SUSOL 301 Memorial For Petitioner

3rd ANAND SWAROOP GUPTA MEMORIAL NATIONAL MOOT COURT COMPETITION, 2018
SUSOL- 301
3rd ANAND SWAROOP GUPTA MEMORIAL NATIONAL MOOT COURT

COMPETITION, 2018
BEFORE THE HON’BLE SUPREME COURT OF
WIKILAND
ORIGINAL EMERGENCY PETITION NO. 01/2018
IN THE MATTER OF
SHRI K.L. RAJIV....................................................................PETITIONER

v.
STATE OF LAKIE...............................................................RESPONDENT
CLUBBED WITH
ANONYMOUS PETITIONS.....................................................PETITIONER
v.
STATE OF LAKIE...............................................................RESPONDENT
UPON SUBMISSION BEFORE THE HON’BLE SUPREME COURT OF WIKILAND
MEMORIAL ON BEHALF OF THE PETITIONERS
MEMORANDUM ON BEHALF OF PETITIONERS Page 1

TABLE OF CONTENTS
HEADINGS PAGE NO.

INDEX OF AUTHORITIES 3-5
STATEMENT OF JURISDICTION 6
IDENTIFICATION OF ISSUES 7
STATEMENT OF FACTS 8-9
SUMMARY OF ARGUMENTS 10-11
ARGUMENTS ADVANCED 12
1. Whether the imposition of emergency by the President on the 12-18
report of Governor over the State of Lakie was justified or not?
2. Whether the practices adopted by the Alliance Company was anti 19-22
competitive or not?
3. Whether denial of the sanction to prosecute the Chief Secretary, 23-27
Home Minister and MLA’s is sustainable under law or not?
4. Whether the CIF Act passed by the Legislature of the State of 28-33
Lakie was Unconstitutional or not?
PRAYER FOR RELIEF 34

INDEX OF AUTHORITIES
Cases
1. Bhagwan v. Mishra, 1970 SC 1661...........................................................................26

2. Brij Mohan Lal v. Union of India (2012)6 SCC 502......................................................31
3. Dunkley J Emperor v. Maung Bo Maung, AIR 1935 RANG 263 at pg
266.........................................................................................................................25
4. France telecom S.A v. Commission of the European Communities, (Case C-202/07
P)...........................................................................................................................21
5. GILL v R. AIR 1948 PC 128........................................................................................26
6. H.S Jain and others v. Union of India and others, 1997 1 UPLBEC
594...........................................................................................................................15
7. Kapoor Glass v. Scott Glass India Pvt. Ltd, Case 22 of 2010 decided on 29th March
2012...........................................................................................................................21
8. Kartar singh v. State of Punjab, 1994(3) SCC 569,633....................................................29
9. Kehar Singh & Anr. v. Union of India & Anr [(1989) 1 SCC
204].........................................................................................................................18
10. Kharak Singh v. State of Uttar Pradesh AIR 1963 SC
1295............................................................................................................................32
11. Maru Ram v. Union of India [(1981) 1 SCC 107]}........................................................18
12. Nabam Rebia and others v. Deputy Speakers and others, CIVIL APPEAL no 6203-6204
of 2016.......................................................................................................................16
13. Naga People’s movement of Human rights v. Union of India, AIR 1998 SC
431.............................................................................................................................29
14. NCT of Delhi v. Navjot Sandhu, (2005)11 SCC 600....................................................32
15. Prakash Sing Badal v. State of Punjab AIR 2007 SC 1274............................................26
16. Pukhraj v. State of Rajasthan, AIR 1973 SCC 2591.........................................................26
17. Rameshwar Prasad v. Union of India, (2006)2 SCC 1....................................................12
18. Ravinder Kumar Sharma v. State of Assam AIR 1999 SC 3571.....................................15

19. R BALAK KRISHNA PILLAI v. STATE OF KERALA, 1996 SCC (1)

478……………………………………………………………………………………..…25
20. Regina Hoffman-La Roche Ltd, (30 O.R.2D) (461) ....................................................21
21. Sahil Bhadra v. Swami, 1981CrLJ 113 Para 6..............................................................25
22. Samrat Transport v. RTA AIR 1961 SC 93 Para 6.......................................................25
23. Shiv Bahadur v. State of UP ,W.P. No.2179 of 2006....................................................25
24. S. R BOOMAI v. Union of India, AIR 1994 SC 1918.................................................16
25. State of Bihar v. Sharma, 1991 CrLJ 1438 Para 27.......................................................26
26. State of Madras v. V.G Row AIR 1952 SC 196...........................................................31
27. State of Punjab v. Dalbir Singh AIR 2012 SC 1040.....................................................31
28. Stock Exchange of India Ltd, Case no13/2009.............................................................21
29. Sunder Lal Patwa v. Union of India, AIR 1993 MP 214................................................15
BOOKS
1. Jain MP, Constitutional Law, 2017

2. Basu DD, Shorter Constitution of India, Volume I-II, 2012
3. Tope TK, Indian Constitution, 2013
STATUTES
1. Constitution of India 1950
2. Competition Act, 2002
3. Evidence Act, 1872
4. Code Of Criminal Procedure, 1973

DYNAMIC LINKS
1. www.manupatra.com.
2. www.scconline.com
3. www.lexisnexis.com
IMPORTANT DEFINITION
1. Appellant for the purpose of this memorandum shall stand for Shri KL Rajiv and
Anonymous Petitioners.
2. Respondent for the purpose of this memorandum shall stand for State of Lakie.

STATEMENT OF JURISDICTION
The Petitioner humbly submits its jurisdiction under Article 131-A of Constitution of
Wikiland.
Article 131-A provides –
“Original Jurisdiction of Supreme Court in cases related to Imposition of Emergency
under Article 352, 356 and 360 respectively”

IDENTIFICATION OF ISSUES
ISSUE 1
Whether the imposition of emergency by the President on the report of Governor
over the State of Lakie was justified or not?
ISSUE 2
Whether the practices adopted by the Alliance Company were anti competitive or
not?
ISSUE 3
Whether denial of the sanction to prosecute the Chief Secretary, Home Minister
and MLA’s is sustainable under law or not?
ISSUE 4
Whether the CIF Act passed by the Legislature of the State of Lakie was
Unconstitutional or not?

STATEMENT OF FACTS
BACKGROUND OF THE CASE
The State of Lakie is amongst nine states in the Federation of the Wikiland, which is famous for
its scenic beauty and tourism, which is the only source of livelihood for the residents of the state.
In the State Elections held in 2014, AAL Party won 42 seats and Shri KL Rajiv was elected as
CM of the state and this was the first victory of AAL after 20 years. Lakie has been fighting with
the problem of insurgency and it is due to this fact only that tourism has declined by 37% in the
last decade. Lakie has always been a victim of discrimination when it came to allocation of funds
for development of the state.
CIRCUMSTANCES LEADING TO DISPUTE
Oct. 2016 The State Legislature has passed CIF Act 2016 n order to fight the taxalites
or insurgents in the state. The minimum eligibility criteria to be inducted
were matriculation.
Dec. 2016 One of the largest corporation of Wikiland launched services called Alliance
Trio, which provides free Electricity, free Telecommunication and free LPG
to the residents of the state. But they had to use at least half of portion of the
house as a guest house for tourists.
Oct. 2017 CIF was directed to take control of the area where taxalites looted, raped and
burned the houses in which almost 80 people were killed but news reports
started appearing that the members of CIF were trespassing the houses,
killing innocent people.
15th Oct. 2017 Chief Secretary and Home Minister were found receiving bundles of cash in
a sting operation carried by Wikinews.
22nd Oct. 2017 MLA belonging to BAP Party was found raping women provided by the CIF
in a sting operation carried out by Wikinews. BAP Party approached to Shri

Vijay Arun Chauhan i.e. the Governor who informed the President based on
which the President imposed emergency.
Jan. 2018 Elections were announced in the State of Lakie by the Election Commission
in which BAP was declared as the largest party winning 46 seats.
28th Jan. 2018 When the sanction was sought against the charges on Home Minister, Chief
Secretary and MLAs, the BAP Party denied the charges and sanction.
MATTER BEFORE SUPREME COURT
The imposition of Emergency was challenged before Supreme Court by Shri KL Rajiv that the
satisfaction of the President was obtained against the aid and advises of the council of ministers
and the Chief Minister of the state. Subsequently, Shri KL Rajiv amended his petition under
Article 131-A of the Constitution of Wikiland that the practices adopted by Alliance Company
was anti-competitive which led to gaining the support of people in the election 2018. Further, the
Supreme Court on its own motion had withdrawn all the petitions pending before the High Court,
challenging the Constitutional Validity of the CIF Act, 2016 and transferred them to it for further
proceedings.

SUMMARY OF ARGUMENTS
ISSUE 1: Whether the imposition of emergency by the President on the report

of Governor over the State of Lakie was justified or not?
It is most humbly submitted before the Honourable Supreme Court of Wikiland that
the imposition of emergency by the President on the report of Governor over the State
of Lakie in all aspect was not justified. The report that has been given by the
Governor to the President regarding the situation of the State of Lakie was against the
aid and advice of Council of Minister. Moreover it is evident from the facts that
Governor of the State was a great supporter of BAP party which was the party of
opposition in the State of Lakie at the time of proclamation and on whose advice the
Governor informed the President about the State of affairs of the State of Lakie. So
the emergency imposed by the President on the reports of Governor over the State of
Lakie was not justified.
ISSUE 2: Whether the practices adopted by the Alliance Company were anti
competitive or not?
It is most humbly argued before the honourable Supreme Court of Wikiland that the
practices adopted by the Alliance Company which was controlled by Ramesh
Bajriwala were anti competitive in nature, as they provided free telecom services, free
electricity services, free LPG services to the people of Lakie if they uses half of the
portion of their house as guest house for the tourism. Due to these services being
introduced in the State of Lakie the other service providers such as Wikiland
Petroleum, Wikiland oil Limited, Pairtel Telecom Limited and Wikiland electricity
provider suffered huge losses and sudden fall in the number of subscribers to their
services. These practices were anti competitive as per the Section 4 of Competition
Act 2002.

ISSUE 3: Whether denial of the sanction to prosecute the Chief Secretary,

It is most humbly submitted before the Honourable Supreme Court of Wikiland that
the Denial to prosecute the Chief Secretary, home minister and MLA’s is not
sustainable under law. As the new Government, formed on January 2018, on 28th
January denied the sanction to prosecute the Chief Secretary, Home Minster and
MLA’s of BAP party. Moreover the acts done by the Chief Secretary and the Home
Minister could not amount to such proclamation of Emergency. Merely on the basis
of such acts the proclamation of emergency cannot be justified by the state. Also the
denial of the sanction by the new government is not sustainable under Section 197 of
Criminal Procedure Code 1973.
ISSUE 4: Whether the CIF Act passed by the Legislature of the State of Lakie
was Unconstitutional or not?
It is most humbly argued before the Honourable Supreme Court of Wikiland that the
act that has been passed by the legislature is wholly unconstitutional as it is based on
erroneous grounds to admit a person and involve that person in order to control the
activities of Insurgents. The facts of the case clearly provides that the CIF act has
been formed in order to control the TAXALITIES and Insurgents that were the cause
for the decline of Tourism in the state of Lakie but the news report stated that the
responsibility of the CIF were to protect the people from the attacks of insurgents but
the members of CIF were found trespassing the houses of people and rapping women
and killing innocent people in the name of killing Taxalities. Now the question that
arises is that the Legislature has made CIF force to do such activities? Therefore the
CIF members were found abusing the Fundamental rights of the people. Is this was
the purpose to make the CIF Act?

ARGUMENTS ADVANCED
ISSUE 1: Whether the imposition of emergency by the President on the report

of Governor over the State of Lakie was justified or not?
“Power tends to corrupt and absolute power corrupts absolutely”- Lord ACTON
1. It is most humbly submitted before the Honourable Supreme Court of Wikiland that the
imposition of emergency by the President on the report of Governor over the State of
Lakie in all aspect was not justified. The report that has been given by the Governor to
the President regarding the situation of the State of Lakie was against the aid and advice
of Council of Minister.1 Moreover it is evident from the facts that Governor of the State
was a great supporter of BAP party which was the party of opposition in the State of
Lakie at the time of proclamation2 and on whose advice the Governor informed the
President about the State of affairs of the State of Lakie.3
2. In the case of Rameshwar Prasad v. Union of India4 a five Judge bench of Supreme
Court comprising of Chief Justice held that the proclamation of the President in
dissolving the State Assembly was Unconstitutional and based upon extraneous and
irrelevant grounds. The court said that the governor mislead centre in recommending the
dissolution of state assembly and the council of minister should have verified before
accepting it as “GOSPEL TRUTH”
3. In the case of Rameshwar Prasad v. Union of India5, Power under Article 356(1) is an
emergency power but it is not an absolute power. Emergency means a situation which is
not normal, a situation which calls for urgent remedial action. Article 356 confers a
1
Para 11
2
Para 7
3
Para 11
4
(2006)2 SCC 1
5
(2006)2 SCC 1

power to be exercised by the President in exceptional circumstances to discharge the

obligation cast upon him by Article 355. It is a measure to protect and preserve the
Constitution. The Governor takes the oath, prescribed by Article 159 to preserve, protect
and defend the Constitution and the laws to the best of his ability. Power under Article
356 is conditional, condition being formation of satisfaction of the President as
contemplated by Article 356(1). The satisfaction of the President is the satisfaction of
Council of Ministers. As provided in Article 74(1), the President acts on the aid and
advice of Council of Ministers. The plain reading of Article 74(2) stating that the
question whether any, and if so what, advice was tendered by Ministers to the President
shall not be inquired into in any Court, may seem to convey that the Court is debarred
from inquiring into such advice.
4. In the present case the governor has made his report without the aid and advice of the
Council of Minister and the grounds which were made in the reports were based on the
irrelevant grounds.
A. Is there any material behind the proclamation?

Governor has acted against the Aid and advice of Council of ministers and the material
that has been presented to the President was totally irrelevant and was as extraneous in
nature.
6. Undisputedly, a Governor is charged with the duty to preserve, protect and defend the
Constitution and the laws, has a concomitant duty and obligation to preserve democracy
and not to permit the 'canker' of political defections to tear into the vitals of the Indian
democracy. But on facts of the present case, we are unable to accept that the Governor
by reports OCT 2017 sought to achieve the aforesaid objective. There was no material,
let alone relevant, with the Governor to assume that there were no legitimate
realignment of political parties and there was blatant distortion of democracy by induced
defections through unfair, illegal, unethical and unconstitutional means.
 serious attempt to cobble a majority;
 winning over MLAs by various means;
 targeting parties for a split;

 high pressure moves;

7. As in the present case the Governor first of all was the supporter of BAP party as it is
evident from the facts and secondly BAP party was the only approaching authority who
approached the Governor and discussed the matter regarding the state of affairs in the
State concerning the Insurgency which lead to the circumstance where the Governor
reported the President for imposing Emergency in the State.
In the case of Rameshwar Prasad v. Union of India,

"When the Proclamation is challenged by making out a prima facie case with
regard to its invalidity, the burden would be on the Union Government to
satisfy that there exists material which showed that the Government could not
be carried on in accordance with the provisions of the Constitution. Since
such material would be exclusively within the knowledge of the Union
Government, in view of the provisions of Section 106 of the Evidence Act, the
burden of proving the existence of such material would be on the Union
Government."
8. Therefore it is the obligation that rests upon the State to satisfy the material which
showed that government could not be carried on in accordance with the provisions of the
Constitution that was mentioned in the Report of the Governor which was responsible
for the imposition of Emergency in the State of Lakie.
B. Is the material relevant?

Governor has acted against the aid and advice of Council of ministers and the material
that has been presented to the President was totally irrelevant and was as extraneous in
nature.

10. In the case of H.S Jain and others v. Union of India and others6 the Allahabad High
Court in the Landmark judgement of three Judge bench held that the Presidential
Proclamation imposing President rule under Article 356 in the State of UP and
Subsequently and its approval by the parliament is unconstitutional and wholly based
upon irrelevant and extraneous ground and therefore liable to be quashed.
7
11. In Sunder Lal Patwa v. Union of India it was observed that worsening of law and
order situation in few cities in State due to sudden breakdown of violation is not in itself
a sufficient material or ground to impose President Rule in the state.
12. In the present case the situation responsible for the Imposition of emergency was related
to the insurgents activities in the six villages8 and the news reports stating about the non
functioning of the CIF Force cannot be used as a proof in the court of law to the prove
the facts reported.9
13. The power conferred by Art. 356 upon the President is a conditioned power. It is not an
absolute power. The existence of material -- which may comprise of or include the
report(s) of the Governor -- is a pre-condition. The satisfaction must be formed on
relevant material. The recommendations of the Sarkaria Commission with respect to the
exercise of power under Article 356 do merit serious consideration at the hands of all
concerned.
C. Was there any mala fide use power?

14. It is most humbly argued before the Honourable Supreme court of Wikiland that there
has been mala fide use of power by the Governor in informing the President about the
state of affairs in the State of Lakie as the report by the Governor was based on
irrelevant facts which cannot be the sole base for imposition of emergency in the State.
15. Every proclamation under Article 356(1) is to be laid before each house of the
Parliament and it ceases to operate, after two months unless in the meantime it has been
6
1997 1 UPLBEC 594
7
AIR 1993 MP 214
8
Para 8
9
Ravinder Kumar Sharma v. State of Assam AIR 1999 SC 3571

approved by the resolutions of both house of the Parliament. Parliament can thus at this
time whether the proclamation should or should not have been made by the centre
government.
10
16. In the case of S. R BOOMAI v. Union of India the Supreme Court held that the
assembly should not be dissolved until the proclamation made under Article 356 by the
President has been approved by both the houses of the Parliament.11
17. The question of invocation of Article 356 was looked into by the Sarkaria Commission
which said in its report “Article 356 should be used very sparingly in extreme cases as
measure of the last resort, when all available alternatives fails to prevent or rectify a
breakdown of the Constitution machinery in the State. All attempts should be made to
resolve the crisis at the State level before taking recourse to the provision of Article
356.12
18. In the case of Nabam Rebia and others v. Deputy Speakers and others13 the Supreme
Court in which a five Judge Constitutional Bench lead by Justice J.S KHEHAR directed
the Immediate imposition of Status Quo ante as on 15th December 2015. Therefore the
proclamation was revoked and the State government was given back the power, in this
manner Article 356 has been misused every then and now without much of relevant
grounds.
19. In the case of Boomai v. Union of India14 Supreme Court held that where the President
act on the sole basis of governor’s report which is vitiated by assumptions as are totally
unstable in law.
notification dissolving the Assembly is illegal as it is based on the reports of the
Governor which suffered from serious legal and factual infirmities and are tainted with
pervasive mala fides which is evident from the record. It is contended that the object of
10
AIR 1994 SC 1918
11
NARENDER KUMAR PG678
12
Report 178, Sarkaria Commision.
13
CIVIL APPEAL no 6203-6204 of 2016
14
AIR(1994)3 SCC 1

the reports of the Governor was to prevent political party led by Mr. RAMESH
BAJRIWAL to form the Government. The submission is that such being the object, the
consequent notification of dissolution accepting the recommendation deserves to be
annulled.
21. Moreover in the above case, it was also observed by Justice PN Bhagwati and AC
Gupta that -
“The action under Article 356 has to be taken on the subjective satisfaction of the
President. The satisfaction is not objective. However, if the power is exercised mala fide
or is based upon wholly extraneous or irrelevant grounds, the Court would have
jurisdiction to examine it. Even clause (5) is not a bar when the contention is that there
was no satisfaction at all.”15
22. The proclamation under Article 356(I) is not immune from judicial review. The
Supreme Court or the High Court can strike down the proclamation if it is found to be
mala fide or based on wholly irrelevant or extraneous grounds. The deletion of clause
(5) (which was introduced by 38th (Amendment) Act) by the 44th (Amendment) Act,
removes the cloud on the reviewability of the action. When called upon, the Union of
India has to produce the material on the basis of which action was taken. It cannot refuse
to do so. If it seeks to defend the action. The court will not go into the correctness of the
material or its adequacy. Its enquiry is limited to see whether the material was relevant
to the action. Even if part of the material is irrelevant, the court cannot interfere so long
as, there is some material which is relevant to the action taken. (8) If the court strikes
down the proclamation, it has the power to restore the dismissed Government to office
and revive and reactivate the Legislative Assembly wherever it may have been dissolved
or kept under suspension. In such a case, the court has the power to declare that acts
done, orders passed and laws made during the period the proclamation was in force shall
remain unaffected and be treated as valid.
23. It is well settled that if the satisfaction is mala fide or is based on wholly extraneous or
irrelevant grounds, the court would have the jurisdiction to examine it because in that
case there would be no satisfaction of the President in regard to the matter on which he
15
ibid

is required to be satisfied. On consideration of these observations made in the case of

State of Rajasthan as also the other decisions {Kehar Singh & Anr. v. Union of India
& Anr.16 [(1989) 1 SCC 204] and Maru Ram v. Union of India17 [(1981) 1 SCC
107]}.
24. Justice Sawant concluded that the exercise of power to issue proclamation under
Article 356(1) is subject to judicial review at least to the extent of examining whether
the conditions precedent to the issue of Proclamation have been satisfied or not. In other
words, the President has to be convinced of or has to have sufficient proof of
information with regard to or has to be free from doubt or uncertainty about the state of
things indicating that the situation in question has arisen. Although, therefore, the
sufficiency or otherwise of the material cannot be questioned, the legitimacy of
inference drawn from material is certainly open to judicial review.
As Article 356, a Presidential Proclamation could be challenged if the power was exercised
mala fide or on “Constitutionally and Legally prohibited” grounds, or for “extraneous and
collateral purpose” as P.N Bhagwati J stressed “ But “ one thing is curtained that if the
satisfaction is mala fide or is based on wholly extraneous or irrelevant grounds, the court would
have jurisdiction to examine it, because in the case there would be no satisfaction of the
President in regard to that matter in which he is required to be satisfied.
“Federalism has been designated as a basic value in the Indian Constitution. Dismissal
of a duly elected State assembly by the Governor is really a negation of the federal
concept. The power under Article 356 (1) has to be exercised sparingly, scrupulously
and with circumspection. Abuse and misuse of this power will damage the federal
fabric and disturb the federal balance.”
16
Kehar Singh & Anr. v. Union of India & Anr. [(1989) 1 SCC 204]
17
Maru Ram v. Union of India [(1981) 1 SCC 107]

ISSUE 2: Whether the practices adopted by the Alliance Company were anti
competitive or not?
25. It is most humbly argued before the honourable Supreme Court of Wikiland that the
practices adopted by the Alliance Company which was controlled by Ramesh Bajriwala
were anti competitive in nature, as they provided free telecom services, free electricity
services, free LPG services to the people of Lakie if they uses half of the portion of their
house as guest house for the tourism. Due to these services being introduced in the State
of Lakie the other service providers such as Wikiland Petroleum, Wikiland oil Limited,
Pairtel Telecom Limited and Wikiland electricity provider suffered huge losses and
sudden fall in the number of subscribers to their services.
26. These practices were anti competitive as per the Section 4 of Competition Act 2002.
4. Abuse of dominant position.—
(1) No enterprise shall abuse its dominant position.
(2) There shall be an abuse of dominant position under sub-section (1), if an enterprise,—
(a) directly or indirectly, imposes unfair or discriminatory—
(i) condition in purchase or sale of goods or services; or
(ii) price in purchase or sale (including predatory price) of goods or service; or
Explanation.—For the purposes of this clause, the unfair or discriminatory condition in
purchase or sale of goods or services referred to in sub-clause (i) and unfair or
discriminatory price in purchase or sale of goods (including predatory price) or service
referred to in sub-clause (ii) shall not include such discriminatory conditions or prices
which may be adopted to meet the competition; or
(b) limits or restricts—
(i) production of goods or provision of services or market therefor; or
(ii) technical or scientific development relating to goods or services to the prejudice of
consumers; or
(c) indulges in practice or practices resulting in denial of market access; or

(d) makes conclusion of contracts subject to acceptance by other parties of supplementary

obligations which, by their nature or according to commercial usage, have no connection
with the subject of such contracts; or
(e) uses its dominant position in one relevant market to enter into, or protect, other
relevant market. Explanation .—For the purposes of this section, the expression—
(a) “dominant position” means a position of strength, enjoyed by an enterprise, in the
relevant market, in India, which enables it to—
(i) operate independently of competitive forces prevailing in the relevant market; or
(ii) affect its competitors or consumers or the relevant market in its favour;
(b) “predatory price” means the sale of goods or provision of services, at a price which is
below the cost, as may be determined by regulations, of production of the goods or
provision of services, with a view to reduce competition or eliminate the competitors.
27. Section 4 prohibits any enterprise from abusing its dominant position. The term has been
has been defined in the act as “position of strength enjoyed by an enterprise in the
relevant market which enables to operate independently of competitive forces prevailing
in the relevant market or affect its competitors or consumers in its favour.18
28. The competition act further provides that the CCI shall determine the relevant market
influenced due regards to all or any of the following factors and prohibit the same19-
 Regulatory Trade barriers
 National Procurement Policies
 Transport cost
 Need for secure and regular suppliers for the services.
29. The competition act sets out following factors which establishes the dominant position
of an enterprise20
 Market shares of the enterprise
18
SECTION 4 explanation a
19
Section 19(6)
20
Section 19(4)

 Size and resources commercial advantage over competitors

 Monopoly whether acquired as a result of any acts done by the company or
enterprise.
 Countervailing the predatory price under Section 4 of the competition act.
 Any other factor which infringes the right to trade under Article 19(1)(g) of the
Constitution.
30. In the case of Kapoor Glass v. Scott Glass India Pvt. Ltd.21 it was held by the CCI
that if any enterprise violates or contravenes with the provisions of Section 4 of the
Competition Act 2002 by charging or granting unfair discounts or free trade and thus act
against the provision of section 4 (2) (a) of the act then the act done is dominant in
nature and they imposed a penalty in the prescribed case.
31. The free services which are given by Alliance Trio Clearly demonstrate that providing
service below its average variable cost with the sole intention of eliminating competitors
that no other company operator in the State of Lakie offering services free of Cost or
below cost and according to TRAI direction for the predatory pricing is prohibited.
32. To support the allegation of predatory pricing reliance has been placed on the decision
of the Commission and competition appellant tribunal in the case filed by the M.C.X
Stock exchange alleging the predatory pricing by Stock Exchange of India Ltd. 22
Judgement of the High Court of ONTRIO Canada in Regina Hoffman-La Roche Ltd23
decision of European court of Justice in the matter of France telecom S.A v.
Commission of the European Communities24 and guidelines of European Commission
21
Case 22 of 2010 decided on 29th March 2012
22
Case no13/2009
23
(30 O.R.2D) (461)
24
(Case C-202/07 P)

enforcement priorities in applying Article 82 of European Commission Treaty to be

abusive Exclusionary conduct by dominant undertaking25
Thus it can be inferred from the facts and authorities cited above it is most humbly
submitted before the Honourable Supreme Court of Wikiland that the services started
by the Company of Alliance Trio which is controlled by Ramesh Bajriwala were anti
competitive as they provided free services of telecom, electricity and LPG to the
resident of the State of Lakie which consequently lead to huge loss and sudden fall in
the other services providers in the State. Moreover these practices also lead to situation
where BAP party became such popular that it is evident in the case of election they will
come to majority again.
25
(2009/C45-02)

ISSUE 3: Whether denial of the sanction to prosecute the Chief Secretary,

Denial to prosecute the Chief Secretary, home minister and MLA’s is not sustainable
under law. As the new Government, formed on January 2018, on 28th January denied the
sanction to prosecute the Chief Secretary, Home Minster and MLA’s of BAP party26.
Moreover the acts done by the Chief Secretary and the Home Minister could not amount
to such proclamation of Emergency. Merely on the basis of such acts the proclamation
of emergency cannot be justified by the state. Also the denial of the sanction by the new
government is not sustainable under Section 197 of Criminal Procedure Code 1973.
34. Section 197 in the Code Of Criminal Procedure, 1973

197. Prosecution of Judges and public servants.
(1) When any person who is or was a Judge or Magistrate or a public servant not
removable from his office save by or with the sanction of the Government is accused of
any offence alleged to have been committed by him while acting or purporting to act in
the discharge of his official duty, no Court shall take cognizance of such offence except
with the previous sanction-
(a) in the case of a person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of the Union,
of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of
commission of the alleged offence employed, in connection with the affairs of a State, of
1
the State Government: Provided that where the alleged offence was committed by a
person referred to in clause (b) during the period while a Proclamation issued under
clause (1) of article 356 of the Constitution was in force in a State, clause (b) will apply
26
Para 12

as if for the expression" State Government" occurring therein, the expression" Central
Government" were substituted.
(2) No Court shall take cognizance of any offence alleged to have been committed by any
member of the Armed Forces of the Union while acting or purporting to act in the
discharge of his official duty, except with the previous sanction of the Central
Government.
(3) The State Government may, by notification, direct that the provisions of sub- section
(2) shall apply to such class or category of the members of the Forces charged with the
maintenance of public order as may be specified therein, wherever they may be serving,
and thereupon the provisions of that sub- section will apply as if for the expression"
Central Government" occurring therein, the expression" State Government" were
substituted.
1
(3A) Notwithstanding anything contained in sub- section (3), no court shall take
cognizance of any offence, alleged to have been committed by any member of the Forces
charged with the maintenance of public order in a State while acting or purporting to act
in the discharge of his official duty during the period while a Proclamation issued under
clause (1) of article 356 of the Constitution was in force therein, except with the previous
sanction of the Central Government.
(3B) Notwithstanding anything to the contrary contained in this Code or any other law, it
is hereby declared that any sanction accorded by the State Government or any cognizance
taken by a court upon such sanction, during the period commencing on the 20th day of
August, 1991 and ending with the date immediately preceding the date on which the
Code of Criminal Procedure (Amendment) Act, 1991 , receives the assent of the
President, with respect to an offence alleged to have been committed during the period
while a Proclamation issued under clause (1) of article 356 of the Constitution was in
force in the State, shall be invalid and it shall be competent for the Central Government
in such matter to accord sanction and for the court to take cognizance thereon.]
(4) The Central Government or the State Government, as the case may be, may determine
the person by whom, the manner in which, and the offence or offences for which, the
prosecution of such Judge, Magistrate or public servant is to be conducted, and may
specify the Court before which the trial is to be held.

35. Applicability of this section

In order that the sub section (1) of 197 of Crpc may be applicable to the trial of Public
servant for an offence two conditions are necessary.
 The public servant in the question should not be removable from his office save
by or with the sanction of the appropriate government
 The offence which is alleged to have been committed by him while acting or
purporting to act in the discharge of official duty.27
36. The present case as the facts clearly itself indicates that the Chief secretary and the
Home Minister were found receiving bundles of cash on their official duty from the
officers of Alliance Company in a sting operation. It is a satisfactory ground to sanctions
them under the offence they have committed and the charges must be imposed under the
Prevention of Corruption Act 1988 and the Wikiland Penal code 1872.
In the case of Shiv Bahadur v. State of UP and R BALAK KRISHNA PILLAI v. STATE
OF KERALA 1995 it was held that the officer of the central and State government or a
minister comes in the purview of Public servant for the purpose of section 197.
37. For the application of sanction under section 197 of CRPC

 The complainant has to make an application to the appropriate government for
requisite sanction
 In case the government sits on the application and fails to dispose of it within the
reasonable time the application can be move to High court for mandamus to
compel the government to dispose of the application though the court cannot
direct the government to dispose off in the particular manner.28
38. In case the remedy for the sanction is arbitrary refused a division bench of Gujarat High
court Sahil Bhadra v. Swami29 opinioned that where the government has refused to
27
Dunkley J Emperor v. Maung Bo Maung, AIR 1935 RANG 263 at pg 266
28
Samrat Transport v. RTA AIR 1961 SC 93 Para 6
29
1981CrLJ 113 Para 6

grant the sanction arbitrarily, and with regard to the policy underplaying the sanction the
order of the government can be challenged in the appropriate proceedings
39. In the case of State of Bihar v. Sharma30in this particular case it was said the
sanctionising authority has applied its mind and considered all relevant facts it is not
empty formality the object of obtaining sanction is that the authority concerned should
be able to consider for itself the matter before the investigating officer, before it comes
to the conclusion that the prosecution in the circumstances be sanctioned or forbidden.
To comply with provision of section 197 it must be proved that sanction was given in
respect of the facts consolidating the offence charged. It is desirable that the fact should
be referred to on the face of sanction.
40. A public servant may be said to act or purport to act in the discharge of his official duty
only when
 The act in such as to lie within the scope of his official duty,31
 The act complained of is so integrally with the duties attached to the office as to
be inseparable from them.32 Or is in respect of the act done or purported to be
done in the discharges of his official duty.33
41. So if on fact, it is prime facie proved that act or omission for which the accused was
charged has reasonably connected with the discharge of his duty it must be held that to
be the official duty to which the applicability of section 197 cannot be disputed.34
42. On a careful consideration of materials on record” Justice Alam wrote in the judgement
“we do not have the slightest doubt that the authenticity and integrity of the sting
recordings were never disputed or doubted” he added that “he kept changing his stand in
regard to the sting recordings in the fact and circumstances of the case, therefore there
was no requirement proof of the recording.
30
1991 CrLJ 1438 Para 27
31
GILL v R. AIR 1948 PC 128
32
Bhagwan v. Mishra, 1970 SC 1661
33
Pukhraj v. State of Rajasthan, AIR 1973 SCC 2591
34
Prakash Sing Badal v. State of Punjab AIR 2007 SC 1274

43. Thus from the facts and authorities cited above it is essential to provide sanction in order
to prosecute the Chief Secretary, home minister and MLA’s of BAP Party.

ISSUE 4: Whether the CIF Act passed by the Legislature of the State of Lakie
was Unconstitutional or not?
“If the stream of Justice dries up there would be discontent, disharmony and chaos in the
society as that stream does not fulfil the thirst of men for justice.”
44. It is most humbly argued before the Honourable Supreme Court of Wikiland that the act
that has been passed by the legislature is wholly unconstitutional as it is based on
erroneous grounds to admit a person and involve that person in order to control the
activities of Insurgents. The facts of the case clearly provides that the CIF act has been
formed in order to control the taxalites and Insurgents that were the cause for the decline
of Tourism in the state of Lakie but the news report stated that the responsibility of the
CIF were to protect the people from the attacks of insurgents but the members of CIF
were found trespassing the houses of people and rapping women and killing innocent
people in the name of killing Taxalites. Now the question that arises is that the
Legislature has made CIF force to do such activities? Therefore the CIF members were
found abusing the Fundamental rights of the people. Is this was the purpose to make the
CIF Act?
45. The following facts need to be established before proofing the unconstitutional validity
of the legislation of the CIF Act –
A. In pursuance of the legislation the appropriate authority has gone beyond hits
power to make laws.
46. It is most humbly argued before the Honourable Supreme Court of Wikiland that the
power to make laws regarding the defence is within the purview of the Union list but
here the Legislature has gone beyond his authority to make the CIF Force in order to
deal with insurgents. Moreover the facts do not show that any prior permission has been
taken by the Legislature of Lakie in order to make the CIF act to control the insurgents.

47. Under Schedule VII Entry 1 of Union list deals with the power of parliament to make
laws under Article 246 over the subject of the Defence in the Wikiland and the State of
Lakie
48. Entry 1 Defence of Wikiland and every part thereof including the preparation of defence
and all such acts as may be conducive in times of war to its prosecution and after its
termination to effective demobilization.
49. In the case Kartar singh v. State of Punjab35 it was observed that activities which are
more serious in nature, which threatens security of the state or country as a whole would
fall within Entry1 list 1 relating to defence of India or under any event under the
residuary powers conferred under Article 249.
36
50. In Naga People’s movement of Human rights v. Union of India it was observed
that Entry 2 of Union list shall for the purpose of enabling the civil power in the state to
deal with the situation affecting Public order can make law regarding security of the
State. It further observes that the deployment of the armed forces of the union for the
purpose of enabling the civil power in the state to deal with situation affecting
maintenance of public order or security.
51. But in the present case the Legislature of the State of Lakie has formulated such an act
which does not come into the purview of the power of the State of Lakie i.e. the CIF
ACT, an act in order to counter the attacks of Insurgents and taxalites without providing
them fairs terms and conditions of the employment.
ACT OF CIF 2016 has been passed by state legislature under the Government of AAL
(K.L RAJIV) is unconstitutional as the term `insurgency' is an offence falling within the
ambit of Defence of India, Entry 1 of List I i.e., the Union List, as it threatens the unity,
integrity and sovereignty of India and, in any event, under the residuary power conferred
on the Parliament under Article 248 read with Entry 97 of the Union List and, therefore,
the Lakie State legislature did not have legislative competence to enact the CIF Act
35
1994(3) SCC 569,633
36
AIR 1998 SC 431

which relates to ` insurgency'. Hence, the CIF Act 2016 which refers to `insurgency' is
ultra vires to Article 246(3) of the Constitution.
B. CIF Act leads to the deprivation of his fundamental rights or his other
constitutional rights
53. It is most humbly submitted before the Honourable Supreme Court that the members of
CIF act were found trespassing the houses of people, rapping women and killing
innocent people in the name of killing Taxalites.37
54. Article 13 in the Constitution Of India 1949
13. Laws inconsistent with or in derogation of the fundamental rights
(1) All laws in force in the territory of India immediately before the commencement of
this Constitution, in so far as they are inconsistent with the provisions of this Part, shall,
to the extent of such inconsistency, be void
(2) The State shall not make any law which takes away or abridges the rights conferred
by this Part and any law made in contravention of this clause shall, to the extent of the
contravention, be void
(3) In this article, unless the context otherwise requires law includes any Ordinance,
order, by law, rule, regulation, notification, custom or usages having in the territory of
India the force of law; laws in force includes laws passed or made by Legislature or other
competent authority in the territory of India before the commencement of this
Constitution and not previously repealed, notwithstanding that any such law or any part
thereof may not be then in operation either at all or in particular areas
(4) Nothing in this article shall apply to any amendment of this Constitution made under
Article 368 Right of Equality
55. According Article 13(2) the State “shall not make any law” which takes away or
abridges the Fundamental rights and a law contravening with the Fundamental right is, is
to the extent of the contravention, void. Therefore, Article 13(2) clearly prohibits the
making of any law by the State which takes away or abridges rights conferred by Part III
37
Para 8

of the Constitution. In the event of such law being made the same shall be void to the
extent of contravention.38
56. In the Indian Democracy neither the administration of Justice nor the functioning of the
court can be rendered irrelevant by action of other organs of the State. Article 13 of the
Constitution prescribes that if relevant laws are inconsistent with part III of the
Constitution when enacted, they shall thereafter be held to be void to the extent of such
inconsistency. The power of legislature thus is limited by the very fundamental
restriction prescribing that it cannot enact laws inconsistent with the Fundamental rights
of the citizen.39
57. Article 13 confers power as well as imposes an obligation on the court to declare a law
to be void if it is inconsistent with fundamental rights. This is a power of great
consequence for the courts. The Supreme court has figuratively characterised this role of
the court as that of “Sentinel on the QUI VIVE” 40
58. Article 21 in The Constitution Of India 1949
21. Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law.
‘Everyone has the right to life, liberty and the security of person.’ The right to life is
undoubtedly the most fundamental of all rights. All other rights add quality to the life
in question and depend on the pre-existence of life itself for their operation. As
human rights can only attach to living beings, one might expect the right to life itself
to be in some sense primary, since none of the other rights would have any value or
utility without it.
59. Life’ in Article 21 of the Constitution is not merely the physical act of breathing. It does
not connote mere animal existence or continued drudgery through life. It has a much
wider meaning which includes right to live with human dignity, right to livelihood, right
to health, right to pollution free air, etc. Right to life is fundamental to our very
existence without which we cannot live as human being and includes all those aspects of
38
State of Punjab v. Dalbir Singh AIR 2012 SC 1040
39
Brij Mohan Lal v. Union of India (2012)6 SCC 502
40
State of Madras v. V.G Row AIR 1952 SC 196

life, which go to make a man’s life meaningful, complete, and worth living. It is the only
article in the Constitution that has received the widest possible interpretation. Under the
canopy of Article 21 so many rights have found shelter, growth and nourishment. Thus,
the bare necessities, minimum and basic requirements that is essential and unavoidable
for a person is the core concept of right to life.
60. In the case of Kharak Singh v. State of Uttar Pradesh41, the Supreme Court
quoted and held that:
By the term “life” as here used something more is meant than mere animal existence. The
inhibition against its deprivation extends to all those limbs and faculties by which life is
enjoyed. The provision equally prohibits the mutilation of the body by amputation of an
armour leg or the pulling out of an eye, or the destruction of any other organ of the body
through which the soul communicates with the outer world.
61. It is most humbly Submitted before the Honourable Supreme Court of Wikiland that
there has been mass violation done on the part of CIF members which was made to
protect the people from the attacks of insurgents but they on the other hand were found
killing innocent people, rapping women and trespassing houses of people which shows
us the complete deprivation of the fundamental rights and violation of the Article 21 of
the Constitution that is the life and personal liberty.
62. In case of NCT of Delhi v. Navjot Sandhu42the Supreme Court had held that courts
could admit electronic records such as print out, news report and compact discs as Prime
facie evidence without prior authentication from the court itself under Section 65B of
Evidence act.
63. It is also evident that Wikiland is signatory to the international treaties and conventions43
and if we refer to Universal declaration of Humans Rights 1948 there are some Article
41
AIR 1963 SC 1295
42
(2005)11 SCC 600
43
Para 1

which deals with the protection of Human rights and secures and puts an obligation on
the State to protect and secures those rights.
International Treaties:
Article 3 - Everyone has the right to life, liberty and security of person.
Article 12 - no one shall be subjected to arbitrary interference with his privacy, family, home or
correspondence, or to attacks upon his honour and reputation. Everyone has the right to the
protection of the law against such interference or attacks.
64. Therefore from the facts and authorities cited above it is most humbly submitted before
the Honourable Supreme court of Wikiland that the Act that has been passed by the
Legislature was unconstitutional on the basis of two reasons
 Legislature was not the competent body to make that act
 CIF Force was not functioning correctly and violates the fundamental as well as
Human Rights of the individuals in the state as evident from the news report.

PRAYER FOR RELIEF
Wherefore, in the light of facts stated, issue raised, authorities cited, and arguments advanced, it
is most humbly prayed and implored before the Honourable Supreme Court, that it may
graciously be pleased to adjudge and declare-
1. The Emergency imposed by President on the receipt of the Governor of the State of
Lakie was not justified.
2. The practices adopted by the Alliance Company were anti competitive in nature.
3. The denial to prosecute the Chief Secretary, Home Minister and MLA’s is not
sustainable under law.
4. The CIF Act that has been passed by the legislature of the State of Lakie was wholly
unconstitutional.
And pass any other order(s) as it deems fit in the interest of equity, justice and good conscience.
All of which is most humble and respectfully submitted.
For this act of kindness, the Petitioner faction shall be duty bound forever.
SD/-
(COUNSEL FOR THE PETITIONERS)

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3rd ANAND SWAROOP GUPTA MEMORIAL NATIONAL MOOT COURT COMPETITION, 2018

3rd ANAND SWAROOP GUPTA MEMORIAL NATIONAL MOOT COURT

BEFORE THE HON’BLE SUPREME COURT OF

ORIGINAL EMERGENCY PETITION NO. 01/2018

SHRI K.L. RAJIV....................................................................PETITIONER

UPON SUBMISSION BEFORE THE HON’BLE SUPREME COURT OF WIKILAND

MEMORIAL ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF PETITIONERS Page 1

HEADINGS PAGE NO.

MEMORANDUM ON BEHALF OF PETITIONERS Page 2

1. Bhagwan v. Mishra, 1970 SC 1661...........................................................................26

MEMORANDUM ON BEHALF OF PETITIONERS Page 3

19. R BALAK KRISHNA PILLAI v. STATE OF KERALA, 1996 SCC (1)

1. Jain MP, Constitutional Law, 2017

MEMORANDUM ON BEHALF OF PETITIONERS Page 4

MEMORANDUM ON BEHALF OF PETITIONERS Page 5

MEMORANDUM ON BEHALF OF PETITIONERS Page 6

MEMORANDUM ON BEHALF OF PETITIONERS Page 7

BACKGROUND OF THE CASE

CIRCUMSTANCES LEADING TO DISPUTE

MEMORANDUM ON BEHALF OF PETITIONERS Page 8

MATTER BEFORE SUPREME COURT

MEMORANDUM ON BEHALF OF PETITIONERS Page 9

ISSUE 1: Whether the imposition of emergency by the President on the report

MEMORANDUM ON BEHALF OF PETITIONERS Page 10

ISSUE 3: Whether denial of the sanction to prosecute the Chief Secretary,

MEMORANDUM ON BEHALF OF PETITIONERS Page 11

ISSUE 1: Whether the imposition of emergency by the President on the report

MEMORANDUM ON BEHALF OF PETITIONERS Page 12

power to be exercised by the President in exceptional circumstances to discharge the

A. Is there any material behind the proclamation?

MEMORANDUM ON BEHALF OF PETITIONERS Page 13

 high pressure moves;

In the case of Rameshwar Prasad v. Union of India,

B. Is the material relevant?

MEMORANDUM ON BEHALF OF PETITIONERS Page 14

C. Was there any mala fide use power?

MEMORANDUM ON BEHALF OF PETITIONERS Page 15

MEMORANDUM ON BEHALF OF PETITIONERS Page 16

MEMORANDUM ON BEHALF OF PETITIONERS Page 17

is required to be satisfied. On consideration of these observations made in the case of

MEMORANDUM ON BEHALF OF PETITIONERS Page 18

MEMORANDUM ON BEHALF OF PETITIONERS Page 19

(d) makes conclusion of contracts subject to acceptance by other parties of supplementary

MEMORANDUM ON BEHALF OF PETITIONERS Page 20

 Size and resources commercial advantage over competitors

MEMORANDUM ON BEHALF OF PETITIONERS Page 21

enforcement priorities in applying Article 82 of European Commission Treaty to be

MEMORANDUM ON BEHALF OF PETITIONERS Page 22

ISSUE 3: Whether denial of the sanction to prosecute the Chief Secretary,

34. Section 197 in the Code Of Criminal Procedure, 1973

MEMORANDUM ON BEHALF OF PETITIONERS Page 23

MEMORANDUM ON BEHALF OF PETITIONERS Page 24

35. Applicability of this section

37. For the application of sanction under section 197 of CRPC

MEMORANDUM ON BEHALF OF PETITIONERS Page 25

MEMORANDUM ON BEHALF OF PETITIONERS Page 26

MEMORANDUM ON BEHALF OF PETITIONERS Page 27

MEMORANDUM ON BEHALF OF PETITIONERS Page 28