aryavarta has been given extraordinary
jurisdiction under Article 136 of the Constitution of Aryavarta. Under Article 136, the Supreme
Court in its discretion may grant special leave to appeal from any judgment, decree,
determination, sentence or order in any cause or matter, passed or made by any court or tribunal
in the territory of Aryavarta.

Indira Nehru Gandhi V. Shai Raj Narai and Anr (1975)4, In the case of Indira Nehru Gandhi v.
Raj Narain, the Supreme Court of India declared the election of Indira Gandhi, the then Prime
Minister of India, to be void on the grounds of electoral malpractice. The case was filed by Raj
Narain, who was a candidate in the election, and he alleged that Indira Gandhi had used
government machinery for her election campaign. The Supreme Court held that Indira Gandhi
had violated the election laws and declared the election to be void. The case is significant
because it established the principle of judicial review and the supremacy of the Constitution of
India.

Under Article 136 of the Constitution, the Supreme Court of Aryavarta has the discretionary
power to grant special leave to appeal against any judgment, decree, or order in any case or
matter.

Article 136 grants the Supreme Court wide discretionary power to grant special leave to appeal.
This discretionary power allows the Supreme Court to hear and decide cases of exceptional
importance, substantial public interest, or involving significant questions of law.

4
Appeal (civil) 887 of 1975
MEMORIAL ON BEHALF OF PETITIONER
10
Also, Article 136 provides the right to appeal against any judgment, decree, or order, regardless
of the court or tribunal from which it originated. This ensures that parties who believe that their
rights have been affected, and who seek justice, can approach the Supreme Court for redress.
Article 136 represents a constitutional safeguard to ensure that the Supreme Court acts as a
final arbiter and interpreter of the law. It allows the court to review decisions from subordinate
courts, ensuring consistency and upholding the rule of law.

Article 136 has been instrumental in the development and progress of Public Interest Litigation
in Aryavarta. The power conferred under this article allows the Supreme Court to intervene in
matters affecting public interest and societal welfare, providing access to justice for
marginalized sections of society.

Article 136 enables the Supreme Court to correct substantive errors of law or jurisdiction,
ensuring the uniform application of legal principles. It serves as a check and balance against
potential miscarriages of justice or incorrect interpretations of the law. Article 136 allows the
Supreme Court to interpret and clarify constitutional provisions and rights, providing guidance
on complex legal issues. This helps in the evolution and development of constitutional
jurisprudence in Aryavarta.

Therefore I, humbly submit that the 97th Amendment Act is unconstitutional because inserting
Part IX-B without the necessary ratification was considered as ultravires. Therefore, in view of
the aforesaid submission and contentions, the Special Leave petition can be maintainable.

 ISSUE 2: WHETHER THE 97th AMENDMENT IS CONSTITUTIONALLY VALID

OR NOT?

The subject of cooperative societies is listed in Entry 32 of the State List under the Seventh
Schedule of the constitution, legislatures have passed legislation on the Subject. The
Amendment also included provisions for governing the operation of co-operative Societies
within a state. According to Article 368 (2) of the constitution, the subject was on the state list
and "belongs wholly and exclusively to the state legislature to Legislate upon. so any changes
would need to be approved by at least the State legislature. The 97th Amendment provisions
however were approved by parliament without being ratified by state legislation.

MEMORIAL ON BEHALF OF PETITIONER

11
It is clear that the power granted by Article 368 of the constitution5 namely The power of
parliament to amend the constitution was used to enforce the introduction of Part IX B. Since
the state legislature alone has jurisdiction over local state government institutions parliament
could not have passed any legislation pertaining to them without Article 368. The parliament
tried to accomplish something indirectly that it was to accomplish directly by amending the
constitution to include provisions relating to local self government.

The Gujarat High Court declared the 97th Amendment Act as unconstitutional in Rajendra N
Sha vs. Union of India 6 . Gujarat Hight Court observed that if Part IX B had not been included,
the state legislature would have had complete discretion to pass legislation on arguments
Subjects based on their decisions, whereas following the Amendment, the State Legislation has
no choice but to follow or disregard those provision. As a result, several restrictions on co-
operative society laws have been imposed by incorporating the authority of Part 1XB limiting
the State legislature, to enact any co-operative society laws on those aspects.

In SR Bommai vs. Union of India (1994)7 the learned Division Bench noted that the challenged
Amendment also had any impact on federalism, one of the constitutional fundamental
structures after citing the case Supreme Court ruling under the case co-operative society was
included In the State list of the seventh Schedule and requirement of Article 368 (2) was
disregarded it was determined that the Amendment violated the fundamental principles of the
constitution. As a result, the 97th Amendment Act was ruled unconstitutional because inserting
part 1XB without the necessary ratification was ultra vires.The Hon'ble supreme court has
further held that concerned Subject matter of co-operative fell under the state list and thus
belongs wholly and exclusively to the state legislatures to legislate upon and any change would
require ratification by at least one half of the State legislature as per Article 368(2) Constitution
which was not done for the 97th constitutional Amendment. Constitutional expert has praised
this development as Strengthening the federalism principle which is the cornerstone of the
Indian constitution.

It is humbly submitted before the Hon’ble Court that the 97th Amendment Act should be struck
down due to the absence of sufficient ratification.

5
Constitution of India
P. K. Agrawal, 2017
6
Rajendra N Sha vs. Union of India (1989) 2 SCC 645
7
SR Bommai vs. Union of India (1994) AIR 1918, 1994 SCC (3)
MEMORIAL ON BEHALF OF PETITIONER
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 ISSUE 3: WHETHER PART IX B IS INVALID DUE TO A LACK OF
RATIFICATION BY HALF OF THE STATES AS REQUIRED BY ARTICLE 368
(2)?

Part IXB of the Constitution relates to the creation of co-operative societies and its
incorporation through constitutional amendments. It was added through the 97th Constitutional
Amendment Act in 2011. Article 368(2) of the Constitution states that amendments that affect
the federal nature of the Constitution, such as the creation or abolition of states, require the
ratification of at least half of the states. However, it is important to note that Part IXB, which
deals with co-operative societies, may not fall under the purview of Article 368(2).

Part IXB affects the federal structure of the Constitution by creating a separate mechanism for
the administration of co-operative societies. Such creation and regulation of cooperative
societies is a matter pertaining to the state list under the Seventh Schedule of the Constitution
and requires ratification by the states.

Part IXB extends the legislative power of the Parliament to regulate co-operative societies,
which traditionally fall under the powers of the states. This extension may be seen as a violation
of the federal structure, requiring ratification by the states.

Article 368(2) sets a precedent that amendments affecting the federal balance of power require
ratification by the states. As Part IXB alters the balance of power in the legislative domain, it
should be subject to the same ratification procedure. The requirement of ratification by the
states ensures that the interests of all states are adequately represented and protected. By
bypassing this requirement, Part IXB may infringe on the rights and interests of certain states,
leading to an unequal distribution of power.

As a result of the subject of ‘Co-operative Societies’ being listed in Entry 32 of the State List
of the Seventh Schedule of the Constitution, state legislatures have passed legislation on the
subject.

This makes it clear that the power granted by Article 368 of the Constitution namely, the power
of Parliament to amend the Constitution was used to enforce the introduction of Part IX-B.
Since the State Legislature alone has jurisdiction over local self-government institutions,

MEMORIAL ON BEHALF OF PETITIONER

13
Parliament could not have passed any legislation pertaining to them without Article 368. It
would be a questionable use of power for Parliament to attempt to encroach on territory that
the State Legislature has exclusive authority over. In other words, Parliament tried to
accomplish something indirectly that it was unable to accomplish directly by amending the
Constitution to include provisions relating to local self-government. Article 368 of the
Constitution grants the power to amend the Constitution. The Court pointed out that Article
368(1) refers to Parliament, which has the “constituent power” to amend the Constitution by
addition to, modifying, or repealing any provision. This must, however, be done in accordance
with the mandatory procedure laid down in the Article. The court was concerned with the
procedure for amending certain specified articles or provisions under the proviso of Article
368(2). If the subject matter of an amendment falls within the proviso of Article 368(2), an
additional procedural requirement is that the amendment must be ratified by the legislatures of
not less than one-half of the States by resolution passed by those legislatures before the Bill
containing the amendment is presented to the President for assent. The 97th Amendment, which
contains a chapter dealing with cooperative societies, had not been ratified, as per the court.

It is clear that Part IX-B seeks to make a significant change in Article 246(3) as read with Entry
32, List 2 of the Seventh Schedule, by reducing the width of Entry 32, List 2 of the Seventh
Schedule, insofar as the State’s exclusive power to make laws on the subject of cooperative
societies is significantly reduced, directly affecting the quasi-federal principle contained
therein. Part IX-B, insofar as it pertains to cooperative societies operating within a State, would
certainly require ratification under both sub-clauses (b) and (c) of the proviso to Article 368(2)
of the Constitution.

Therefore, in view of aforesaid contentions and submissions it is humbly submitted that Part
IX B is Constitutionally invalid.

MEMORIAL ON BEHALF OF PETITIONER

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 PRAYER

In the light of the facts stated issues raised authorities cited and arguments advanced, it is
most humbly prayed before this Hon'ble court that it may be pleased to direct:-

1. Allow the Special Leave petition filed under Article 136 of the Constitution.
2. To hold the 97th Amendment Act unconstitutional
3. To hold Part IXB of the constitution invalid.

AND

Pass any such orders that it may deem fit in the interest of justice equity and good conscience.

And for this, the petitioner as in duty hound shall humbly pray.

Place: SD/-

Date: (COUNCIL FOR PETITIONER)

MEMORIAL ON BEHALF OF PETITIONER

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