--MEMORIAL FOR APPELLANT--

12IP60009
HARISH.N

IN THE HONOURABLE SUPREME

COURT OF INDIA

NEW DELHI, INDIA

WRIT PETITION __/2012

UNDER ARTICLE 32 O F THE C ONSTITUTION OF INDIA

_______________________________________________________
SWASTH NAGRIK

(PETITIONER)

V.

UNION OF INDIA

(RESPONDENTS)

_______________________________________________________

MEMORIAL ON BEHALF OF
PETITIONERS
2012

i
 --MEMORIAL FOR APPELLANT--

TABLE OF CONTENTS

[A]. LIST OF ABBREVIATIONS..........................................................................................iii

[B]. INDEX OF AUTHORITIES..............................................................................................iv

[C]. STATEMENT OF JURISDICTION.................................................................................v

[D]. STATEMENT OF FACTS...............................................................................................vi

[E]. ISSUES RAISED............................................................................................................xiv

I. Whether The Court Has Requisite Jurisdiction To Maintain This Petition?....................xiv

II. Whether The Provision Is Violative Of Article 14 of Constitution of India?..................xiv

[F]. SUMMARY OF PLEADINGS........................................................................................xv

[G]. P LEA D ING S ADVANCED...........................................................................................1

[A]. PRAYER FOR RELIEF...................................................................................................10

i
 --MEMORIAL FOR APPELLANT--

[A]. LIST OF ABBREVIATIONS

S.No ABBREVIATION EXPANSION

1. Paragraph

2. AIR All India Report

3. Anr Another
4. Art. Article
5. Cal Calcutta
7. Co Company

8. Ed Edition
9. ER England Reports
11. Ltd Limited
12. M.P Madhya Pradesh
13. Ors. Others
14. Pvt. Private
15. RBI Reserve Bank Of India
16. SC Supreme Court
17. SCC Supreme Court Cases
18. SCR Supreme Court Reports
19. U.O.I Union of India
20. U.P Uttar Pradesh
22. v. Versus
23. Vol. Volume

ii
 --MEMORIAL FOR APPELLANT--

[B]. INDEX OF AUTHORITIES

CONSTITUTION OF INDIA

I. LIST OF STATUTES

1. BIHAR MUNICIPALITY ACT, 2007

II. LIST OF CASES REFERRED

S.NO CASES CITATION

.
1. Assistant Commission, Commercial Tax Dept., Work 2010 (4) KarLJ 256 13
Contract and Leasing, Kota v. Shukla and Brother
2. Aswini Kumar v. Arbinda Bose AIR 1952 SC 369 31

3. Baban Naik v. Union of India AIR 1979 Goa 1 38

4. Bachan Singh v. State of Punjab AIR 1982 SC 1382 39

5. Budhan Choudhry v. State of Bihar AIR 1955 SC 191 44

6. Chinranjit Lal v. Union of India AIR 1950 SC 41 44

7. Food Corporation of India v. Bhanu Lodh (2005) 3 SCC 618 24

8. Hodge v. Hodge 1 All ER 359 (366) 32

CA
9. Indian Hume Pipe Co. Ltd. V. State (2009) 5 SCC 187 19

10. Jatinder Kumar v. State of Punjab AIR 1984 SC 953 43

11. Kapurchand Kesaimal Jain v. State of Maharastra (1973) 3 SCC 299 11

12. Keshavanda Bharathi v. State of Kerala AIR 1973 SC 16

1461
13. Kunj Behari Lal v. State of Himachal Pradesh AIR 2000 SC 1069 38

14. Lakshmana v. State of M.P (1983) UJSC 499 p.3 45

15. M/s Bengal Chemical & Pharmaceutical Works Ltd., AIR 1959 SC 633
v. Their Workmen
16. Maneka v. Union of India AIR 1978 SC 597 38

17. Master Construction (P) Ltd v. State of Orissa and (2005) 1 SCC 481 3
Anr
18. Mathai v. George and Anr (2010) 4 SCC 358 7
iii
 --MEMORIAL FOR APPELLANT--

19. National Human Rights Commission v. State of AIR 1996 SC 17

Arunachal Pradesh 1234

20. Om Prakash Sood v. Union of India (2007) 7 SCC 473 6

21. Pranab Kumar Roy v. RBI AIR 1993 Cal 50

22. Pritam Singh v. The State AIR 1950 SC 169 2

23. Punjab Beverages Pvt Ltd., v. Suresh Chand and Anr 1978 SCR (3) 370 29

24. R.K. Garg v. Union of India AIR 1981 SC 2138 25

25. Ram Prasad v. State of Bihar AIR 1953 SC 215 43

26. Ramakant Rai v. Madan Rai & Ors AIR 2004 SC 77 5

27. Sakharam v. State of Maharastra AIR (1973) SC 243 10

28. State of Punjab v. Joginder AIR 1963 SC 913 37

III. LIST OF BOOKS REFERRED

S.N BOOK TITLE

O
1. CORPUS JURIS SECUNDUM, (5th Ed., West) Vol. 55 42

2. Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, (8th Ed., 14

Wadwa Nagpur) Vol 1
3. Halburys LAWS OF ENGLAND, (4th Edn.), Vol. 1 41

4. Jennings, LAW OF THE CONSTITUTION, (5th Ed., London University Press) 25

5. M.P. Jain, INDIAN CONSTITUTIONAL LAW, 265 (6TH Ed., Lexis Nexis Butter 2
Worths Wadhwa 2011)
6. Venkataramiyas LAW LEXICON-VOLUME 1, (HUMAN RIGHTS) 18

7. Vepa P. Sarathi, INTERPRETATION OF STATUTES, (4TH Ed., Eastern Book 30

Company)

iv
 --MEMORIAL FOR APPELLANT--

[C]. STATEMENT OF JURISDICTION

The Honorable Supreme Court of India can exercise its jurisdiction under Article 32 of
the Constitution of India. The Appellant most humbly and respectfully submits to the
jurisdiction of the Honorable Supreme Court of India.

[D]. STATEMENT OF FACTS

1. The election for Patna Municipal Corporation was held during May/June of 2007 which
v
 --MEMORIAL FOR APPELLANT--

comprises of 72 member seats. After the election all the elected members will elect the

Mayor and Deputy Mayor.

2. In this election councilors elected Shri Sanjay Kumar as the Mayor and Shri Santosh Mehta

as the Deputy Mayor. Two years after the elections, no confidence motions were moved

against both of them on 13.06.2009 and passed on 14.07.2009 were 42 members voted in

favour, 28 opposed and two were absent.

3. Following this Sanjay Kumar challenged the decision on no confidence motion by filing a

writ petition in Patna High Court and was allowed followed by stay order by the Single

Judge. This order was challenged in an appeal in the Divisional Bench of Patna High Court

and the Divisional Bench reversed the Judgment given by single judge by its judgment on

14.05.2010.

4. This decision by Divisional Bench was again challenged by Sanjay Kumar by filling Special

Leave Petition to this court, praying for election to fill the vacancy should not be permitted,

which this court did not grant. Then directed election to be held for filling the vacancy and

passed order on 31.05.2010.

5. On 14.07.2010 Afzal Imam (Herein after, appellant) was elected as mayor with 44 votes in

his favour. He gave his oath of his office and on same day he nominated 7 councillors to be

members of Empowered Standing Committee.

6. District Magistrate of Patna declined to give them the oath of office saying that such

nomination by Mayor is only a one time act. So the appellant filed a writ petition to

vi
 --MEMORIAL FOR APPELLANT--

Divisional Bench of Patna High Court for declaration that section 27 of the act is ultra vires

to the provisions of Constitution of India and to Section 21 of the Act and also prayed for

writ of mandamus against D.M of Patna to administer oath of office to those nominees to

and the bench dismissed the petition in limine. Following this the judgment is challenged in

this Special Leave Petition by the appellant.

HENCE, THE PRESENT M ATTER B EFORE THIS HONORABLE

COURT.

vii
 --MEMORIAL FOR APPELLANT--

[E]. ISSUES RAISED

A. WHETHER THE COURT HAS REQUISITE JURISDICTION TO MAINTAIN THIS

PETITION?

B. WHETHER THE PROVISION IS VIOLATIVE OF ARTICLE 14 OF CONSTITUTION

OF INDIA?

[F]. SUMMARY OF PLEADINGS

(I). THAT THE C OURT H AS R EQUISITE J URISDICTION T O M AINTAIN

T HIS P ETITION
xiv
 --MEMORIAL FOR APPELLANT--

The writ petition is maintainable under Article 32 as there has been a

violation of fundamental rights of the public at large.

(II). THAT THE PROVISION IS VIOLATIVE OF ARTICLE 14 OF

CONSTITUTION OF INDIA

xv
 [G]. PLEAD I N GS ADVANCED

I. THAT THE COURT HAS REQUISITE JURISDICTION TO

MAINTAIN THIS PETITION

MAINTAINABILITY OF WRIT PETITION

I.A.1 POWER UNDER ARTICLE 32 OF THE CONSTITUTION OF

INDIA

1. The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of

the Constitution for the violation of fundamental rights guaranteed under Part
III of the Constitution.

2. The sole objective of Art. 32 is the enforcement of the fundamental rights

guaranteed by the Constitution of India. The original jurisdiction of the
Supreme Court can be invoked in any case of violation of a fundamental right
guaranteed by part III of the Constitution of India as has been observed in the
case of Chiranjit Lal Chowdhury v. Union of India1 amongst the many others.
The constitution makers conferred on the Supreme Court the power to issue
writs for the speedy enforcement of fundamental rights and made the right to
approach the Supreme Court for such enforcement itself a fundamental right.2

3. The Fundamental Rights provided in the Indian Constitution are guaranteed

against any executive and legislative actions. Any executive or legislative
action, which infringes upon the Fundamental Rights of any person or any
group of persons, can be declared as void by the Courts under Article 14 of
the Constitution.

4. Dr. B.R.Ambedkar described Article 32 as the most important one, without

which the Constitution would be reduced to nullity. It is also referred to as the
heart and soul of the Constitution. By including Article 32 in the Fundamental
Rights, the Supreme Court has been made the protector and guarantor of
these Rights.

1
AIR 1951 SC 41
2
Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA 3711 (8rd Ed., Lexis Nexis Butterworths
Wadhwa 2008).
 5. A Public Interest Litigation can be filed before the Supreme Court under
Article 32 of the Constitution.

6. In this case, equals are not treated, central government arbitrary in its action
by not making the drugs available at reasonable affordable price for drugs of
special type and there is no nexus between the classification made and the
object that sort to be achieved i.e. making vital drugs available to public at
reasonably affordable price3. And the Right to Health of an individual which
comes under the purview of Article 21 Right to Life also violated.

7. Hence the petitioner is justified in challenging the authority of the Central

Government and filing a writ petition for the same under Art. 32.

I.A. MAINTAINABILITY OF PUBLIC INTEREST LITIGATION

8. In 1981 Justice P. N. Bhagwati in S. P. Gupta v. Union of India4, articulated

the concept of PIL as follows, any member of public can maintain an
application for an appropriate direction, order or writ in the High Court under
Article 226 and in case any breach of fundamental rights of such persons or
determinate class of persons, in this court under Article 32 seeking judicial
redress for the legal wrong or legal injury caused to such person or
determinate class of persons.

THAT THIS IS A MATTER OF PUBLIC INTEREST

9. The fact that 8 persons die out of every 100, out of which 5 persons die due to
lack of accessibility to proper medicines and these 5 persons belong to middle
and lower classes of society made parliament to enact a new legislation
Essential Commodities(Vital Drugs) Act, 2012 and delegated central
government to decide which drugs are vital

10. But the central government did not made any effort to make availability of
drugs coming under vital drugs of special type as result of which many
people belonging to these classes died.

3
Preamble of the act
4
AIR 1982 SC 149
 11. Since diseases listed under second category are very serious one central
government should make efforts of the medicines for them will be available
at reasonable affordable price.

12. The petitioner has filed a Public Interest Litigation for protection and
enforcement of rights of public at large and seeks remedy for the fundamental
right that has been deprived for them by making the Vital drugs of special
type available at reasonable affordable price.

THE PETITONER HAS LOCUS STANDI TO FILE A PETITION

13. It was made clear in Janata Dal v H.S. Chaudhary5 that only a person acting
bona fide6and having sufficient public interest 7in the proceeding of public
interest litigation will have alone the locus standi8 but not a person for
personal gain or political motive or any oblique consideration.
14. The rule of locus standi have been relaxed and a person acting bonafide and
having sufficient interest in the proceeding of Public Interest Litigation will
alone have a locus standi and can approach the court to wipe out violation of
fundamental rights and genuine infraction of statutory provisions, but not for
personal gain or private profit or political motive or any oblique
consideration.

15. The petitioner Swasth Nagrik being an NGO which actively works in the
field of public health and welfare particularly to those belonging to lower
strata therefore capable of being acting bonafide.

Hence, it is humbly submitted that since there has been a violation of the
fundamental rights, the Court has the requisite jurisdiction to entertain this writ

5
AIR 1993 SC 892 , 64
6
Fertilizer Corporation Kamgar Union v Union of India, AIR 1981 SC 844
whenever there is a public wrong or public injury caused by an act or omission of the State or public authority which
is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can
maintain an action for redressal of such public wrong or public injury.
7
In Black's Law Dictionary (Sixth Edition)
Public Interest- Something in which community at large has some pecuniary interest or some interest by which their
legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the
particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of
local, state or national government. See also Vineet Narain v Union of India, AIR 1998 SC 889.
8
In Blackss Law dictionary (6th Edition)
Locus standi- the right to bring an action or to be heard in a given forum.
petition under Article 32 of the Constitution of India bought as a Public Interest
Litigation.

II. WHETHER THE PARENT AS WELL AS DELEGATED

LEGISLATION ARE VIOLATIVE OF CONSTITUTION

II.A. THAT THE PARENT ACT IS NOT VIOLATIVE OF CONSTITUTION

16. Right to health is not included directly in as a fundamental right in the Indian
Constitution .The Constitution maker imposed this duty on state to en-sure
social and economic justice. Part four of Indian constitution which is DPSP
imposed duty on States.
17. If we only see those provisions then we find that some provisions of them has
directly or indirectly related with public health.
18. The Constitution of India not provides for the right to health as a fundamental
right.
19. The Constitution directs the state to take measures to improve the condition
of health care of the people. Thus the preamble to the Constitution of India,
inter alia, seeks to secure for all its citizens justice-social and economic. It
provides a framework for the achieve-ment of the objectives laid down in the
preamble. The preamble has been amplified and elaborated in the Directive
Principles of State policy.
20. In the India the Directive Principle of State Policy under the Article 47
considers it the primary duty of the state to improve public health, securing of
justice, human condition of works, extension of sick-ness, old age,
disablement and maternity benefits and also contemplated. Further, State's
duty includes pro-hibition of consumption of intoxicating drinking and drugs
are injurious to health.
21. These factors influenced for enactment of The Essential Commodities (vital
drugs) Act, 2012, the act has been enacted keeping in mind the crucial role
of importance of Public Health.
22. The main objective of the Act is to make vital drugs available to the public at
reasonably affordable price. The directive principles of state policy
enumerated in our Constitution lay down that the State shall raise the level of
nutrition and the standard of living and improve public health.
23. The provisions of this act are intended to provide vital life saving drugs to the
 people at reasonably affordable price in order to preserve their health and life
which the preamble of act clearly says.
24. Hence the Parent Act is not violative of Constitution.

THAT THE DELEGATED LEGISLATION IS VIOLATIVE OF THE

CONSTITUTION

25. The act gives power to Central Government to classify drugs as vital or non-
vital and make rules for availability of these vital drugs at reasonably
affordable price9. And the same provision says reasonable affordable price
means price to be fixed by Central Government taking into consideration of
lower economic strata of the society.

26. This act enacted with the object of removing financial barrier which prevents
a person from accessing medical drugs on account of high market price. The
act also says Central Government shall take into consideration on the public
interest in deciding vital drugs.

27. Right to live in Article 21 covers right to health, but unaffordability defeats
that access. It defeats states endeavour to raise the level of nutrition and
standard of living and improve public health.

28. It has been enacted primarily to remove financial barriers which impede
access to drugs.

29. But Central Government made only drugs coming under vital drugs of Basic
Type available at reasonably affordable price whereas vital drugs of Special
Type at market price only.

THAT IT VIOLATES ARTICLE 14 OF CONSTITUTION

THAT IT VIOLATES ARTICLE 21 OF CONSTITUTION

30. The Supreme Court, while examining the issue of the constitutional right to
health care under arts 21, 41 and 47 of the Constitution of India in State of
Punjab v Ram Lubhaya Bagga10, The Supreme Court, in Paschim Banga
9
Section 5: (1) For the provisions of this Act, only the Central Government has power to classify drugs as vital or non-
vital and make rules for availability of these drugs at reasonably affordable price.
10
AIR 1998 SC 1703
 Khet mazdoor Samity & othrs v. State of West Bengal & othrs 11, while
widening the scope of art 21 and the government's responsibility to provide
medical aid to every person in the country, held that in a welfare state, the
primary duty of the government is to secure the welfare of the people.
31. So constitution makers included Right to Health in DPSP to impose duty on
the State so that State will protect and improve public health.
32. Article 47 makes improvement of public health a primary duty of State.
Hence, the court should enforce this duty against a defaulting authority on
pain of penalty prescribe by law, regardless of the financial resources of such
authority12.
33. Public Interest Petition for maintenance of approved standards for drugs in
general and for the banning of import, manufacturing, sale and distribution of
injurious drugs is maintainable. A healthy body is the very foundation of all
human activities. That is why the adage Sariramadyam Khalu Dharma
sadhanam. In a welfare State, it is the obligation of the State to ensure the
creation and sustaining of conditions congenial to good health13.
34. The concept of personal liberty comprehended many rights, related to
indirectly to life or liberty of a person. And now a person can claim his right
of health14. Thus, the right to health, along with numerous other civil, political
and economic rights, is afforded protection under the Indian Constitution.
35. The Constitution guarantees the some fundamental rights having a bearing on
health care. Article 21deal with No person shall be deprived of his life or
personal liberty except according to procedure established by law 15. Right to
live means something more, than more animal existence and includes the
right to live consistently with human dignity and decency.
36. The court held that the right to health and medical care is a fundamental right
under Article 21. The Supreme Court, while examining the issue of the
constitutional right to health care under arts 21, 41 and 47 of the Constitution
of India in State of Punjab v Ram Lubhaya Bagga16, observed that the right of
one person correlates to a duty upon another, individual, employer,
government or authority. Hence, the right of a citizen to live under art 21
casts and obligation on the state. This obligation is further reinforced under
11
(1996) 4 SCC 37
12
Ratlam Municipal Council Vs Vardichand, AIR 1980 SC 1622
13
Vicent Vs UOI, AIR 1987, SC 990
14
Sheeraj Latif Ahmad Khan, right to health. (1995) 2 SCJ 29-34
15
Constitution of India
16
1998) 4 SCC 177
 art 47; it is for the state to secure health to its citizens as its primary duty.
37. In Consumer Education and Research Center v. UOI17, the Court explicitly
held that the right to health was an integral factor of a meaningful right to
life. The court held that the right to health and medical care is a fundamental
right under Article 21.
38. Since it is one of the most sacrosanct and valuable rights of a citizen, and an
equally sacrosanct and sacred obligation of the state, every citizen of this
welfare state looks towards the state to perform this obligation with top
priority, including by way of allocation of sufficient funds. This in turn will
not only secure the rights of its citizens to their satisfaction, but will benefit
the state in achieving its social, political and economic goals.
39. The Supreme Court, in Paschim Banga Khet mazdoor Samity & ors v. State
of West Bengal & ors18, while widening the scope of art 21 and the
governments responsibility to provide medical aid to every person in the
country, held that in a welfare state, the primary duty of the government is to
secure the welfare of the people.
40. In CESC Ltd. vs. Subash Chandra Bose 19, the Supreme Court relied on
international instruments and concluded that right to health is a fundamental
right. It went further and observed that health is not merely absence of
sickness: The term health implies more than an absence of sickness. Medical
care and health facilities not only protect against sickness but also ensure
stable manpower for economic development.
41. It is also relevant to notice as per the judgment of the Supreme Court in
Vincent Panikurlangara vs. Union of India20, Unnikrishnan, JP vs. State of
A.P21, the maintenance and improvement of public health is the duty of the
State to fulfill its constitutional obligations cast on it under Article 21 of the
Constitution.
42. Due to this duty state are taking steps in this regard and hospitals are running
in control of State to give free health service to public at large. There is no
need of right to health for a person to be healthy. A person should have health
entitlements, medical aid, medical assistance which provided by States.
43. In the present case, the Central Government through the power delegated to it

17
(1995) 3 SCC 42.
18
(1996) 4 SCC 37.
19
AIR 1992 SC 573,585
20
AIR 1987 SC 990
21
AIR 1993 SC 2178
 made only Vital drugs of Basic type to available at reasonable affordable
price but whereas the Vital Drugs of Special type is available only at market
price.
44. This delegated legislation is ultra vires to the constitution but the Parent Act
is not violative. The Parent Act gives power to Central Government to
classify and make vital drugs available at affordable price but it makes only
drugs of basic type affordable.
45. This goes against the main objective of Parent Act and also violates persons
right to equality and right to health under right to life.

DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHT

 [A]. PRAYER FOR RELIEF

Wherefore in the light of the facts stated, issues raised, authorities cited and
pleadings advanced, it is most humbly prayed before this Honorable Court that it may
be pleased to:

1. Allow the appeal.

2. Issue a direction or writ in nature of mandamus, whichever is appropriate, to the

District Magistrate of Patna to give the oath of office to the council members
nominated by appellant.

And pass any other order that it deems fit in the interests of justice, equity and
good conscience. All of which is respectfully submitted.

Date: s/d 1. .........................

Place: New Delhi, India Harish.N
Counsel ID: 12IP60009
(COUNSEL FOR THE APPELLANT)