022R

IN THE

HON’BLE SUPREME COURT OF MODUS AT GARVPUR

IN THE MATTERS OF

ALANKAAR

(REPRESENTED BY MR. SAHAYTA)

PETITIONER

v.

STATE OF MODUS

(REPRESENTED BY SECRETARY, MINISTRY OF EXTERNAL AFFAIRS OF MODUS)

RESPONDENT

WRIT PETITION NO.: 1112/2017

[Under Article 32 of the Constitution of Modus and with Rule 1of Order XXXVIIIof the

Supreme Court Rules, 2013]

AND

ARSHIN & RUSHWAH

APPELLANT

v.

STATE OF MURTHYPUR

(REPRESENTED BY ADVOCATE GENERAL)

RESPONDENT

CIVIL APPEAL NO.: 1072/2017

[Under Article 133 of the Constitution of Modus, 1950 and with rule 1of order XIX of the

Supreme Court Rules, 2013]

NAARUSHI MODUS

(REPRESENTED BY MS. RAGUPTA)

APPELLANT

v.

THAKURTRAVEL

(REPRESENTED BY MANAGING DIRECTOR)

RESPONDENT

CIVIL APPEAL NO.: 1094/2017

[Under Article 133 of the Constitution of Modus, 1950 and with rule 1of order XIX of the

Supreme Court Rules, 2013]

[CLUBBED UNDER ARTICLE 142 OF THE CONSTITUTION OF MODUS, 1950

READ WITH RULE 3 OF ORDER LV OF THE SUPREME COURT RULES, 2013]

__________________________________________________________________________

MEMORIAL ON BEHALF OF THE RESPONDENT

INDEX OF AUTHORITIES..................................................................................................II

STATEMENT OF FACTS.....................................................................................................V

STATEMENT OF JURISDICTION..................................................................................VII

ISSUES FOR CONSIDERATION....................................................................................VIII

SUMMARY OF ARGUMENTS..........................................................................................IX

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

I. THE STATE OF MODUS SHOULD NOT SUBMIT TO THE JURISDICTION OF

INTERNATINAL COURT OF JUSTICE. 1

A. The state of modus was fulfilling its international obligation.....................................1

B. The state of Modus has a right to adopt the evacuated children of Shiviland............3

II. THE FOOD STANDARDS ACT IS CONSTITUTIONAL IN NATURE. 3

A. The Prohibition Act is not violative of the Right of the Appellant under Article 14 of

the Constitution of India.....................................................................................................4

B. The Prohibition Act is not violative of the rights of the petitioner under Article 19

(1) (g) of the Constitution of India.....................................................................................7

C. The Prohibition Act does not violate one’s Right to Life under Article 21..............9

III. THE ARBITRATION CLAUSE IS NOT LEGAL AND IS VOID, NULL AND

INOPERATIVE. 10

A. The seat of arbitration should be in Modus...............................................................11

B. The Arbitration clause will cease to exist..................................................................11

C. Part I of the Arbitration and Conciliation Act is not to be excluded..........................13

iii
PRAYER FOR RELIEF...........................................................................................................14

iv
 INDEX OF AUTHORITIES

THE CONSTITUTION OF INDIA, 1950.

Article 12, The Constitution of India, 1950...............................................................................4

CALCUTTA HIGH COURT CASES

Prithwish Roy v. Adrish Majumdar, AIR 1952 Cal 273..........................................................10

SUPREME COURT CASES

All Delhi Rickshaw Union v. Municipal Corpn., AIR 1987 SC 648at 5,6...............................10

Amita v. Union of India, (2005) 13 SCC 721............................................................................4

Anukul Chandra Pradhan v. Union of India, (1997) 6 SCC 1...................................................5

Cooverjee B. Bharuchav. The Excise Commissioner and the Chief Commissioner, Ajmer and

Ors.,(1954) S.C.R. 873...........................................................................................................8

Gopi Chand v. Delhi Administration, AIR 1959 SC 609...........................................................5

In Re: The Special Courts Bill, (1979) 1 S.C.C. 380.................................................................5

Maganlal Chaganlal (P) Ltd. v Municipal Corporation of Greater Bombay, (1975) 1 S.C.C.

339..........................................................................................................................................6

Narendra Kumar v. Union of India and Ors, (1960) 2 S.C.R. 375...........................................9

Rajbalav.State of Haryana, (2016) 1 S.C.C. 463.......................................................................5

State of Bombay v. F.N. Balsara, 1951 SCR 682, (708-09........................................................5

State of Bombay v. R.M.D. Chamarbaugwalla, (1957) 1 S.C.R. 874........................................7

State of Maharashtra v.Himmatbhai, AIR 1970 SC 1157at 12...............................................10

State of Punjab v.Devans Modern Breweries Ltd,(2004) 11 S.C.C. 26.....................................7

State of West Bengal v.Anwar Ali Sarkar, (1952) S.C.R. 284...................................................6

v
Addhar Mercantile Private Limited v. Shree Jagdamba Agrico Exports Pvt Ltd., Arbitration

Application 197 of

2014……………………………………………………………………………….11

TDM Infrastructure Pvt Ltd v. UE Development India Ltd., (2008) 14 SCC 271, (para 8)

……………………………………………………………………………………………..11

Sasan Power Limited v. North America Coal Corporation India Pvt. Ltd., 2016(2) Arb LR

179 (MP)……………………………………………………………………………………….

…12

Union of India v. Kishorilal Gupta and Bros., AIR 1959 SC 1362…………………………12

Delhi Airport Express Pvt. Ltd. v. CAF India Pvt. Ltd., 2014(4) Arb LR 273………………13

Twilite International Inc. v. Aman Pacific, Yearbook Commercial Arbitration, Vol. XXIII-

1998 960……………………………………………………………………………………..13

Rules

ADVOCATES ACT, 1961..........................................................................................................I, II

THE SUPREME COURT RULES, 1966.......................................................................................I, II

TREATISE

DD Basu, Commentary On The Constitution Of India, 1595 (Vol. 2, 8th ed., 2008).................4

DD Basu, Commentary On The Constitution Of India, 2829 (Vol. 2, 8th ed., 2008).................7

DD Basu, Commentary On The Constitution Of India, 2830 (Vol. 2, 8th ed., 2008).................7

Law of Arbitration and Conciliation, R.S. Bachawat.J, 5th edition, 2010, Pg. 2331…………11

UNITED NATIONS CHARTER

Article 4, Charter of the United Nations, 1945..........................................................................2

JOURNAL
vi
Alexander Ruck Keene, 'Humanitarian Intervention' (2001), 151 New Law Journal 1096......2

MADRAS HIGH COURT CASES

Krishnamurthy v. Venkatesivaran, AIR 1952 Mad 186...........................................................10

UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1998

Article 22, Universal Declaration of Human Rights, 1998........................................................2

Article 25, Universal Declaration of Human Rights, 1998........................................................2

Article 3, Universal Declaration of Human Rights, 1998..........................................................2

OTHER AUTHORITIES

2005 World Summit Outcome at para. 30..................................................................................1

2005 World Summit Outcome at para.138–9.............................................................................1

Article 16, Hague conference on Private International law convention on protection of

children and co-operation in respect of inter-country adoption, 23 may, 1993.....................3

Bosnia v. Serbia, Reports 2007 at para 147...............................................................................2

Committee on the Rights of the Child (2013). General Comment No. 14,................................3

http://www.who.int/mediacentre/factsheets/fs323/en/.............................................................10

Save the Children Alliance and International Social Service share views on ICA post-disaster

as outlined by UNICEF, 2010................................................................................................3

STATUTE

Section 2 (2), Arbitration and Conciliation Act, 1996………………………………………13

vii
 STATEMENT OF FACTS

The Federation of Modus is a world leader in the fields of technology and medical science

and is one of the richest countries in the world. Modus is bordered on the western side by the

Republic of Kritistan. Although the people of Shiviland, as well as other princely states,

vociferously protested in favour of joining Modus, Banna, The King of Shiviland, entered

into a treaty of accession with Kritistan. Nevertheless, people of Shiviland still continue to

maintain ties with Modus and frequently visit Modus for religious celebrations and business

opportunities.

II

On January 1, 2016 several Kritistani scientific organizations issued urgent warnings that a

tsunami was imminent and its effects were to be substantially felt by Shiviland due to its

geographical location. People residing in Shiviland appealed to the Kritistani government to

take immediate precautionary measures. Consequently, all children who were less than

fifteen years old were brought in the Parahi cave situated in the only elevated region of

Shiviland. Modus undertook a massive secret evacuation operation. Kritistan was waiting for

the children to recover and often enquired from Modus about their recovery.The Government

of Modus issued an order wherein it sanctioned adoption of the evacuated children by

childless Modusian families.

III

Modus was concerned about the welfare of the children and the youth. In fact, a large

population of the youth in Modus were obese. In furtherance of this, one of the States,

Murthypur, enacted the Murthypur Universities Food Standards Act, 2016 (“Act”). The new

Act banned the sale and consumption of “junk food” inside university campuses situated in

viii
the State.Meanwhile, the manufacturers and retailers of junk food were unhappy with the ban

and criticised it openly.

IV

NaarushiPvt. Ltd. is a company registered in Kritistan. Naarushi had assembled a team of

high-level engineers, architects and software developers, to develop the world’s first “travel

pod”. On January 18, 2011, in order to facilitate Naarushi’s operations in Modus, Naarushi

entered into a joint venture by means of a Joint Venture Agreement with ThakurtravelPvt.

Ltd., a company incorporated under the laws of Modus.Naarushi novated its rights, liabilities

and obligations under the JVA to its Modus incorporated wholly owned subsidiary

“ModusNaarushiPvt. Ltd.” and exited from all its other investments in Modus.A few months

after the proposed project began to take shape, disputes arose between Thakurtravel and

Naarushi Modus.

ix
 STATEMENT OF JURISDICTION

 The Petitioner Alankaar, an NGO, in the Appeal under Article 32 of the Constitution

of Modus and Order XXXVIII, Rule 1 of the Supreme Court Rules, 2013.

 The Appellants Arshin and Rushwah, in the Appeal under Article 133 of the

Constitution of Modus and order XIX, Rule 1 of the Supreme Court Rules, 2013.

 The Appellant, Naarushi Modus, in the Appeal under Article 133 of the Constitution

of Modus and order XIX, Rule 1 of the Supreme Court Rules, 2013.

All the matters have been clubbed and brought before the Supreme Court under Article 142

of the Constitution Read with Rule 3 of Order LV of The Supreme Court Rules, 2013.

The Respondent most humbly submits that this Honourable Court has the requisite

jurisdiction.

x
 ISSUES FOR CONSIDERATION

I. WHETHER THE STATE OF MODUS SHOULD SUBMIT TO THE

JURISDICTION OF INTERNATIONAL COURT OF JUSTICE?

II. WHETHER THE FOOD STANDARDS ACT, 2016 IS UNCONSTITUTIONAL?

III. WHETHER THE ARBITRATION CLAUSE IS NULL, VOID AND

INOPERATIVE?

xi
 SUMMARY OF ARGUMENTS

I. THE STATE OF MODUS SHOULD NOT SUBMIT TO THE JURISDICTION OF

INTERNATIONAL COURT OF JUSTICE.

It is most humbly submitted that the state of Modus need not submit to the jurisdiction of

International Court of Justice as [A] the state of Modus was fulfilling its International

Obligation, [B] The state of Modus has a right to adopt the evacuated children of Shiviland.

II. THE FOOD STANDARDS ACT, 2016 IS CONSTITUTIONAL IN NATURE.

It is most humbly submitted before this honourable court that the Act is constitutional as it,

[A] does not violate the Right to Equality under Article 14, [B] the act does not violate the

Right to freedom of trade under Article 19 (1) (g), [C] it does not violate an individual’s

Right to Life under Article 21.

III. THE ARBITRATION CLAUSE IS NULL, VOID AND INOPERATIVE IN NATURE.

It is most humbly submitted before this honourable court that the Arbitration clause is null,

void and inoperative as [A] The seat of Arbitration should be in Modus, [B] The Arbitration

clause will cease to exist, [C] Part I of the Arbitration and Conciliation Act is not to be

excluded.

xii
 ARGUMENTS ADVANCED

I. THE STATE OF MODUS SHOULD NOT SUBMIT TO THE JURISDICTION

OF INTERNATINAL COURT OF JUSTICE.

It is most humbly submitted that the state of Modus need not submit to the jurisdiction of

International Court of Justice as [A] the state of Modus was fulfilling its International

Obligation, [B] The state of Modus has a right to adopt the evacuated children of Shiviland.

A. The state of modus was fulfilling its international obligation.

The state of Modus rescued the children of Shiviland on humanitarian grounds as it was their

responsibility to protect the children and fulfilling their international law obligation towards

prevention of violation of human right which is an international obligation.

1. They were carrying out their responsibility to protect.

The responsibility to protect1, provides that when sovereign governments manifestly fail to

discharge their primary responsibility to protect their populations from “genocide, war

crimes, ethnic cleansing, environmental disaster and crimes against humanity,” that

responsibility then falls on the wider global community.

Bystander states or the ‘international community’ simply does not have a right but a

collective responsibility to assist host state in protecting their populations and to act to protect

these populations in situations where the host state is manifestly failing to do so. 2 In the case

Bosnia v Serbia, the Court did acknowledge that states may bear obligations other than the

prevention of genocide which ‘protect essential humanitarian values, and which may be

owed ergaomnes’ i.e. towards everyone.3

1
2005 World Summit Outcome at para. 30.
2
2005 World Summit Outcome at para.138–9.
3
Bosnia v. Serbia, Reports 2007 at para 147.
1
In the present factual matrix, the state of Modus was fulfilling its responsibility to protect the

evacuated children of Kritistan after Kritistani government could not recue the children from

the Parhai Cave as they did not have the right to technology to rescue the children.4

2. They were fulfilling their Human rights obligation.

The key rights that can be affected by disasters include the right to ‘life’ 5, ‘economic, social

and cultural rights’6 and the ‘right to a standard of living adequate for health and well-being

including food, clothing, housing and medical care’7.

In this case it could be argued, as it has been with respect to interventions, that intervention

for humanitarian purposes does not infringe the international prohibitions 8 as such an action

is not directed ‘against the territorial integrity or political independence of’ the target State

and is in fact consistent with ‘the Purposes of the United Nations’ 9 which includes advancing

human rights.

In the present factual matrix, the state of Modus rescued the trapped children only when the

Kritistani government could not rescue them. They were just fulfilling their Human rights

obligation as they were the neighbouring state and those children have similar backgrounds

as that of Modus.

B. The state of Modus has a right to adopt the evacuated children of Shiviland.

The case of children separated from their families and communities during war or natural

disasters merits special mention. Family tracing should be the first priority and intercountry

adoption should only be envisaged for a child once these tracing efforts have proved fruitless,

4
Para. 6, Proposition.
5
Article 3, Universal Declaration of Human Rights, 1998.
6
Article 22, Universal Declaration of Human Rights, 1998.
7
Article 25, Universal Declaration of Human Rights, 1998.
8
Alexander Ruck Keene, 'Humanitarian Intervention' (2001), 151 New Law Journal 1096.
9
Article 4, Charter of the United Nations, 1945.

2
and stable in-country solutions are not available. 10 Adoptions should only take place when

they are in the best interests of the children concerned. 11 Article 16 of the Hague Convention

states that due consideration should be given to the child's upbringing and his or her ethnic,

religious and cultural background before adopting them.12

In the present factual matrix, the state of Modus has a right to adopt the evacuated children as

their parents were not been traced, also reported by many Ngo’s, Newspapers of Kritistan that

all the people of Shiviland had either died or could not be traced. 13 The state of Kritistan was

not in a stable situation to give these children for adoption as they had a great semblance with

Modus and a cultural identity different from that of Kritistan. 14It is in the best interest of the

children as they will relate more towards the culture and ethnic background of the state of

Modus rather than state of Kritistan.

II. THE FOOD STANDARDS ACT IS CONSTITUTIONAL IN NATURE.

It is most humbly submitted before this honourable court that the Act is constitutional as it,

[A] does not violate the Right to Equality under Article 14, [B] the act does not violate the

Right to freedom of trade under Article 19 (1) (g), [C] it does not violate an individual’s

Right to Life under Article 21.

A. The Prohibition Act is not violative of the Right of the Appellant under Article

14 of the Constitution of India.

The guiding principle of Article 14 is that all persons and things similarly circumstanced shall

be treated alike in respect of privileges conferred and rights imposed.15

10
Save the Children Alliance and International Social Service share views on ICA post-
disaster as outlined by UNICEF, 2010.
11
Committee on the Rights of the Child (2013). General Comment No. 14,
12
Article 16, Hague conference on Private International law convention on protection of
children and co-operation in respect of inter-country adoption, 23 may, 1993.
13
Para. 10, Proposition.
14
Para. 7, Proposition.
15
Amita v. Union of India, (2005) 13 SCC 721.
3
A purely administrative order will also fall within the purview of Article 14 till the time the

administrative body qualifies as a ‘State’ under Article 12 of the Constitution. 16The principle

of equality envisaged under Article 14 must guide every state action irrespective of whether it

is legislative, executive or quasi- judicial. 17State of West Bengal v. Anwar Ali Sarkar, (1952)

S.C.R. 284.

1. The Prohibition Act satisfies the two conditions of the reasonable classification test.

The reasonable classification test was enunciated in the landmark case of State of West

Bengal v Anwar Ali Sarkar18which created scope for classification for the purpose of

legislation. The Supreme Court, in the said case, laid down two conditions which must be

satisfied, namely, “that the classification must be founded on an intelligible differentia which

distinguishes those that are grouped together from others and that that differentia must have

a rational relation to the object sought to be achieved by the Act. The differentia which is the

basis of the classification and the object of the Act are distinct things and what is necessary is

that there must be a nexus between them”.19 Furthermore, classification implies segregation

in classes which have a systematic relation, generally identified by common properties and

characteristics.20 However, it is important to note that this test does not require delusive

exactness or apply doctrinaire tests for determining the validity of classification. 21 Generally,

a classification is considered to be valid if it is not palpably arbitrary.22

The law of one state cannot be held to be discriminatory by contrasting it with the law

prevailing in another state.23 The principle does not take away from the state the power of

16
Article 12, The Constitution of India, 1950.
17
DD Basu, Commentary On The Constitution Of India, 1595 (Vol. 2, 8th ed., 2008).
18
State of West Bengal v. Anwar Ali Sarkar, (1952) S.C.R. 284.
19
Ibid.
20
Rajbalav.State of Haryana, (2016) 1 S.C.C. 463.
21
In Re: The Special Courts Bill, (1979) 1 S.C.C. 380.
22
Ibid.
23
Gopi Chand v. Delhi Administration, AIR 1959 SC 609.
4
classifying persons for legitimate purposes.24 The legislature is competent to exercise its

discretion and make classification.25

In the present factual matrix, the purpose behind this form of classification of junk food was

to impose prohibition in a progression. The intelligible differentia which separates the

Appellant and other manufacturers is the substantial difference in the Junk food content. This

intelligible differentia has a direct nexus with the objective of the Act which was to curb the

menaces caused due to consumption of junk food by students inside the university campuses.

It is in this regard that the respondent submits that the Prohibition Act satisfies the two

conditions of the reasonable classification test and is therefore not violative of the rights of

the petitioner under Article 14 of the Constitution.

2. The Prohibition Act is not arbitrary in nature

In the landmark case of E P Royappa v State of Tamil Nadu26, the Supreme Court laid down

the following principle-

“Equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies;

one belongs to the rule of law in a republic while the other, to the whim and caprice of an

absolute monarchy. Where an act is arbitrary it is implicit in it that it is unequal both

according to political logic and constitutional law and is therefore violative of Art. 14”.27

The Supreme Court further held that “where the operative reason for State action, as

distinguished from motive inducing from the antechamber of the mind, is not legitimate and

relevant but is extraneous and outside the area of permissible considerations, it would

amount to mala fide exercise of power and that is hit by Article 14”.28

24
State of Bombay v. F.N. Balsara, 1951 SCR 682, (708-09).
25
Anukul Chandra Pradhan v. Union of India, (1997) 6 SCC 1.
26
E P Royappa v State of Tamil Nadu, (1974) 2 S.C.R. 348.
27
Ibid.
28
Ibid.
5
Thus the basic principle enunciated in this case was that arbitrariness is antithetical to

equality. However, this principle is not an alternative to the reasonable classification test laid

down in Anwar Ali Sarkar. In the seminal case of MaganlalChaganlal (P) Ltd. v Municipal

Corporation of Greater Bombay29, the Supreme Court opined that the principle laid down in

E P Royappa30is an additional condition to the existing reasonable classification test laid

down in Anwar Ali Sarkar.31

In the present factual matrix, the respondent submits that when the State enacts a law, it has

to pay due consideration to the manner of implementation. In the present case, the Prohibition

Act exempts junk food inside the university campuses in Murthypur. The primary reason

behind this exemption was to reduce the consumption of Junk food but in a phased manner in

order to ensure the efficiency and efficacy of implementation of the order. The respondents

submit that the reason for the State action i.e. the issuance of the Prohibition Act has a direct

correlation with the remedy sought. Hence, for these reasons the Prohibition Act does not

qualify as illegitimate or irrelevant and is violative of Article 14.

B. The Prohibition Act is not violative of the rights of the petitioner under Article

19 (1) (g) of the Constitution of India

The rights guaranteed under Article 19 (1) (g) applies to the practice of any profession, or

carry on any occupation, trade or business.32An activity not regarded as trade or business falls

outside the ambit of Article 19 (1) (g) and thus the validity of a law regulating such an

activity is not governed by the rigours of the Article 19 (6).33

29
MaganlalChaganlal (P) Ltd. v Municipal Corporation of Greater Bombay, (1975) 1 S.C.C.
339.
30
E P Royappa v State of Tamil Nadu, (1974) 2 S.C.R. 348.
31
State of West Bengal v.Anwar Ali Sarkar, (1952) S.C.R. 284.
32
DD Basu, Commentary On The Constitution Of India, 2829 (Vol. 2, 8th ed., 2008).
33
DD Basu, Commentary On The Constitution Of India, 2830 (Vol. 2, 8th ed., 2008).
6
 1. The Act does not violative the manufacturers and retailers Right to Trade under

Article 19 (1) (g).

The doctrine of res extra commerciumwas applied for the first time in the seminal case of

State of Bombay v R.M.D. Chamarbaugwalla 34. The Supreme Court held that “inherently

vicious activities cannot be treated as entitling citizens to do business or trade in such

activities”. It was further held that “activities which are criminal, or dealing in articles or

goods which are res extra commercium could not have been intended to be permitted by

Article 19(1)(f) and (g) relating to fundamental rights to trade or business”.

The right to practice any profession or carry on any occupation, trade or business does not

extend to practicing a profession or carrying on an occupation, trade or business which is

“inherently vicious and pernicious, and is condemned by all civilized societies around the

world”.35 Thus, it was held that there is no fundamental right to do trade or business in Junk

food.

In the present factual matrix, the Appellant is an individual engaged in the business of

manufacture of junk food. Thus, it is the submission of the respondent that the Appellant does

not enjoy any fundamental right under Article 19 (1) (g) to carry on trade or business in the

activity the Appellant is presently involved in.

2. The Prohibition is a valid restriction on the rights of the Appellant under Article 19

(1) (g).

In the case of Cooverjee B. Bharucha v The Excise Commissioner and the Chief

Commissioner, Ajmer and Ors.36, where the vires of an excise regulation was being

34
State of Bombay v. R.M.D. Chamarbaugwalla, (1957) 1 S.C.R. 874.
35
State of Punjab v. Devans Modern Breweries Ltd,(2004) 11 S.C.C. 26.
36
Cooverjee B. Bharucha v. The Excise Commissioner and the Chief Commissioner, Ajmer
and Ors.,(1954) S.C.R. 873.
7
challenged on the ground of it being violative of Article 19 (1) (g), the Supreme Court made

the following observation-

“In order to determine the reasonableness of restrictions, envisaged by Article 19 [6], regard

must be had to the nature of the business and the conditions prevailing in that trade. These

factors would differ from trade to trade and no hard and fast rule concerning all trades can

be laid down…….The nature of the business is, therefore, an important element in deciding

the reasonableness of the restrictions. The right of every citizen to pursue any lawful trade or

business is obviously subject to such reasonable conditions as may be deemed by the

governing authority of the country essential to the safety, health, peace, order and morals of

the community”.37

Thus restrictions on a particular trade shall depend on the nature of business undertaken by an

individual. It is in this regard that it is the submission of the respondent more stringent

restrictions can be imposed on business in Junk food considering the dangerous nature and

character of the business.

3. The Total Prohibition of the Right to Trade in Junk Food is a reasonable

restriction under Article 19 (6)

In the case of Narendra Kumar v Union of India and Ors38., it was held, “the word

'restriction' in Articles 19[5] and [6] of the Constitution includes cases of prohibition also”39.

It further stated that “It is reasonable to think that the makers of the Constitution considered

the word "restriction" to be sufficiently wide to save laws "inconsistent" with Article 19(1), or

"taking away the rights" conferred by the Article, provided this inconsistency or taking away

was reasonable in the interests of the different matters mentioned in the clause. There can be

37
Ibid, 7.
38
Narendra Kumar v. Union of India and Ors, (1960) 2 S.C.R. 375.
39
Ibid, 17.
8
no doubt therefore that they intended the word "restriction" to include cases of "prohibition"

also.”40

In the present factual matrix, the Prohibition Act was passed pursuant to the menaces caused

throughout the state of Murthypur due to the excessive consumption of Junk food inside

university campuses leading to increase in obesity of the students and thus the order was in

the interest of general public. Therefore, it is submitted on behalf of the respondent that this

order satisfies the ground for imposing reasonable restrictions under Article 19 (6) of the

Constitution.

In light of the decisions of the Supreme Court laying down the principle that the State has the

power to completely prohibit a fundamental right under Article 19 (6), the respondent

submits that the Prohibition Act is well within the confines of a valid restriction under Article

19 (6).

C. The Prohibition Act does not violate one’s Right to Life under Article 21.

“The right to the highest attainable standard of health” requires a set of social criteria that is

conducive to the health of all people, including the availability of health services, safe

working conditions, adequate housing and nutritious foods. Achieving the right to health is

closely related to that of other human rights, including the right to food, housing, work,

education, non-discrimination, access to information, and participation.41

It is submitted that restrictions is a wide expression 42 and would comprise within itself the

interests of public health and morals43, which may include a section of the public.44 The co –

existence of Fundamental Rights may be accommodated by the State after a due

consideration of the relation amongst them. The state may perform the accommodation talked

40
Ibid.
41
http://www.who.int/mediacentre/factsheets/fs323/en/.
42
All Delhi Rickshaw Union v. Municipal Corpn., AIR 1987 SC 648at 5,6.
43
State of Maharashtra v.Himmatbhai, AIR 1970 SC 1157at 12.
44
Prithwish Roy v. AdrishMajumdar, AIR 1952 Cal 273.
9
about above in the interest of the community and thereby limit on right so that the other

Fundamental Right may be enjoyed.45

In the present factual matrix, the State of Murthypur was the third obese state in Modus, due

to which the Food Standards Act, 2016 was passed. Right to Health includes food which is

healthy in nature and improves an individual’s health. Junk food is said to dangerous for

one’s life as it is not healthy in nature. In the interest of students’ health the act was passed.

Hence, the Act is not violative of Right to life under Article 21 as it does not take away one’s

Right to choose.

III.THE ARBITRATION CLAUSE IS NOT LEGAL AND IS VOID, NULL AND

INOPERATIVE.

It is most humbly submitted before this honourable court that the Arbitration clause is null,

void and inoperative as [A] The seat of Arbitration should be in Modus, [B] The Arbitration

clause will cease to exist, [C] Part I of the Arbitration and Conciliation Act is not to be

excluded.

A. The seat of arbitration should be in Modus.

The arbitration clause is workable stating that both the parties are Indian and cannot derogate

from the Indian law.46

The Bombay High Court held that two Indian parties cannot be allowed to derogate from

Indian law as that would be against public policy and thus the arbitration has to be conducted

in India.47

45
Krishnamurthy v. Venkatesivaran, AIR 1952 Mad 186.
46
In Delhi Airport Metro Express Pvt. Ltd. v. CAF India Pvt. Ltd &Ors. [I.A. No. 10776/2014
in CS (OS) 1678/2014, paras 10-13, 31-32]
47
Addhar Mercantile Private Limited v. Shree Jagdamba Agrico Exports Pvt Ltd., Arbitration
Application 197 of 2014
10
In TDM Infrastructure Pvt Ltd v. UE Development India Ltd48 “the intention of the legislature

would be clear that Indian nationals should not be permitted to derogate from Indian law.

This is part of the public policy of the country.

In the present factual matrix, both the parties to the joint venture agreement i.e. Naarushi

Modus and Thakurtravel are companies incorporated in Modus and according to the above

mentioned cases if both the parties are of the same country then the seat of arbitration will in

that country as it in the best interest of the Public.

B. The Arbitration clause will cease to exist.

The Arbitration clause does not exist as (1) the doctrine of Separability is applicable and (2) it

has an effect on the novation agreement.

1. Doctrine of Separability is applicable.

Section 2 (1) (b) read with section 7 and section 16 (1) of the Arbitration and Conciliation

Act, 1996 makes it clear that the arbitration agreement is a separate agreement by itself and

the invalidity of the main agreement does not automatically render the arbitration agreement

void.49 Arbitration clause does not governs rights and obligations arising out of the main

contract. It only governs the ways of settling dispute between the parties.50

In the present factual matrix, the companies entered into the Joint venture agreement under

which the Appellant has a right to assign or sub-contract its obligation to any of its wholly

owned subsidiaries. The novation agreement signed on 23.09.2016 transferred the rights and

obligation to the new party i.e. Naarushi Modus which lead to the Arbitration clause being

severable. Hence, the doctrine of Separability is applicable in the present case.

48
TDM Infrastructure Pvt Ltd v. UE Development India Ltd., (2008) 14 SCC 271, (para 8).
49
Law of Arbitration and Conciliation, R.S. Bachawat.J, 5th edition, 2010, Pg. 2331.
50
Sasan Power Limited v. North America Coal Corporation India Pvt. Ltd., 2016(2) Arb LR
179 (MP)
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 2. Novation agreement

In law, the term ‘Novation’ means that if a contract is in existence, some new contract is

substituted for it, either between the same parties or between different parties, the

consideration mutually being the discharge of the old contract. 51 In Union of India v.

Kishorilal Gupta and Bros52., the principle laid down is that if the contract is superseded by

another, the arbitration clause, being a component part of the earlier contract, falls with it.

Mention Section 62 of Indian Contract Act in terms of arbitration clause**

By the way of novation, the right and obligation have in been transferred to the plaintiff,

which is a Modus incorporated company.

In the present factual matrix, the parties entered into a novation agreement on 23.09.2016,

due to the effect of this novation, the arbitration clause in the old contract has also been

discharged. The arbitration clause in the new agreement does not hold the same effect as was

in the previous contract. Now, both the parties to the contract are incorporated in Modus,

hence both are domestic.

C. Part I of the Arbitration and Conciliation Act is not to be excluded.

Section 2 (2)53 provides that Part I of the Arbitration and Conciliation Act shall apply only

when the place of arbitration is India. Part I of the Arbitration and Conciliation Act, 1996 Act

deals with domestic arbitration whereas Part II thereof deals with the Foreign Arbitration.54

If parties to Arbitration try to avoid the application of Indian laws, then it is unforceable and

unlawful.55 If there is a violation of fundamental state policy then that arbitration clause is

51
Lord Selborne L.C. in Scarf v. Jardine (1882) 7 App. Cas. 345, 351.
52
Union of India v. Kishorilal Gupta and Bros., AIR 1959 SC 1362.
53
Section 2 (2), Arbitration and Conciliation Act, 1996.
54
Supra Note 3, Para. 12.
55
Delhi Airport Express Pvt. Ltd. v. CAF India Pvt. Ltd., 2014(4) Arb LR 273.
12
null and void.56Two Indian parties cannot by agreement or otherwise derogate from Indian

law.57

In the present factual matrix, the Appellant is a body incorporated in the state of Modus and

Naarushi Modus is a subsidiary of Naarushi Pvt. Ltd. which is also a body incorporated in the

state of Modus. As both the parties of the Arbitration are situated in Modus, the arbitration

will take place in Modus. Whenever both the parties belong to the same state, the law of

Arbitration applicable will be of that state.

PRAYER FOR RELIEF

Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited

it is most humbly prayed before this Hon’ble Court,

 That it may dismiss the Writ Petition No. 1112/2017and direct the State of Modus to

not submit to the jurisdiction of International Court Justice.

 That it may dismiss the Civil Appeal No. 1072/2017and declare the Food Standards

act, 2016 as Constitutional

56
Twilite International Inc. v. Aman Pacific, Yearbook Commercial Arbitration, Vol. XXIII-
1998 960.
57
Supra Note 3.
13
  That it may dismiss the Civil Appeal No. 1094/2017and direct the parties to not to

refer to Arbitration.

And pass any order in favour of the Respondent which this Court may so deem fit in the ends

of equity, justice and good conscience.

All of which is most humbly submitted.

Date: 4thFebruary, 2017 S/d__________________

Counsel Code: 022 R (Counsel for Respondent)

14