DR.

RAM MANOHAR LOHIYA NATIONAL LAW

UNIVERSITY
LUCKNOW

In the Hon’ble Supreme Court of India

Case Concerning, ‘fundamental rights’

Max Muller Fashions Pvt. Ltd.

…………...…………………………………………………………
(Petitioners)

V.

State of Gujarat

….………………………………………………………………….
(Respondents)

On submission to the

Supreme Court of India

 TABLE OF CONTENTS

Index of Authorities……………………………………………………………….3

Supreme Court Decisions………………………………………………………….

Books and Articles…………………………………………………………………

Statutes…………………………………………………………………………….

Statement of Jurisdiction………………………………………………………...4

Synopsis of Facts………………………………………………………………….5

Issues Raised………………………………………………………………………7

Summary of Arguments………………………………………………………….8

Pleadings…………………………………………………………………………..9

Prayer…………………………………………………………………………..

2
 INDEX OF AUTHORITIES

- Supreme Court Decisions –

Municipal Corporation,Ahmedabad v. Jan Mohammad Usmanbhai (1986) 2 SCC

20

Razakbhai Issakbhai Mansuri and Others v. State Of Gujarat And Ors, 1993 (1)
SCALE 5, 1993 Supp (2) SCC 659.

State of Gujarat v. Mirzapur Moti Quereshi Kasab Zamat AIR 2006 SC 212

State Trading Corporation of India v. Commercial Tax Officer AIR 1963 SC 184

- Books and Articles –

Shukla, V.N. , Constitution of India – Tenth Edition

Jain, M.P., Indian Constitutional Law – Fifth Edition – Volumes I and II
Basu, Durga Das, Commentary on the Constitution of India – Eighth Edition

- Statutes -

The Constitution of India (1950)…………………………………………………..

Cable Television Networks (Regulation) Act 1995…………………………………

Bombay Prohibition Act, 1949……………………………………………………

The Delhi Police Act, 1978……………………………………………………….

G.O.Ms.No.773 issued by the Government of Tamil Nadu..………………………

Government Order (GO) No. 118 issued by the Government of Tamil Nadu………

3
 STATEMENT OF JURISDICTION

The petitioners approach the Honorable Supreme Court of India under Article 32 of
the Constitution of India, 1950. The respondents respectfully submit to this
jurisdiction invoked by the petitioners.

4
 SYNOPSIS OF FACTS

The Achtung Company (the Company hereinafter), incorporated under the laws of
Germany has its registered office at Munich. In India, it has its subsidiary business
partner with the name Max Muller Fashions Pvt. Ltd, with its registered office at
New Delhi.

The Company deals with a range of fashion products with an underlying

German theme, which have become very popular. During the period of recession,
India proved to be a safe ground for the company and the company earned
sufficient profit from India.

An internal market survey conducted by the company revealed that educated

urban youth was the major customer. In 2009, the company established its three
manufacturing plants in India at Gurgaon, Medak and Baroda. A design studio was
set up at Noida. Some designs were selected by the company, which hit the market
in 2010. The products that were launched in 2010 included a T-shirt which had a
cartooned, skimpily clad woman wearing a Nazi Rgalia and sitting on a tank with
the slogan “Panzers were Panties”, and a Sneaker which had a Swastika in black,
red and white colours. The Swastikas were placed in such a manner that half of it
was visible and other half printed on the sole was only visible when the foot was
raised.

Once upon a time, a half –Hindu half Jain women saw these products at a shop
and was appalled at both products, which she found to be in extremely bad taste.
Being not able to withstand the same, as for her it was a non condonable act against
her religious feelings and an unapologetic act against Indian culture, she choose to
die through Santhara- a practice in which water and food is given up. It followed a
large scale commotion and problems, throughout the country, specially Gujarat.

The World Hindu Parishad condemned the Swastika designs. The Jain
Regulatory Council requested the devout Jain to boycott the goods. The Ulemea-e-
Hindustani, a body of Islamic clerics declared the portrayal of the woman on the T-

5
shirt as obscene and un-Islamic. After such proclamations a large scale law and
order situation broke out that involved rioting in Gujarat and Uttar Pradesh. All the
outlets were burnt and looted. This all caused a huge dip in the business.

In the meantime, in the run up to the elections in Gujarat, the leader of

opposition of Gujarat, Balwendra Bobby promised to root out the cause of problem.
The Bhartiya Janta Sangat Party was voted to power. The first and immediate
executive order from the Chief Ministers Office was regarding immediate and
permanent ban on the goods on manufacture of, sale, marketing, entry and
consumption of all Achtung products in Gujarat.

After the order came out, the company moved a writ petition to the Supreme
Court of India citing a violation of fundamental rights.

6
 ISSUES RAISED

I. Whether the state of Gujarat has authority to pass any executive order to
regulate the manufacture, sale and consumption of goods?

II. Whether the order passed by state of Gujarat violates fundamental right of the
petitioner?

III. Whether the state of Gujarat can pass an executive order touching upon
religious issues?

IV. Whether the Petitioner is a citizen of India for the purpose of Article 19(1)(g)?

7
 SUMMARY OF ARGUMENTS

1. It is submitted that subject to the provisions of the Constitution, the state of

Gujarat has complete authority to pass the executive order for regulating the
manufacture, sale and consumption of goods. ‘Public order’ comes under the state list
of the Indian Constitution. In order to protect the public order, the state government
can pass orders to regulate the issues relating to goods. Moreover, clause (2) and (3)
of Article 166 confer the validity of the government executive orders. The judicial
pronouncements have also conferred sufficient authority on the state government
regarding the regulation of the goods that hurt the religious sentiments of the people.

2. It is submitted that the order passed by the state of Gujarat is

legally justified as it does not violate the fundamental rights of the
petitioner. The fundamental rights, as guaranteed by the Indian
constitution are not absolute and subject to certain reasonable
restrictions. Article 19(1)(g) of the Indian constitution, though
guarantees the fundamental right to profess any business throughout
India, it is subject to the reasonable restrictions mentioned in Art.19(6).

3. It is submitted that subject to the provisions of the Indian

Constitution, the state of Gujarat can pass any order that touches upon
the religious issues. There have been several government orders and
statutes that touch upon religious issues.

4. It is humbly submitted that the petitioner, being an artificial

person, is not the citizen of India. Hence it can not claim fundamental
rights under Article 19(1)(g). In several cases, it has been held that only
the natural persons can claim fundamental rights under Art.19.

8
 PLEADINGS

I. THE RESPONDENT HAS COMPLETE JURISDICTION TO PASS ANY

EXECUTIVE ORDER TO REGULATE THE MANUFACTURE, SALE AND
CONSUMPTION OF GOODS.

In the Constitution of India, the powers to enact the laws on several subjects have been
granted to the Parliament as well as the state legislatures1. These subjects have been
provided in the lists in the Seventh Schedule of the Constitution. These lists have been
divided into three parts, namely, the Union List (List –I), the State List (List-II) and
the Concurrent List (List-III). The state legislatures are empowered to enact laws on
the subjects of List-II and List-III.

A. ‘Public Order’ forms the part of the Concurrent List (List-II).

Public order forms the part of the State List2. Entry 1 of the List mentions in the
explicit terms the authority of the states to enact laws on the subject of public order.
The entry 1 reads as follows:
Public order (but not including _533[the use of any naval, military or air force or any other armed
force of the Union or of any other force subject to the control of the Union or of any contingent or
unit thereof] in aid of the civil power).

B. Government orders have the force of law under Art. 13.

Art.13(3) of the Constitution lays down the definition of ‘law’, which also includes the
orders passed by the state government3. Further, Art. 166(2) and (3) confer validity to
the executive actions of the state.

1
Articles 246 to 249 of the Constitution.
2
Entry 1 of List II or State List.
3
Examples are: G.O.Ms.No.773 issued by the Government of Tamil Nadu,

9
II. ORDER PASSED BY STATE OF GUJARAT DOES NOT VIOLATE
FUNDAMENTAL RIGHT OF THE PETITIONER.

As far as the issue of violation of fundamental rights is concerned, no fundamental

right is absolute one. Art. 19(6) of the Indian Constitution puts reasonable restrictions
on the fundamental right guaranteed under Art. 19(1)(g).

A. Reasonable restrictions can be imposed.

The freedom guaranteed under Art.19(1)(g) is not absolute and reasonable restrictions
can be imposed on it under Art. 19(6) of the Constitution. Art. 19(6) reads that:
Nothing in sub-clause (g) of the said clause shall affect the operation of any existing law in so far as
it imposes, or prevent the State from making any law imposing, in the interests of the general public,
reasonable restrictions on the exercise of the right conferred by the said sub-clause, and, in
particular, [nothing in the said sub-clause shall affect the operation of any existing law in so far as it
relates to, or prevent the State from making any law relating to, -
i. The professional or technical qualifications necessary for practising any
profession or carrying on any occupation, trade or business, or
ii. The carrying on by the State, or by a corporation owned or controlled by the
State, of any trade, business, industry or service, whether to the exclusion, complete or
partial, of citizens or otherwise].

B. Cases on reasonable restrictions.

To substantiate the stand of the Respondent the case of State of Gujarat v. Mirzapur
Moti Quereshi Kasab Zamat4, is worth mentioning. In this case the honourable court
quashed the contention of the petitioners that the impugned Act violated their
fundamental right to carry on business of slaughtering of cows and calves.
Further, in Municipal Corporation,Ahmedabad v. Jan Mohammad Usmanbhai5, the
provision of the Bombay Provincial Municipal Corporation Act, 1949 that directed
closure of municipal slaughter houses on seven days in year, was held to be reasonable
restriction in the interest of the public.

4
AIR 2006 SC 212.
5
(1986) 2 SCC 20.

10
 In the case of Razakbhai Issakbhai Mansuri and Others v. State Of Gujarat And
Ors6, the state of Gujarat was held justified in controlling the business in intoxicating
liquor by introducing amendment in the Bombay Prohibition Act, 1949.

6
1993 (1) SCALE 5, 1993 Supp (2) SCC 659.

11
 III. STATE OF GUJARAT CAN PASS AN EXECUTIVE ORDER
TOUCHING UPON RELIGIOUS ISSUES.

It is humbly submitted that the Respondent has authority to pass the executive order to
protect the religious sentiments of the people. The state government has the authority
to pass any order which has force of law under Art.13 of the Constitution.

A. Government orders that touch upon the religious matters.

There are several instances, where in the interest of the religion the state government
has passed the orders. For instance, Government Order (GO) No. 118 issued by the
Tamil Nadu government it declared that "Hindus belonging to all castes possessing
suitable qualifications and training will be appointed as priests to Hindu temples".

B. Legislations regulating religious issues.

There are also several legislations that regulate the religious issues. For example,
section 34 of the Delhi Police Act, 1978 deals with the maintenance of order in
religious issues by the police. Further, Cable Television Networks (Regulation) Act
1995, in its section 19 deals with religious issues in following words:
19. Power to prohibit transmission of certain programmes in public interest.—Where [any
authorized officer] , thinks it necessary or expedient so to do in the public interest, he may, by order,
prohibit any cable operator from transmitting or re-transmitting [any programme or channel if, it is not
in conformity with the prescribed programme code referred to in section 5and advertisement code
referred to in section 6 or if it is] likely to promote, on grounds of religion, race, language, caste or
community or any other ground whatsoever, disharmony or feelings of enmity, hatred or ill-will
between different religious, racial, linguistic or regional groups or castes or communities or which is
likely to disturb the public tranquillity.

12
IV. PETITIONER IS NOT A CITIZEN OF INDIA.

It is humbly submitted that the petitioner can not claim protection under Art. 19(1)(g)
as it can be claimed by natural persons only. Juristic persons have not been granted the
status of citizens in India.

A. Cases on the issue of citizenship of a corporation.

There are several cases that deny the citizenship of the corporations. In State Trading
Corporation of India v. Commercial Tax Officer7, the Supreme Court held that a
company or a corporation is not a citizen of India and therefore it can not claim the
fundamental rights that have been guaranteed to citizens.

7
AIR 1963 SC 184.

13
 PRAYER FOR RELIEF

In light of the facts stated, arguments advanced and authorities cited, the
Respondent, humbly prays before the Honorable Court, to be graciously pleased to:

I. Quash the writ petition filed by the petitioners in the Hon’ble court of
law since there is no violation of the fundamental rights of the accused.

II. Maintain the status quo of the impugned order since there is no
violation of the rights as alleged by the petitioners.

III. Pass any other order, which the court may deem fit in light of justice
equity and good conscience.

All of which is most humbly prayed

Counsel for the Respondent

14