IN THE HON’BLE SUPREME COURT OF INDICA

High Court Lawyers Association ……PETITIONER

V.

Government of Indica …….RESPONDENT

WRIT PETITION NO. ……/2019, …….2019

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 MEMORIAL ON BEHALF OF THE APPELANT

TABLE OF CONTENTS
TOPIC PAGE NO.

List of abbreviations…………………………………………………………………………3
Statement of Jurisdiction .......................................................................................................5
Statement of Facts ...................................................................................................................6
Issues present before the Hon’ble Supreme Court…..…….………………………………8
Detailed Arguments ................................................................................................................9
Prayer……………………………………..…………………………………………………13

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 LIST OF ABBREVATIONS

ABBREVIATION DEFINITION

Art Article

AIR All India Reporter

H.C. High Court

i.e. Id est (That is)

ILR Indian Law Reporter

GDP Gross Domestic Product

SLP Special Leave Petition

PIL Public Interest Litigation

S.C. Supreme Court

PIL Public Interest Litigation

V. Versus

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 CASE CITATIONS

1. Kesawananda Bharti v. State of Kerala (AIR 1973 SC 1461)

2. Indira Gandhi v. Raj Narain (1975 AIR 865, 1975 SCR (3) 333)

3. Minerva Mill v. Union of India & others (AIR 1980 SC 1789)

STATUTES AND REPORTS

1. The Constitution of India

BOOKS AND JOURNALS

1. V.N. Shukla, Constitution of India, 12th Edition 2016

2. M. P. Jain, Indian Constitutional Law, 7th Edition 2016

3. Lauv kumar Radhika Lexis Nexis constitutional law.

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4. Rosedar SRA Constitutional Law, 1st Edition.

DYNAMIC/OPEN SOURCE WEB LINKS

1. https://indiankanoon.org/search/?formInput=public+interest+litigation
2. https://en.wikipedia.org/wiki/Main_Page

3. http://unfccc.int/paris_agreement/items/9485.php

STATEMENT OF JURISDICTION

1. In the present matter, one writ petition is filed which come under the
jurisdiction of Hon’ble court under article 32(2) of COI which states the right to
move to supreme court by proper proceeding on violation of fundamental right.
2. The petitioner HIGH COURT LAWYER BAR ASOCIATION file the
writ regarding violation of fundamental right for which remedy is provided
under article 32(2) of COI.
3. The association is registerd in India as pe rules and regulation and comes
under jurisdiction of constitution of Indica.
4. The present memorandum sets forth the facts, contentions and arguments
in the present case. The parties shall accept any judgment of the Court as final
and binding upon them and shall execute in its entirety and in good faith.

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 STATEMENT OF FACTS

1. Government of Indica passed an Act called “The Access to Justice Act

2018”.

2. The main propose of this Act was to make justice, especially in the cases of

violation of fundamental rights, more accessible to people living in faraway

places from capital towns of different stats of India where High Courts of
Indica were usually located.

3. Parliament of Indica amended COI and inserted article 32(3)(A) in Part III

that reads as following. “Without Prejudice to the power conferred on the

Supreme Courts and High Courts of India, there shall be Fundamental Right
Courts in such place and in such manners having similar powers to exercise
within the local limits of its jurisdiction all or any of the powers exercisable
by the Supreme Court as may be prescribed by a law made by Parliament in
this regard”.

4. In pursuance of the newly inserted Article 32(3) A of the COI, Parliament of

Indica passed Justice Act. Justice Act constituted a ‘Fundamental Rights

Court’ in each and every district (and subdivisions) where a civil court

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 already existed. A persons serving in the higher judicial service in their
respective states in the rank of district judge was to preside over these newly
constituted fundamental rights courts. These courts had the same powers 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
COI that Supreme Court had under Article 32(2) of COI. The rule of
procedure was same that was followed by their respective state High Court
while exercising writ jurisdiction under Article 226 of the COI.

5. However, Justice Act also faced opposition from certain group who saw it as

a step by government to undermine the authority and dignity of Supreme

Court and High Courts of India. They formed a group called High Court
Lawyers Association to oppose the enforcement of this law. They filed a writ
petition before Supreme Court of Indica challenging the validity of this Act.
The Supreme Court admitted the writ petition and framed following issues
on which final arguments were to be submitted.

6. As a matter of fact the amendment Bill was not sent for ratification to the

state legislature because in the eyes of government it was not making any
amendment of such nature for which it was to be ratified by state legislature
under the provision of Article 368(2) of COI.

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ISSUES PRESENT BEFORE THE HON’ABLE SUPREME COURT

1. Whether the said amendment to the COI which inserted Article 32(3)A
was unconstitutional because it has not followed the mandatory provision
of ratification by the Legislatures of not less than one-half of the States
by resolutions to that effect as provided under Article 368(2) of COI
before amendment to certain provisions of COI could be made.

2. Whether the said amendment is unconstitutional because it undermines

the supremacy of Supreme Courts and High Courts of Indica by granting
writ jurisdiction to courts at district level and therefore, it violates the
basic structure of the COI.

3. Whether the writ jurisdiction can be extended to courts other than the
High Courts and Supreme Court of Indica.

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 DETAILED ARGUMENTS

1. Whether the said amendment to the COI which inserted Article

32(3)A was unconstitutional because it has not followed the
mandatory provision of ratification by the Legislatures of not
less than one-half of the States by resolutions to that effect as
provided under Article 368(2) of COI before amendment to
certain provisions of COI could be made1.
The said amendment to the COI which inserted Art.32(3)A was
unconstitutional because of the following reasons mentioned
hereinafter:-

BASIC STRUCTURE OF THE CONSTITUTION CANNOT

BE AMENDED.
Minerva Mill v. Union of India (1980) In this case, the validity of
42nd amendment Act was challenged on the ground that they are
destructive of the ‘basic structure’ of the Constitution. The
Supreme Court by majority by 4 to 1 majority struck down
clauses (4) and (5) of the article 368 inserted by 42nd
Amendment, on the ground that these clauses destroyed the
essential feature of the basic structure of the constitution. It was
ruled by court that a limited amending power itself is a basic
feature of the Constitution. The historical Judgment laid down that:
The amendment made to Art.31C by the 42nd Amendment is
invalid because it damaged the essential features of the
Constitution. Clauses (4) and (5) are invalid on the ground that
they violate two basic features of the Constitution viz. limited
nature of the power to amend and judicial review. The courts
cannot be deprived of their power of judicial review. The

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procedure prescribed by Cl. (2) is mandatory. If the amendment is
passed without complying with the procedure it would be invalid.
The Judgment of the Supreme Court thus makes it clear that the
Constitution is Supreme not the Parliament. Parliament cannot
have unlimited amending power so as to damage or destroy the
Constitution to which it owes its existence and also derives its
power. The Fundamental Rights and the Directive Principles are
required to be viewed as the two sides of the same coin. Both
should be complementary to each other and there should be no
confrontation between them. Undoubtedly, Part IV (containing the
Directive Principles) is a part of the Constitution. Even though the
Directives are not enforceable in the Courts of law, Article 37
clearly says that “it shall be the duty of the State to apply these
principles in making laws. An undue importance on civil liberties
and rights in total disregard of the need to bring about social and
economic justice, may lead to a mass upheaval. Any importance on
the Directive Principles alone, in total disregard of the rights and
liberties, may lead to totalitarianism. Hence a harmonious balance
should be maintained between Part III and Part IV of the
Constitution and real synthesis should come out only from
harmonising the spirit of political democracy with the spirit of
economic democracy.

In L. Chandra Kumar case [11] a larger Bench of seven Judges

unequivocally declared "That the power of judicial review over
legislative action vested in the High Courts under Article 226 and
in the Supreme Court under Article 32 of the Constitution is an
integral and essential feature of the Constitution, constituting part
of its basic structure".

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 In Kesawananda Bharti vs. State of Kerala (AIR 1973 SC 1461)
the Hon’ble Supreme Court quoted that the parliament cannot
bypass the constitution by amending its basic structure. But same is
also not fulfilled by government of Indica as the didn’t follow the
complete procedure of amendment . In Indira Gandhi vs. raj
narain (1975 AIR 865, 1975 SCR (3) 333) it is also quoted by
Supreme Court that article 368 only told us about the procedure not
the power of parliament so the parliament must follow the COI .

2. Whether the said amendment is unconstitutional because it

undermines the supremacy of Supreme Courts and High
Courts of Indica by granting writ jurisdiction to courts at
district level and therefore, it violates the basic structure of the
COI.

The amendment is unconstitutional as it undermines the supremacy

of supreme court and high court of indica by providing the same
amount of power to the district court. The constitution is not a
complete journal and the amendment is basic necessity to it but one
cannot violate the basic structure of the constitution. In
Kesawananda Bharti v. State of Kerala (AIR 1973 SC 1461)
It is clearly stated by the Supreme Court itself that parliament
didn’t have power to amend the basic structure of constitution and
judicial review is one of them. In Minerva Mill v. Union of India
& others (AIR 1980 SC 1789) it is clearly stated that constitution
is supreme and the supremacy power provided by it to supreme
court and high court under article 32(2) and Article 226 of COI and
under article 13 of judicial review and power of writ jurisdiction

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 cannot be taken away or substituted by parliament by the way of
amendment. As per Article 147 of COI the interpretation of
constitution can only be done by supreme court And the
amendment done by parliament violate that provision .
3. Whether the writ jurisdiction can be extended to courts other
than the High Courts and Supreme Court of Indica.
It is to like to consider that if the power of SC and HC is conferred
to district court then legitimacy of the writs jurisdiction gets
degraded as now as per law once the person go for relief under the
supervision of writ jurisdiction will surely get justice in short time
but if the same is done according to Article 32(3)(a) then the relief
provided by the district court is appealable in high court and then
Supreme Court due which justice can be delayed. It is to be noted
that presently, only a needful person whose fundamental rights are
violated will approach to the Supreme Court, but when article
32(3)(a) is applicable, then everyone would file false Writ Petitions
in the said court due to which the pendency of cases will increase
and a lot of pressure will pile upon District Courts which is already
a material concern prevailing in the country. As per Article 32(2) a
person can directly approach to the Supreme Court for relief but
after the applicability of the said amendment he has to follow the
procedure of hierarchy, i.e from District Courts to Supreme Court,
due to which one might have to suffer more.

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 CONCLUSION AND PRAYER FOR RELIEF

THEREFORE, IN LIGHT OF THE FACTS STATED, QUESTIONS

PRESENTED, ARGUMENTS ADVANCED AND AUTHORITIES CITED, IT
IS MOST RESPECTFULLY PRAYED THAT THIS HON’BLE COURT MAY
KINDLY BE PLEASED TO ADJUDGE AND DECLARE THE
FOLLOWING:-

(a) That the following amendment done by Parliament of Indica is

unconstitutional and shall be declared as null and void.
(b) That the following amendment is unconstitutional because it undermines
the supremacy of Supreme Court and High Court of Indica.
(c) That writ jurisdictions cannot be extended to courts other than the HC and
SC of Indica
(d) And to pass any such other order, decree or judgment as this Hon’ble
Court may deem fit in the interest of justice, equity and good conscience.

All of which is respectfully submitted

Sd/- ______________________

Place: COUNSEL FOR THE PETITIONER

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