TEAM CODE - MMC10

6TH MAHAMANA MALAVIYA NATIONAL

MOOT COURT COMPETITION, 2018

IN THE HON’BLE SUPREME COURT OF ARYAVART

UNDER ARTICLE 32 OF THE CONSTITUTION OF ARYAVART, 1950

IN THE MATTER OF

ARTICLE 14, 19 and 21 OF THE CONSTITUTION OF ARYAVART, 1950

SHWETA CHANDRA.……………………...………………….………… PETITIONER I

DEVENDRA SINGH…………………...………………….………………PETITIONER II

VERSUS

UNION OF INDIA…………….………...………………….………………RESPONDENT

BEFORE SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND

HIS COMPANION JUSTICES OF

THE HON’BLE SUPREME COURT OF ARYAVART

MEMORIAL ON BEHALF OF THE PETITIONER

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TABLE OF CONTENTS

LIST OF ABBREVIATIONS ............................................................................................... iii

INDEX OF AUTHORITIES ................................................................................................... v

STATEMENT OF JURISDICTION .................................................................................. viii

STATEMENT OF FACTS ..................................................................................................... ix

STATEMENT OF ISSUES .................................................................................................... xi

SUMMARY OF ARGUMENTS ...........................................................................................xii

ARGUMENTS ADVANCED .................................................................................................. 1

I. WHETHER THE PRESENT PETITIONS ARE MAINTAINABLE IN THE

SUPREME COURT OF ARYAVART. ................................................................................. 1

I.A LOCUS STANDI..................................................................................................................... 1

I.B. VIOLATION OF FUNDAMENTAL RIGHTS............................................................................ 2

II. WHETHER THE AMENDING PROVISIONS OF THE FINANCE ACT 2017

VIOLATE THE ESSENCE OF THE CONSTITUTION OF ARYAVART. ..................... 3

II.A. MERGING TRIBUNALS VIOLATES RIGHTS UNDER ARTICLES 14 AND 21 OF

CONSTITUTION OF ARYAVART.................................................................................................. 4

[II.A.1] Violative of Art. 14 ............................................................................................... 4

[II.A.2] Violative of Art. 21 ............................................................................................... 6

II.B. THE LARGER INVOLVEMENT OF THE EXECUTIVE IN JUDICIAL PROCESS AMOUNTS TO

VIOLATION OF THE DOCTRINE OF SEPARATION OF POWERS .................................................. 7

III. WHETHER THE ACT OF THE SPEAKER AMOUNTS TO COLOURABLE

EXERCISE OF LEGISLATION. .......................................................................................... 9

III.A. THE COURT CAN CALL INTO QUESTION ANY PROCEEDINGS OF THE PARLIAMENT
U/A 122. ..................................................................................................................................... 9

III.B. INCONSISTENCY OF BILL WITH ART. 110(1) OF THE CONSTITUTION OF ARYAVART 11

[III.B.1] By Literal Interpretation of Art 110(1) .............................................................. 11

[III.B.2] Intention of Constituent Assembly While Drafting Article 110(1) ................... 12

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III.C. ART.110(3) AND ART.110(4) ARE TO BE READ IN HARMONIOUS CONSTRUCTION

WITH ART.110(1). ................................................................................................................... 14

[III.C.1] Intent of The Constituent Assembly While Drafting Art.110 ........................... 15

[III.C.2] Opportunity For Grave Misuse if Art 110(3) and Art.110(4) Not Read in Light
of Art 110(1) .................................................................................................................... 15

III.D. COLOURABLE EXERCISE OF LEGISLATION BY SPEAKER OF LOWER HOUSE. .......... 18

IV. WHETHER THE ACT OF THE SPEAKER ARBITRARY, MALA FIDE AND
UNCONSTITUTIONAL. ...................................................................................................... 19

PRAYER ................................................................................................................................. 21

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LIST OF ABBREVIATIONS

& And

AIR All India Reporter

All Allahabad

Anr. Another

AP Andhra Pradesh

Art./art. Article

AWC Allahabad Weekly Cases

Corp. Corporation

CTC. Current Tamil Nadu Cases

Govt. Government

Leg. Legislative

Ors. Others

¶ Paragraph

PIL Public Interest Litigation

SC Supreme Court

SCC Supreme Court Case

SCR Supreme Court Reporter

§ Section

SOP Separation of Power

U/A Under article

UOI Union of India

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UP Uttar Pradesh

v. Versus

Vol. Volume

WP Writ Petition

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INDEX OF AUTHORITIES

[A] CASES

1. A.D.M. Jabalpur v. S. Shukla AIR 1976 SC 1207..................................................... 1, 3

2. AK. Gopalan v State of Madras AIR 1950 SC 27 ..................................................... 1, 8
3. Anita Kushwaha v Pushap Sudan Transfer Petition (C) No. 1343 of 2008 ................... 6
4. Bhim Singh v Union of India (2010) 5 SCC 538....................................................... 1, 8
5. Bikas Chatterjee v. Union of India (2004) 7 SCC 634 ................................................ 11
6. DS Nakara v Union of India AIR 1983 SC 130......................................................... 2, 8
7. Epuru Sudhakar v. Govt. of A.P AIR 2006 SC 3385 .................................................. 11
8. Hussainara Khatoon (No. 1) v Home Secretary, State of Bihar AIR 1979 SC 1360..... 6
9. Indira Gandhi vs. Raj Narain, AIR 1975 SC 2299 ........................................................ 3
10. IR. Coelho (dead) v State of Tamil Nadu W.P (C) No. 242 of 1988 ............................. 1
11. Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305 ........................................................ 2
12. Kehar Singh v. Union of India AIR 1989 SC 653 ....................................................... 11
13. Kesavananda Bharati v State of Kerala AIR 1973 SC 1461 .................................. 1, 2, 3
14. Keshav Singh v. Speaker, Leg. Assembly, AIR 1965 All 349 ...................................... 9
15. Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412 ................................................... 2, 10
16. Kuldip Nayar v Union of India, (2006) 7 SCC 1 ......................................................... 16
17. L. Chandrakumar v Union of India AIR 1997 SC 1125 ............................................ 2, 3
18. Mafatlal Industries Ltd. v Union of India (1997) 5 SCC 536 ...................................... 19
19. Maneka Gandhi v. Union of India AIR 1978 SC 597................................................ 1, 3
20. Maru Ram v. Union of India AIR 1980 SC 2147 ....................................................... 11
21. Minerva Mills v Union of India AIR 1980 SC 1789 ................................................. 1, 4
22. Nabam Rebia And Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative
Assembly and Ors, (2016) 8 SCC 1 ......................................................................... 2, 15
23. Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, (2007) 3 SCC 184 ............................. 10
24. Ramdas Athawale vs Union of India & Ors AIR 2010 SC 1310................................. 10
25. Remdeo Chauhan v. Bani Kant Das AIR 2011 SC 615 ............................................... 11
26. RMD Chamarbaugwala v. Union of India AIR 1957 SC 628 ....................................... 8
27. S.P. Gupta v. Union of India, (1982) 2 SCR 365....................................................... 1, 2
28. S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126 ................................................ 15
29. Sharma Transport v Govt. of Andhra Pradesh and Ors (2002) 2 SCC 188 ............... 2, 4

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30. Shreya Singhal v. Union of India (2013) 12 SCC 73 .................................................... 8

31. State of Bihar v Bal Mukund Sah AIR 2000 SC 1296 .................................................. 8
32. State of Bihar v. Kameshwar Singh, AIR 1952 SC 252 ................................................ 2
33. State of Bombay v FN Balsara AIR 1951 SC 318 ......................................................... 8
34. State of Madhya Pradesh v Ranojirao Shinde AIR 1968 SC 1053 ................................ 8
35. State of Tamil Nadu v State of Kerala (2014) 12 SCC 696 ........................................... 3
36. State of Uttaranchal v. Balwant singh & Ors. (2010) 3 SCC 402 ................................. 1
37. Sunil Kumar vs State of U.P. & Ors., 2004 (1) AWC 664 .......................................... 18
38. Supreme Court Advocates-on-Record Assn and Anr. V Union of India (2015) 6 SCC
408.............................................................................................................................. 2, 8
39. Supreme Court Advocates-on-Record Assn. v. Union of India, (2016) 5 SCC 1 ... 2, 15
40. V.C. Chandhira Kumar v. Tamil Nadu legislative Assembly (2013) 6 CTC 506 ... 2, 10

[B] STATUTES

1. Airport Economic Regulatory Authority of India Act, 2008 ....................................... 1, 2

2. Employees Provident Fund and Miscellaneous Provisions Act 1952 ............................. 2
3. Industrial Disputes Act, 1947 .......................................................................................... 2
4. Information Technology Act, 2000.................................................................................. 2
5. Telecom Regulatory Authority of India Act, 1997 .......................................................... 2
6. The Companies Act, 2013................................................................................................ 2
7. The Competition Act, 2002 (12 of 2003)......................................................................... 2
8. The Finance Act, 2017 ......................................................................................... 2, 12, 13

[C] OTHER AUTHORITIES

1. Constituent Assembly Debates, Volume 7, January 3rd, 1949 .................................... 17

2. Constituent Assembly Debates, Volume 8, June 8th, 1949 .......................................... 12
3. Constituent Assembly Debates, Volume 8, May 20, 1949 .................................... 12, 15
4. http://rajyasabha.nic.in/rsnew/constituent_assembly/constituent _assembly_mem.asp
.................................................................................................................................. 2, 12
5. http://www.allahabadhighcourt.in/event/TheJudiciaryandtheCivil_LibertiesNCChatter
jee.pdf......................................................................................................................... 2, 7
6. Merger of tribunals to rationalise working, Radhika Merwin, The Hindu Business Line,
March 23, 2017, https://www.thehindubusinessline.com/economy/policy/merger-of-
tribunals-to-rationalise-working/article9598534.ece

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[D] CONSTITUTIONAL PROVISIONS

1. INDIA CONST. art. 109 ................................................................................................ 6

2. INDIA CONST. art. 110, cl. 3 ....................................................................................... 7
3. INDIA CONST. art. 110, cl. 4 ....................................................................................... 7
4. INDIA CONST. art. 21 ................................................................................................ 18
5. INDIA CONST. art. 79 .................................................................................................. 7
6. INDIA CONST. art. 83, cl 1 .......................................................................................... 8
7. INDIA CONST. art. 122 ………………………………………………………………9
[E] BOOKS

1. Black's Law Dictionary (7th ed. 1999). .................................................................... 1, 19

2. M P Jain, Indian Constitutional Law (7th edn, 2014)............................. 9, 11, 13, 16, 20
3. Elliott, Mark, Beatson, Jack, Matthews, Martin, Administrative Law: Text and
Materials, Oxford University Press, New York, (3rd Edn., 2005)………………..........6

[F] RESEARCH PAPERS

1. Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial Review and Money Bills,
volume 10, NUJS Law Review (28 Feb 2017) .............................................................. 4
2. Vineet Kothari and Shreshtha Gupta, What Is PIL?,
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-
41da-aa0b-b4201b77a8bd&txtsearch=Subject:%20Jurisprudence ............................... 2
3. William W. Bratton, Framing a Purpose for Corporate Law, 39 J. Corp. L. 713, p.715
(2014), http://scholarship.law.upenn.edu/faculty_scholarship/1666..............................5

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STATEMENT OF JURISDICTION

The Hon’ble Supreme Court has the jurisdiction to hear the matter under article 32.

Article 32 of the Constitution of Aryavart, 1950 reads as:

“32. Remedies for enforcement of rights conferred by this Part-

(1) The right to move the Supreme Court by appropriate proceedings for the
enforcement of the rights conferred by this Part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto and certiorari, whichever may be appropriate, for the enforcement of any
of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the Supreme Court by clause (1)
and (2), Parliament may by law empower any other court to exercise within the local
limits of its jurisdiction all or any of the powers exercisable by the Supreme Court
under clause (2)

(4) The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.”

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STATEMENT OF FACTS

1. Aryavart is a sovereign republic situated in South East Asia and had formerly been a colony
of the Imperial Kingdom for roughly 200 years. The legal system developed in the country
was broadly based on laws formulated by the Parliament of the Imperial Kingdom.
Immediately after becoming independent, Aryavart proceeded to formulate its own
Constitution and recognized it as the Supreme Law of the land. The Legislature, Judiciary,
and Executive were bestowed independent functions by the Constitution with appropriate
checks and balances. The Parliament consists of two Houses, Council of States (indirect
election for 6 years) and The House of the People (direct election for 5 years). To make a
law, the Bill has to be introduced into either House and shall be passed only when agreed
to by both houses, without amendment or only such amendment as agreed to by both
Houses. There is, however, a provision for money bills under Articles 110 and 199 of the
Constitution to facilitate smooth transaction.

2. A Financial Bill cited as a Money Bill, was tabled in the Lower House wherein amendments
to a number of Acts including the "Merger of Cyber Appellate Tribunal with Telecom
Disputes Settlement & Appellate Tribunal (TDSAT)" were proposed to be made. The
Hon`ble Speaker exercising speaker's discretionary powers provided under the Constitution
certified the Bill as a Money Bill. When the Bill was put to vote, a situation arose wherein
the total votes in favour and the total votes against the Bill came to a tie. The Speaker
refused requests to hold a re-vote later (as many members of AJP were absent) and instead
made use of his ‘casting vote’ in favour of passing the Bill. The Bill received assent of
President and was consequently notified in the official gazette.

3. The Act included the merger of various prominent tribunals such as the Competition
Appellate Tribunal and the National Company Law Appellate Tribunal. The Cyber
Appellate Tribunal and the Airports Economic Regulatory Authority Appellate Tribunal
were merged with the Telecom Disputes Settlement and Appellate Tribunal. The
Employees' Provident Funds Appellate Tribunal was merged with the Industrial Tribunal.

4. Some provisions of the Act were challenged before the Hon’ble Supreme Court by an
Council of States member, Mr. Devendra Singh. He contended that this was a colourable

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exercise of legislation as the Act in question was unrelated to Art. 110(1), and thus couldn’t
be a termed as a Money Bill. He claimed that this was done to erode the supervisory role
of the Council of States. He further stated that the Speaker had acted arbitrarily and in a
mala fide fashion, violating the very spirit of the Constitution

5. A public-spirited lawyer, Ms. Shweta Chandra, also filed a PIL before the Hon'ble Supreme
Court of Aryavart for setting aside the impugned provisions of the Finance Act, 2017. She
contended that the proposed Amendments would lead to grave injustice to the thousands
who had pending cases with tribunals that are now to be merged. She stated that this would
require greater executive involvement in prescribing qualification, appointment, and
removal of chairpersons and members of merged tribunals. She further contended that this
would compromise independent character of tribunals, which is entirely against the idea on
which tribunals are constituted. She also questioned how an Act that was amended as an
ordinary bill could now be amended as a Money Bill, defying all legislative precedents.

6. Both the cases were clubbed together by the Supreme Court and it was listed for hearing
before a division bench. During the initial hearing, it was brought to the knowledge of the
Court that a division bench had already decided on a similar matter wherein the court had
expressed its inability to interfere with the discretion of the speaker of a Legislative
Assembly. However, the existing division bench was of the opinion that all the issues raised
by the petitioners, in this case, were not adequately addressed by the earlier division bench
judgment and hence required reconsideration by a larger bench.

7. Acting upon the request of the Hon'ble Division Bench, the Chief Justice of Aryavart has
formed a Constitutional bench and the case is now listed for hearing.

8. All laws of Aryavart are in pari materia to the laws of India.

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STATEMENT OF ISSUES

ISSUE I: WHETHER THE PRESENT PETITIONS ARE MAINTAINABLE

ISSUE II: WHETHER THE AMENDING PROVISIONS OF THE FINANCE ACT

2017 VIOLATE THE ESSENCE OF THE CONSTITUTION OF ARYAVART

ISSUE III: WHETHER THE ACT OF THE SPEAKER AMOUNTS TO

COLOURABLE EXERCISE OF LEGISLATION

ISSUE IV: WHETHER THE ACT OF THE SPEAKER IS ARBITRARY, MALAFIDE

AND UNCONSTITUTIONAL

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SUMMARY OF ARGUMENTS

I. WHETHER THE PRESENT PETITIONS ARE MAINTAINABLE IN THE SUPREME COURT OF

ARYAVART.

It is humbly submitted before the Hon’ble Court that the present petition under article 32 of the
Constitution of Aryavart is maintainable in this court. As there was a substantial question of
law and a question of general public importance arises due to not maintaining the separation of
power in the bill presented before the House of the people, which comes under the basic
structure of the Constitution of Aryavart, also Presented bill talks about the merger of tribunals
which will be injustice for those people who have their cases pending in the said tribunal that
leads to violation of the article 14 that is to ensure equal justice. Since the SOP and Right to
justice comes under basic structure of Aryavart, the petition is maintainable before this court.

II. WHETHER THE AMENDING PROVISIONS OF THE FINANCE ACT 2017 VIOLATE THE ESSENCE
OF THE CONSTITUTION OF ARYAVART.

It is humbly submitted before the Hon’ble Court that the amending provisions of the Finance
Act, 2017 violate Fundamental Rights of the citizens of Aryavart as given under Articles 14
and 21 of the Constitution of Aryavart. Further, larger involvement of the Executive in affairs
tribunals is a direct violation of doctrine of separation of powers. Thus, it is also submitted that
setting aside of impugned provisions of the Act will not take away from its essence, implying
that doctrine of severability can be applied.

III. WHETHER THE ACT OF THE SPEAKER AMOUNTS TO COLOURABLE EXERCISE OF

LEGISLATION.

It is humbly submitted before the Hon’ble Court that the act of the Speaker in the present
petition amounts to the colourable exercise of legislation. The petitioner shall substantiate this
assertion through four sub issues. (III.A) The court can call into question any proceedings of
the parliament under Article 122. (III.B) There should be harmonious construction between
Art.110(1) and Art.110(3) and Art.110(4). (III.C) The bill in contention is in disagreement
with Art.110(1) and hence it cannot be certified as a money bill by the speaker. (III.D) Lastly,

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though the Speaker did not have the authority to declare a Non-Money bill as a money bill, he
did so thereby committing Colourable Exercise of Legislation; hence, his act is invalid.

IV. WHETHER THE ACT OF THE SPEAKER IS ARBITRARY, MALA-FIDE AND UNCONSTITUTIONAL.

It is humbly submitted before the Hon’ble court that by declaring non-money bill as a money
bill, the Speaker has committed an act which is arbitrary, mala-fide and unconstitutional. The
act is arbitrary as the speaker did not have the authority to do it, it is mala-fide as the speaker
deliberately and consciously did it and it is unconstitutional as it violates Art.110(1) of the
Aryavartan Constitution.

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ARGUMENTS ADVANCED

I. WHETHER THE PRESENT PETITIONS ARE MAINTAINABLE IN THE

SUPREME COURT OF ARYAVART.

¶ 1. It is contented that present applications are maintainable in the Supreme Court of Aryavart
under Article 32 of Constitution of Aryavart. As defined in the case of S.P. Gupta vs Union of
India the concept of PIL is defined by Justice P.N. Bhagwati1, as:
“any breach of fundamental rights to 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”.
The present case contains the issue of violation of fundamental rights as well as of the basic
structure2 of the Constitution of Aryavart by disregarding the basic component of Constitution3
i.e. the separation of power. Beg, J added that the doctrine of separation of powers is the part
of basic structure of the Aryavart Constitution4 even though it is not specifically mentioned in
it. Hence, no law and amendment5 can be passed violating the doctrine of separation of power
which is the part of the Constitution. It is contended that the present application is maintainable
before the Hon’ble Supreme Court and in this regard the argument is two pronged: (1)
Petitioner has locus standi to file PIL in the Hon’ble Supreme Court (2) Violation of
fundamental rights of people provided under article 14 and article 21 of Constitution of
Aryavart.

I.A LOCUS S TANDI

¶ 2. It is contended that the petitioner has the locus standi6 to file this petition in the present
court as the petitioner is public a spirited lawyer and “the court permits public interest litigation
at the instance of public spirited citizens for the enforcement of Constitutional legal rights. Any

1
S.P. Gupta v. Union of India AIR 1982 SC 149.
2
Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
3
Ibid.
4
Supra. note 2.
5
IR. Coelho (dead) v State of Tamil Nadu W.P (C) No. 242 of 1988.
6
State of Uttaranchal v. Balwant Singh & Ors. (2010) 3 SCC 402.

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public-spirited citizen can move/approach the court for the public cause (in the interests of the
public or public welfare) by filing a petition” 7. The term ‘public interest’ has been understood
to mean a common concern in the management of affairs of a local, state or national
government.8 While the definition of this term is not rigid in nature,9 a petition in the nature of
Public Interest Litigation (PIL) can be admitted when there is a need to observe human rights
or fundamental rights impartially amongst persons or between persons and the State.10

¶ 3. While no rigid rule can be laid down regarding locus standi, for an individual to initiate a
PIL, it is accepted that the scope is wider than that relating to private litigation.11 Any member
of the public having sufficient interest can maintain a PIL seeking enforcement of a public duty
or observance of a Constitutional or legal provision.12
¶ 4. Therefore, it is submitted that the present petition meets the tests of both, ‘public interest’
and ‘locus standi’.

I.B. VIOLATION O F FUNDAMENTAL R IGHTS

¶ 5. Secondly, challenged provision of the Amending bill of Finance Act 2017 contains the
merger of below mentioned Tribunals named Competition appellate tribunal13 merged with
National Company Law Appellate Tribunal14, Cyber Appellate Tribunal15 and Airport
Economic Regulatory Authority Appellate Tribunal16 merged with Telecom Dispute
Settlement and Appellate Tribunal17, and The Employees’ Provident Funds Appellate
Tribunal18 was merged with The Industrial Tribunal19. which will lead to violation of Article

7
Vineet Kothari and Shreshtha Gupta, What Is PIL?
http://www.manupatrafast.com/articles/PopOpenArticle.aspx?ID=a4a599a3-ee92-41da-aa0b-
b4201b77a8bd&txtsearch=Subject:%20Jurisprudence.
8
S.P. Gupta v. Union of India, (1982) 2 SCR 365.
9
State of Bihar v. Kameshwar Singh, AIR 1952 SC 252.
10
Supra, note 8.
11
Janata Dal v. H.S. Chowdhary, (1992) 4 SCC 305.
12
D.S. Nakara v. Union of India, AIR 1983 SC 130.
13
The Competition Act, 2002 (12 of 2003).
14
The Companies Act, 2013.
15
Information Technology Act, 2000.
16
Airport Economic Regulatory Authority of India Act, 2008.
17
Telecom Regulatory Authority of India Act, 1997.
18
Employees Provident Fund and Miscellaneous Provisions Act 1952.
19
Industrial Disputes Act, 1947.

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14 of the Constitution of Aryavart20 that deals with Right to Equality. Moreover, it also violates
Article 21 of the Constitution of Aryavart21 with deals with right to access justice and speedy
trial.

¶ 6. In the present case, merging of tribunals leads to violation of fundamental rights of those
people who have pending cases in them. This leads to violation of right to speedy trial22 and
access to justice23 provided under Article 21 of the Constitution of Aryavart. Also, the
arbitrariness in the decision of Speaker in certifying the bill and passing it (which violates right
to equality24 provided under Article 14), further violates the separation of powers due to greater
executive involvement in the appointment and removal of chairperson and member of merged
tribunals25. Separation of power comes under the essence of Constitution.
¶ 7. Therefore, it is humbly submitted before the Hon’ble Supreme Court of Aryavart that the
present petition is maintainable.

II. WHETHER THE AMENDING PROVISIONS OF THE FINANCE ACT 2017

VIOLATE THE ESSENCE OF THE CONSTITUTION OF ARYAVART.

¶ 8. It is contended before the Hon’ble Court that certain provisions of the Finance Act, 2017
violate the essence of the Constitution viz-a-viz the doctrine of Separation of Powers and
certain Fundamental Rights.

¶ 9. The basic structure doctrine enshrines the spirit of the Constitution. It holds various
features and provisions in the Constitution to be of such a nature that they cannot be altered by
any parliamentary amendment26. While the ratio of this judgement does not exactly specify the
components of the basic structure, it is clear that the doctrine of separation of powers (between
executive, legislature and judiciary)27 is an integral part of it, as per Chief Justice Sikri, CJ28.

20
Indira Gandhi vs. Raj Narain, AIR 1975 SC 2299.
21
A.D.M. Jabalpur v. S. Shukla AIR 1976 SC 1207.
22
Hussainara Khatoon (No. 1) v Home Secretary, State of Bihar AIR 1979 SC 1360.
23
Anita Kushwaha v Pushap Sudan Transfer Petition (C) No. 1343 of 2008.
24
Maneka Gandhi v. Union of India AIR 1978 SC 597.
25
Finance Act, 2017.
26
Kesavananda Bharati v State of Kerala AIR 1973 SC 1461.
27
State of Tamil Nadu v State of Kerala (2014) 12 SCC 696.
28
Supra. note 26.

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More cases further along the line29 have supported this sentiment. The scope of this doctrine
was further expanded to include Fundamental Rights of individuals in the Minerva Mills case
of 198030. This issue in its entirety will be dealt with by proving violations of fundamental
rights under Art. 14 and 21, as well as abuse of separation of powers.

II.A. M ERGING T RIBUNALS VIOLATES R IGHTS UNDER ARTICLES 14 AND 21 OF

C ONSTITUTION OF ARYAVART
¶ 10. Tribunals have been defined as "Bodies outside the hierarchy of the courts with
administrative or judicial functions"31. They were constituted by the Constitution (42nd
Amendment) Act, 197632 as Part XIV-A of the Constitution in order to resolve disputes
between citizens and government departments, requiring application of specialised knowledge
or expertise33.

¶ 11. Aryavart had 27 tribunals before the Finance Act 2017 was passed. This Act, under
sections 156-189, has proposed the merging of 8 tribunals with the remaining 19.34

[II.A.1] VIOLATIVE OF ART. 14

¶ 12. It is contended that Article 14 of the Constitution of Aryavart details the Right to Equality.
While dealing with equality and arbitrariness, the Supreme Court states that “Article 14 strikes
at arbitrariness in State action and ensures fairness and equality of treatment.”35 The Supreme
Court has held that the expression “arbitrarily” means “in an unreasonable manner, as fixed
and done capriciously, or at pleasure, without adequate determining principle, not founded in
the nature of things, non-rational, not done or acting according to reason or judgement,
depending on the will alone” 36.

¶ 13. In the present scenario, the State contends that it has merged eight tribunals with the
remaining 19 ostensibly to rationalise the working of tribunals and bring in more uniformity in

29
L. Chandrakumar v Union of India AIR 1997 SC 1125.
30
Minerva Mills v Union of India AIR 1980 SC 1789.
31
Curzon, Dictionary of Law, 1994, p.387.
32
Constitution (42nd Amendment) Act, 1976.
33
Sarayu Satish, The Tribunal System in India- Increasing in Importance but Increasing in Effectiveness? in
http://www.westminsterlawreview.org.
34
Supra. note 25.
35
Supra. note 24.
36
Sharma Transport v Govt. of Andhra Pradesh and Ors (2002) 2 SCC 188.

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terms of service and efficiency37. Many of these involve merging of tribunals whose functions
have absolutely nothing in common. For instance, the Competition Appellate Tribunal38 was a
highly specialized body established under the Competition Act, 2002 39. It was effective in
dealing with complex issues pertaining to competition law. Meanwhile, the National Company
Law Appellate Tribunal (NCLAT)40 was established under Companies Act, 201341 in order to
hear appeals against orders from National Company Law Tribunal (NCLT)42. Further, the
primary aim of competition law is “to prevent practices having adverse effect on competition,
to promote and sustain competition in markets, to protect the interests of consumers and to
ensure freedom of trade carried on by other participants in markets, in India, and for matters
connected therewith or incidental thereto”43 while that of company law is to set up corporations
and regulate their governance44. Thus, the two fields of law are fairly different.

¶ 14. Hence, a merger of the two tribunals will lead to compromising of the purpose of
tribunals, i.e., speedy, effective, decentralised dispensation of justice and also expertise and
knowledge in specialised areas45. As stated by the Supreme Court in the Sharma Transport46
case, an act done in an unreasonable manner also amounts to arbitrariness. This, in turn, falls
under the ambit of violation of rights under Art. 14 as established by Maneka Gandhi47.

¶ 15. Furthermore, different tribunals have different procedures for appeal. For example, for
the Competition Appellate Tribunal48 the aggrieved party can approach the Supreme Court
directly after this Tribunal, under Section 53T of the Act, provided it is within 60 days of

37
Merger of tribunals to rationalise working, Radhika Merwin, The Hindu Business Line, March 23, 2017
https://www.thehindubusinessline.com/economy/policy/merger-of-tribunals-to-rationalise-
working/article9598534.ece.
38
Section 53A, Competition Act, 2002.
39
The Competition Act, 2002.
40
Sec 410, Companies Act, 2013.
41
Companies Act, 2013.
42
Sec 408, Companies Act, 2013.
43
Supra. note 39.
44
William W. Bratton, Framing a Purpose for Corporate Law, 39 J. Corp. L. 713, p.715 (2014),
http://scholarship.law.upenn.edu/faculty_scholarship/1666.
45
MP. JAIN, SN. JAIN, Principles of Administrative Law, p. 1996 (7th Ed. Lexis Nexis, India) (1989).
46
Supra. note 3636.
47
Supra. note 24.
48
Supra. note 38.

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communication of decision. However, for the Cyber Appellate Tribunal49 established under
Information Technology Act, 200050 the next stage of remedy is the appealing to the High
Court within 60 days of communication of the decision or order of the Cyber Appellate
Tribunal51. Merging tribunals will thus lead to petitioners at different stages of appeal coming
together, causing confusion and more administrative difficulties, while also violating the
citizens’ basic right to equality.

¶ 16. Therefore, it is humbly submitted to the Hon’ble Court that since the tribunals have been
merged arbitrarily without considering that many of them have different procedures for appeal,
Art. 14 of the citizens has been violated.

[II.A.2] VIOLATIVE OF ART. 21

¶ 17. Article 2152 of the Constitution of Aryavart deals with the Right to Life and Personal
Liberty. The courts have recently stated that “We have, therefore, no hesitation in holding that
access to justice is indeed a facet of right to life guaranteed under Article 21 of the
Constitution.”53 This viewpoint is further endorsed by the United Nations as well54. According
to Robin Creyke, “Tribunals generally have more speedy processes and less formal procedures
than courts, including an absence of any requirement to follow rules of evidence. Tribunals are
generally cheaper than Courts and there may be limits on legal representation in Tribunal
hearings.”55

¶ 18. In the present petition, the merging of 8 tribunals with the remaining 19 has the potential
to cause a huge backlog of cases, in the scale of thousands. Further, as submitted previously,
the merged tribunals may not have the specialization to handle cases from other Tribunals. This
will lead to long waiting periods before the aggrieved citizens of the country will be able to get
the justice guaranteed to them, making irrelevant the very reason over which these Tribunals

49
Section 48(1), IT Act, 2000.
50
Information Technology Act, 2000.
51
Sec 62, Information Technology Act, 2000.
52
INDIA CONST. art. 21.
53
Supra. note 23.
54
Access to Justice, United Nations and the Rule of Law, https://www.un.org/ruleoflaw/thematic-areas/access-to-
justice-and-rule-of-law-institutions/access-to-justice/.
55
Elliott, Mark, Beatson, Jack, Matthews, Martin, Administrative Law: Text and Materials, Oxford University
Press, New York, (3rd Edn., 2005) at p. 679.

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were constituted. Therefore, the Right to Speedy Trial, which has also been held as a part and
parcel of Art. 2156 is violated in this case.

Thus, it is humbly submitted to the Hon’ble Court that, in this case Art. 21 has been violated
due to abuse of rights to access justice and speedy trial.

In the present case, as both Articles 14 and 21 have been contended to be violated, the concept
of Golden Triangle57 will be applicable. Hence, it is further contended that Art. 19, dealing
with Right to Freedom, is also abused.

II.B. T HE LARGER INVOLVEMENT OF THE EXECUTIVE IN J UDICIAL P ROCESS AMOUNTS TO

VIOLATION OF THE DOCTRINE OF S EPARATION OF P OWERS
¶ 19. Independence of the Judiciary is a salient feature of the Constitution of Aryavart58. This
organ has often been named the custodian of citizens’ rights59, and in a federal system (such as
Aryavart) it also acts as the balance-wheel by settling inter-governmental issues.60 Separation
of Executive from Judiciary is also dealt with under Art. 5061, which is a Directive Principle of
State Policy.62

¶ 20. The instant case deals with sections 156 to 189 of the Finance Act, 201763. Here, the
amendments merging eight tribunals with the remaining 19 have transferred all the power to
make rules regarding qualifications, appointments, terms of service, salary, removal and
resignation, etc. to the executive64. Previously, all the aforementioned details had been laid
down in the specific enabling Acts of the respective tribunals.

56
Supra. note 22
57
Ashok Kumar Thakur v Union of India (2008) 6 SCC 1.
58
MP. JAIN, Indian Constitutional Law, (7th Edition, 2014) pg. 19.
59
Mr NC Chatterjee, The Judiciary and Civil Liberties, The High Court of Judicature at Allahabad, Centenary
Celebration 1866-1966 (Vol-II) pg. 4 on 25 Nov 1966,
http://www.allahabadhighcourt.in/event/TheJudiciaryandtheCivil_LibertiesNCChatterjee.pdf.
60
MP. JAIN, Indian Constitutional Law, (7th Edition, 2014) pg. 19.
61
INDIA CONST. art. 50.
62
INDIA CONST. part IV.
63
Supra. note 25.
64
Ibid.

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¶ 21. For the Cyber Appellate Tribunal65, established under IT Act, 200066, sections 49 to 54
of this Act outline such details. This is a clear violation of the doctrine of Separation of Powers
as given by Montesquieu67 and adopted by the Constitution of Aryavart. This doctrine has
further been given the status of a fundamental aspect of the Constitution by the judgements of
Kesavananda Bharati v State of Kerala68, State of Bihar v Bal Mukund Sah69, L. Chandrakumar
v Union of India70 and Bhim Singh v Union of India71. Furthermore, in the most recent case
regarding the National Judges Appointments Commission (NJAC) Act72, the Supreme Court
in 2015 declared that this Act as well as the Constitutional Amendment 201473 are
unconstitutional and void. They upheld the collegium system of appointing Judges to the
Supreme Court, Chief Justices and Judges to the High Courts and transfer of Chief Justices and
Judges of High Courts from one High Court to another.74

¶ 21. Thus, it is humbly submitted to the Hon’ble Court that giving the executive power over
tribunals violates the doctrine of separation of powers.

¶ 22. Due to this violation of fundamental rights as well as doctrine of separation of powers, it
is imperative to set aside impugned provisions of the Finance Act, 2017. The Doctrine of
Severability as given under Article 1375 may be applied to this Act. According to this doctrine,
if there is a provision(s), which infringes fundamental rights under Part III, then the entire
statute need not be invalidated. That particular provision(s) can be severed from the statute and
can be declared unconstitutional.76 Previously, it has been held that if part of the legislation
turns out to be void, it should have no effect on the rest of the act. 77 For instance, Sec 66-A of

65
Supra. note 49.
66
Supra. note 15.50
67
Book XI, Chapter 6 of the De l’Esprit des Loix.
68
Supra. note 262.
69
State of Bihar v Bal Mukund Sah AIR 2000 SC 1296.
70
Supra. note 29.
71
Bhim Singh v Union of India (2010) 5 SCC 538.
72
Supreme Court Advocates-on-Record Assn and Anr. V Union of India (2015) 6 SCC 408.
73
Constitution (Ninety-Ninth Amendment) Act, 2014.
74
Supra. note 72.
75
INDIA CONST. art. 13.
76
State of Madhya Pradesh v Ranojirao Shinde AIR 1968 SC 1053.
77
RMD Chamarbaugwala v. Union of India AIR 1957 SC 628.

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the IT Act has been held unconstitutional and void78, but the rest of the Act is still in force
today. There have been various instances of this doctrine’s use in the post-independence
period.79

¶ 23. In the present petition, the impugned provisions of the Finance Act, i.e., Sections 156-
189 deal with amendments to certain Acts to provide for merger of tribunals and other
authorities and conditions of service of chairpersons, members, etc.80 – which is in
contradiction to the express provisions of Money Bill laid down in Art. 110(1) (a) to (f). 81 As
there is nothing in these provisions to take away from the main essence of the Finance Act,
2017, it is humbly submitted to the court that Doctrine of Severability may be applied to this
case.

III. WHETHER THE ACT OF THE SPEAKER AMOUNTS TO COLOURABLE

EXERCISE OF LEGISLATION.

¶ 24. It is humbly contended before the Hon’ble Supreme Court that the act of the Speaker in
question amounts to the colourable exercise of legislation. The same is being contended in a
four-pronged manner: (III.A) Firstly, the court can call into question any proceedings of the
parliament under Article 122. (III.B) Secondly, the disputed bill is inconsistent with Art.110(1)
(III.C) Thirdly, Art.110(3) and Art 110(4) are to be read in harmonious construction with Art
110(1). (III.D) Lastly, as Art.110(3) and Art.110(4) were not read in Harmonious Construction
with Art.110(1) by the Speaker while certifying the bill as a money bill, it led to Colourable
Exercise of Legislation and thereby to the invalidity of the law which was a result of the passing
of the bill.

III.A. T HE C OURT CAN CALL INTO QUESTION ANY P ROCEEDINGS OF THE PARLIAMENT
U/A 122.
¶ 25. It is humbly contented before the Hon’ble Supreme Court that as per Article 12282 of the
Constitution, the court cannot call into question any proceedings of the parliament but only
those proceeding which have the issue of “mere irregularity”. However, court may question

78
Shreya Singhal v. Union of India (2013) 12 SCC 73.
79
AK. Gopalan v State of Madras AIR 1950 SC 27; DS. Nakara v Union of India AIR 1983 SC 130; State of
Bombay v FN Balsara AIR 1951 SC 318.
80
Part XIV of Finance Act, 2017.
81
INDIA CONST. art. 110 cl. 1 sub cl. a to f.
82
INDIA CONST. art. 122.

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legislative procedure if the impugned action rests not on mere irregularity, but on an ‘illegality’
or ‘unconstitutionality’ of procedure83. The Speaker has powers to decide finally whether a bill
before the house is a money bill or not and to certify a bill as a money bill. The speaker is not
expected to give his ruling on the question of Constitutionality or on question of laws as such
questions are to be decided finally by the court84.

¶ 26. In this context, Article 122(1) prohibits judicial review of “irregularity of procedure."
Here ‘procedure’ refers only to procedure in rules made under Article 118 or in a law under
Article 11985. Effectively, if the House chooses to make a procedure for itself, violation of such
procedure by the House itself cannot be questioned in a court of law. But if the Constitution of
India prescribes a procedure to be followed by a House (as in the case of money bills), a
violation of such Constitutional procedure is not immune from judicial review under Article
122. In other words, the phrase "irregularity of procedure86" in Article 122 does not cover
Constitutional procedure. Therefore, the protection from judicial review granted by Article 122
cannot be stretched to protect non-compliance with or breach of a Constitutional procedure like
the special procedure for money bills under Articles 109 and 11087.
¶ 27. It was stated that the immunity granted by clause (1) of Article 122 of the Constitution
(“courts not to inquire into proceedings of parliament”) has been made expressly limited to
“irregularity of procedure88” and to substantive illegality or unconstitutionality. If the action
taken or order passed is ex facie illegal, unlawful or unconstitutional, Parliament cannot
take shelter under Article 122 and prevent judicial scrutiny thereof89.
¶ 28. Further it is contended that this Supreme Court itself has exercised judicial review over
other types of ‘final’ decisions made by various Constitutional authorities including the
Speaker under other provisions of the Constitution of Aryavart. This argument is further
supported by the fact that in Kihoto Hollohan vs Zachillhu90, the “final” decision of the speaker

83
Keshav Singh v. Speaker, Leg. Assembly, AIR 1965 All 349.
84
M.P. JAIN, The Indian Constitutional Law, (7th Edition 2014), pg. 55.
85
Ramdas Athawale vs Union of India & Ors AIR 2010 SC 1310.
86
V.C. Chandhira Kumar v. Tamil Nadu Legislative Assembly (2013) 6 CTC 506.
87
Pratik Datta, Shefali Malhotra & Shivangi Tyagi, Judicial Review and Money Bills, volume 10, NUJS Law
Review (28 Feb 2017).
88
Supra. note 20.
89
Raja Ram Pal v. Hon’ble Speaker, Lok Sabha, (2007) 3 SCC 184.
90
Kihoto Hollohan v. Zachillhu, AIR 1993 SC 412.

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regarding disqualification of members of the House under the Tenth Schedule of the
Aryavartan Constitution was held to be a judicial decision subject to judicial review.

¶ 29. Even in the instance of granting of pardon by the president to suspend, remit or
commute sentences no guidelines are given as to when these powers can be used. This leads
to arbitrary use, unconstitutional use of such powers. The courts of Aryavart have
repeatedly condemned arbitrary use of powers provided by the Constitution91.
¶ 30. In the present case the parliament proceeding has run over the restrictions
mentioned92 because even though the bill was not a money bill as proved in (III.B) it was
certified by the Speaker as one. By doing so, the Speaker violated Art.110(1) and also
circumvented the Council of States which is a fundamental aspect of the Constitution of
Aryavart. Thus, as violation of a provision of the Constitution as well as a Basic Part of the
Constitution took place because of the act of the Speaker, the act becomes unconstitutional
thereby lifting the bar on inquiry placed on the courts by Art.122.

31. Therefore, it can be concluded before the Hon’ble Supreme Court of Aryavart that the
court can call into question any proceedings of the parliament under Article 122 of
Constitution of Aryavart.

III.B. INCONSISTENCY OF B ILL W ITH ART. 110(1) OF THE C ONSTITUTION OF ARYAVART

¶ 32. It is humbly contended that, the bill in question does not fall within the ambit of
Art.110(1) due to its failure to comply with the requisites of Art 110(1).

[III.B.1] BY LITERAL INTERPRETATION OF ART 110(1)

¶ 33. It is humbly contended that Article 110 (1) states that for the purposes of the parliament,
a bill shall be deemed to be a money bill if it contains only provisions dealing with matters
listen in Article 110(1)93.

91
Epuru Sudhakar v. Govt. of A.P AIR 2006 SC 3385; Remdeo Chauhan v. Bani Kant Das AIR 2011 SC 615;
Maru Ram v. Union of India AIR 1980 SC 2147; Kehar Singh v. Union of India AIR 1989 SC 653; Bikas
Chatterjee v. Union of India (2004) 7 SCC 634.
92
Ibid.
93
INDIA CONST. art. 110, cl. 1.

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¶ 34. The construction of article 110(1) and the use of the word ‘only’ in its body explicitly
conveys that a money bill can contain provisions only on the matters listed from 110(1)(a) to
110(1)(g). A Bill is a Money Bill when it deals only with the matters specified in Art 110(1),
and not with any other extraneous matter.94 A bill which makes provisions for any matter listed
in Art.110(1), and additionally for any other matter, is called a Financial Bill.95

[III.B.2] INTENTION OF C ONSTITUENT ASSEMBLY W HILE DRAFTING ARTICLE

110(1)

¶ 35. In the Constituent Assembly Debate held on May 20th 194996, Shri Ghanshyam Singh
Gupta (C.P. & Berar: General)97 contended in front of the assembly that the word ‘only’ should
be deleted from clause (1) of Art.90 of the draft Constitution Art.110(1) of the Constitution of
Aryavart) as it limited the ambit of money bills. However, in the Constituent Assembly Debate
held on 8th June 194998, the amendment to delete the word ‘only’ was rejected by the constituent
assembly. This act of the constituent assembly of refusing to delete the term ‘only’ from the
body of Art. 90 is explicit evidence of their intention to limit the scope of money bills to only
those matters which are mentioned from sub clause (a) to (g) of Art 110(1).

¶ 36. Therefore, it can be conclusively held from (III.B.1) and (III.B.2) that all the provisions
in a bill should be within the scope of Art 110(1) if that bill is to be considered as a money bill.
If a bill contains even one provision which isn’t covered by Art 110(1), then that bill cannot be
a money bill.

¶ 37. In the case at hand, a Financial bill was tabled in the Lower House as a money bill.99 The
bill contained provisions for amending a number of acts such as the Income Tax Act 100, the
Customs Act 1962101 and many others. As per Art.110(1)(b) the amendment of the law with

94
M P Jain, Indian Constitutional Law (7th edn, 2014), p. 70.
95
Ibid.
96
Constituent Assembly Debates, Volume 8, May 20, 1949, speech by Shri Ghanshyam Singh Gupta (C.P. &
Berar: General), available at: www.scconline.com.elibrary.symlaw.ac.in:2048/Members/SearchResult2014.aspx.
97
Constituent Assembly Membership, Rajya Sabha,
http://rajyasabha.nic.in/rsnew/constituent_assembly/constituent _assembly_mem.asp
98
Constituent Assembly Debates, Volume 8, June 8th, 1949, available at: www.scconline.com.
99
Para VII, Moot Proposition.
100
§ 3, The Finance Act, 2017.
101
§ 89, The Finance Act, 2017.

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respect to any financial obligations undertaken or to be undertaken by the Government of

Aryavart can be done through a Money Bill. Therefore, the fact that the bill tabled in the Lower
House contained such amending provisions which dealt with the financial obligation of the
government of Aryavart to impose, collect and regulate tax did not bar the said bill from being
a Money Bill.

¶ 38. However, the bill also included provisions for bringing about the merger of various
tribunals such as the merger of Cyber Appellate Tribunal and the Airports Economic
Regulatory Authority Appellate Tribunal with Telecom Disputes Settlement and Appellate
Tribunal102, the Competition Appellate Tribunal with the National Company Law Appellate
Tribunal103. Even the merger of The Employees’ Provident Funds Appellate Tribunal was to
be done with the Industrial Tribunal104.

¶ 39. Additionally, the bill also contained procedures of appointment, qualifications, term of
office, salaries and allowances, resignation, removal and the other terms and conditions of
service of the authorities which were to govern these tribunals105.

¶ 40. It is the presence of the provisions regulating the management of these merged tribunals
which bar the bill from becoming a money bill because a money bill can ‘only’ have within it
clauses which are either on the matters enshrined in Art 110(1)(a)-(f) or on matters that are
incidental to subjects of sub sub-clause (a)-(f)106.

¶ 41. The merger of tribunals prima facie doesn’t fall under any of the matters laid down in Art
110(1)(a)-(f) as the appointment, terms and conditions of service, required qualifications for
appointment of authorities etc aren’t matters of

1) Taxation107 or

102
Para IX, Moot Proposition.
103
Para IX, Moot Proposition.
104
Ibid.
105
§ 184, The Finance Act, 2017.
106
M P Jain, Indian Constitutional Law (7th edn, 2014), p. 70.
107
INDIA CONST. art. 110, cl. 1, sub cl. a.

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2) Regulation of the borrowing of money or the giving of any by the Government of

Aryavart, or the amendment of the law with respect to any financial obligations
undertaken or to be undertaken by the Government of Aryavart108 or
3) custody of the Consolidated Fund or the Contingency Fund of Aryavart, the payment
of moneys into or the withdrawal of moneys from any such Fund109 or
4) the appropriation of moneys out of the Consolidated Fund of Aryavart110 or
5) the declaring of any expenditure to be expenditure charged on the Consolidated Fund
of Aryavart or the increasing of the amount of any such expenditure111 or
6) the receipt of money on account of the Consolidated Fund of Aryavart or the public
account of Aryavart or the custody or issue of such money or the audit of the accounts
of the Union or of a State112.

¶ 42. Art 110(1)(g) says that matters incidental to sub sub-clause (a)-(f) too can be the
components of a money bill however, the Supreme Court in State of Tamil Nadu and Another
v. Board of Trustee of the Port of Madras113 had said that if the main activity was not 'business',
then the connected, incidental or ancillary activities of sales would not normally amount to
'business'. Following this line of reasoning, it can be concluded that as the core substance of all
the provisions under Art 110(1) is monetary, matters incidental to these provisions should also
be monetary in nature which is untrue for the clauses in question as they deal with non-
monetary aspects of the merging of tribunals.

III.C. ART.110(3) AND ART.110(4) ARE TO BE R EAD IN HARMONIOUS C ONSTRUCTION

W ITH ART.110(1).

¶ 43. It is humbly contended before the honourable court that Art. 110(3) and 110(4) are to be
read in harmonious construction with Art.110(1) implying that the power delegated to the
speaker of the Lower House by the Constitution of Aryavart under Art.110(3) and Art.110(4)
cannot be used to declare any bill as a money bill.

108
INDIA CONST. art. 110, cl. 1, sub cl. b.
109
INDIA CONST. art. 110, cl. 1, sub cl. c.
110
INDIA CONST. art. 110, cl. 1, sub cl. d.
111
INDIA CONST. art. 110, cl. 1, sub cl. e.
112
INDIA CONST. art. 110, cl. 1, sub cl. f.
113
C.A. No.-001728-001728 / 1999, http://supremecourtofindia.nic.in/judgments.

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[III.C.1] INTENT OF T HE C ONSTITUENT ASSEMBLY W HILE DRAFTING ART.110

¶ 44. It is contended hereunder that the Supreme Court holds that exercise of a power granted
by an Article of the Constitution should be in line with the intention of the constituent assembly
while drafting that article114. Furthermore, it is contended that, Constituent Assembly Debates
can be relied upon as an aid to interpret a Constitutional provision115.

¶ 45. When a motion was moved in the constituent assembly on 20th May 1949116 to delete the
term ‘only’ from Art 110(1), it was the conscious decision of the whole assembly that the same
should not be allowed and that the word ‘only’ should be retained in Art.110(1). This indicates
that they had wanted to restrict the definition of a money bill to certain criteria only117.

¶ 46. Therefore, Art. 110(3) and Art. 110(4) should be used as per the intention of the
Constituent Assembly which was to limit the scope of money bills to Art 110(1)(a)-(g). Thus,
Art. 110 sub clause (3) and (4) are to be used in accordance to Art 110(1) and not as exceptions
to Art 110(1).

¶ 47. As the intention of the Constituent Assembly was that of limiting the scope of a money
bill and Art.110 grants the Speaker power to certify a bill as a money bill, therefore he should
do so while keeping in mind the intention of the Constituent Assembly which was to constrict
the ambit of a money bill.

[III.C.2] O PPORTUNITY F OR G RAVE M ISUSE IF ART 110(3) AND ART.110(4) NOT R EAD IN
L IGHT OF ART 110(1)

¶ 48. Art 109118 of the Aryavartan Constitution lays down that a money bill can only be
introduced in the Lower House and on being passed by it, the bill shall go to the Council of
States for their considerations. However, it is not necessary for the Lower House to take
cognizance of the amendments suggested by the Council of States. They can implement the

114
Nabam Rebia And Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative Assembly and Ors, (2016)
8 SCC 1.
115
S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126: AIR 2001 SC 2707; Supreme Court Advocates-on-
Record Assn. v. Union of India, (2016) 5 SCC 1.
116
Constituent Assembly Debates, Volume 8, May 20, 1949, speech by Shri Ghanshyam Singh Gupta (C.P. &
Berar: General), available at: www.scconline.com.elibrary.symlaw.ac.in:2048/Members/SearchResult2014.aspx.
117
Constituent Assembly Debates, Volume 8, June 8th, 1949, available at: www.scconline.com.
118
INDIA CONST. art. 109.

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recommendations of the Council of States or not do so upon their discretion and pass the
money.

¶ 49. In matters of a money bill, the role of the Council of States is only recommendatory and
the final rests with the Lok Sabha because it is elected directly by the people and so it
represents the people.119

¶ 50. Art 110(3) and Art 110(4) only say that if a question arises as to whether a bill is a money
bill or not, the decision of the Speaker of the Lower House thereon shall be Final120 and that
on every money bill, there should be endorsed the certificate of the Speaker of the House of
People 121. It does not lay down any procedure for the speaker to follow or any criteria on the
lines of which the speaker could declare a bill to be a money bill. This lack of guidelines for
the speaker to follow in the exercise of his power under Art 110(3) gives him arbitrary power122.
He could effortlessly declare any bill, even an ordinary or financial bill as a money bill by
adding some financial clauses to it123. Even if the bill contained only a few provisions on the
matters listed under Art 110(1) and other provisions on matters extraneous to Art.110, it could
be held to be a money bill by the Speaker of the Lower House thereby allowing the Lower
House to invoke Art 109 which only allows the Council of States to recommend amendments
and not enforce them. Lower House is then free to ignore the recommendations of the Council
of States and pass the bill.124 However, circumventing the Council of States in matters which
are meant to be viewed by it is a gross violation of the Constitution as the council of States is
an essential and important part of it.

¶ 51. Art 79125 of the Aryavartan Constitution sets up Parliamentary democracy by declaring
that there shall be a Parliament for the Union which shall consist of the President and two
Houses to be known respectively as the Council of States and the House of People 126. It is

119
M P Jain, Indian Constitutional Law, (7th edn, 2014), p. 71.
120
INDIA CONST. art. 110, cl. 3.
121
INDIA CONST. art. 110, cl. 4.
122
Supra. note 114.
123
M P Jain, Indian Constitutional Law, (7th edn, 2014), p. 71.
124
Supra note 118.
125
INDIA CONST. art. 79.
126
Kuldip Nayar v Union of India, (2006) 7 SCC 1.

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implied from this article that both the Houses are fundamental features of the Aryavartan
Constitution.

¶ 52. Furthermore, in the Constituent Assembly Debate held on the 3rd of January 1949127, Shri
Lokanath Mishra moved an amendment to remove the term ‘Council of States’ from the Art.
66 of the Draft Constitution (Art. 79 of the Final Constitution). However, M. Ananthasayanam
Ayyangar argued that the parliament needed a Council of States because politics must be a
space for a range of people to take part and because the Council of States would act as a check
on any hasty legislation that lower house may pass.

¶ 53. When draft Article 66 was put to vote, the Constituent Assembly adopted the Draft Article
and rejected Loknath Mishra’s proposed amendment to not have a Council of States.128

¶ 54. The framers also made the Council of States a permanent body, i.e. it is not subject to
dissolution as per Art.83.129

¶ 55. The first Vice-President of India, Dr. S. Radhakrishnan, had said in the first Session of
Council of States on May 13,1952 that the Parliament is not only a legislative but also a
deliberative body. So far as its deliberative functions are concerned, it will be open to the
Council of States to make very valuable contributions.130

¶ 56. This is a clear portrayal of how important the makers of the Constitution and others
leaders of the nation felt the Council of States was for Aryavart131.

¶ 57. Therefore if Art.110(3) and Art.110(4) are not read in harmonious construction with
Art.110(1) they will provide arbitrary powers to the Speaker132 and the courts of Aryavart have

127
Constituent Assembly Debates, Volume 7, January 3rd, 1949, speech Shri Lokanath Misra (Orissa: General),
available at: http://www.scconline.com.elibrary.symlaw.ac.in:2048/Members/SearchResult2014.aspx#.
128
Constituent Assembly Debates, Volume 7, January 3rd, 1949, speech Shri Lokanath Misra (Orissa: General),
available at: http://www.scconline.com.elibrary.symlaw.ac.in:2048/Members/SearchResult2014.aspx#.
129
INDIA CONST. art. 83, cl 1.
130
Dr. Yogendra Narain, Role and Relevance of Rajya Sabha in Indian Polity, Proceedings of the Seminar
organised on the occasion of the 200th Session of Rajya Sabha on 14 December 2003 in Parliament House Annexe,
New Delhi, http://rajyasabha.nic.in/rsnew/publication_electronic/Role_Relavance_RS.pdf.
131
Supra note 126.
132
Supra. note 114.

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repeatedly prohibited the use of arbitrary discretionary powers as held in C A Pious v. State of
Kerela.133

¶ 58. Such power will enable the speaker to avoid the role of the Council of States in case of
any bill which she/he wishes. Such circumvention around the Council of States is against the
Constitution of Aryavart as the Constitution as proved above.

¶ 59. Hence, Art 110(3) and Art.110(4) should be read in harmony with the Art 110(1) as this
will ensure that the intention of the Constituent Assembly is followed and that the Lower House
does not evade the Council of States’ authority in matters where it does not have the jurisdiction
or power to do so (i.e. in the matters of a non-money bill).

III.D. C OLOURABLE EXERCISE O F LEGISLATION BY SPEAKER O F LOWER H OUSE.

¶ 60. The doctrine of Colourable Exercise of Legislation i.e. Expressio unius est esclusio
altertus i.e. says that ‘what cannot be done directly cannot be done indirectly as well’. 134The
doctrine becomes applicable when a legislature seeks to do something in an indirect manner
what it cannot do directly. The underlying idea is that although, apparently, a legislature in
passing a statute purports to act within the limits of its powers, yet in substance and reality, it
has transgressed these limits on its powers by taking resort to a mere pretence or disguise 135. If
that is so, the legislation in question is invalid.136

¶ 61. As seen in (III.C), Art 110(4) and Art.110(3) are not an exception to Art 110(1) which
means that the speaker does not have the power/authority/jurisdiction to declare a bill to be a
money bill if the bill does not conform to the definition of a money bill given in Art 110(1).

¶ 62. In this case, the bill which was introduced in the Lower House was a finance bill and not
a money bill as its contents contained provisions on matters not enshrined under Art 110(1) as
seen in (III.B). And even though the Speaker of the Lower House did not have the power to
declare such a bill as a money bill, he did so under the pretence of having such a power under

133
AIR 2007 SC 3221.
134
Sunil Kumar vs State of U.P. & Ors., 2004 (1) AWC 664, (2004) 1 UPLBEC 258.
135
M P Jain, Indian Constitutional Law, (7th edn, 2014), p. 565.
136
Ibid.

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Art 110(4) as Art 110(4) doesn’t lay down any criteria for the speaker to follow while deciding
if a bill is a money bill or not.

¶ 63. Hence, there was Colourable of Exercise Legislation. The Speaker passed a non-money
bill as a money bill under the guise of having the authority to do so while in reality he did not
possess any power to certify a non-money bill as a money bill.

¶ 64. As the legislation which is passed by the colourable exercise of Legislation becomes
invalid, thus, the Finance Act 2017 becomes invalid.

IV. WHETHER THE ACT OF THE SPEAKER ARBITRARY, MALA FIDE AND
UNCONSTITUTIONAL.

¶ 65. It is humbly contended that the act of the speaker declaring a Non-Money bill as a Money
bill was Arbitrary, Mala Fide and Unconstitutional.

¶ 66. In Sharma Transport v. Government of A.P. and others137 the Supreme Court held that
expression ‘arbitrarily’ meant ‘in an unreasonable manner, as fixed and done capriciously or at
pleasure, without adequate determining principle, not founded in the nature of things, non-
rational, not done or acting according to reason or judgement, depending on the will alone.’138
The meaning of arbitrary is depending on individual discretion. 139

¶ 67. Moreover, the office of the speaker enjoys great prestige, position and authority within
the house. The ordinary interpretation of procedural laws, rules and customs of the House is
his function140.

¶ 68. Furthermore, an act violating a right guaranteed by the Constitution is held to be

unconstitutional.141

137
(2002) 2 SCC 188.
138
Justice R.P. Sethi, Supreme Court on Words & Phrases (1950-2004), edn 2004, p. 93.
139
Black's Law Dictionary (7th ed. 1999).
140
M P Jain, Indian Constitutional Law, 7th edn, 2014, p. 565.
141
Mafatlal Industries Ltd. v Union of India (1997) 5 SCC 536.

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¶ 69. In P.C.George vs The Hon'Ble Speaker, Kerala Legislative Assembly142 it was held by
Justice V Chitambaresh of the Kerala High Court that the order of the speaker, N Sakthan, of
the Kerala Legislative Assembly, was deliberately adopted and was a mala fide action on the
part of the Speaker as it kept the resignation of the former chief whip P C George pending so
that an inquiry could be conducted. This inquiry would have facilitated the petitioner to have
an ignominious exit from the Kerala Legislative Assembly. The line of reasoning given by the
judge was that because a Constitutional right143 of the petitioner as a member of the Kerala
Legislative Assembly to have his letter of resignation considered was consciously and
deliberately trampled upon, it was a mala fide action.

¶ 70. In the present petition, the Speaker of the Lower House certified a non-money bill as a
money bill despite having the onus of exercising his power of certification 144 in line with Art
110(1) as proved in (II.B). As he did not interpret Art. 110 correctly, as is his function, his
action was unreasonable and without adequate determining principle It depended on his will
alone.

¶ 71. Besides, in passing the bill as a money bill the speaker violated Art 110(1) and therefore
his act was unconstitutional.

¶ 72. Additionally, he had certified the bill as a money bill deliberately and with full
consciousness in violation of Art 110(1). As the position of the Speaker of the Lower House is
very similar to that of the Speaker of the State Legislative Assembly145 it is imperative to be in
line with P.C.George vs The Hon'Ble Speaker on the current matter, that is a conscious and
deliberate act which violates a provision of the Constitution is held to be mala fide. The act of
the speaker passing a non-money bill as a money bill was a deliberate and fully conscious
violation of Art 110(1). Therefore, the same is mala fide.

142
2016 SCC OnLine Ker 7918.
143
INDIA CONST. art. 190, cl. 3.
144
INDIA CONST. art. 110, cl. 4.
145
M P Jain, Indian Constitutional Law (7th edn, 2014), p. 313.

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PRAYER

Wherefore, it is humbly prayed in the light of issues raised, arguments advanced and authorities

cited, may this Hon’ble Court be pleased to:

1. DECLARE that the present petition is maintainable.

2. UPHOLD that provisions 156 to 189 of the Finance Act, 2017 are Unconstitutional.

3. DECLARE that the act of the Speaker was a Colourable Exercise of Legislation and

thereby invalidate the Finance Act, 2017.

4. UPHOLD that the act of the Speaker was Arbitrary, Mala-fide and Unconstitutional.

AND / OR

Pass any order that this Hon’ble Court may deem fit in the interest of

Justice, Equity and Good Conscience.

And for this act of kindness, the counsel for the petitioner shall duty bound forever pray.

(Counsel for Petitioner)

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