HPNLU, Memo For Petitioner

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32PETITIONER
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4TH HPNLU NATIONAL MOOT COURT COMPETITION 2023
S. NO. TABLE OF CONTENTS PG. NO.
1. THE LIST OF ABBREVIATIONS 4
2. THE INDEX OF AUTHORITIES 5
3. THE STATEMENT OF JURISDICTION 12
4. THE STATEMENT OF FACTS 13
5. THE STATEMENT OF ISSUES 15
6. THE SUMMARY OF ARGUMENTS 16
7. THE ARGUMENTS ADVANCED 18
7(A). ISSUE I: WHETHER THE BILL PASSED BY 18

THE PARLIAMENT WAS
CONSTITUTIONALLY VALID AND WHAT
ARE THE SPECIFIC LIMITS OF
PARLIAMENT’S AUTHORITY TO CREATE
A LAW UNDER ARTICLE239-AA (7)?
1.1. Violation of westminister-style democracy and

sceme of federalism.
1.2. The bill disregards constitutional principles
1.3. Without Control of Bureaucrats, Elected

Government is king without Kingdom
1.4. The bill suffers from manifest arbitrariness
1.5. Breaches the doctrine of implied limitation
(B). ISSUE II: WHETHER THE APPOINTMENT 22

BY WAY OF NOTIFICATION DATED JUNE
21, 2023, AN ARBITRARY AND MALA FIDE
EXERCISE OF DISCRETIONARY POWER
ENVISAGED BY THE UNION OF
ARYAVARTHA?
Memorial for the Petitioners 2

2.1.
2.2.
7(C). ISSUE III: WHETHER THE PARLIAMENT, 25

THROUGH ITS AUTHORITY UNDER
ARTICLE 239- AA (7), NULLIFY THE
CONSTITUTIONAL PRINCIPLES
GOVERNING THE GOVERNANCE OF THE
NATIONAL CAPITAL TERRITORY OF
INDRAPRASTHA?
3.1. Constitutional Amendment: Upholding
Governance Principles in NCTI
7(D). ISSUE IV: WHETHER THE NOTIFICATION 31

AND THE ACT CONSTITUTIONALLY
VALID AS THEY OVERRIDE THE
LEGAL EFFECT OF THE 2018 AND 2023
CONSTITUTIONAL BENCH
JUDGMENTS?
8. THE PRAYER 35
S. NO. ABBREVIATIONS EXPANSION
1. & And
2. ¶ Paragraph

4. A.I.R. All India Reporter
5. Anr. Another
6. Art. Article
10. Const. Constitution
11. NCT National Capital Territory
12. Co-op. Corporation
13. H.C. High Court
14. S.C. Supreme Court
15. I.L.R. Indian Law Reports
16. Hon’ble Honorable
17. Govt. Government
18. Ed. Edition
19. Ltd. Limited
20. Ors. Others
21. Pg. Page
22. Pvt. Private
23. S.C.C. Supreme Court Cases
24. S.C.R. Supreme Court Reporter
26. UOI Union of India
27. v. Versus
28. Vol. Volume
30. Const. Constitution
31. SCJ Supreme Court Journal
32. A.P. Andhra Pradesh
33. W.B. West Bengal
34. S.A. South Africa

S. NO. CASES PG. NO.
1. Ballavdas Agarwala v. Shri J. C. Chakravarty, AIR 1960 SC 576. 28

2. Charles K. Skaria v. Dr.C. Mathew, AIR 1980 SC 1230. 28
3. Coalition for Reform and Democracy (CORD) & 2 others v. 20
Republic of Kenya & 10 others, [2015] EklR.
4. Constitutional Court of the Republic of Lithuania, Case No. 25

16/2014-29/2014.
5. Council of Governors v. Attorney General & 7 Others, (2019) EklR.
6. D. Murugesan v. The Hon'ble Speaker, AIR 1965 SC 745. 26

8. Doctors for Life International v. Speaker of the National Assembly 20
and others, 2006 (12) BCLR 1399.
7. Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233. 28

8. IC Golaknath and Ors. v. State of Punjab, 1967 AIR 1643. 32
9. Katiba Institute & another v Attorney General & another, [2017] 20
eKLR.
10. Kesavananda Bharti v. UOI, AIR 1973 SC 1461. 27

11. Kiambu Country Government v. Robert N. Gakuru, [2017] eKLR 25
12. Krishna Kumar Singh v. State of Bihar, 2017 (2) SCJ 136. 30
12. Kuldip Narayan v. UOI, AIR 2006 SC 3127. 27
14. Law Society of Kenya v Attorney General & another; Mohamed 20
Abdulahi Warsame & another(InterestedParties),[2019]eKLR.
15. Law Society of Kenya v. Attorney General, Constitutional Petition 25

No. 3 of 2016.
16. Laxminarayan v UOI, (2018) 4 MLJ 513. 27

17. M Nagraj v. UOI AIR 2007 SC 71. 27

18. Major General David Tinyefuza vs. Attorney General, [1997] UGCC 18
3.
19. Maneka Gandhi v. UOI, 1978 AIR 597. 31

20. Mangal Singh v. Union of India, 1967 AIR 944. 29

21. Martin Kimani & 15 Others (Interested Parties), [2020] EklR.
22. Matalile municipality & others v. The President of South Africa & 25
others, [2006] ZACC12.
23. Minerva Mills v. UOI, 1980 AIR 1789. 32

24. Mohamed Abdulahi Warsame & Anr., [2019] eKLR. 20
25. Mohd Maqbool Damnoo v. State of Jammu & Kashmir, (1972) 1 30
SCC 536.
26. Nazir Ahmad v. King Emperor, AIR 1936 PC 253. 28

27. NCT of Delhi v. Union of India, (2018) 8 SCC 501. 32
28. Njoy v. Attorney General & Anr., [2004] 1 KLR. 23
29. President of the Republic of South Africa & others vs. M&G Media 25
Ltd., [2011] ZACC 32.
30. R.C. Poudyal v. Union of India, 1993 AIR 1804. 27

31. Reliance laid on Minister of Home Affairs v. Fisher, (1979) 44 WKR 20
107.
32. Republic v. County Assembly of Kirinyaga and another Ex-parte 21

Peter Kenda Muruiku & another, (2019) eKLR.
33. Robert N. Gakuru & Another v. Governor of Kiambu County & 3 25

Others, [2014] EklR.
34. Samatha v. State of A.P. and Ors., AIR 1997 SC 3297. 30

35. SR Bommai v. UOI, AIR 1994 SC 1918. 27
36. State Bank of India v. Santosh Gupta, AIR 1980 SC 1219. 28
37. State of W.B. v. Union of India, 1963 AIR 1241. 27
38. State of West Bengal v Union of India, 1963 AIR 1241. 33

39. Supreme Court Advocates on Record Association v. UOI, AIR 2015 32

SC 5457.
40. The Kenyan courts in Republic v Independent Electoral boundaries 21

Commission ex parte National Super Alliance Kenya & 6 others,
(2017) eKLR.
41. Thirdway Alliance Kenya & Another vs. Head of the Public Service
- Joseph Kinyua Building Bridges to Unity Advisory Taskforce & 2
Others, [2020] eKLR.
42. Titus Alila & 2 Others 10 v. Attorney General & Another, [2019] 24
eKLR,
43. Waman Rao v. UOI, (1981) 2 SCC 362. 32
S. NO. STATUTES
1. CONSTITUTION OF ARYAVRAT, 1950
2. ARYAVARTA’S PART C STATES ACT, 1951
3. NDRAPRASTHA ELECTRICITY REFORM ACT 2000 (IER)
4. ARYAVARTA ELECTRICITY ACT, 2003
5. THE GOVERNMENT OF NATIONAL CAPITAL TERRITORY OF

INDRAPRASTHA (AMENDMENT) ORDINANCE, 2023
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IMPORTANT DEFINITIONS
1. For the purpose of this memorial, Petitioner shall stand for Govt. of NCT of Delhi
2. For the purpose of this memorial, Respondent shall stand for The Union of
Aryavartha

2ND IFIM NATIONAL MOOT COURT COMPETION, 2023
The Hon’ble Supreme Court has the jurisdiction to try, entertain and dispose of the present
case by virtue of the writ Jurisdiction under Article 321 of the Constitution of Aryavarta.
1
INDIA CONST. art. 32

Basic Outline
Aryavarta, the world's largest democracy, gained independence from British colonial rule in
1947 and adopted Constitution on 26 Jan,1950. The constitution provided a framework for
governance that secured fundamental rights, enshrined separation of powers among the
executive, legislative, and judicial branches. Aryavarta society is characterized by diversity.
Thus, to abridge this gap, the Founders of the Constitution included a federal system to the
constitution. In relation to the Union, the State holds a quasi-federal status. Aryavarta
comprises 28 states, 8 union territories, with Indraprastha as its national capital, and the
Parliament has the authority to create or modify states and territories as per the law..
THE NATIONAL CAPITAL OF INDRAPRASTHA
Under British rule, Indraprastha became the capital of Aryavartha. The capital territory which
remained centrally administrated by The British Act for Aryavartha 1919 and 1935 became a
part C state after the Constitution of Aryavartha was enacted in 1951. In 1951, the Aryavarta
enacted the Part C States Act, providing for a Legislative Assembly in Indraprastha. Section
21(1) of the Act empowered the Legislative Assembly to make laws on all matters listed in
List II of the Seventh Schedule of the Constitution, except for specific exclusions such as
public order, police, municipal corporations, Union-owned lands, offenses against certain
laws, and jurisdiction of courts related to these matters.
In 1956, with the passage of the Seventh Amendment Act to the Aryavarta Constitution, the
classification of regions as A, B, C, and D states was replaced, simplifying it into just two
categories: States and Union Territories. As a result, Indraprastha transitioned into a Union
Territory, overseen by an administrator appointed by the President. The Legislative Assembly
and Council of Indraprastha were abolished, and in 1966, the Indraprastha Administration Act
established a limited representative government, 56 elected and five nominated members;
additionally, a Ministry of Home Affairs gazette mandated that the Lieutenant Governor
In 1991, the Constitution was amended with the Constitution (Sixty-ninth Amendment) Act,
introducing Articles 239-AA and 239-AB to establish the National Capital Territory of
Indraprastha (NCTI) as a unique constitutional entity. This amendment granted NCTI a
Legislative Assembly. However, conflicts between the State Government and the Lieutenant
Governor arose, leading to legal disputes. In 2018, a Constitutional Bench affirmed the

representative form of Government in NCTI, clarifying the limitations on the Legislative

Assembly's legislative competence. Despite this, disputes persisted, and in 2023, the
Constitutional Bench ruled that the Government of NCTI has legislative and executive
powers over services, subject to constitutional principles like federalism, collective
responsibility, and Westminster-style democracy.
NCT ORDINANCE AND NCT BILL
Eight days after the 2023 Constitutional Bench judgment, the President, utilizing Article 123
powers, issued the Government of National Capital Territory of Indraprastha (Amendment)
Ordinance 2023 (NCT Ordinance). This ordinance amended the 1991 Government of NCTI
Act, introducing Section 3A. It granted the Legislative Assembly the authority to legislate on
matters specified in Article 239-AA, overriding previous court judgments. However, this
authority excludes laws concerning Entry 41 in List II of the Seventh Schedule. The
ordinance effectively nullified the 2018 and 2023 Constitutional Bench judgments.
Subsequently, the Union Government presented the Government of National Capital Territory
of Indraprastha (Amendment) Act 2023 in parliament, which was passed on August 7, 2023.
On August 11, 2023, the President granted assent to the Government of National Capital
Territory of Indraprastha (Amendment) Act 2023 (NCT BILL), thereby transforming the
ordinance into law. .
PRESENT DISPUTE
The Indraprastha Electricity Regulatory Commission (IERC) operates under the provisions of
the IER Act, with Section 3(1) establishing its role and Section 3(2) outlining the appointment
of its members, including the Chairperson. The term 'Government' in the IER Act refers to the
Lieutenant Governor as per Article 239-AA of the Constitution. The State Electricity
Regulatory Commission formation, governed by Section 82 of the Aryavarta Electricity Act,
2003, is crucial for electricity-related matters, promoting industry growth, ensuring access,
and fair pricing. Section 84(2) of the Electricity Act empowers the State Government to select
a High Court Judge as the Chairperson, following consultation with the Chief Justice.
In practice, the elected Government of NCTI appointed Hon ‘ble Justice (Retd.) Feroz as the
Chairperson of the IERC in July 2021, abiding by these provisions. However, as per Section
6(1) of the IER Act, members, including the Chairperson, hold office for five years or until

reaching sixty-five. With Hon ‘ble Justice (Retd.) Feroz's impending retirement on January
09, 2023, the Government of NCTI recommended Hon‘ble Justice (Retd.) Subhash Sen as his
successor.
This recommendation prompted discussions on the role of the Chief Justices in the
appointment process. The Ministry of Power, Union of Aryavartha, clarified in February 2023
that the consent of the High Court's Chief Justice, where the Commission is located, is
essential. Subsequently, the Hon‘ble Chief Justice of Indraprastha recommended Hon‘ble
Justice (Retd.) Vani Patil. However, complications arose when Hon‘ble Justice (Retd.)
Subhash Sen declined the appointment in June 2023. A new recommendation, Hon‘ble Justice
(Retd.) Abhas Bharadwaj, emerged. Simultaneously, the Government of NCTI challenged the
Government of National Capital Territory of Indraprastha (Amendment) Act 2023 and the
Ministry of Home Affairs' June 21, 2023 notification, asserting they were arbitrary,
impermissible, and mala fide. The Government of NCTI looks to the Supreme Court for an
interpretation guided by constitutional pragmatism, upholding democracy within the legal
framework and preserving the rule of law.
ISSUE I
WHETHER THE BILL PASSED BY THE PARLIAMENT WAS CONSTITUTIONALLY

VALID AND WHAT ARE THE SPECIFIC LIMITS OF PARLIAMENT‘S AUTHORITY TO
CREATE A LAW UNDER ARTICLE 239-AA (7)?

ISSUE II
WHETHER THE APPOINTMENT BY WAY OF THE NOTIFICATION DATED JUNE 21,

2023, AN ARBITRARY AND MALA FIDE EXERCISE OF DISCRETIONARY POWER
ENVISAGED BY THE UNION OF ARYAVARTHA?
ISSUE III
WHETHER THE PARLIAMENT, THROUGH ITS AUTHORITY UNDER ARTICLE 239-

AA(7), NULLIFY THE CONSTITUTIONAL PRINCIPLES GOVERNING THE
GOVERNANCE OF THE NATIONAL CAPITAL TERRITORY OF INDRAPRASTHA?
ISSUE IV
WHETHER THE NOTIFICATION AND THE ACT CONSTITUTIONALLY VALID AS

THEY OVERRIDE THE LEGAL EFFECT OF THE 2018 AND 2023 CONSTITUTIONAL
BENCH JUDGMENTS?
ISSUE I: Whether the Bill passed by the parliament was constitutionally valid and what
are the specific limits of parliament‘s authority to create a law under Article 239-AA
(7)?
It is humbly submitted before this Hon’ble Supreme Court of Aryavarta that the NCTI Bill
contravenes the Constitution in several ways. Firstly, violates the scheme of federal,

democratic governance entrenched for the NCTI in Article 239AA. Secondly, it disregards
constitutional morality by reducing the role of the Chief Minister and Council of Ministers of
Delhi to mere formalities rather than active decision-makers. Thirdly, it challenges the 'triple
chain of accountability,' which posits that if a democratically elected government is not
empowered to control the officers posted within its domain, the principle underlying the triple
chain of collective responsibility becomes redundant. This, in turn, undermines the principles
of representative democracy and responsible governance, which are the pillars of India’s
constitutional order. Fourthly, it violates the principle of cooperative federalism and also it is
manifestly arbitrary. Lastly, the Supreme Court has held that Indraprastha occupies a 'sui
generis' position in our Constitution and cannot be equated to a Union Territory. The Union
and NCTI share a unique federal relationship. Therefore, the Bill also has the effect of
disturbing this unique federal relationship of asymmetric federalism envisaged by the
Constitution.
The specific limits of Parliament's authority to create a law under Article 239AA(7) are rooted
in the language and intent of the provision itself. Article 239AA(7) empowers Parliament to
enact laws for the National Capital Territory of Delhi (NCTD) with the purpose of "giving
effect to, or supplementing" the other provisions in Article 239AA. These keywords, "giving
effect to, or supplementing," signify that any such law should enhance or complement the
existing constitutional framework, rather than contradict or dilute it. Therefore, an Act that
restricts the powers of the Delhi Assembly and Delhi Government, such as by removing
control over "services," cannot be construed as a law made under Article 239AA(7)(a).
Instead, it is viewed as an Act that undermines the principles of Article 239AA, thus
exceeding the boundaries of Parliament's authority under this provision. In this regard, it is
essential for any law enacted under Article 239AA(7) to align with the objectives of
strengthening the unique constitutional position of the NCTD without weakening its
democratic and representative governance structures.
ISSUE II: Whether the appointment by way of the notification dated June 21, 2023, an
arbitrary and mala fide exercise of discretionary power envisaged by the Union of
Aryavartha?

ISSUE III: Whether the parliament, through its authority under Article 239- AA(7),
nullify the constitutional principles governing the governance of the National Capital
Territory of Indraprastha?
It is respectfully asserts that Parliament cannot unilaterally nullify the constitutional principles
governing the governance of the National Capital Territory (NCT) of Indraprastha. Such an
attempt, if made, must adhere to the rigorous procedures outlined in Article 368 of the Indian
Constitution, as any alteration of these foundational principles should reflect a broad
consensus and respect the sanctity of the Constitution. Article 239AA(7) empowers
Parliament to enact laws for specific matters within the NCT but does not grant unlimited
authority, requiring these actions to align with the constitutional framework. The proposed
Act, which seeks to curtail the powers of the Delhi Assembly and Government, is not a valid
exercise of power under Article 239AA(7)(a) as it contradicts the spirit of cooperative
federalism and the intended democratic governance of the NCT. Landmark cases reflect the
same, including the Government of NCT of Delhi vs. Union of India (2018), S.R. Bommai vs.
Union of India (1994), I.R. Coelho vs. State of Tamil Nadu (2007), and Kesavananda Bharati
vs. State of Kerala (1973), emphasize the constitutional limitations on Parliament's authority
and underscore the need to protect the core principles of federalism and democracy within the
NCT's governance structure. Therefore, any exercise of power under Article 239AA(7) must
be conducted in harmony with these constitutional principles, ensuring that the elected
government plays a meaningful role in NCT administration.
ISSUE IV: Whether the Notification and the Act constitutionally valid as they
override the legal effect of the 2018 and 2023 constitutional benchjudgments?
ISSUE I: WHETHER THE BILL PASSED BY THE PARLIAMENT WAS

CONSTITUTIONALLY VALID AND WHAT ARE THE SPECIFIC LIMITS OF
PARLIAMENT’S AUTHORITY TO CREATE A LAW UNDER ARTICLE239-AA (7)?

(¶1.) The counsel on behalf of the Government of NCT of Indraprastha (hereinafter referred
to as the Petitioners) most humbly submits that the Government of National Capital Territory
of Indraprastha (Amendment) Act 2023 (NCT Bill) is unconstitutional. This bill deprives the
GNCTI of the exercise of any control over services, which has been added to the already
existing list of exclusions (land, law and order, and police), where GNCTI lacks legislative
and executive power to exercise.2 This deprivation destroys the scheme of federal,
Westminster-style democratic governance that is constitutionally guaranteed for NCTI in
Article 239AA. Article 239AA 3of the Constitution is a sui generis provision in that it
constitutionally entrenches a Westminster-style democracy for NCTI to fulfil the popular,
regional, and democratic aspirations of the people of Indraprastha. The Impugned Ordinance
directly violates this scheme of federal, democratic governance incorporated in Article
239AA, specifically, the principle of ‘collective responsibility’ incorporated in Article
239AA(6).4
1.1. Violation of westminister-style democracy and scheme of federalism.
(¶2.) It is humbly submitted before this hon’ble Court that in Westminster-style democracies,
the elected government, i.e. the Council of Ministers, is collectively responsible to the
legislature, and through it, to the people themselves. However, the elected government, in
turn, administers its policies through the civil service, i.e. the ‘permanent executive.
Therefore, a democratically accountable government requires a ‘triple chain of
accountability’ – from the civil service to the elected arm of the executive, from the elected
government to the legislature, and from the legislature to the people – without which the
principle of ‘collective responsibility’ is compromised. 5 Therefore, the principle of collective
responsibility in a democracy - incorporated in Article 239AA(6) - requires that the elected
government be vested with control over officials posted in its domain. In the federal context,
this would require that such control be vested in the regional government – i.e. the GNCTI
under Article 239AA6 – for matters in its domain. This essential feature was secured for the
GNCTI by this Hon’ble Court’s 20237 Constitution Bench judgment and is now sought to be
undone by the impugned bill.
2
Moot proposition, 4th HPNLU Moot Court Competition,2023
3
ARYARTHA CONST. art. 239AA
4
Id. at cl.6
5
Manu Sebastian, Delhi Govt v. LG: Why the GNCTD Ordinance which nullifies Supreme Court Judgement is
unconstitutional? (Sep 11, 2023, 12.P.M.), https://www.livelaw.in/top-stories/delhi-vs-centre-central-
government-issues-ordinance-providing-lg-powers-over-services-in-gnctd-229121
6
ARYARTHA CONST. art. 239AA
7
2023 LiveLaw (SC) 551

(¶3.) It is submitted before this Hono’ble Court that the said bill disregards constitutional
principles as it deprives the Government of National Capital Territory of Indraprastha
(GNCTI) of any control over services. This addition to the existing list of exclusions (land,
law and order, and police) further restricts the GNCTI's already limited legislative and
executive powers. It barred the Legislative Assembly from considering matters on the day-to-
day administration of the NCT Delhi and from conducting any inquiries into administrative
decisions. It requires any bills passed by the Legislative Assembly to be reserved by the LG
for consideration by the President if the bill ‘incidentally’ covers any matters outside the
Assembly’s purview. Further, it mandates that all executive action taken by the government
must first receive the LG’s ‘opinion’.8 In our view, we contend that the Amendment erodes
the authority of the elected Legislative Assembly and effectively designates the Lieutenant
Governor (LG) as the primary administrative authority for all matters in NCT Delhi,
undermining the democratic principles at the core of our governance. This deprivation also
raises concerns about the bill's alignment with constitutional norms and principle.
1.2. The bill disregards constitutional principles
(¶4.) Constitutional morality refers to the practice of upholding the fundamental principles of
the Constitution within a democratic system. It was further explained by the Supreme Court
in a 2018 judgment as: “... that fulcrum which acts as an essential check upon the high
functionaries and citizens alike, as experience has shown that unbridled power without any
checks and balances would result in a despotic and tyrannical situation which is antithetical
to the very idea of democracy.” 9
Dr BR Ambedkar, while speaking on constitutional morality in the Constituent Assembly,

stressed on its necessity for peaceful working of a democratic nation. Ambedkar meant that
constitutional morality would be disregarded where the form of the administration is not in
sync with the Constitution, and it would be an act of perversity to the Constitution if without
changing the form of the Constitution, the form of the administration is changed.
The Bill has effectively stripped the Government of Delhi of its authority over "services"
without any clear justification. In turn, it has granted unrestricted power to the Government of
India, diminishing the role of the Chief Minister and Council of Ministers of Delhi to a mere
formality rather than active decision-makers.
8
Government of National Capital Territory of Delhi vs Union of India Writ Petition (C) No. 678 of 2023
9
(2018) 8 SCC 501

If a democratically elected government is not provided with the power to control the officers
posted within its domain, then the principle underlying the triple chain of collective
responsibility would become redundant. That is to say, if the government is not able to
control and hold to account the officers posted in its service, then its responsibility towards
the legislature as well as the public is diluted. The principle of collective responsibility
extends to the responsibility of officers, who in turn report to the ministers.
1.3. Without Control of Bureaucrats, Elected Government is King without Kingdom
(¶5.) The principle of “triple chain of accountability”, which means that the civil servants
must be accountable to the elected government which in turn is accountable to the people.
The insulation of civil servants from the control of elected government and their consequent
loss of accountability will break the triple chain of accountability. This danger, which the
Supreme Court wanted to avert through its judgment, will be perpetuated by this Bill. 10
The Delhi government was held to be the elected executive head of the State. Without control
of public servants’ transfers and appointments, the Delhi government was virtually powerless.
The attempt to shift control of public services from the elected government to the unelected
Governor violated the principles of federalism.
(¶6.) In our view the proposed bill violates the principle of cooperative federalism, as the
Central Government’s appointee (LG) is given a veto power over the elected government.
The Article 239AA11 which established the NCT of Delhi, its Legislature and its Lieutenant
Governor (LG). As per the said provision the LG must exercise their powers on the ‘aid and
advice’ of Delhi’s CM and council of ministers save for a few exceptions. If the LG and the
council of ministers disagree on any matter, then the LG must refer it to the President except
in the ‘rarest of rare’ cases. The LG cannot assume the Delhi Executive’s powers on ‘every’
occasion. Further, the Delhi government had control over all matters in the State List except
for public order, police and land. The Union, through the LG, cannot take away these powers
from the Delhi government. the Delhi govt’s powers originate from Schedule 7 of the
Constitution which lays down the State and Union Territory List of powers. Only another
Constitutional Amendment can change a power granted by the Constitution. A Constitutional
10
Sravasti DasGupta, How the Delhi Services Bill Empowers the LG, Makes Delhi Government ‘Powerless’.
(3 Sept,2023, 10 A.M.) https://thewire.in/government/how-the-delhi-services-bill-empowers-the-lg-makes-delhi-
government-powerless
11
Supra note.6

Amendment requires a 2/3rd majority vote in the Parliament and ratification by at least 50%
of the States to be approved. These criteria were not fulfilled to take away the Delhi govt’s
powers.
1.4. The bill suffers from manifest arbitrariness
(¶7.) The rationale behind promulgating an Ordinance, and now the proposed bill as stated by
the Union, is to balance the power imbalance existing in the NCT of Delhi. In other words,
the Union wants to “balance” the interests of the elected government of Delhi with national
interests in the national capital. However, it is worthwhile to mention that Article 239AA 12 of
the Constitution draws out two ways to sufficiently recognize the power balance in the
legislative domain. Firstly, it deprives the GNCTD executive and legislative control over
three entries of List II (land, police, law and order). Secondly, it preserves the executive and
legislative control of the GNCTD over all other entries, and authorizes the Parliament to
make laws in the same list. The reason behind this is evident: Parliament's jurisdiction is
maintained as it may not be feasible to anticipate every potential scenario that could emerge
under any other category, which could directly affect national interests in the capital city.
Moreover, the Act lacks the determining principle as there lacks a plausible reason for
validating such wholesale transfer of power from the elected government to the Centre-
appointed nominee. It is difficult to understand what national interest is going to be achieved
by depriving the control of GNCTD over services. Thus, in the absence of any determining
principle, the Act suffers from the vires of manifest arbitrariness and can be struck down by
the Court. 13
(¶8.) The asymmetric federal model adopted for NCTD. While NCTD remains a Union
Territory, the unique constitutional status conferred upon it makes it a federal entity for the
purpose of understanding the relationship between the Union and NCTD. The majority in the
2018 Constitution Bench judgment held that while NCTD could not be accorded the status of
a State, the concept of federalism would still be applicable to NCTD: “We have dealt with the
conceptual essentiality of federal cooperation as that has an affirmative role on the sustenance
of constitutional philosophy. We may further add that though the authorities referred to
hereinabove pertain to the Union of India and the State Governments in the constitutional
12
Id.
13
SC allows Delhi govt to challenge Services law instead of Ordinance

sense of the term “State”, yet the concept has applicability to the NCT of Delhi regard being
had to its special status and language employed in Article 239AA and other articles.” 2
Our model of federalism expects a sense of cooperation between the Union at the centre, and
the regional constitutionally recognised democratic units. The spirit of cooperative federalism
requires the two sets of democratic governments to iron out their differences that arise in the
practice of governance and collaborate with each other. The Union and NCTD need to
cooperate in a similar manner to the Union and the States. Our interpretation of the
Constitution must enhance the spirit of federalism and democracy together.
In the spirit of cooperative federalism, the Union of India must exercise its powers within the
boundaries created by the Constitution. NCTD, having a sui generis federal model, must be
allowed to function in the domain charted for it by the Constitution. The Union and NCTD
share a unique federal relationship. It does not mean that NCTD is subsumed in the unit of
the Union merely because it is not a “State”
(¶9.) In response to the defenders of the Bill, the hon’ble court we acknowledge Article
239AA(7) of the Constitution, which empowers Parliament to enact laws 'giving effect to, or
supplementing' the provisions within Article 239AA, even if such laws may have the effect of
amending Article 239AA without invoking Article 368. However, in the present case, this
argument is untenable. The key phrase in Article 239AA(7) is 'giving effect to, or
supplementing,' and it is essential to note the intent behind these words. The Ordinance, by
divesting the Delhi Assembly and Delhi Government of authority over 'services,' does not
align with the notion of 'giving effect to, or supplementing' the existing provisions of Article
239AA. Instead, it substantially diminishes Article 239AA's essence. Therefore, the
Ordinance cannot be construed as a legitimate law made under Article 239AA(7)(a).
1.5 Breaches the doctrine of implied limitation
(¶12.) It was clarified by the Supreme Court in its 2018 judgment that the GNCTD would
have legislative power to make laws for all other entries enshrined in the State List and the
Concurrent List, except land, police, law and order. This essentially meant that the GNCTD
assembly has complete authority to exercise its power to makes laws related to Entry 41
(services), and Parliament’s power to step into the legislative domain of the GNCTD is only

to preserve the national interests in the NCT. Thus, it places an “implied limitation” over the
Union’s power to exercise any control over services.
In the 2023 judgment, the Supreme Court relied on the constitutional principles of
asymmetric federalism and the concept of the "triple chain of accountability" in
representative democracy to shape its interpretation of Article 239AA and Entry 41, List II.
Through this interpretative approach, the Court bolsters the concept of asymmetric
federalism, where it meant that in a diverse and heterogenous country, different federal units
can have different forms of relationship with the Centre. And Delhi, having a sui
generis status, the sovereign powers of the NCT in its domain needs to be respected, in order
to restrict the centralising drift of the Indian Constitution.
Issue III: WHETHER THE PARLIAMENT, THROUGH ITS AUTHORITY UNDER

ARTICLE 239- AA (7), NULLIFY THE CONSTITUTIONAL PRINCIPLES
GOVERNING THE GOVERNANCE OF THE NATIONAL CAPITAL TERRITORY
OF INDRAPRASTHA?
¶15.) It is most humbly submitted before this Hon’ble Court that 'NO,' the Parliament can't
nullify the constitutional principles governing the governance of NCT. In the act of doing so,
it will have to go through constitutional amendment as mentioned under Article 368, as it
violates the basic structure of the Constitution, i.e., federalism, separation of powers, and
encroaching upon the powers of the state government. Also, it contradicts Article 239AA (3),
which explicitly mentions that, other than entries 1, 2, and 18, the state government has the
power to make laws on every matter. So, the Parliament can't nullify the constitutional
provisions governing the governance of NCT, as Article 239AA gives a unique position to
Indraprastha to promote cooperative federalism between the LG and the Indraprastha
Government. Therefore, Parliament, by any law, can't nullify such important provisions of the
Constitution.
(¶16.) It is submitted that by dint of Article 239AA(7)(a), Parliament has the power to make
laws with respect to “any matter” for NCTI. Article 239-AA(7)(a) grants Parliament the
power to enact a law for “giving effect to, or supplementing” the provisions of Article 239-
AA, and for all matters incidental to it. Article 239-AA(7)(b) stipulates that such a law shall
not be deemed to be an amendment to the Constitution even if the law amends the
Constitution or has the effect of amending the Constitution.

(¶17.) In our view, Article 239AA (7) of the Indian Constitution empowers Parliament to
make laws for the National Capital Territory of Indraprastha (NCTI) for specific matters.
However, this power is not unlimited. Parliament must use this authority withqin the
framework of the Constitution and in a manner that upholds the constitutional principles and
rights. Thus, power under Article 239AA(7)(a) cannot be used to dilute the Constitutional
powers of the NCTI. The Act, which limits the powers of Delhi Assembly and Delhi
Government by taking away the subject of “services” from them, cannot be considered as a
law which is “giving effect to, or supplementing” the other provisions in Article 239AA. On
the contrary, the Act has the effect of diluting Article 239AA. Hence, in this counsel’s humble
view, the Act cannot be construed as a law made under Article 239AA(7)(a).
2.1. Constitutional Amendment: Upholding Governance Principles in NCTI
(¶18.). In the context of the governance of the National Capital Territory of Indraprastha
(NCTI), if Parliament intends to nullify or alter the constitutional principles that underpin its
governance, such a significant change must be executed through a formal constitutional
amendment under Article 368 of the Indian Constitution. Article 368 lays down the procedure
for amending the Constitution and sets stringent requirements for such amendments to ensure
the sanctity of the Constitution and the principles enshrined within it.
(¶19 To amend the constitutional principles governing NCTD's governance, Parliament must
follow the rigorous process prescribed by Article 368. This process necessitates that the
proposed amendment bill be introduced and passed in both houses of Parliament—the Lok
Sabha (House of the People) and the Rajya Sabha (Council of States). However, what sets
this apart is the requirement for an "absolute" and "special" majority.
(¶20.) An "absolute majority" implies that more than 50% of the total membership of each
house must vote in favor of the amendment. This ensures that the amendment garners
substantial support within the legislature, reflecting a broad consensus on the proposed
changes. Furthermore, the term "special majority" implies that the amendment must be
supported by at least two-thirds of the members present and voting in each house. This
stringent requirement underscores the gravity of constitutional amendments and ensures that
they are not made lightly or without thorough deliberation.

(¶21.) It is also respectfully submitted that by demanding both an absolute majority and a
special majority, the Constitution places a high bar for amending its foundational principles.
This deliberate and rigorous process is designed to safeguard the fundamental principles of
the Constitution and prevent hasty or arbitrary changes that could undermine the core tenets
of the democratic and federal structure of India. Therefore, any attempt by Parliament to
nullify or alter the constitutional principles governing the governance of NCTD must adhere
to the procedures outlined in Article 368, reflecting the solemn commitment to upholding the
Constitution and its foundational principles through a carefully considered and widely
supported amendment process
(¶22.) The power of Parliament to enact a law under Article 239AA(7) is indeed significant,
but it is not boundless. It must be exercised within the confines of the Constitution, respecting
the principles of federalism, democracy, and the division of powers. The Constitution
envisages a special status for the NCT of Delhi, and Article 239AA was introduced to provide
for a unique form of governance. Any exercise of power under Article 239AA(7) must be in
harmony with this intent and not undermine the delicate balance of powers between the
elected government and the Lieutenant Governor.
(¶23.) In the landmark case of Government of NCT of Delhi vs. Union of India (2018), the
Supreme Court unequivocally emphasized the democratic principle that the Lieutenant
Governor should act on the aid and advice of the Council of Ministers of Delhi in matters
where the Legislative Assembly has authority. This pivotal decision underscores the
fundamental tenet that the elected government should hold a significant and meaningful role
in the decision-making process within the National Capital Territory (NCT) of Delhi.
(¶24.) Furthermore it is respectfully submitted that, the principles established in the case of
S.R. Bommai vs. Union of India (1994), although not directly linked to Article 239AA, hold
substantial relevance. This case solidified the principle that federalism is an integral
component of the basic structure of the Constitution, reaffirming the paramount importance
of federal principles and cooperative engagement between the central government and state
governments. The essence of cooperative federalism extends to the unique governance
structure of the NCT, reflecting the need for shared responsibilities and collaboration.
(¶25.) In the case of I.R. Coelho vs. State of Tamil Nadu (2007), the doctrine of basic
structure was upheld, underscoring that any constitutional amendments that violate the basic

structure are subject to judicial review. This serves as a compelling reminder of the
unwavering commitment to adhering to constitutional principles, even in the context of
amending the Constitution. The sanctity of the Constitution's core principles remains
inviolable, ensuring that any alterations therein are subjected to rigorous scrutiny.
(¶26.) Moreover, Kesavananda Bharati vs. State of Kerala (1973), primarily focused on the
basic structure doctrine, firmly reinforced the notion that Parliament's authority to amend the
Constitution is not boundless. This landmark case underscored that certain limitations exist to
safeguard the core principles of the Constitution. This fundamental safeguard ensures that the
essential fabric of federalism and democratic governance is protected against arbitrary
alterations or amendments.
(¶27.) Considering the precedent set by these significant case laws and the foundational
constitutional principles they uphold, it becomes abundantly clear that Parliament's authority
under Article 239AA(7) must not be wielded to undermine the envisioned democratic and
federal structure in Delhi. Any exercise of power under this provision must be executed in a
manner that respects the spirit of cooperative federalism and the principles of democratic
governance. It is imperative that the elected government in the NCT plays a substantive and
meaningful role in the administration of the territory, safeguarding the essence of federalism
and democracy.
(28.) Furthermore, it is essential to acknowledge that even Parliament's power, as outlined

under Article 368, is not boundless; it too is subject to limitations. The Constitution places
deliberate constraints on the process of constitutional amendments to preserve the
foundational principles that form the bedrock of Indian democracy. Therefore, any endeavor
to alter the constitutional principles governing the governance of the NCT must adhere to
these limitations and respect the sanctity of the Constitution.
Issue IV: Whether the Notification and the Act constitutionally valid as they override the
legal effect of the 2018 and 2023 constitutional bench judgments?

4.1. The Counsel for the Petitioner would like to humbly submit before this Hon’ble that
the Ordinance promulgated by the President under Article 123 and the Act are not
constitutionally valid as they override the legal effect of the Govt. of NCT Delhi v. Union
of India, 201814 well as the 2023 constitutional bench judgments of Govt. of NCT vs
Union of India 202315 .
(¶39.) The Constitution of Aryavarta is supreme because it prevents the three recognized
spheres of authority—the legislative, executive, and judicial—from encroaching on one
another16 . Consequently, the court has the ultimate say in determining and interpreting the
law, and the legislature is not empowered to disregard rulings of a court of law 17. The
Constitution of Aryavarta embodies in itself a federal system for the amalgamation of the
different strata of the society18. Thus, time again the legislature for the betterment of the
nation new acts and articles are being inserted into the constitution6 .
On the basis of similar features of Cooperative Governance and Federalism Article 239 AA
and Article 239 AB were inserted through the 69th Amendment,1991 conferred a special
status to the capital of Indraprastha7 . Article 239-AA(7) of the Constitution, grants the power
to make laws affecting NCTI 8 . The provision grants Indraprastha an administrator and a
Legislative Assembly, along with specific powers and limitations9 .
However, as in the present scenario, the center has overruled the court’s judgment with a
notification and an act10 .
The Supreme Court in the case of Madan Mohan Pathak vs. Union of India 197811held that
“In exercising its legislative authority, the Legislature may not directly overrule, amend, or
override a judgment by a statement made in isolation. By passing lawful legislation on the
subject within its legislative domain and fundamentally amending or changing its nature
retroactively, it can make a court ruling ineffective. If these criteria had been present at the
time the statute was declared unconstitutional, the prior judgment would not have been made
by the Court due to the changed or altered circumstances.
14
(2018) 8 SCC 501
15
Moot Proposition page no 6 paragraph 12
16
17
18
Moot Proposition page-no

In the present case,the law declared by the Supreme Court is sought to be negated by this
Ordinance in the following ways —
1. Section 3A of the new GNCTI Act (inserted through the Ordinance) says that
“Notwithstanding anything contained in any judgment of any court, the Legislative Assembly
shall not have the power to make laws with respect to any matter enumerated in entry 41
which means services”12 .
These words clearly indicate that this section seeks to nullify the judgment of the Supreme
Court. No authority is empowered to direct anyone that an order of the Court shall have no
effect and shall not be followed13. And since the Ordinance does not cite any new ground for
nullifying the judgment, it becomes legally unsustainable.
The Supreme Court has held in a number of cases that since Parliament does not possess
judicial powers, it cannot negate the decision of the Court without changing the basis of that
decision14. The Ordinance does not furnish any ground for nullifying the Court’s decision.
In State of Kerala v. State of Tamil Nadu 2014, a Constitution Bench of the Supreme Court
held that a law enacted by the legislature can be invalidated if it is an attempt to interfere with
the judicial process by breaching the doctrine of separation of powers.
In the 2021 Madras Bar Association case15, the Supreme Court struck down the provisions of
Tribunal Reforms Ordinance 2021 on the ground that they were contrary to an earlier
judgment of the Court16 .
The court very clearly came to the conclusion in the case Madras Bar Association 17case that
“It is open to the legislature within certain limits to amend the provisions of an Act
retrospectively and to declare what the law shall be deemed to have been, but it is not open to
the legislature to say that a judgment of a Court properly constituted and rendered in the
The Supreme Court's ruling that the Indraprastha government has legislative and executive
authority over services in the national capital, with the exception of subjects related to public
order, police, and land, is violated and rendered invalid by the ordinance18 . The
Constitution's Article 239AA, which grants Indraprastha unique status as a Union Territory
with a legislative assembly and calls for a cordial connection between the Centre and the
Indraprastha administration, is also broken by the ordinance19. The decree also transgresses

the fundamental constitutional concept of federalism and encroaches on the territory reserved
for the States20 .
The ordinance undermines the principles of representative democracy and responsible

governance, which are the pillars of India’s constitutional order as held in the case of the
State of West Bengal vs. the Union Of India21 . The ordinance takes away the control of
services from the elected Delhi government, which has a clear mandate from the people of
Indraprastha to legislate and administer on their behalf. The ordinance also reduces the role of
the Chief Minister and the council of ministers to a rubber stamp, as they can be overruled by
two bureaucrats in the NCCSA, who are ultimately accountable to the Lieutenant Governor
and the Centre22 .
In the case of Govt. of NCT Delhi v. Union of India, 201823 the five-judge Constitutional
bench of Hon’ble Supreme Court presided over by then CJI Deepak Mishra interpreted
Article 239AA of the constitution which relates to the structure of governance in NCT of
Indraprastha and held that “LG is an administrative head in the limited sense, and is not a
Governor. He is bound by the aid and advice of the NCT Government in areas other than
those exempted.” The bench added that the executive powers of the Union in respect of NCT
of Delhi are confined only to three subjects namely Police, Public Order, and Land. Apart
from these subjects, the LG does not have any power to interfere in the day-to-day
administration and decisions taken by the council of ministers. The Constitutional bench
observed that “Pragmatic and collaborative federalism will fall to the ground if the Union has
overriding executive powers even in matters for which Delhi Legislative Assembly has
power.” 24
The judgment emphasizes how the NCT Ordinance may have violated NCTI's governing
principles, raising questions about the democratic intent and public accountability of the
elected administration25. The Court stated, "The triple chain of accountability requires the
permanent executives to be responsible to the elected government, the elected government to
be responsible to the legislature, and the legislature to be responsible to the public." 26The
focus of the legal conflict has shifted to how the NCT Ordinance affects these principles
The NCT Ordinance introduced Section 3A in the Government of National Capital Territory
of Delhi Act 1991 [“GNCTD Act”], thereby excluding Entry 41 of List II from GNCTD’s
legislative competence

In the case of IK Saksena V. State of Madhya Pradesh, 1976 27it was held that the entries in
Schedule VII must be read in the widest possible meaning than that covered by Article 309 of
the Constitution, but in the context of Entry 41 in relation to NCTD, it may not be read in the
widest possible sense because of the limitation laid down in Article 239AA(3)(a) which are
related to 'public order', 'police', and 'land'28 .
In State of Tamil Nadu v. State of Kerala (2014), a five-judge Supreme Court Constitution
bench outlined that a law enacted by the legislature can be invalidated if it is an attempt to
interfere with the judicial process by breaching the doctrine of separation of powers.
Giving the central government control over services in Delhi may violate the basic structure.
There may be an issue even if this change were made through a Constitutional Amendment
Bill, as this could be a violation of the basic structure. “Services” are intrinsically different
than other items in the State List such as health or market fairs. If the government does not
have control over services, it cannot execute any programs across any field29.
Therefore, in a nutshell after examination of the bunch of judgments by the Hon’ble Supreme
Court of Indraprastha we can conclude that Parliament lacks judicial authority, hence it
cannot overturn the Court's ruling without altering its foundation. The Ordinance does not
provide any justification for overturning the court's ruling. We can recall what the court said
in the case of the State of Haryana v. The Karnal Co-op. Farmers’ Society Limited30 “Under
our Constitution, no Legislature has the power to abrogate civil courts’ decrees or orders or
judicial adjudications by merely declaring, under a law made by it, that such decrees or
orders or adjudications are no longer valid or binding on the parties, for such power of
declaration would be a judicial function which cannot be encroached upon by a
Legislature31”. In the case of M. P. Ram Mohan Raja Vs. State of Tamil Nadu32 the Supreme
Court ruled that "under our Constitution, no Legislature has the power to abrogate civil
courts' decrees, orders, or judicial adjudications by merely declaring, under a law made by it,
that such decrees, orders, or adjudications are no longer valid or binding on the parties
because such power of declaration would be a judicial function that cannot be encroached
upon by a Legislature."
In the present case we thus see, that by promulgating the Ordinance, the Union of Aryavarta
invalidates and negates the authoritative effect of the 2018 and 2023 Constitutional Bench
Judgement33 and also suffers from serious discrepancies.

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, AND

AUTHORITIES CITED, THIS HON’BLE COURT MAY BE GRACIOUSLY PLEASED TO
ADJUDGE AND DECLARE:
1. The Prime Minister is not entitled to initiate a popular initiative under Article 368A.
2. An Amendment Bill under Article 368A cannot include Unrelated Proposed
Amendments for a Referendum Vote.
3. Article 3 did not empowers the United Federation of Planets/Union Parliament to
downgrade a state to a union territory.
4. A permanent and irreversible alteration to the structure of a state cannot be brought in
during the period other than that an Emergency under Article 356 is in progress.
AND/OR
Pass any other order it may deem fit in the interest of Justice, Equity, and Good Conscience.
All of which is most respectfully prayed and humbly submitted.
(Signed)
Place:
Date:
Counsel for the Petitioner.

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Government

S. NO. TABLE OF CONTENTS PG. NO.

1. THE LIST OF ABBREVIATIONS 4

2. THE INDEX OF AUTHORITIES 5

3. THE STATEMENT OF JURISDICTION 12

4. THE STATEMENT OF FACTS 13

5. THE STATEMENT OF ISSUES 15

6. THE SUMMARY OF ARGUMENTS 16

7. THE ARGUMENTS ADVANCED 18

7(A). ISSUE I: WHETHER THE BILL PASSED BY 18

1.1. Violation of westminister-style democracy and

1.2. The bill disregards constitutional principles

1.3. Without Control of Bureaucrats, Elected

1.4. The bill suffers from manifest arbitrariness

1.5. Breaches the doctrine of implied limitation

(B). ISSUE II: WHETHER THE APPOINTMENT 22

Memorial for the Petitioners 2

7(C). ISSUE III: WHETHER THE PARLIAMENT, 25

7(D). ISSUE IV: WHETHER THE NOTIFICATION 31

S. NO. ABBREVIATIONS EXPANSION

Memorial for the Petitioners 3

4. A.I.R. All India Reporter

10. Const. Constitution

11. NCT National Capital Territory

12. Co-op. Corporation

13. H.C. High Court

14. S.C. Supreme Court

15. I.L.R. Indian Law Reports

16. Hon’ble Honorable

17. Govt. Government

18. Ed. Edition

19. Ltd. Limited

20. Ors. Others

21. Pg. Page

22. Pvt. Private

23. S.C.C. Supreme Court Cases

24. S.C.R. Supreme Court Reporter

26. UOI Union of India

28. Vol. Volume

30. Const. Constitution

31. SCJ Supreme Court Journal

32. A.P. Andhra Pradesh

33. W.B. West Bengal

34. S.A. South Africa

Memorial for the Petitioners 4

S. NO. CASES PG. NO.

1. Ballavdas Agarwala v. Shri J. C. Chakravarty, AIR 1960 SC 576. 28

4. Constitutional Court of the Republic of Lithuania, Case No. 25

5. Council of Governors v. Attorney General & 7 Others, (2019) EklR.

6. D. Murugesan v. The Hon'ble Speaker, AIR 1965 SC 745. 26

7. Hari Vishnu Kamath v. Ahmad Ishaque, AIR 1955 SC 233. 28

10. Kesavananda Bharti v. UOI, AIR 1973 SC 1461. 27

15. Law Society of Kenya v. Attorney General, Constitutional Petition 25

16. Laxminarayan v UOI, (2018) 4 MLJ 513. 27

Memorial for the Petitioners 5

19. Maneka Gandhi v. UOI, 1978 AIR 597. 31

Memorial for the Petitioners 6