Respondnet Memo, Runners Up - BR Sawhny Moot Competition 2016

TEAMCODE: TEAMCODE: 70 TEAMCODE: TEAMCODE: 70

IN THE SUPREME COURT OF INDUS

W.P. No. ____ / 2016

(suo motu transfer from the High Court of Dill i Pradesh)

.......................Petitioner 1

STATE OF DILLI PRADESH

versu s

Respondent

CENTRAL GOVERNMENT OF INDUS (THROUGH LIEUTENANT GOVERNOR OF STATE OF DILLI PRADESH)

W.P. No. ____ / 2016

.......................Petitioner 2

K ING ING BIRD PRIVATE LIMITED

versu s

Respondent

CENTRAL GOVERNMENT OF INDUS (THROUGH LIEUTENANT GOVERNOR OF STATE OF DILLI PRADESH)

As Submitted to the Chief Justice & other other Companion judges judges of the Hon’ble Supreme Court of Indus .

- -W WRRI ITTTTEENN SSUUBBMMI ISSSSI IOONNSS OONN BBEEHHAALLFF OOFF TTHHEE R R EESSPPOONNDDEENNTT- -

-TABLE OF CONTENTS-

Page i of viii

TABLE OF CONTENTS INDEX OF AUTHORITIES

............................................ .................................................................. ............................................ ............................................. ......................... II

STATEMENT OF JURISDICTION STATEMENT OF FACTS

.......................................... ................................................................ ............................................ ..................................... ............... IV

.......................................... ................................................................ ............................................ ............................................. ........................... ....

V

............................................ .................................................................. ............................................ ............................................ ......................

VI

QUESTIONS PRESENTED

SUMMARY OF PLEADINGS

............................................ ................................................................... ............................................. ....................................... ................. VII

PLEADINGS AND AUTHORITIES............................................ ................................................................... ............................................. ........................ 1 I.

WHETHER THE LIEUTENANT GOVERNOR OF THE STA TE OF DILLI PRADESH HAS THE

LEGISLATIVE COMPETENCE TO ENACT THE IMPUGNED ORDER ? ............................................ .................................................... ........1

A.

That the law has been made under entry 1 of List II ........................................... ................................................ ..... 1 i.

B.

Pith and Substance .......................................... ................................................................ ............................................ .................................. ............ 2 That Lt. Governor is not bound by aid and advice of Council of Ministers .............3

ii.

Sole Discretion under the t he NCT Act ...................................................... ......................................................................... ................... 4

iii. Lt. Governor is not akin to a State Governor Governor .......................................... .......................................................... ................ 4 II.

IGHTS OF PETITIONER 2 HAVE BEEN VIOLATED? ............ 7 WHETHER THE FUNDAMENTAL R IGHTS

A.

That Article 14 of the Constitution is not violated ........................................... ................................................... ........ 7

B.

That Article 19 of the Constitution is not violated ........................................... ................................................... ........ 9 i.

Right to carry on trade in liquor ........................................... .................................................................. .................................. ........... 9

ii. Reasonableness ............................................ .................................................................. ............................................ .................................... .............. 12 C.

That medicinal and toilet preparations are not prohibited. ..................................... .....................................13

D.

That the law imposing such prohibition is passed by a competent authority ......... 15

PRAYER FOR RELIEF

.......................................... ................................................................. ............................................. ............................................. ........................... .... VIII

-WRITTEN SUBMISSIONS

ON BEHALF OF THE

R E S P O N D E N T -

-INDEX OF AUTHORITIES-

Page ii of viii

INDEX OF AUTHORITIES Cases

Amar Chandra Chakraborty v. The Collector of Excise, Government of Tripura and Ors., (1972) 2 SCC 442............................................ ................................................................. ............................................ ............................................. ....................... 7, 8 Animal Welfare Board of India v. A. Nagaraja and Ors., (2014) 7 SCC 547. ........................ ........................ 13 B. Viswanathiah v. State of Karnataka, (1991) 3 SCC 358. ........................................... ...................................................... ........... 3 C.S. Rowji v. State of Andhra Pradesh, [1964]6 SCR330............................................. ....................................................... ........... 7 Charles Russell v. The Queen, Q ueen, [1882] [ 1882] 7 AC 829............................................ .................................................................. ........................... .... 1 Cooverjee B. Bharucha v. Excise Commr. and Chief Commr. Ajmer, AIR 1954 SC 220. .... 11 Devji Vallabhbhai Tandel v. Administrator Goa, Daman & Diu , (1982) 2 SCC 222. ............. 4 Dhampur Sugar (Kashipur) Ltd. v. State of Uttranchal and a nd Ors., (2007) 8 SCC 418. ............ ............ 14 Dr. K. R. Lakshmanan v. State of Tamil Nadu and another, (1996) 2 SCC 226 ..................... ..................... 10 Dy. Commissioner of Income Tax, Lucknow v. M/s U.P. Cooperative Sugar Factories Federation Ltd. Lucknow , 2013 (1) ADJ 73. ........................... ................................................. ........................................... ..................... 12 Emperor v. Sibnath Banerjee, Banerj ee, AIR 1943 FC 75. ............................................ ................................................................... ........................... .... 1 Federation of Hotel and Restaurant Association of India v. Union of India, (1989) 3 SCC 634. ........................................... .................................................................. ............................................. ............................................ ............................................. .................................. ........... 3 Har Shankar and Ors. v. Dy. Excise and Taxation Commissioner, [1975] 3 SCR 254. ........ 8, 9 India Brewery & Distillery Distiller y v. Income Tax Officer, (1994) 48 TTJ Bang 11. ......................... ......................... 12 Indian Handicrafts Emporium and Ors. v. Union of India and Ors., 2003 (3) Suppl. SCR 43. ........................................... .................................................................. ............................................. ............................................ ............................................. ................................ ......... 11 Ishwari Khetan Sugar Mills (P) Ltd. and Ors. v. State of Uttar Pradesh and Ors., [1980] 3 SCR 331. .......................................... ................................................................. ............................................. ............................................ ......................................... ...................2 K.S.E. Board v. India Aluminium Co., AIR 1976 SC 1031 ........................................... ...................................................... ........... 2 Kanaka Durga Wines Wi nes and Ors. v. Govt. of A.P. and ors., 1995 (3) ALT 228. .......................... .......................... 6 Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors., (1995) 1 SCC 574. ............. 9 Krishna Kumar Narula v. State of J.K., [1967] 3 SCR 50. ............................................. ...................................................... ......... 13 M/s. Ugar Sugar Works Ltd. v. Delhi Administration & Ors., (2001) 3 SCC 635.................. 10 Madhu Limaye v. S.D.M. Monghyr, AIR 1971 SC 2486........................................... ......................................................... ............... 1 Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731. .................................................... .................................................... 7 Prafulla Kumar Mukherji v. Bank of Commerce Ltd., AIR 1947 PC 60 .................................. .................................. 2 Ramkrishna Ramnath Agrawal v. Municipal Committee Secretary, AIR 1950 SC 11 ............. 2


ON BEHALF OF THE


-INDEX OF AUTHORITIES-

Page iii of viii

Samsher Singh v. State of Punjab, (1974) 2 SCC 831. ........................................... .............................................................. ................... 5 State of A.P. and another v. Crag Martin Distillery Pvt. Ltd., Goa and another, 2000 (5) ALT 34. .............................................. .................................................................... ............................................ ............................................ ..................................... ............... 8, 11, 14 State of Andhra Pradesh and Ors. v. McDowell & Co., (1996) 3 SCC 709. ......................... ......................... 6, 7 State of Bombay v. R.M.D. Chamarbaugwala, [1957]1SCR874. ......................................... ......................................... 10 State of Bombay v. F.N. Balsara, AIR 1951 SC 318. ......................................... .......................................................... ................. 2, 13 State of Karnataka v. Ranganatha Reddy, AIR 1978 SC 215............................................ ................................................... ....... 2 State of Kerala and Ors. v. Green Seven Sev en Resorts (P) Ltd. and Ors., 2015 (2) KHC 580. ....... 10 State of Punjab and Anr. v. Devans Modern Breweries Ltd. and Anr., (2004) 11 SCC 26. ..... 9 Sushil Flour Dal & Oil Mills Mi lls v. Chief Commissioner , (2000) 10 SCC 593. ............................ ............................ 4 Synthetics and Chemicals Ltd. v. State of U.P., AIR AI R 1990 SC 1927. ..................................... ..................................... 13 Tansukh Rai Jain v. Niltratan Prasad Shaw, AIR 1966 SC 1780 ............................................. ............................................. 2 The Kerala Bar Hotels Association and Ors. v. State of Kerala and Ors., AIR 2016 SC 163. 11 The State of West Bengal v. Kesoram Industries Ltd. and Ors., (2004) 10 SCC 201. ............ 12 Statutes

Delhi Excise Act, 2010. ............................................. .................................................................... ............................................. ................................. ........... 14, 15 Books

AMERICAN JURISPRUDENCE (2nd ed. 1962)........................................... ................................................................. ................................ ......... 9, 10 D.D. BASU, SHORTER CONSTITUTION OF I NDIA (VOL. C) (6th ed. 1989). ................................. ................................. 12 MAXWELL ON THE I NTERPRETATION OF STATUTES (12th ed. 1969). .................................... ......................................... ..... 13


ON BEHALF OF THE


-STATEMENT OF JURISDICTION-

Page iv of viii

STATEMENT OF JURISDICTION

THE PETITIONER 1 HAS THIS

HON'BLE COURT

APPROACHED THE

COURT

UNDER A

SUO MOTU TRANSFER ORDER

TRANSFERRING THE CASE FILED UNDER

ARTICLE 226

BY

OF THE

CONSTITUTION OF I NDUS AT THE HIGH COURT OF DILLI PRADESH.

THE PETITIONER 2 HAS APPROACHED THE COURT UNDER ARTICLE 32 OF THE CONSTITUTION OF I NDUS .

The Respondent humbly submits to the jurisdiction of this Hon'ble Court.


ON BEHALF OF THE


-STATEMENT OF FACTS-

Page v of viii

STATEMENT OF FACTS

Indus is a Republic in the continent of Asia and is divided into various states and union territories. The State of Dilli Pradesh is one such Union Territory, which is situated in the central part of Indus and has a very rich cultural and historical importance. The State of Dilli Pradesh has been given a special status under Arti cle 239AA of the Constitution of Indus. In 2015, there had been certain demands and concerns were raised due to the proliferation and consumption of alcohol in the territory. However, no action was taken on the part of the State Legislature to address such issue. The Central Government, which was newly elected, through the Lieutenant Governor, passed a Prohibition Order in July, 2016 putting an embargo on sale, distribution, marketing and consumption of whisky, wine, rum, vodka, gin, tequila or any other alcohol within the territory of Dilli Pradesh. However, beer and any other alcoholic beverage with alcoholic content of less than 5% were excluded from its purview. Pursuant to such act, Kind Bird Pvt. Ltd. approached the Hon'ble Supreme Court of Indus under Article 32 of the Constitution of Indus. Further, a petition under Article 226 of the Constitution was filed by the State of Dilli Pradesh against the Lieutenant Governor for the latter's incompetency towards legislating such an Order. The Supreme Court, through suo motu cognizance, transferred the petition under Article 226 to itself and clubbed both the matters for the final disposal.

-The matter is slated to be heard on 2nd October, 2016-


ON BEHALF OF THE


-QUESTIONS PRESENTED-

Page vi of viii

QUESTIONS PRESENTED

ESPONDENT VERY RESPECTFULLY PUTS FORTH TO THE R ESPONDENT

THE HON’BLE SUPREME COURT, THE

FOLLOWING QUERIES:

I.

WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI PRADESH HAS THE LEGISLATIVE COMPETENCE TO ENACT THE IMPUGNED ORDER?

II.

WHETHER THE IMPUGNED ORDER VIOLATES THE FUNDAMENTAL RIGHTS OF THE CITIZENS?


ON BEHALF OF THE


-SUMMARY OF PLEADINGS-

Page vii of viii

SUMMARY OF PLEADINGS III.

WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI PRADESH HAS THE LEGISLATIVE COMPETENCE TO ENACT THE IMPUGNED ORDER?

It is submitted that the Lieutenant Governor had the legislative competence to enact the impugned Order. This is because, the law has been made under Entry 1 of State List because the ambit of the Order is much larger than just liquor and that the Lt. Governor is not bound by the aid and advice of the Council of Ministers and therefore, he had wide discretionary powers vested with him not only with respect to executive actions, but also with legislative actions.

IV.

WHETHER THE IMPUGNED ORDER VIOLATES THE FUNDAMENTAL RIGHTS OF THE CITIZENS?

It is submitted that the fundamental rights ri ghts of the petitioner, King Bird Liquor Private Limited, have not been violated by the imposition of the Prohibition Order passed by the Central Government. This is because, Article 14 of the Constitution is not violated because there is intelligible differentia present and a rational nexus with the object of having the Order in the first place. Article 19 of the Constitution is not violated because there is no right at all to trade in liquor. Further, the medicinal and toilet preparations are not prohibited and therefore, this ground is not relevant for the present purpose. Lastly, the law imposing such prohibition is passed by a competent authority, as had alread y been discussed in the last issue.


ON BEHALF OF THE


-PLEADINGS AND AUTHORITIES-

16 Page 1 of 16

PLEADINGS AND AUTHORITIES

W.P. No. ____ / 2016 (suo motu transfer from the High Court of Dilli Pradesh) I.

WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI PRADESH

HAS

THE

LEGISLATIVE

COMPETENCE

TO

ENACT

THE

IMPUGNED ORDER?

1. It is submitted that the Central Government (through the Lieutenant Governor 1) is within his legislative competence to enact such a law. This is because, [A] The law has been made under Entry 1 of State List and; [B] the Lt. Governor is not bound by the aid and advice of the Council of Ministers. A. THAT THE LAW HAS BEEN MADE

UNDER ENTRY

1 OF LIST II

2. It is respectfully submitted that the power to make laws with respect to “ public order ” forms a part of Entry 1 of State List of the Seventh Schedule of the Constitution of Indus and the same is outside the legislative scope of the State Legislature of Dilli Pradesh, as provided for under Article 239AA(3) of the Constitution. The said clause states: 3. It is submitted that the term Public Order is an expression of wide connotation and not vague. The Indian Statutes use three terms for describing breakdown of law and order. These are, in the ascending order of seriousness, “Law and Order”, “Public Order” and “Security of State.” Law and Order comprehends disorders of less gravity than the term Public order which comprehends disorders of less gravity that those affecting Security of State. State. “Public Order” includes under its purview, all acts which cause harm to public safety or interest 2 and disturbs public tranquility3. In the case of Superintendent Central Prison v. v. Ram Manohar Lohia, Justice Lohia, Justice Subba Rao, giving meaning to the term Public Order, observed as follows: “ Public Order is synonymous with public safety and tranquility: it is the absence of order involving breaches of local significance in contradistinction to national upheavals, such as civil strike, war, and anything affecting the security of the state.” state.”

1 2 3

Hereinafter, “Lt. Governor”. Emperor v. Sibnath Banerjee, AIR 1943 FC 75. Madhu Limaye v. S.D.M. Monghyr, AIR 1971 SC 2486.


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4. In a Canadian Judgment, Charles Russell v. The Queen4 , it was enunciated that prohibition on liquor falls under the subject matter of Public Order. Therefore, the law making power for the same is dealt with by the Legislature which has the power to make laws on maintenance of Public Order. Quoting from the case, their lordships had observed: “ Intoxicating liquors, can, of course, be held as property, but a law-placing restrictions on their sale, custody, or removal, on the ground that the free sale or use of them is dangerous to the public safety, and making it a criminal offence punishable by fine or imprisonment to violate these restrictions, cannot properly be deemed a law in relation to property in the sense in which those words are used. What Parliament is dealing with in legislation of this kind is not a matter in relation to property and its rights, but one relating to public order and safety.” safety.” 5. The above judgment was referred to in the case of State of Bombay v. F.N. Balsara 5. Though the above observation was not used in that case as it dealt with two entries belonging to different lists and not two entries belong to the same list as in the present matter. However, this principle is of prime relevance for the instant matter. i.

Pith and Substance

6. It is humbly submitted that the Pith and Substance of the Prohibition Order passed by the Lt Governor was to curb the menace of alcohol that was disturbing public tranquility and causing issues of safety harming the interests of the public. The doctrine of pith and substance6 is used for determining the true nature and character of a law. In Ishwari Khetan Sugar Mills (P) Ltd. and Ors. v. State v. State of Uttar Pradesh and Ors., 7 it was observed that: “It was held that when the validity va lidity of the legislation is challenged on the ground of want of legislative competence and it is necessary to ascertain which entry in the entry list the legislation is preferable to, the court has evolved the theory of pith and substance. If in pith and substance a legislation falls within one entry or the other but some portion of the subject matter of the legislation

4 5 6

7

[1882] 7 AC 829. AIR 1951 SC 318. Ramkrishna Ramnath Ramnath Agrawal v. v. Municipal Committee Committee Secretary, AIR 1950 SC 11; State of Karnataka v. Ranganatha Reddy, AIR 1978 SC 215; K.S.E. Board v. India Aluminium Co., AIR 1976 SC 1031; Tansukh Rai Jain v. Niltratan Prasad Shaw, AIR 1966 SC 1780; Prafulla Kumar Mukherji v. Bank of Commerce Ltd., AIR 1947 PC 60. [1980] 3 SCR 331.


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incidentally trenches upon and might enter a field under another list, the Statute as a whole would be valid notwithstanding such incident al incident al trenching.” 7. It is worth noting here that, no question of conflict between two Lists (State and Central Lists) will arise if the impugned legislation by the application of the doctrine of ‘pith and substance’ appears to fall exclusively under one list, and the encroachment upon another list is only incidental. 8 8. It is submitted that taking recourse from a catena of judicial pronouncements, it can be stated that the subject matter of an enactment though might fall under a particular entry of one list, but the object, scope and effect of it is the primary criteria to decide legislative competence of a law making body to pass the same. Thus, in the present matter, the subject matter of the Prohibition Order is “Liquor ” but its object, scope and effect is to curb the menace caused by liquor to public peace, safety and tranquility 9 i.e. maintenance of Public Order. 9. Further, it is submitted that in addition to the Doctrine of Pith and Substance, the Aspect Theory, Theory, which has been developed by judicial pronouncements, gives precedence to the legislative intention behind an enactment rather than its subject matter. The case of Federation of Hotel and Restaurant Association of India I ndia v. Union of India 10 talks about this theory. Conclusively, the Court had defined Aspect Theory in connection with distribution of legislative power. This means that, subjects, which in one aspect and for one purpose fall within the power of a particular legislature, may in another aspect and for another purpose fall within another legislative power. 10. Therefore, in the present matter, it can be accordingly put forth that the prohibition envisaged in the Prohibition Order is essentially for maintaining the public order situation in the State as provided for in Entry 1 of State List and not purely on the subject matter of Liquor falling under Entry 8 of State List, that is within the State power. The distinct aspect, namely the Public tranquility and safety aspect falling within the Union Power must be distinguished and the legislative competence to pass such s uch a prohibition order should be sustained. B. THAT LT. GOVERNOR IS NOT BOUND BY AID AND

ADVICE OF

COUNCIL OF MINISTERS

11. It is humbly submitted that the Lt. Governor is not bound by the aid and advise of the Council of Ministers on two grounds, namely: a) He has the sole discretion to legislate on certain matters, as provided under Section 41 of the Government of National Capital Territory of 8 9 10

B. Viswanathiah v. State of Karnataka, (1991) 3 SCC 358, ¶ 9. ¶ 3, Factsheet. (1989) 3 SCC 634.


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Delhi Act, 1991 11; b) The b) The position of a Lt. Governor is not akin to that of the Governor of the State. ii.

Sole Discretion under the NCT Act

12. It is submitted that in view of Section 41 of the NCT Act, 1991, the Lt. Governor is required to act in his discretion in respect of the matters enumerated therein, and not on the aid and advice of the Council of Ministers. Section 41 is read as follows: “ Matters in which Lieutenant Governor to act in his discretion.: The Lieutenant Governor shall act in his discretion in a matter: (i) which falls outside the purview of the powers conferred on the Legislative Assembly but in respect of which powers or functions are entrusted or delegated to him by the President;” 13. It is also submitted that the Lt. Governor is the Administrator of the t he Union Territory and thus, acts as a delegate to the President. While describing the status of the Administrator of the Union Territory as a delegate of the President, it was observed by the Supreme Court in Sushil Flour Dal & Oil Mills v. Chief Commissioner ,12 that: “Under Part VIII of the Constitution the power to administer the Union Territories vested in the President and the President could exercise that power directly or through an Administrator appointed by him. An Administrator so appointed was the medium through which the President exercised the function of administering the Union Territories.” 14. Thus, it is submitted that in the present matter, the Prohibition Order passed by the Lt. Governor falls under Entry 1 of List II which is outside the law making purview of the State Legislative Assembly of Dilli Pradesh, as provided under Article 239AA. Additionally, the power to make laws under Enter 1 List II is with the Central Government, and such power has been delegated and entrusted upon the Lt. Governor. Thus, in lieu of the aforesaid principles of the law, the Lt. Governor exercises discretion and acts as a delegate of the President13. iii.

11 12 13

Lt. Governor is not akin to a State Governor Governor

Hereinafter, “the NCT Act.” (2000) 10 SCC 593. Article 239(1) of the Constitution of Indus.


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15. It is humbly submitted that the position of Lt. Governor is not akin to Governor. The scope of “aid and advise” under advise” under Article 239AA(4) of the Constitution is not comparable to the scope of “aid and advise” received advise” received by the Governor of a State under Article 162 of the Constitution. This has been enunciated in the case Devji case Devji Vallabhbhai Tandel v. Administrator v. Administrator Goa, Daman & Diu14: “The Legislative Assembly of NCT of Delhi has no legislative comp etence to legislate in respect of any subjects covered under Entries 1, 2 and 18 of State List. As a corollary, the Government of NCT of Delhi has no executive authority in respect of these enumerated subjects.” 16. It is further submitted that the Hon’ble Supreme Sup reme Court of India in Samsher Singh v. Singh v. State State of Punjab, 15 after noticing t he contents of Article 163(1) and Article 239AA(4) of the Constitution, explained the legal position as under: “As is evident, both Article 163(1) and Article 239AA (4) of the Const itution Const itution provide for the Governor/Lt. Governor acting in his discretion. However, the discretion of the Governor of a State under Article 163(1) is confined only to the Constitutional provisions, whereas under Article 239AA(4), the Lt. Governor may act in his discretion with regard to all the matters in respect of which he is required to act in his discretion "by or under any law".” 17. Further, Rule 23 of Transaction of Business Rules, 1993, specifies the matters which essentially require the approval of the Lt. Governor before orders thereon can be issued by the Government of NCT of Delhi (Government of the State of Dilli Pradesh, in the instant matter), which is a departure from the titular nature of Governors in States in that these are matters where proposals need to be necessarily placed before the Lt. Governor for approval before the Government can act on them. This also entitles the Lt. Governor to exercise a difference of opinion vis-à-vis the vis-à-vis the advice tendered by the Council of Ministers, as mandated in Article 239AA(4). 18. Moreover, the above provision is supplemented by Chapter V of Transaction of Business Rules where Rules 49 to 52 inter alia alia provide for mechanism(s) and procedure(s) for resolution of the difference of opinion, between the Lt. Governor and the Council of Ministers, by the Central Government. Thus, it is conclusively submitted that the Lt. Governor has acted within his legislative competence in enacting the said law. Also, he was 14 15

(1982) 2 SCC 222. (1974) 2 SCC 831.


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not required to act on the aid and advise of the Council of Ministers since his power and responsibility is different to that of the Governor of the State.


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W.P. No. ____ / 2016 II.

WHETHER THE FUNDAMENTAL RIGHTS OF PETITIONER 2 HAVE BEEN VIOLATED?

19. It is submitted that the fundamental rights of the petitioner, King Bird Liquor Private Limited16, have not been violated by the imposition of the Prohibition Order passed by the Central Government. 17 This is because, [A] Article 14 of the Constitution is not violated; [B] Article 19 of the Constitution is not violated; [C] The medicinal and toilet preparations are not prohibited; and [D] The law imposing such prohibition is passed by a competent authority. A. THAT ARTICLE 14 OF THE CONSTITUTION IS NOT VIOLATED

20. It is submitted that a law made by the Parliament or the Legislature can be struck down by courts on two grounds and two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional provision. 18 However, in the instant matter none of these grounds is present so as to negative the authority of the Lt. Governor to pass the impugned Order or tom make it as being violative of Articles 14, 19 or 21 of the Constitution of Indus. 21. It is submitted that the Allahabad High Court in the case of Kanaka of Kanaka Durga Wines and Ors. v. Govt. of A.P. and ors. 19 held that: “On these facts, can we say that the test of reasonable classification is not satisfied and therefore the definition of 'liquor' in Section 2(7) of the Prohibition Act should be struck down so as to exclude all other intoxicating drinks from the definition of 'liquor'? ' liquor'? We think we cannot and we shall not. [...] it has been well settled that the Legislature understands and correctly appreciates the needs of its own people and that its laws are directed to the problem made manifest by experience and that its discriminations, including beer and draught beer in and excluding toddy from the definition of 'liquor' are based on adequate grounds and further that the Legislature is free to recognize

16 17 18 19

Hereinafter “Petitioner “Petitioner 2”. 2”. ¶ 7, Factsheet. State of Andhra Andhra Pradesh and Ors. v. McDowell McDowell & Co., (1996) 3 SCC 709. 1995 (3) ALT 228.


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degree of harm and may confine its restrictions to those cases where the need is clear. ”20 22. Although, the Government has, chosen to prohibit sale, purchase, possession and consumption of other intoxicating drinks and yet has left out a particular type of intoxicating liquor from the ambit of prohibition, the Court should not strike down such a legislation on the ground of discrimination so as to destroy achievement of that part of the constitutional objective of endeavoring to bring about prohibition which the Legislature has admittedly covered by the impugned legislation. 21 23. Along the lines, in a similar case, where the production and manufacturing of all intoxicating liquors was banned while excluding a particular type of liquor, and that too on the basis of alcohol content, the Supreme Court upheld such prohibition. In the circumstances, it cannot be said that it is not a case of reasonable classification having regard to the object or legislation. Moreover, it is always alwa ys open to the State to introduce prohibition in stages. It is not necessary that the prohibition should be total and absolute whenever it is imposed. 22 24. The test of classification which is sine qua non non for testing the validity of every legislation under Article 14 of the Constitution will not be rigidly applied in cases of classification of intoxicating drinks. 23 The basis of classification for judging the validity of the law can be gathered from surrounding circumstances 24 and in the instant matter, the surrounding circumstances point to the menace being caused by the proliferation and high consumption of alcohol in the State of Dilli Pradesh 25 and therefore, it was necessary for the public health, morals, safety and order and public interests that such Order be passed. 25. As the Supreme Court in the case of Amar Chandra Chakraborty v. The Collector of Excise, Government of Tripura and Ors., Ors .,26 put it: “ In the case of country liquor, therefore, the question of determining reasonableness of the restriction may appropriately be considered by giving due weight to the increasing evils of excessive consumption of country liquor in the interests of health and social welfare. Principles applicable to trades which

20 21 22

23 24 25 26

Id. at ¶25. Supra note 19 at ¶25. State of Andhra Pradesh and others, others, etc. v. McDowell McDowell and Co. and others, etc., (1996) 3 SCC 709; see, C.S. Rowji v. State of Andhra Pradesh, [1964]6 SCR330. Supra note 19 at ¶25. Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731. ¶ 5, Factsheet. (1972) 2 SCC 442.


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all persons carry on free from regulatory controls do not apply to trade or business in country liquor. This is so because of the impact of this trade on society due to its inherent nature.” 26. Therefore, the respondent contends that the impugned Order is not violative of Article 14 of the Constitution under the light of the above principles. It has accordingly passed the test of having an intelligible differentia and of having reasonable nexus to the object sought to be achieved, i.e. to uplift public health, morals, and public order. B. THAT ARTICLE 19 OF THE CONSTITUTION IS NOT VIOLATED

27. It is humbly submitted that there is no right to carry on a business in liquor. This principle is a settled law under the scheme of the Constitution's Article 19(1)(g). It is submitted that trade or business in country liquor has from its inherent nature been treated by the State and the society as a special category requiring legislative control which has been in force in the whole of India since several decades. An argument that a citizen has a fundamental right to trade, or business in liquor is to be construed in the sense to mean that only when the State does not prohibit the trade in liquor, can a citizen has the right to do such trade but that too subject to the limitations so placed by the State. 27 i.

Right to carry on trade in liquor

28. In Har In Har Shankar and Ors. Ors . v. Dy. Excise and Taxation Commissioner 28, the law was summed up as: “These unanimous decisions of five Constitution Benches uniformly emphasized after a careful consideration of the problem involved that the State has the power to prohibit trades which are injurious to the health and welfare of the public, that elimination and exclusion from business is inherent in the nature of liquor business, that no person has an absolute right to deal in liquor and that all forms of dealings in liquor have, from their inherent nature, been treated as a class by themselves by all civilized communities. The contention that the citizen had either a natural or a fundamental right to carry on trade or business in liquor thus stood rejected.”

27 28

State of A.P. and another v. Crag Martin Distillery Pvt. Ltd., Goa and another, 2000 (5) ALT 34. [1975] 3 SCR 254.


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29. Reference must also be made to the ruling by the Supreme Court of India in Amar Chandra Chakraborty v. v. The Collector of Excise, Government of Tripura and Ors., 29 wherein the Court held that: “ An activity which has harmful effects on the society cannot be classified as a profession or trade for protection under Article 19(1)(g) of the Constitution. Constitution. 30. Reliance is also placed on the observations made by this Court in the case of State of Bombay v. R.M.D. Chamarbaugwala and Anr. 30 In this case, it was observed by this Court that activity of gambling could not be raised to the status of trade, commerce or intercourse and to be made subject matter of a fundamental right guaranteed by Article 19(1)(g). ” 31. Along the lines, it is submitted that Article 19(1)(g) of the Constitution does not make an inherent entitlement towards the citizens to carry on a business in activities which are immoral and criminal and in articles or goods which are obnoxious and injurious to health, safety and welfare of the general public, i.e., res extra commercium. commercium. Potable liquor as a beverage is an intoxicating and depressant drink which is dangerous and injurious to health and is, therefore, an article which is res extra commercium. Hence the trade or business in liquor can be completely prohibited. 31 32. In Har Shankar and Ors. v. Deputy Excise and Taxation Commissioner 32, it was also held that: “...The state, under its regulatory powers, has the right to prohibit absolutely every form of activity in relation to intoxicants - its manufacture, storage, export, import, sale and possession. In all their manifestations, these rights are vested in the State and indeed without such vesting there can be no effective regulation of various forms of activities in relation to intoxicants. ” 33. In the aforementioned cases, the principles were reiterated from Khoday from Khoday Distilleries Ltd. and Ors. v. State v. State of Karnataka and Ors. 33 in support of the submission that the trading in liquor is not a fundamental right. In this case, it was held that: “The correct interpretation to be placed on the expression "the right to practice any profession, or to carry on any occupation, trade or business" is to interpret it to mean the right to practice any profession or to carry on any 29

(1972) 2 SCC 442. AIR 1957 SC 699. 31 State of Punjab and Anr. v. Devans Modern Breweries Breweries Ltd. and Anr., (2004) 11 SCC 26. 32 Supra note 28. 33 (1995) 1 SCC 574. 30


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occupation, trade or business which can be legitimately pursued in a civilised society being not abhorrent to the generally accepted standards of its morality.” 34. It is stated that while engaging in liquor traffic is not inherently unlawful, nevertheless, it is a privilege and not a right, which is subject to State's control34. This power of control is an incident of the society's right to self-protection and it rests upon the right of the state to care for the health, morals and welfare of the people. Liquor traffic is a source of pauperism and crime.35 35. In the case of State of Kerala and Ors. v. Green Seven Resorts (P) Ltd. and Ors. Ors .36 ,it was held by the Supreme Court that: “The fundamental rights conferred by our Constitution are not absolute. Article 19 has to be read as a whole. [...] The correct interpretation to be placed on the expression "the right to practise any profession, or to carry on any occupation, trade or business" is to interpret it to mean the right to practise any profession professi on or to carry on any occupation, trade or business which can be legitimately pursued in a civilised society being not abhorrent to the generally accepted standards of its morality [...] and it is not possible to enumerate all professions, occupations, trades and businesses which may be obnoxious to decency, morals, health, safety and welfare of the s ociety [...]That [...] That is apart from the fact that Article 47 of the Constitution enjoins upon the State to prohibit consumption of intoxicating drink like liquor, which falls for consideration in the present case and, therefore, the right to trade or business in potable liquor is subject subj ect also to the provisions of the said article. ” 36. With regards to the nature of the activity, act ivity, the Supreme Court categorically held that the words “trade”, “business” or “intercourse” do not cover activities which are, from their very nature and in essence, extra commercial or res extra commercium, commercium, although the external forms, formalities and instruments of trade may be employed and they are not protected either by Article 19(1)(g) or Article 301 of our Constitution. 37

34

30 AMERICAN JURISPRUDENCE 538 (2nd ed. 1962). See, Har Shankar Case, supra note 29. Id. at 539-541. 36 2015 (2) KHC 580. 37 Dr. K. R. Lakshmanan v. State of Tamil Nadu Nadu and another, (1996) 2 SCC 226. See, State of Bombay v. R.M.D. Chamarbaugwala, [1957]1SCR874. 35


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37. In a landmark case of M/s. Ugar Sugar Works Ltd. v. v. Delhi Administration & Ors. 38 , the Supreme Court was considering the augment of the Petitioner challenging the validity of an executive action regulating liquor in Delhi. The mere fact that such a policy would hurt business interests is not a ground to challenge a policy decision regulating liquor. liquor.39 ii.

Reasonableness

38. With regards to reasonableness, it is submitted that, in order to determine the reasonableness of the restriction regard must be had to the nature of the business and the conditions prevailing in that trade.40 It was laid down that: “It can also not be dented that the State has the power to prohibit trades which are illegal or immoral of injurious to the health and welfare of the public. Laws prohibiting trades innoxious or dangerous goods or trafficking in women cannot be held to be illegal as enacting a prohibition and not a mere regulation.” 39. Reference must also be made to a recent case of 2015, The Kerala Bar Hotels Association and Ors. v. State v. State of Kerala and Ors. 41 , wherein the Supreme Court said that: “27. We now move to the arguments predicated on Article 19 of the Constitution. We have already noted that the business in potable liquor is in the nature of res extra commercium and would therefore be subject to more stringent restrictions than any other trade or business. Thus while the ground of Article 19(1)(g) can be raised, in light of the arguments discussed with regard to Article 14, it cannot be said that the qualification on that right is unreasonable.” 40. For the reasonableness of the restrictions imposed, there cannot be any exception to the right of the State to place reasonable restrictions on the trade or business even of industrial alcohol to prevent its diversion for the use in or as intoxicating beverage. 42 41. In the case of Indian Handicrafts Emporium and Ors. v. Union of India and Ors . 43 , the Supreme Court said:

38

(2001) 3 SCC 635. Id. at ¶ 17. 40 Cooverjee B. Bharucha v. v. Excise Commr. and Chief Commr. Ajmer, AIR 1954 SC 220. 41 AIR 2016 SC 163. 42 State of A.P. and another v. Crag Martin Distillery Pvt. Ltd., Goa and another, 2000 (5) ALT 34. 43 2003 (3) Suppl. SCR 43. 39


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“It is now settled that no inflexible answer to this question is possible, and that it is the nature of the business or property which is an important element in determining how far the restriction may reasonably go: (A) In the case of inherently dangerous or noxious trades, such as production or trading in liquors or cultivation of narcotic plants, or trafficking in women, it would be a 'reasonable restriction' to prohibit the trade or business altogether. (B) Where the trade or business is not inherently bad, as in the preceding cases, it must be shown by placing materials before the Court that prohibition of private enterprise in the particular business was essential in the interests of public welfare.”44 42. Therefore, taking the trade of liquor or other noxious substance out of the purview of Article 19(1)(g) does not warrant the test of reasonableness in the instant matter. Accordingly, not only is there no right in liquor but also, there is no qualification towards its reasonableness with regard to the prohibition. C. THAT MEDICINAL AND TOILET PREPARATIONS ARE NOT

PROHIBITED.

43. It is submitted that, in the instant matter, alcohol in the Prohibition Order must be taken as to include “other types of intoxicating liquors” and not to include “medicinal and toiletries' preparations”. This argument is based on the rule of ejusdem generis. 44. The rule of ejusdem generis entails generis entails taking colour from other words and phrases employed in the same clause.45 The words “ejusdem generis” generis” means “of the same kind or nature” nature ”. This rule is that where particular words are followed by general words, the general words should not be construed in their widest sense but should be held as applying to objects, persons or things of the same general nature or class as those specifically enumerated, unless of course there is a clear manifestation of a contrary purpose; or to put in a slightly different way, where general or special words which are capable of analogous meaning are associated together, they take colour from each other and the general words are restrained and limited to a sense analogous to the less general. 46

44 45 46

D.D. BASU, SHORTER CONSTITUTION OF I NDIA (VOL. C) 45-46 (6th ed. 1989). The State of West Bengal Bengal v. Kesoram Industries Ltd. Ltd. and Ors., (2004) 10 SCC SCC 201. India Brewery & Distillery v. Income Tax Officer, Officer, (1994) 48 TTJ Bang 11 at ¶ 7.


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45. To this point, the Allahabad High Court in Dy. Commissioner of Income Tax, Lucknow v. M/s v. M/s U.P. Cooperative Sugar Factories Federation Ltd. Lucknow, 47 while interpreting the phrase “other alcoholic spirits” held that: “ Language is clear and speaks for beer and wine followed by the words 'other ' other alcoholic spirits'. The latter words indicate the same species i.e. of liquor falling within the category of beer and wine fit for human consumption. The spirits itself may be divided into categories i.e. methylated spirit and others. Legislature to their wisdom points out beer and wine and other identical or alcoholic spirits. Industrial alcohol constitute separate class seems to be undisputed fact.” 46. In yet another recent case, the Supreme Court while interpreting the phrase “or otherwise” held that it must be construed to include all situations where the animals are subjected to unnecessary pain or suffering. 48 47. As Maxwell puts it, “Where two or more words which are susceptible of analogous meaning are coupled together, noscitur a sociis, they are understood to be used in their cognate sense. They take, as it were, their colour from each other, the meaning of the more general being restricted to a sense analogous to that of the less general.”49 48. Therefore, the principles enunciated above point to the fact that the phrase “or any other alcohol”50 must be construed to include any other type of intoxicating liquor of the same nature as expressly provided in the preceding words, that is, whisky, wine, rum, vodka, gin, tequila, unless a kind is specifically excluded. Therefore, pursuant to this, there is no point of interpreting the phrase to include “medicinal or toiletries”. 49. As an Arguendo an Arguendo,, it is submitted that the Supreme Court in Synthetics and Chemicals Ltd. v. State of U.P.,51 held that: “75. F.N. Balsara case 52 dealt with the question of reasonable restriction on medicinal and toilet preparations. In fact, it can safely be said that it impliedly 47 48 49 50 51 52

2013 (1) ADJ 73. Animal Welfare Board of India v. A. Nagaraja Nagaraja and Ors., (2014) 7 SCC 547. th MAXWELL ON THE I NTERPRETATION NTERPRETATION OF STATUTES 765 (12 ed. 1969). ¶ 7, Factsheet. AIR 1990 SC 1927. AIR 1951 SC 318.


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and sub-silentio clearly held that medicinal and toilet preparations would not fall within the exclusive privilege of the States. If they did there was no question of striking down of Section 12(c) and (d) and Section 13(b) of the Bombay Prohibition Act, 1949 as unreasonable under Article 19(1)(f) of the Constitution because total prohibition of the same would be permissible. In K.K. Narula case 53 it was held that there was right to do business even in potable liquor. It was not necessary to say whether it is good law or not. But this must be held that the reasoning therein would apply with greater force to industrial alcohol.” 50. Therefore, it is contended that by the application applic ation of the principles of ejusdem generis as generis as a rule of interpretation of a statute, the word “or any other alcohol” has to be read in context of the whole law, and must not be meant to make the purpose of the Prohibition Order as ambiguous. D. THAT THE LAW IMPOSING SUCH PROHIBITION IS

PASSED BY A COMPETENT AUTHORITY

51. It is contended that the Prohibition Order has been passed by the Lt. Governor of Dilli Pradesh54 under his authority. Such authority is vested on him by the Constitution itself and therefore, a Lt. Governor having the legislative power as being co-extensive to that of the State Legislature is competent to make the impugned law. 52. The Supreme Court in State of A.P. and another v. Crag Martin Distillery Pvt. Ltd., Goa and Anr.55 held that: “This is a part from the fact that the trade or business in potable liquor is a trade or business in res extra commercium and hence can be regulated and restricted even by executive order provided it is issued by the Governor of the State. We, therefore, answer the question q uestion accordingly.” 53. Most importantly, so far as the power of Executive to prohibit liquor in the region is concerned, the Supreme Court of India in State of A.P. and another v. Crag v. Crag Martin Distillery Pvt. Ltd., Goa and Anr., Anr., 56 observed: “This is apart from from the fact that the trade or business in potable liquor is a trade or business in res extra commercium and hence can be regulated and

53 54 55 56

[1967] 3 SCR 50. ¶ 7, Factsheet. 2000 (5) ALT 34. 2000 (5) ALT 34.


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restricted even by executive order provided it is issued by the Governor of the State. We, therefore, answer the question accordingly.” 54. The State and its instrumentality have also power to change the policy. The executive power is not limited to frame a particular policy. It has untrammeled power to change, re-change, adjust and readjust the policy taking into account the relevant and germane considerations. It is entirely in the discretion of the Government how a policy should be shaped. 57 55. Further, it may be noted that the Lt. Governor derived its power for imposing such prohibition from the [Dilli Pradesh] 58 Excise Act, 2010. The Government may issue such order and take such measures as may be deemed appropriate to regulate drinking or to enforce prohibition in whole or in any part of Delhi. 59 For the purpose of this derivation, it is appropriate to refer to the definitions' section section which gives the definition of “Government”: Government means the Lieutenant Governor of the [Dilli Pradesh] 60 appointed by the President under article 239 and designated as such under article 239 AA of the Constitution.61 56. Therefore, it is contended by the Respondent that the executive had the legislative power to enact the impugned law, and as has already been dealt by the previous issue of legislative competence, the law must be held to be valid. Accordingly, this Court must dismiss this petition.

57 58 59 60 61

Dhampur Sugar (Kashipur) Ltd. v. State of Uttranchal Uttranchal and Ors., (2007) 8 SCC 418. ¶ 1, Factsheet. § 77, Delhi Excise Act, 2010. ¶ 1, Factsheet. § 2(35), 2(35), Delhi Delhi Excise Act, 2010.


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-PRAYER FOR -PRAYER FOR RELIEFRELIEF-

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PRAYER FOR RELIEF

HEREFORE, IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS GIVEN W HEREFORE AND AUTHORITIES CITED, THIS HON’BLE COURT MAY BE PLEASED TO

DISMISS THE PRESENT SUIT

A ND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE PLEASED TO GRANT IN THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE, ALL OF WHICH IS RESPECTFULLY SUBMITTED.

Sd/COUNSELS FOR THE R ESPONDENT ESPONDENT


ON BEHALF OF THE


Respondnet Memo, Runners Up - BR Sawhny Moot Competition 2016

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