Memorial of Appellant

SHREE RAM

Team Code: NL 21

BEFORE
THE HONBLE HIGH COURT OF
SPRINGFIELD

UNDER ARTICLE 226 OF THE CONSTITUTION OF WESTEROS

WRIT PETITION

DAENERYS SIMPSONS

APPELLANT

VERSUS

GOVERNMENT OF SPRINGFIELD

RESPONDENT

MEMORIAL FILED ON BEHALF OF THE APPELLANT

COUNSELS APPEARING ON BEHALF OF THE APPELLANT

Dr. Ram Manohar Lohiya National Law University UMCS

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TABLE OF CONTENTS

1.) Index of Authorities

2.) Statement of Jurisdiction

.5

3.) Identification of Issues

........6

4.) Statement of facts

5.) Summary of Pleadings

6.) Arguments Advanced

6.) Prayer for Relief

11

...20

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INDEX OF AUTHORITIES

1) List of cases
1.

Advocates on Record Association v. Union Of India AIR 1994 SC 268.18

2.

Bachan Singh v. State of Punjab, AIR 1982 SC 1336..17

3.

Baldev Raj v. Punjab & Haryana High Court AIR 1976 SC 2490...18

4.

C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457.18

5.

C.R. Bansi v. State Of Maharashtra , (1971) 3 SCR 236..16

6.

E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.....15

7.

Engineering mazdoor sabha v. Hind cycles limited, AIR 1963 SC 87413

8.

Fertilizer Corporation Kamgar Union v. Union of India, 1981 SCR (2) 52 ...11

9.

Glanrock Estate (P) Ltd. v. State of Tamil Nadu, (2010) 10 SCC 9617

10. I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861...14

11. Indira Gandhi v. Raj Narain, AIR 1975 SC 2299 ,...17
12. Janata Dal v. H.L. Chowdhary, AIR 1993 SC 89211
13. Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873.15
14. M.S. Jayaraj v. Commissioner of Excise, Kerala, AIR 2000 SC 3266 at 3270.11
15. Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy, AIR 2004 SC 4289...12
16. Maneka Gandhi v. Union Of India, (1978) 2 SCJ at 350..15
17. Minerva Mills v. Union of India, AIR 1980 SC 178917
18. Mohd. Iqbal Ahmed v. State Of Andhra Pradesh, AIR 1979 SC 67716
19. Om Prakash v. Lauti Ram, (1971) 3 SCC 868...13
20. Pritam Singh v. State , AIR 1950 SC 169, 171..12
21. R.S.Nayak v. A.R. Antulay ;AIR 1984 SC 684..16
22. Rajnish Mishra v. State of Jharkhand, AIR 2004 Jhar 115....12
23. Rashpal Malhotra v. Satya Rajput, AIR 1987 SC 2235.....13
24. S.P. Gupta v. President of India, AIR 1982 SC 149..11
25. S.P. Sampath Kumar v. Union of India, AIR 1987 SC 38619
26. Shri kumar Padma Prasad v. Union of India, (1992) 2 SCC 42818
27. State of Bihar v. Subhash Singh, AIR 1997 SC 1390.17
28. State of Bombay v.Rusi Mistry, AIR 1960 SC 391.....13
29. State v. Union of India, AIR 1996 Cal 181.....11
30. Waman Rao v. Union of India, (1981) 2 SCC 362.....14

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II. Books And Articles

1. A.S. Ramachandran, A Treatise on the Prevention of Corrutpion Act, (2004 edn. Universal
Law Publishing Co. Pvt. Ltd. Delhi)
2. Arvind P. Datar Commentary on the Constitution of India (2nd edn Wadhwa & Co. Nagpur
2007) vol 1
3. Brayan A. Garner and Henry Campwell Black, Blacks Law Dictionary (9th edn.)
4. Dr. Ashok Dhamija, Prevention of Corruption Act (Wadhwa & Company Nagpur, Reprint
Ediition 2007)
5. Dr. justice A.R. Lakhmanan, WhArton Law Lexicon (15th Edn., Universal Law Publishing
Company, New Delhi)
6.

Dr. Subhash C. Kashyap Constitutional Law of India (Universal Law Publishing Co. Pvt Ltd
2008) vol 1

7. Durga Das Basu, Constitution of India, (Wadhwa Publications, Nagpur, 8th edition [Y.V.
Chandrachud, S.S. Subramani, B.P. Banerjee(eds)], 1-2, 2007)
8. H.M. Seervai, Constitutional law of India ( 3rd edition Vol 1& vol 2 ,1984)
9. Halsburys Laws of India Contitutional Law II ( Butterworths 2007) vol 35
10. Halsburys Laws of India Public Interest Litigation (Butterworths New Delhi 2005) vol 22
11. J.N. Pandey, Constitutional law of India (Central Law Agency, Allahabad,44th edition, 2007)
12. Jagdish Swarup Constitution of India (2nd edn Mordern Law Publishing 2006) vol 1
13. Justice Bhagwati Prasad Bannerjee & Bhaskar Prasad Bannerjee Judicial Control of
Administrative Actions (Wadhwa & Co. 2011)
14. L.M. Singhvi, Constitution of India(Modern law publication, New Delhi, 2, 2003, 945)
15. M.P. Jain & S.N. Jain Principles of Administrative law (6th edn Wadhwa & Co.

Nagpur

2007)
16. Mahendra P Singh (Ed.) V.N. Shuklas Cinstitutional Law Of India(Eastern Book Company,
11th edn 2008)
17. P. Ramanatha Aiyer, Advanced Law Lexicon, (3rd edition, 2005)
18. P.M.Bakshi, Constitution of India (Universal Law Publisher,New Delhi, 9th edition, 2009)
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Memorial of Appellant
19. Ratanlal & Dhirajlal, The Code of Criminal Procedure, (Wadhwa & Co. Nagpur, 18th edn.
2007)
20. Sudipto Sarkar, V.R. Mohan, Code of Criminal Procedure, (Wadhwa & Co. Nagpur, 9th edn.
2007)
21. Y.V. Chandrachud, S.S. Subramani, B.P. Banerjee(eds), Durga Das Basu, Constitution of
India, (Wadhwa Publications, Nagpur, 8th edition, 2007)
22. Brayan A. Garner and Henry Campwell Black, Blacks Law Dictionary, 9th edn.
23. P. Ramanatha aiyer, Advanced law lexicon, 3rd edition, 2005
24. Dr. Justice A.R. Lakhmanan, Wharton law lexicon, 15th edition, universal law publishing
company, New Delhi.
25. B.L. Wadhera, Public Interest Litigation: A Handbook with Modern PIL Formats (2nd edn.
Universal Publishing House 2009)
26. Dr. S.S. Sharma, Legal Services, PIL and Para-Legal Services (1st edn. Law Agency 2003)
III. Statutes
1.

The Constitution (1st Amendement)Act,1951

2.

The Constitution of India.

3. The Prevention of Corruption Act, 1988

4.

The Code of Criminal Procedure, 1973

5. Central Vigilance Commission Act, 2003

IV. Legal e-Databases
http://www.maupatra.com
http://www.lawjunction.com
http://www.legalserviceindia.com
http://www.court.nic.in
http://www.lexisnexis.com
http://www.lawcommission.com

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STATEMENT OF JURISDICTION
The Petitioner, Ms. Daenerys Simpsons , has approached this Honble High Court of Springfield
under the Article 226 of the Constitution of Westeros

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IDENTIFICATION OF ISSUES

1. WHETHER THERE IS SUFFICIENT PUBLIC INTEREST IN MRS. REDDYS

APPEAL TO CONSTITUTE LOCUS STANDI
2. WHETHER THE SPECIAL LEAVE PETITION IS MAINTAINABLE UNDER
ARTICLE 136 OF BAKASIA
3. WHETHER THE 97TH CONSTITUTIONAL AMENDMENT ACT, 2010, WHICH HAS
INSERTED THE JANRAKSHAK ACT INTO THE IX SCHEDULE OF THE
CONSTITUTION, IS VALID
3.1. WHETHER THE JANRAKSHAK ACT, 2010 VIOLATES ARTICLE 14 OF THE
CONSTITUTION OF BAKASIA
3.2. WHETHER SUCH VIOLATION ABROGATES THE BASIC STRUCTURE OF THE
CONSTITUTION ON GROUNDS OF:
3.2.1. DEMOCRACY
3.2.2. RULE OF LAW
3.3. WHETHER THE 97TH CONSTITUTIONAL AMENDMENT ACT, 2010 INFRINGES
UPON:
3.3.1. INDEPENDENCE OF THE JUDICIARY
3.3.2. JUDICIAL REVIEW

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STATEMENT OF FACTS

I. The Union of Bakasia is a sovereign, socialist, democratic, republic. Corruption started

growing in the country. By 2010, it became so rampant that the citizens lost faith in the
government and started a movement led by Shree Arvind Bedi pressing for an independent body
to deal with corruption. The government passed the Janrakshak Act and it came into force on 9th
February 2010.
II. The Janrakshak could receive complaints under the Prevention of Corruption Act and allied
laws against the Prime Minister, Council of Ministers, members of Parliament, bureaucrats,
judges of Supreme Court and High Courts. It was given power to investigate complaints and file
prosecution against the same. Section 19 of Prevention of Corruption Act was deleted and the
application of Section 19 of CrPC was excluded. The Act was also inserted into the Schedule of
the Constitution by the 97th Constitutional Amendment Act 2010.
III. In March 2010, the telecom ministry with Mr. Charan Reddy as the telecom minister issued
3G licenses to 29 companies. In January 2011, the report of the Comptroller and Auditor General
revealed that the process lacked transparency and was done in an arbitrary manner. Therefore,
Mr. Reddy resigned from office in March 2011. The Janrakshak received several complaints of
corruption against him and started to investigate them on 4th April 2011.
IV. Mrs. Neeru Reddy, wife of Mr. Charan Reddy, owner of the Bakasia Citizens Welfare
Association filed a public interest in the High Court of Visila seeking to invalidate the 97 th
Constitutional Amendment Act on the grounds that it is violative of the basic structure of the
Constitution. The Court dismissed the matter on the grounds that the petition involved a private
interest and the petitioner had not approached the court with clean hands. Mrs. Reddy has now
approached the Honble Supreme Court of Bakasia under Article 136.

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SUMMARY OF PLEADINGS
Locus Standi and Public interest of Mrs. Reddy The rule of locus standi has been
expanded to any member acting pro bono and her public interest is evidenced by the fact that
she has been running an NGO for civil rights and liberties.

1.1

Wastage of public expenditure The Janrakshak Act, 2010 shall create several bodies
which shall result in the wastage of public expenditure, when there is no Absolute necessity
for doing such an act.

1.2

2.1 The Special Leave is maintainable under Article 136 of the Bakasian Constitution
There has been grave injustice done to Mrs. Reddy at the High Court and the Supreme
court should do well to interpret the widest possible jurisdiction by taking cognizance in the
instant matter.
2.2 Clean hands and assumption of jurisdiction- Mrs. Reddy is a public-spirited person who
runs an NGO for civil liberties and since she hasnt had a fair chance to be heard, the SC should
assume jurisdiction in the matter.
2.3 Question of law to be entertained by Supreme Court - A substantial question of law
concerning the validity of the constitutional amendment has
arisen which requires the
interference of the SC.
3. The 97th Constitutional Amendment Act, 2010, which has inserted the Janrakshak Act,
2010 into the IX Schedule, is invalid -On the basis of the ruling in Glanrock Estate (P) Ltd. v.
State of Tamil Nadu, the appellant seeks to establish that the Janrakshak Act has not only
infringed upon Art. 14, but has also, by doing so, violated the basic structure of the Constitution,
and thus the Amendment is invalid.
3.1. The Janrakshak Act, 2010 is violative of Article 14 of the Constitution of Bakasia- It is
submitted that the classification made by the Parliament is not based on intelligible differentia
and that the conferment of discretionary power to the Janrakshak is arbitrary. The arbitrary
conferment of power is illustrated by the Janrakshak having been made the sanctioning authority,
which is against public interest.

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3.2. Such violation has abrogated the Basic Structure of the Constitution
3.2.1. Democracy- The fundamental freedoms guaranteed by Articles 14 and 19 are the most
elementary freedoms without which a free democracy is impossible. Judicial Review has
also been held to be a postulate of democracy, and since all of the above have been
abrogated, democracy stands violated as well.
3.2.2. Rule of Law-The Indian Constitution seeks to promote Rule of Law through provisions
like independence of the judiciary, judicial review, and equality. Since all of these have
been abrogated, the rule of law stands infringed upon.
3.3. The 97th Constitutional Amendment Act, 2010 infringes upon:
3.3.1. Independence of the Judiciary- Making the higher judiciary accountable to one body i.e.
the Janrakshak, is inconsistent with Article 124 (4) of The Constitution of Bakasia, read with the
Judges (Enquiry) Act, 1968. If judges of the higher courts are under constant threat of inquiry
and investigation, it will affect the delivery of justice.
3.3.2. Judicial Review- The Union of Bakasia has restricted the basic feature of judicial review
for an act which is not in keeping with the original intention of the Constitution-framers. It can
only be exercised in respect of a petition challenging the act on grounds of basic structure, not
ordinary constitutional principles.

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ARGUMENTS ADVANCED
1. There is sufficient Public Interest involved in Mrs Reddys Appeal and she has enough
Locus Standi before the Supreme Court.
1.1 Locus Standi and Public Interest of Mrs. Reddy
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 law, any member of the public acting
bona fide and having sufficient interest can maintain an action for redressal of such public wrong
or injury.1 The strict rule of locus standi applicable to private litigation is relaxed and a broad
rule is evolved which gives the right of locus standi to any member of the public acting bona fide
and having sufficient interest in instituting an action for redressal of public wrong or public
injury.2 Public interest litigation is part of the process or participative justice and standing in civil
litigation of that pattern must have liberal reception at the judicial door-steps.3
Mrs Reddy is indeed a public-spirited person. She has been running a Non Governmental
Organization called the Bakasia Citizens Welfare Organisation, which functions to safeguard the
rights and civil liberties of the citizens of India. She has moved the court only in the true spirit of
the Indian constitution, only to further the cause of public interest which is sufficiently
established by the fact she has been taking up the concerns of the public and their civil liberties
with the noble works of her NGO. Also, the incorporation of the Janrakshak Act, poses a great
threat to the Democracy, rule of law, et al as shall be established in the further submissions of the
appellants. Setting up a parallel bureaucracy of sorts which shall question the authority of a
democratically elected government will put to peril the faith of the people in the system. It
cannot be solely dismissed on the grounds that the appellant did not have enough locus standi to
file the petition.4 Some risks have to be taken and some opportunities opened for the public
minded citizen to rely on the legal process and not be repelled from it by narrow pedantry now
surrounding locus standi.5The court therefore cannot be scared by the fact that the instant
litigation is one on frivolous grounds and Mrs. Reddy is evidently not moving the petition to
waste the time and money of the court. For judicial activism to take place, the court shall have to
1

S.P. Gupta v. President of India, AIR 1982 SC 149

Janata Dal v. H.L. Chowdhary, AIR 1993 SC 892
3
Fertilizer Corporation Kamgar Union v. Union of India, 1981 SCR (2) 52
4
M.S. Jayaraj v. Commissioner of Excise, Kerala, AIR 2000 SC 3266 at 3270
5
State v. Union of India, AIR 1996 Cal 181
2

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Memorial of Appellant
take some risks.Moreover, Mrs. Reddy has a fundamental duty under Article 51-A of the
Bakasian Constitution, proclaiming that she being the head of an NGO which is devoted to
uphold rule of law and fight against injustice. She has a fundamental duty to inform the court of
an issue which shall tarnish the image or credibility of the nation.6
1.2 The Janrakshak act shall create unnecessary Bodies, resulting in wasteful expenditure of
state, which is not in pursuance of public interest.
The government can certainly be cautioned by ways of public interest litigation that it is not
expected to create bodies for a reason other than absolute necessity.7
Constituting a Janrakshak Act shall result in a whole framework of an alternate body being set
up. When already the Bakasian Union is suffering from the evils of corruption, such an act shall
drain the Unions money towards wasteful expenditure, when there is no absolute necessity to
create such an alternate framework.
2. Mrs. Reddy has approached the court with clean hands and the appeal is maintainable
under Article 136 of the Bakasian Constitution.
2.1 The appeal is maintainable
Wherever the need for need for justice demands interference by the SC, the article can be
invoked.8 Generally speaking, this court will not grant special leave, unless it is shown that
exceptional and special circumstances exist, that substantial and grave injustice has been done
and that the case in question presents features of sufficient gravity to warrant a review of the
decision appealed against.9 Unless it can be shown that there are exceptional and special
circumstances that may result in substantial and grave injustice, the court would not exercise its
overriding powers under Article 136.
The High court while erring in its judgement about the invalidity of the Public interest litigation
hasnt even considered the merits of the case and has refrained from expressing any opinion on
the validity of the 97th Constitutional Amendment Act. Even while the cause of public interest is
6

Janata Dal v. H.S. Chowdhry, AIR 1993 SC 892

Rajnish Mishra v. State of Jharkhand, AIR 2004 Jhar 115
8
Mahendra Saree Emporium (II) v. G.V. Srinivasa Murthy, AIR 2004 SC 4289
9
Pritam Singh v. State , AIR 1950 SC 169, 171
7

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Memorial of Appellant
elaborately expressed in earlier submissions of the appellants, there is grave injustice done to the
appellants by not hearing the appeal in entirety. The main intent and purpose of the SCs powers
under this article is that it is the duty of the SC to see that injustice is not perpetrated by the
decisions of the courts and tribunals.10 The high courts decision doesnt seem to do justice and
the SC should do well to corroborate the words used in Article 136 In any cause or matter
which confer the widest possible jurisdiction on the Supreme Court in the matter of grant of
special leave.11
2.2Clean hands and assumption of jurisdiction of SC in exceptional cases
The practice of Supreme Court is not to interfere on questions of fact except in exceptional cases,
when the finding is such that it shocks the conscience of the court,or some violation of the
principles of natural justice or otherwise grave and substantial injustice is done 12, or substantial
question of public importance is involved.13
Even when Mrs. Reddy has moved the petition as a public spirited person, which is evidently
proven by the fact that she has been fighting for civil rights and liberties with her NGO, the High
court has failed to take cognizance of the same fact. In fact, the principles of natural justice, Audi
Alteram Partem have been violated because Mrs. Reddy hasnt had a fair chance to be heard,
which is indeed shocking for the conscience of the Supreme Court.
2.3 Question of Law to be entertained by Supreme Court
Normally, the SC will entertain an appeal against a decree passed if a substantial question of law
of general or public importance arises which may not only determine the dispute between the
parties but will be a precedent for guidance for determination of similar disputes in other cases.14
In the instant matter, there is a substantial question of law with regards to the validity of the
constitutional amendment, in addition to a question of public importance with regards to the
grounds of public interest of Mrs. Reddy. This should definitely entertain the interference of the
Supreme Court in the instant matter.
10

Engineering mazdoor sabha v. Hind cycles limited, AIR 1963 SC 874

Pritam Singh v. The state , AIR 1950 SC 169
12
State of Bombay v.Rusi Mistry, AIR 1960 SC 391
13
Rashpal Malhotra v. Satya Rajput, AIR 1987 SC 2235
14
Om Prakash v. Lauti Ram, (1971) 3 SCC 868
11

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3. The 97th Constitutional Amendment Act, 2010, which has inserted the Janrakshak Act,
2010 into the IX Schedule, is invalid
By virtue of the decisions in Waman Rao15 and I.R. Coelho16, the 97th Constitutional Amendment
Act, which has inserted the Janrakshak Act, 2010 into the IX Schedule, can be challenged on
grounds of damaging of the basic structure of the Constitution.
Inn the case of Glanrock Estates (P) Ltd. v. State of Tamil Nadu17 the court stated that:
Laws that are included in the Ninth Schedule have to be examined individually for determining
whether the constitutional amendments by which they are put in the Ninth Schedule damage or
destroy the basic structure of the Constitution and in that process, the Court has to examine the
terms of the statute, the nature of the rights involved and if the substance of the statute violates
the special features of the Constitution and for doing so, it has to first find whether the Ninth
Schedule law is violative of Part III. If, on such examination, the answer is again in the
affirmative, the further examination is to be undertaken whether the violation is found
destructive of the basic structureOn such examination, if our answer is in the affirmative, the
result would be invalidation of the Act to the extent of the violation.
On the basis of the above ruling, the appellant seeks to establish that the Janrakshak Act has not
only infringed upon Art. 14, a Fundamental Right guaranteed in Part III, but has also, by doing
so, violated the basic structure of the Constitution, and thus the Amendment is invalid.
3.1. The Janrakshak Act, 2010 is violative of Article 14 of the Constitution of Bakasia
3.1.1. The Janrakshak Act, 2010 does not fulfil the test of Reasonable Classification
The Janrakshak has been given the jurisdiction to receive complaints against the Prime Minister,
his Council of Ministers, all Members of Parliament and all bureaucrats, as well as judges of the
Supreme Court and High Court, investigate these complaints, and file prosecution in appropriate
Trial Courts. It is most humbly submitted by the appellant that this has violated Art.14 of the
Constitution.

15

Waman Rao v. Union of India, (1981) 2 SCC 362

I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861
17
(2010) 10 SCC 96
16

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Memorial of Appellant
Classification made under Art.14 must fulfill two tests: (a) it should be based on intelligible
differentia, which distinguishes persons or things grouped together in the class from the others
left out of it, and (b) the differentia adopted as the basis of classification must have a rational
nexus with intended to be achieved by the statute in question.18
It is submitted that the classification made by the Parliament is not based on intelligible
differentia. The Prevention of Corruption Act, 1988 applies to public servants, whose definition
is much wider than the persons included in the Janrakshak. The object with which the Janrakshak
was established was to combat corruption. To fulfill this object completely, all persons under the
Government should have been included within the ambit of the Janrakshak.
3.1.2. The conferring of power upon the Janrakshak is arbitrary
It is further pleaded that the conferment of discretionary power to the Janrakshak is arbitrary. In
Royappas case,19it was held that equality is antithetic to arbitrariness from a positivistic point of
view.
The case of Maneka Gandhi v. Union of India20 has held that when a statute vests unrestricted
power in an authority to affect the rights of a person without laying down any policy or principle
which is to guide the authority in exercise of this power, it would be affected by the vice of
discrimination since it would leave it open to the authority to discriminate between persons and
things similarly situated.
The arbitrary conferment of power is further illustrated by the Janrakshak having been made the
sanctioning authority. As pers. 197 of the Criminal Procedure Code and s.19 of the Prevention of
Corruption Act, for a public servant to be prosecuted, it is first necessary for the appointing
authority to grant sanction for the same. By deleting Section 19 of the Prevention of Corruption
Act, 1988, and s.197 of the Criminal procedure Code, 1973, the Parliament has underestimated
the importance of the appointing authority as the Sanctioning Authority.
The Supreme Court in R.S.Nayak v. A.R. Antulay21 has dealt at length with the need for sanction
in the context of public interest. The policy underlying Section 19 is that there should not be
18

Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873

E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555
20
(1978) 2 SCJ at 350
21
AIR 1984 SC 684
19

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unnecessary harassment of public servants.22That authority would alone be competent enough
to judge whether on the facts alleged, there has been abuse or misuse of office held by public
servant, as that authority would be in the position to know more about the powers conferred on
the office which the public servant holds, and would have knowledge about the functions and
duties of the office and its misuse or abuse by the public servant.23
The Janrakshak Act will not be in a position to decide this question of whether the accused
official should be prosecuted or not accurately. There are no guidelines that have been laid down
for the performance of this function. This will leave it open for the Janrakshak to discriminate
between persons similarly situated, and thus act in an arbitrary manner. It is therefore submitted
by the appellant that the above provisions of the Janrakshak Act are violative of Art.14
3.2. Such violation has abrogated the Basic Structure of the Constitution
3.2.3. Democracy
Democracy is a basic feature of the Bakasian Constitution. 24Certain fundamental rights, and the
principles that underlie them, are foundational not only to the Indian democracy, but democracies
around the world.

25

It is most respectfully submitted before this Honble Court that the

fundamental freedoms guaranteed by Articles 14 and 19 are the most elementary freedoms
without which a free democracy is impossible and which must, therefore, be preserved at all
costs.26Judicial Review has also been held to be a postulate of democracy.27
On the basis of the above submissions, the appellant submits that the violation of Art.14 by the
Janrakshak Act 2010, as well as the restriction on Judicial review by the 97 th Amendment have
adversely impacted democracy, which is a basic feature of the Constitution. On these grounds,
the appellant pleads that the 97th Amendment Act be declared invalid.
3.2.4. Rule Of Law

22

C.R. Bansi v. State Of Maharashtra , (1971) 3 SCR 236

Mohd. Iqbal Ahmed v. State Of Andhra Pradesh, AIR 1979 SC 677
24
Indira Gandhi v. Raj Narain, Minerva Mills v. Union of India, AIR 1975 SC 2299
25
Indira Gandhi v. Raj Narain, AIR 1975 SC 2299
26
Minerva Mills v. Union of India, AIR 1980 SC 1789
27
Indira Gandhi v. Raj Narain, AIR 1975 SC 2299
23

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The Rule of Law has been held to be a part of the Basic Structure of the Constitution. 28The Rule
of Law which permeates the entire fabric of the Constitution excludes arbitrariness. 29 Rule of
Law describes a society in which the government must act in accordance with law. A society
governed by law is the foundation of personal liberty.30 The Indian Constitution seeks to promote
Rule of Law through provisions like independence of the judiciary.31 The Supreme Court has
even characterized judicial review as a basic feature of the Constitution, 32 and a significant
derivative from the Rule of Law.33
In the present case, it can be observed that there is no recourse available to check the validity of
the sanction to be given by the Janrakshak. This is because the Janrakshak Act has been placed in
the Ninth schedule and can be challenged only on the basis that it violates the basic Structure of
the Constitution.
As explained in Issue no. 2.1., Art.14 of the Constitution has been violated. This arbitrary
conferment of discretionary power on the Janrakshak is so grave that it constitutes violation of
the Rule of Law as well. Rule of law today envisages not arbitrary power but controlled power.
And equality is a feature of the rule of law,34 as is lawlessness and unreasonableness on the part
of the government.35 Moreover, there is no provision for a body to check the Janrakshak. The
absence of a checking authority over the Janrakshak is inconsistent with the magnitude of powers
that it is empowered to exercise.
The independence of the judiciary, and democracy, both essentials of the Rule of law, have also
been infringed upon by the impugned Act, as has been illustrated in Issues no. 3.3 and 3.2.2. It is
on this basis that it is pleaded that the 97th Amendment Act be struck down.

3.3. The 97th Constitutional Amendment Act, 2010 infringes upon:

28

Indira Gandhi v. Raj Narain, AIR 1975 SC 2299

Bachan Singh v. State of Punjab, AIR 1982 SC 1336
30
Glanrock Estate (P) Ltd. v. State of Tamil Nadu, (2010) 10 SCC 96
31
Bachan Singh v. State of Punjab, AIR 1982 SC 1336
32
Minerva Mills v. Union of India, AIR 1980 SC 1789
33
State of Bihar v. Subhash Singh, AIR 1997 SC 1390
34
Indira Gandhi v. Raj Narain, AIR 1975 SC 2299
35
M.P Jain, Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa Nagpur, 6th edition 2010, p.8
29

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Memorial of Appellant
3.3.1. Independence of the Judiciary
It is submitted by Appellants that passing of the 97 th Constitutional Amendment Act, 2010
undermines the independence of judiciary which is considered a part of the basic structure of the
Constitution.36 An independent judiciary is the strongest guarantee for upholding the rule of law
and the protection of human rights.37Article 50 which seeks to separate the executive and the
judiciary is based on the bedrock principle of independence of judiciary.38 This principle also
manifests in the form of no pressure from the executive, and other pressures. 39 It is submitted that
making the higher judiciary accountable to one body i.e. the Janrakshak, is inconsistent with
Article 124 (4) of The Constitution of Bakasia, read with the Judges (Enquiry) Act, 1968, and the
Judges (Enquiry) Rules, 1969.
Under the Janrakshak Act, the independent body formed to deal with corruption has been given
wide powers of investigation and filing prosecution in appropriate trial courts with respect to
members of the Higher Judiciary. Currently, the appointment of judges is carried out by a
collegium of judges where the President has no discretion whatsoever, and the removal of judges
is also carried out by a committee consisting of judges.40 The management of the judicial services
is meant to be completely in the hands of the judiciary, devoid of executive control.
Taking this into consideration, the Janrakshak Act, 2010 is in complete violation to the
independent functioning of the judiciary. If judges of the higher courts are under constant threat
of inquiry and investigation being initiated even in case of a slight lapse, it will affect the
delivery of justice and it will become difficult to uphold the rights of the citizens of Bakasia. And
Courts are expected to act as protectors of the law, who independently exercise their judicial
power without any functional or individual interference41.
3.3.2. Judicial Review
36

Shri kumar Padma Prasad v. Union of India, (1992) 2 SCC 428.

Daniel C. Prefontaine, Q.C.& Joanne Lee for the World Conference on the Universal Declaration on Human
Rights, Montreal, December 7,8,9, 1998.
38
Advocates on Record Association v. Union Of India AIR 1994 SC 268; Baldev Raj v. Punjab & Haryana High
Cour,t AIR 1976 SC 2490.
39
C. Ravichandran Iyer v. Justice A.M. Bhattacharjee, (1995) 5 SCC 457
40
Section 3(2)(a)(b)(c), Judges (Inquires) Act, 1968.
41
Guidance for Promoting Judicial Independence and Impartiality, Office for Democracy and Governance, Bureau
for Democracy, Conflict, and Humanitarian Assistance, pg.5, U.S Agency for International Development,
Washington, DC 20523-3100,Revised Edition, January 2002.
37

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Memorial of Appellant
Judicial Review is a basic and essential feature of the Constitution and no law passed by
Parliament in exercise of its constituent power can abrogate and take it away.42
In I.R. Coelho v. State of Tamil Nadu43it was stated that even though an Act is put in the Ninth
Schedule by a constitutional amendment, its provisions would be open to attack on the ground
that they destroy or damage the basic structure if the fundamental right or rights taken away or
abrogated pertains or pertain to the basic structure.
In view of the above decision, the appellant submits that the Union of Bakasia has restricted the
basic feature of judicial review for an act which is not in keeping with the original intention of
the Constitution-framers which was to reduce dilatory litigation44 in respect of agrarian reform
measures.45
Article 31B only provided restricted immunity and it seems that original intent was only to
protect a limited number of laws, it would have been only an exception to Part III. However, the
unchecked and rampant exercise of this power, the number having gone from 13 to 284, shows
that it is no longer a mere exception.46
Therefore, it is most humbly submitted by the appellant that the 97 th Amendment Act passed by
the Union of Bakasia has infringed upon Judicial Review, as, after I.R. Coelho v. State of
TamiNadu47, it can only be exercised in respect of a petition challenging the act on grounds of
basic structure, not ordinary constitutional principles.48.
PRAYER FOR RELIEF

Wherefore in the light of the issues raised, arguments advanced and authorities cited above, it is
humbly prayed that the Honble Supreme Court may be pleased:
(a) To allow the S.L.P. No. /2011.
42

S.P. Sampath Kumar v. Union of India, AIR 1987 SC 386

AIR 2007 SC 861
44
The Constitution (First Amendment) Act, 1951
45
The Constitution (First Amendment) Act, 1951
46
I.R. Coelho v. State of Tamil Nadu, AIR 2007 SC 861
47
AIR 2007 SC 861
48
Glanrock Estate (P) Ltd. v. State of Tamil Nadu, (2010) 10 SCC 96
43

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Memorial of Appellant
(b) To strike down the 97th Amendment 2010 on the basis of violation of basic structure of
the Constitution.
(c) To issue any order, direction or instruction to secure any purpose or objective that this
Honble Court deems fit under the circumstances of the case in the interest of justice,
equity and expediency.

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