TEAMCODE: 70

10TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MOOT COURT COMPETITION, 2016

IN THE SUPREME COURT OF INDUS

W.P. No. ____ / 2016

(suo motu transfer from the High Court of Dilli Pradesh)

STATE OF DILLI PRADESH .......................Petitioner 1

versus

CENTRAL GOVERNMENT OF INDUS ………………….Respondent

(THROUGH LIEUTENANT GOVERNOR OF STATE OF DILLI PRADESH)

W.P. No. ____ / 2016

KING BIRD PRIVATE LIMITED .......................Petitioner 2

versus

CENTRAL GOVERNMENT OF INDUS ………………….Respondent

(THROUGH LIEUTENANT GOVERNOR OF STATE OF DILLI PRADESH)

As Submitted to the Chief Justice & other Companion judges of the

Hon’ble Supreme Court of Indus.

--W
WRRI ITTTTEENN SSUUBBMMI ISSSSI IOONNSS OONN BBEEHHAALLFF OOFF TTHHEE PPEETTI ITTI IOONNEERRSS--
-TABLE OF CONTENTS- Page i of xi

TABLE OF CONTENTS

INDEX OF AUTHORITIES ...............................................................................................................III

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

STATEMENT OF FACTS .............................................................................................................. VIII

QUESTIONS PRESENTED .............................................................................................................. IX

SUMMARY OF PLEADINGS ............................................................................................................ X

PLEADINGS AND AUTHORITIES .......................................................................................... 1

I. WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI PRADESH HAS THE

LEGISLATIVE COMPETENCE TO ENACT THE IMPUGNED ORDER? ............................................... 1

A. That The State of Dilli Pradesh has power to make Law with respect to Entry 8 of List
II ...................................................................................................................................... 1

i. Ejusdem Generis ...................................................................................................... 1

ii. That the Pith and Substance of the order is to regulate usage/consumption of
Liquor.............................................................................................................................. 2
iii. The Article 239AA of the Constitution of Indus gives the power to the State
Legislature ...................................................................................................................... 4
B. That This Law Is A Colorable Legislation ...................................................................... 5

C. That Lieutenant Governor is bound by the aid and advise of the council of ministers .. 5

D. Arguendo, The Lt. Governor has acted beyond his competency under Delhi Excise
Act ................................................................................................................................... 7

II. WHETHER THE RIGHTS OF THE PETITIONER 2 HAVE BEEN VIOLATED? .................................... 8

A. That the Article 14 has been violated .............................................................................. 8

i. Intelligible Differentia ............................................................................................. 9

ii. Alcohol Content ..................................................................................................... 10
iii. Interpretation ......................................................................................................... 12
iv. Reasonableness ...................................................................................................... 12
B. That the Article 19 has been violated ............................................................................ 14

C. Article 21 of the people will be violated ....................................................................... 15

D. That alcohol is used in other commodities as well ....................................................... 16

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

-TABLE OF CONTENTS-

E. That the impugned law is passed by an incompetent authority .................................... 17

F. That the Human Rights of the people will be violated.................................................. 18

PRAYER FOR RELIEF.................................................................................................................... XI

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

-INDEX OF AUTHORITIES- Page iii of xi

INDEX OF AUTHORITIES

Indian Cases

Ajoy Kumar Banerjee v. Union of India, (1984) 3 SCC 127; ................................................... 7

Amar Chandra Chakraborty v. The Collector of Excise, Government of Tripura and Ors.,
(1972) 2 SCC 442................................................................................................................... 9
Amar Chandra v. Collector of Excise, Tripura, AIR 1972 SC 1863. ........................................ 2
Anuj Garg and Ors. v. Hotel Association of India and Ors., (2008) 3 SCC 1. ........................ 13
Associated Cement Co. Ltd. v. State of M.P. and Ors., (2004) 9 SCC 727 ............................ 12
B. Viswanathiah v. State of Karnataka, (1991) 3 SCC 358 . ..................................................... 3
B.N. Agarwal, J. in State of Punjab v. Devand Modern Breweries, (2004) 11 SCC 26.......... 17
Bachan Singh v. State of Punjab and Ors, AIR 1982 SC 1325. ................................................ 9
Balakrishnan v. State of Madras, AIR 1952 Mad 565 ............................................................. 13
Behram Khurshed Pesikaka v. The State of Bombay, AIR 1955 SC 123. .............................. 16
Bhola Prasad v. R. (1942) F.C.R 17 .......................................................................................... 3
Bihar Distillery & Another v. Union of India & Ors. AIR 1997 SC 1208. ............................... 4
Chief Settlement Commissioner v. Om Parkash & Ors, Etc, AIR 1969 SC 33....................... 17
Chintaman Rao v. State of Madhya Pradesh, [1950] 1 SCR 759. ........................................... 13
Cooverjee B. Bharucha v. Excise Commr. and the Chief Commr. Ajmer, 1954 SCR 873;...... 3
Government of Andhra Pradesh & Ors. v. Smt. P. Laxmi Devi, (2008) 4 SCC 720............... 17
Gurumukh Singh and Ors. v. Union of India (UOI), 2006 (108(4)) BomLR 3702; .................. 9
Guruswamy & Co. v. State of Mysore, [1967] 1 S.C.R. 548 .................................................... 3
Gwalior Ryan Mills v. Assistant Commissioner, Sales Tax, AIR 1974 SC 1660 .................... 7
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554. .................................................. 13
Har Shankar and Ors. etc. v. The Deputy Excise & Taxation Commissioner and Ors., [1975]
3 SCR 254. .......................................................................................................................... 10
I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu, (2007) 2 SCC 1. ................................... 15
Ishwari Khetan Sugar Mills (P) Ltd. and Ors. v. State of Uttar Pradesh and Ors, [1980] 3 SCR
331. ......................................................................................................................................... 3
Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080 ............................... 2
Kharak Singh v. State of Punjab, AIR 1963 SC 1295. ............................................................ 17
Khoday Distilleries v. State of Karnataka, (1995) 1 SCC 574. ....................................... 3, 4, 10
Kishori Shetty v. R. (1949) F.C.R 650 ...................................................................................... 3

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

-INDEX OF AUTHORITIES- Page iv of xi

Krishna Kumar Narula Etc v. State of Jammu and Kashmir & Ors., 1967 SCR (3) 50 ..... 3, 14
M/s. Dwarka Pd. Laxmi Narain v. State of U.P. & others, 1954 S.C.R. 803 (2)..................... 12
Mohd. Faruk v. State of Madhya Pradesh and others, 1970 (1) SCR 156. .............................. 12
Mohd. Hanif Quareshi and others v. The State of Bihar, 1959 S.C.R. 629 (4). ...................... 12
N.K. Doongaji v. State of Madhya Pradesh, AIR 1951 M.P. 1 ................................................. 4
Nagaraj K. v. State of A.P., AIR 1985 SC 551. ....................................................................... 17
Narendra Kumar and others v. The Union of India and others, 1960 SCR (2) 375. ............... 13
Nawn Estates (P) Ltd v. C.I.T., West Bengal, AIR 1977 SC 153. .......................................... 12
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180......................................... 15
Om Prakash Pahwa v. State of Delhi, (1998) 46 DRJ 719. ....................................................... 6
Orissa v. Hari Narayan Jaiswal, AIR 1972 SC 816. ................................................................. 3
P.N. Kaushal v. Union of India, AIR 1978 SC 1457; ................................................................ 7
R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930. ................................................ 13
Raj Pal Sharma and Ors. v. State of Haryana and Ors., AIR 1985 SC 1263. ............................ 9
Rajendra Singh Verma v. Lt. Governor, (2011) 10 SCC 1. ....................................................... 5
Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, AIR 1961 SC 1325........................ 12
Ramesh Birch v. Union of India, AIR 1990 SC 560. ................................................................ 7
Samsher Singh v. State of Punjab, (1974) 2 SCC 831. .............................................................. 6
Sheo Kumar v. State of U.P., AIR 1978 All 386. ...................................................................... 9
Siddeshwari Cotton Mill (P) Ltd. v. Union of India, AIR 1989 SC 1019. ................................ 2
Smt. Kaushailiya v. State of U.P., AIR 1963 All 71................................................................ 13
State of Andhra Pradesh and Ors. v. McDowell & Co., (1996) 3 SCC 709. ............................. 8
State of Assam v. A. N. Kidwai, Commissioner Of Hills Division And Appeals, (1957) SCR
295; ......................................................................................................................................... 3
State of Bombay v. F.N. Balsara, (1951) S.C.R 682. ........................................................ 2, 3, 5
State of Maharashtra and Anr. v. Indian Hotel and Restaurants Assn. and Ors, (2013) 8 SCC
519. ................................................................................................................................. 13, 15
Sunny Markose v. State of Kerala, AIR 1966 Ker. 379 ............................................................ 4
Synthetics and Chemicals Ltd. and Ors. v. State of U.P. and Ors., (1990) 1 SCC 109. .......... 10
Tata Iron & Steel Co. v. Workmen, AIR 1972 SC 1917 ........................................................... 7
Thakur Amarasinghji v. State of Rajasthan, AIR 1955 SC 504 ................................................ 2
The State of Bombay and Another v. F. N. Balsara, AIR 1951 SC 318. ................................. 10
The State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75. ........................................... 9
Tirbhuwan Prakash Nayyar v. Union of India, AIR 1970 SC 540. ........................................... 2

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

-INDEX OF AUTHORITIES- Page v of xi

Union of India (UOI) and Ors. v. Raman Kantilal Bhandari, 1991(35) ECR 212 (Bombay)
(Bom. HC). ........................................................................................................................... 11

Foreign Cases

Australian National Airways Proprietory Ltd. v. The Commonwealth (No 1), (1945) 71 CLR
29. ........................................................................................................................................... 7
Brownsea Haven Properties v. Pools Corporation, (1958) 1 All ER 205 .................................. 2
Mulane v. United States, 8 Cir., 20 F.2d 903........................................................................... 11
Ruppert v. Caffey, Inc., 251 U.S. 264, 282-283, 40 S.Ct. 141, 64 L.Ed. 260. ........................ 11
Wayne v. United States, 138 F.2d 1 (8th Circuit, Court of Appeals). ..................................... 11

Books

ALAN F. WESTIN, PRIVACY AND FREEDOM (Atheneum, 1967) ................................................ 18

BLACK'S LAW DICTIONARY (9th ed. 2009).............................................................................. 1, 2
D.D. BASU, SHORTER CONSTITUTION OF INDIA (14th ed. 2009)…………………………………….. 11
HAROLD J. LASKI, LIBERTY IN THE MODERN STATE (Routledge, 2014)................................... 18
JOSEPH D. BEASLEY, HOW TO DEFEAT ALCOHOLISM: NUTRITIONAL GUIDELINES (Times
Books, 1990). ....................................................................................................................... 17
M.P. JAIN, INDIAN CONSTITUTIONAL LAW (7th ed. 2014)……………………………………………...4

Articles

E.J.Bloustein, Privacy as an Aspect of Human Dignity 39 N.Y. UNIV. L. REV. 962, 971
(1964). .................................................................................................................................. 18
Samuel Warren & Louis Brandeis, The Right to Privacy 4 HARVARD L. REV. 193-220 (1890).
.............................................................................................................................................. 18
Reports & Other Authorities

Alcohol Consumption Factsheet, Institute of Alcohol Studies, London, U.K. (Aug. 2013). .. 11
Country Profile, India, World Health Organization, available at
http://www.who.int/countries/ind/en/ (last accessed, 26.09.2016). ..................................... 11
Dietary Guidelines for Americans, U.S. Department of Agriculture and U.S. Department of
Health and Human Services (7th ed. 2010)........................................................................... 11
Joseph Pappy Corbitt, Medications Containing Alcohol, THE HEALTH PROFESSIONALS’
SERVICES PROGRAM, available at
https://www.rbhmonitoring.com/Content/Oregon/Resources/Medications%20Containing%

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

-INDEX OF AUTHORITIES- Page vi of xi

20 Alcohol%20and%20Options%20Without%20Alcohol.pdf (last accessed, 26.09.2016).

.............................................................................................................................................. 16
The Dublin Principles, National College of Ireland and the International Center for Alcohol
Policies (1997)...................................................................................................................... 14
The Kerala Bar Hotels Association and Ors. v. State of Kerala and Ors., AIR 2016 SC 163.
........................................................................................................................................ 11, 14

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

-STATEMENT OF JURISDICTION- Page vii of xi

STATEMENT OF JURISDICTION

THE PETITIONER 1 HAS APPROACHED THE COURT IN PURSUANCE OF A SUO MOTU TRANSFER
ORDER BY THIS HON'BLE COURT TRANSFERRING THE CASE FILED UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDUS AT THE HIGH COURT OF DILLI PRADESH.

THE PETITIONER 2 HAS APPROACHED THE COURT UNDER ARTICLE 32 OF THE CONSTITUTION OF
INDUS .

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

-STATEMENT OF FACTS- Page viii of xi

STATEMENT OF FACTS

Indus is a Republic in the continent of Asia and is divided into various states and union
territories. The State of Dilli Pradesh is one such Union Territory, which is situated in the
central part of Indus and has a very rich cultural and historical importance. The State of Dilli
Pradesh has been given a special status under Article 239AA of the Constitution of Indus.

In 2015, there had been certain demands and concerns were raised due to the proliferation
and consumption of alcohol in the territory.

The Central Government, which was newly elected, through the Lieutenant Governor, passed
a Prohibition Order in July, 2016 putting an embargo on sale, distribution, marketing and
consumption of whisky, wine, rum, vodka, gin, tequila or any other alcohol within the
territory of Dilli Pradesh. However, beer and any other alcoholic beverage with alcoholic
content of less than 5% were excluded from its purview.

Pursuant to such act, Kind Bird Pvt. Ltd. approached the Hon'ble Supreme Court of Indus
under Article 32 of the Constitution of Indus. Further, a petition under Article 226 of the
Constitution was filed by the State of Dilli Pradesh against the Lieutenant Governor for the
latter's incompetency towards legislating such an Order.

The Supreme Court, through suo motu cognizance, transferred the petition under Article 226
to itself and clubbed both the matters for the final disposal.

-The matter is slated to be heard on 2nd October, 2016-

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

-QUESTIONS PRESENTED- Page ix of xi

QUESTIONS PRESENTED

THE PETITIONERS VERY RESPECTFULLY PUT FORTH TO THE HON’BLE SUPREME COURT, THE
FOLLOWING QUERIES:

I. WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI

PRADESH HAS THE LEGISLATIVE COMPETENCE TO ENACT THE
IMPUGNED ORDER?

II. WHETHER THE IMPUGNED ORDER VIOLATES THE FUNDAMENTAL

RIGHTS OF THE CITIZENS?

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

-SUMMARY OF PLEADINGS- Page x of xi

SUMMARY OF PLEADINGS

I. WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI

PRADESH HAS THE LEGISLATIVE COMPETENCE TO ENACT THE
IMPUGNED ORDER?

It is submitted that the Central Government (through the Lieutenant Governor) passed the
Prohibition Order in July, 2016 putting an embargo on sale, consumption, distribution and
marketing of liquor in the State of Dilli Pradesh. However, the State of Dilli Pradesh
contends that the Lt. Governor had no legislative competence to enact such a law, and
therefore this Prohibition Order needs to be struck down by this Court. This is because, the
State of Dilli Pradesh is competent to enact the law with respect to Entry 8 of List II, and that
this law is a colourable legislatio and the Lieutenant Governor is bound by aid and advice of
council of ministers. In Arguendo, that the Lt. Governor has acted beyond his competence
under the law.

II. WHETHER THE IMPUGNED ORDER VIOLATES THE FUNDAMENTAL

RIGHTS OF THE CITIZENS?

It is submitted that a law made by the Parliament or the Legislature can be struck down by
courts on two grounds alone, viz., (1) lack of legislative competence and (2) violation of any
of the fundamental rights guaranteed in Part-III of the Constitution or of any other
constitutional provision. It is submitted that the fundamental rights of the petitioner, King
Bird Liquor Private Limited, have been violated by the imposition of the Prohibition Order
passed by the Central Government. This is because Article 14 has been violated, Article 19
has been violated; Article 21 of the People will be violated; the law imposing such
prohibition is passed by an incompetent authority; the medicinal and toilet preparations
cannot be prohibited; and that the Human Rights of the citizens are violated.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 1 of 19

PLEADINGS AND AUTHORITIES

W.P. No. ____ / 2016

(suo motu transfer from the High Court of Dilli Pradesh)

I. WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI

PRADESH HAS THE LEGISLATIVE COMPETENCE TO ENACT THE
IMPUGNED ORDER?

1. It is submitted that the Central Government (through the Lieutenant Governor1) passed the
Prohibition Order in July, 2016 putting an embargo on sale, consumption, distribution and
marketing of liquor in the State of Dilli Pradesh. However, the State of Dilli Pradesh 2
contends that the Lt. Governor had no legislative competence to enact such a law, and
therefore this Prohibition Order needs to be struck down by this Court. This is because, [A]
The State of Dilli Pradesh is competent to enact the law with respect to Entry 8 of List II; [B]
This law is a colourable legislation; [C] The Lieutenant Governor is bound by aid and advice
of council of ministers; [D] In Arguendo, that the Lt. Governor has acted beyond his
competence under the law.

2. It is submitted that the word “incompetent” means “the state or fact of being unable or
unqualified to do something”. 3 Moreover, “incompetency” means “lack of legal ability in
some respect.”4 Accordingly, legislative incompetency would mean the lack of legal ability of
a legislature to make law with respect to subject matter which the petitioner will prove in the
instant case.

A. THAT THE STATE OF DILLI PRADESH HAS POWER TO MAKE LAW WITH RESPECT TO ENTRY
8 OF LIST II

3. It is submitted before this Court that, the State Legislature of Dilli Pradesh has the power to
make such a law, as the case in the instant matter. The said argument is based on two
premised, (i) the rule of ejusdem generis; (ii) Pith and Substance; and (iii) The Article 239AA
of the Constitution of Indus gives the power to the State Legislature

i. Ejusdem Generis

1
Hereinafter “Lt. Governor”.
2
Hereinafter “the State”.
3
BLACK'S LAW DICTIONARY 833 (9th ed. 2009).
4
Ibid.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 2 of 19

4. It is humbly submitted that when particular words pertaining to a class, category or genus are
followed by general words, the general words are construed as limited to things of the same
kind as those specified.5 This rule, which is known as the rule of ejusdem generis reflects an
attempt to reconcile incompatibility between the specific and general words. This must be
applied considering all words in a statute must be given effect, and that the statute be
construed as a whole without any word being superfluous.6 The rule applies when the law
contains an enumeration of specific words, the subjects of enumeration constitute a class or
category, that class or category is not exhausted by the enumeration, the general terms follow
the enumerations, there is no indication of a different legislative intent.7

5. According to the Black's Law Dictionary8 the principle of ejusdem generis is where:

“general words follow an enumeration of persons or things, by words of a

particular and specific meaning, such general words are not to be construed
in their widest extent, but are to be held as applying only to persons or things
of the same general kind or class as those specifically mentioned.”
6. It is submitted that in the case of State of Bombay v. F.N. Balsara,9 Fazl Ali J., relying on
Article 47, gave a wide meaning to the word liquor as including all liquids containing
alcohol, and also because it was necessary to make prohibition law effective. The Court
further said that intoxicating alcohol excluded medicinal preparations under Article 47.

7. In the instant case, the Prohibition Order passed by the Lt. Governor states – “sale,
distribution, marketing and consumption of whisky, wine, rum, vodka, gin, tequila or any
other alcohol”.10 By the application of the above mentioned principle, it is clear that the
phrase “any other alcohol” will only include “intoxicating liquor(s)”. All the particulars
mentioned form the same genus and therefore, they form a class by themselves.

ii. That the Pith and Substance of the order is to regulate usage/consumption of Liquor.

8. It is submitted that in order to determine legislative competence through entries in legislative

lists Courts have evolved the theory of pith and substance. The theory provides that the true

5
Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080; Thakur Amarasinghji v. State of
Rajasthan, AIR 1955 SC 504; Brownsea Haven Properties v. Pools Corporation, (1958) 1 All ER 205;
Siddeshwari Cotton Mill (P) Ltd. v. Union of India, AIR 1989 SC 1019.
6
Tirbhuwan Prakash Nayyar v. Union of India, AIR 1970 SC 540.
7
Amar Chandra v. Collector of Excise, Tripura, AIR 1972 SC 1863.
8
BLACK'S LAW DICTIONARY 594 (9th ed. 2009).
9
(1951) S.C.R 682.
10
¶7, Factsheet.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 3 of 19

import and purport of the enactment must be determined. Further, as mentioned in the case of
Ishwari Khetan Sugar Mills (P) Ltd. and Ors. v. State of Uttar Pradesh and Ors.,11

“where a legislation falls within one Entry or the other but some portion of
the subject matter of the legislation incidentally trenches upon and might
enter a field under another list, the Statute as a whole would be valid
notwithstanding such incidental trenching.”
9. Therefore, no question of conflict arises between two lists if the impugned legislation appears
to fall exclusively under one list, and the encroachment upon another list is only incidental.12

10. Accordingly, it is contended that the Prohibition Order is on the subject of intoxicating liquor,
which has been specifically assigned to Entry 8, List II, Schedule VII of the Constitution of
Indus. Entry 8 reads as:

“8. Intoxicating liquors, that is to say, the production, manufacture,

possession, transport, purchase and sale of intoxicating liquors.”
11. The Supreme Court of India in State of Bombay v. F.N. Balsara13 stated that:

“the words ‘possession and sale’ occurring in Entry 3114 of List II are to be
read without any qualification whatsoever, and it will not be doing any
violence to the construction of that Entry to hold that the Provincial
Legislature has the power to prohibit the possession, use and sale of
intoxicating liquor”.
12. This case was with reference to Entry 31 of the erstwhile Schedule, and Entry 31 is the same
as the existing Entry 8 of List-II, of the Seventh Schedule of the Constitution. With reference
to this, under the Government of India Act, 1935, the Federal Court had held that, the power
to legislate in respect of intoxicating liquor carries the power to prohibit the use of, or trade
in, intoxicating liquor.15 Further under the Constitution, the legislative power in respect of
intoxicating liquor is same as under Government of India Act, 1935.

11
[1980] 3 SCR 331.
12
B. Viswanathiah v. State of Karnataka, (1991) 3 SCC 358 at ¶ 9.
13
(1951) S.C.R. 682.
14
Entry 31, List II, Sch. 7, G.I. Act, 35. See D.D. BASU, SHORTER CONSTITUTION OF INDIA 1123 (14th ed.
2009).
15
Bhola Prasad v. R. (1942) F.C.R 17; Kishori Shetty v. R. (1949) F.C.R 650; Cooverjee B. Bharucha v.
Excise Commr. and the Chief Commr. Ajmer, 1954 SCR 873; Krishna Kumar Narula Etc v. State of Jammu
and Kashmir & Ors., 1967 SCR (3) 50; State of Assam v. A. N. Kidwai, Commissioner Of Hills Division
And Appeals, (1957) SCR 295; Guruswamy & Co. v. State of Mysore, [1967] 1 S.C.R. 548; Orissa v. Hari
Narayan Jaiswal, AIR 1972 SC 816.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 4 of 19

13. The Courts have held that improvement in public health to be a primary duty of the state. The
Constitutional bench has held in Khoday Distilleries v. State of Karnataka,16 that the State
shall cause a prohibition of the consumption of intoxicating drinks and drugs which are
injurious to health. Further the Court has held in Bihar Distillery & Another v. Union of India
& Ors.17 in which the Court stated that:

“The power to permit the establishment of any industry engaged in the

manufacture of potable liquors including I.M.F.Ls., beer, country liquor and
other intoxicating drinks is exclusively vested in the States. The power to
prohibit and/or regulate the manufacture, production, sale, transport or
consumption of such intoxication liquors is equally that of the States”.
14. This evinces that the legislature has power to prohibit the possession, use and sale of
intoxicating liquors absolutely whether indigenous or foreign, in public interest and public
health.18 Therefore, since it is the responsibility of legislature to improve public health, the
Legislature of the State of Dilli Pradesh shall have the power to make law in this regard. It is
pertinent to note that the regulation or prohibition of liquor is made under the legislative field
of Entry 8 of list II read with Entry 6 of list II. Thus, regulation or prohibition of liquor
encompasses in itself the legislative fields enjoined by two entries in the State List, thereby
giving the sole power to the Legislature of the State of Dilli Pradesh.

iii. The Article 239AA of the Constitution of Indus gives the power to the State Legislature

15. It is submitted that Article 239AA of the Constitution of Indus gives the power to the
Legislature of State of Dilli Pradesh19 to make laws with respect to the matters contained in
List II and List III of the Seventh Schedule of the Constitution. The said Article reads as:

“Subject to the provisions of this Constitution, the Legislative Assembly shall

have power to make laws for the whole or any part of the National Capital
Territory with respect to any of the matters enumerated in the State List or in
the Concurrent List in so far as any such matter is applicable to Union
territories except matters with respect to Entries 1, 2 and 18 of the State List
and Entries 64, 65 and 66 of that List in so far as they relate to the said
Entries 1, 2, and 18.”

16
(1995) 1 SCC 574.
17
AIR 1997 SC 1208. See M.P. JAIN, INDIAN CONSTITUTIONAL LAW 591 (7th ed. 2014).
18
N.K. Doongaji v. State of Madhya Pradesh, AIR 1951 M.P. 1; Khoday Distilleries Ltd. v. State of
Karnataka, (1995) 1 SCC 574; Sunny Markose v. State of Kerala, AIR 1966 Ker. 379.
19
¶ 1, Factsheet.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 5 of 19

16. Therefore, as per the mandate of the grund norm of the country, the State Legislature, in the
instant matter, shall have the powers to enact laws with respect to entries under the two lists
specified.

B. THAT THIS LAW IS A COLORABLE LEGISLATION

17. The Doctrine of Colorable Legislation is based on the principle that what cannot be done
directly, cannot also be done indirectly. This doctrine is applicable when a legislature seeks to
enact a statute in an indirect manner which it cannot do directly. The doctrine, thus, refers to
the question of competency of the legislature to enact the impugned law.

18. In the case of State of Bombay v. F.N. Balsara,20 it was discussed by the Supreme Court that
Entry 8 and Entry 6 of List II, will cover all incidental things related to intoxicating liquor
and any regulation relating to prohibition or consumption will come under abovementioned
entries. Further, when the Attorney-General, in the said case, relied upon Entry 1 of List II,
i.e. “public order”, the judge preferred to leave out this Entry which has a remote bearing, if
any, on the object and scope of the Act.21

19. The Respondent has contended that the Prohibition Order is issued under Entry 1, of the List
II, i.e. public order however, the law in substance deals with usage/consumption of
intoxicating alcohol, on which State Legislature of Dilli Pradesh is empowered to legislate.
Therefore, the impugned Order takes the colour of “public order” but in essence, the law only
deals with liquor. The ambit of “public order” essentially entails warfare, or such situations.
However, effecting the scope of the present impugned Order into that of the “public order”
makes a special entry for liquor redundant.

20. Hence, since the pith and substance of the Prohibition Order is usage/consumption of liquor,
therefore, this order will come under Entry 8 of the List II, making the State competent to
enact any such law in that respect.

C. THAT LIEUTENANT GOVERNOR IS BOUND BY THE AID AND ADVISE OF THE COUNCIL OF

MINISTERS

21. It is contended that, the Lt. Governor, is bound by the aid and advise of the council of
ministers as according to the principles laid down by the Constitution and interpreted by the
judiciary in that behalf.

20
(1951) S.C.R 682.
21
Ibid.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 6 of 19

22. It is submitted that in the case of Rajendra Singh Verma v. Lt. Governor, 22 the Hon’ble
Supreme Court held as under:

“A meaningful and conjoint reading of Article 163 of the Constitution makes

it clear that the Governor has to act on the aid and advice of the Council of
Ministers with the Chief Minister at the head except insofar as he is by or
under this Constitution required to exercise his functions or any of them in his
discretion. In view of the provisions of Clause (4) of Article 239-AA of the
Constitution, the Lt. Governor has to take aid and advice of the Council of
Ministers in the exercise of his functions in relation to matters with respect to
which the Legislative Assembly has power to make laws.”
23. It is submitted that in the case of Om Prakash Pahwa v. State of Delhi23 the Delhi High Court
observed that:

“Consequent to the exclusive legislative competence conferred upon the

Legislative Assembly of the Government of NCT of Delhi by clause (3) of
Article 239AA in respect of all subjects other than those specifically excluded
therein, the Lt. Governor is bound to act only on the aid and advise of the
Council of Ministers in the exercise of his functions in relation to those
matters with respect to which the Legislative Assembly has power to make
laws.”
24. Therefore, for the laws relating to “liquor”, the Lt. Governor will act only on the aid and
advice of council of ministers. Moreover, it is submitted that the Constitution Bench of the
Supreme Court in Samsher Singh v. State of Punjab24 stated that:

“Under the Cabinet system of Government as embodied in our Constitution,

the Governor is the constitutional or formal head of the State and he
exercises all his powers and functions conferred on him by or under the
Constitution on the aid and advice of his Council of Ministers save in spheres
where the Governor is required by or under the Constitution to exercise his
functions in his discretion.”
25. It is submitted that as per Section 41 of the Government of the National Capital Territory of
Delhi Act, 1991, 25 the discretion of the Lt. Governor extends only to matters which fall

22
(2011) 10 SCC 1.
23
(1998) 46 DRJ 719.
24
(1974) 2 SCC 831.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 7 of 19

outside the legislative competence of the Legislative Assembly of Delhi or in respect of

matters of which powers are entrusted or delegated to him by the President or where he is
required by law to act in his discretion or to exercise any judicial or quasi-judicial functions.
Therefore the said provision implied that the Lt. Governor cannot exercise discretionary
powers in any other matter. Also, in terms of Section 41 of the NCT Act and Rule 45 Proviso
(2) of the Transaction of Business Rules, 1993, even in respect of Entries 1, 2 and 18 of the
State List, to the extent the Lt. Governor is authorized by Presidential delegation, the Lt.
Governor is required to consult the Chief Minister except in those cases where for reasons to
be recorded in writing he does not consider it expedient to do so.

26. While the Legislative Assembly has been empowered to make laws for the whole or any part
of the National Capital Territory (or the State of Dilli Pradesh) with respect to certain matters
provided in Clause (3) of Article 239AA, Clause (4) of Article 239AA enabled the Council of
Ministers with the Chief Minister at the head to take part in executive functions by tendering
aid and advice to the Lt. Governor in the exercise of his functions in relation to matters with
respect to which the Legislative Assembly has power to make laws.

D. ARGUENDO, THE LT. GOVERNOR HAS ACTED BEYOND HIS COMPETENCY UNDER DELHI
EXCISE ACT

27. As an arguendo, it is submitted that Section 2(35) of the Delhi Excise Act, 2009, defines
“Government” as “the Lieutenant Governor of the National Capital Territory of Delhi
appointed by the President under article 239 and designated as such under article 239 AA of
the Constitution”.

28. Further, Section 77 of the same Act states that the:

“Power of Government to regulate drinking and to enforce prohibition. - The

Government may issue such order and take such measures as may be deemed
appropriate to regulate drinking or to enforce prohibition in whole or in any
part of Delhi.”
29. Therefore, it can be concluded that the Lt. Governor has clearly acted beyond its competence
in enacting the law, as he was authorised only to regulate drinking and not to prohibit it
completely. Referring to the case of Australian National Airways Proprietory Ltd. v. The
Commonwealth (No 1)26 his Lordship had expressed his agreement with the view that “simple

25
Hereinafter, “the NCT Act”.
26
(1945) 71 CLR 29.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 8 of 19

prohibition was not regulation”. Therefore, even if he had the power to do so, he could only
have regulated the consumption of liquor and not prohibit sale, distribution or marketing it.
Such power has been conferred on the Legislative Assembly of the Delhi Excise Act, 2010,
in terms of Section 81, which provides that any “Rule” to regulate sale, consumption, etc. of
liquor shall be required to be laid before the Legislative Assembly, and therefore, the delegate
is only empowered to carry out the policy with the guidelines laid down by the legislature. 27
Since, no such step or guidelines had been taken in the instant matter the Lt Governor had
acted beyond its competence conferred on him by law.

W.P. No. ____ / 2016

II. WHETHER THE RIGHTS OF THE PETITIONER 2 HAVE BEEN VIOLATED?

30. It is submitted that the fundamental rights of the petitioner, King Bird Liquor Private
Limited 28 , have been violated by the imposition of the Prohibition Order passed by the
Central Government.29 This is because, [A] Article 14 has been violated; [B] Article 19 has
been violated; [C] Article 21 of the People will be violated; [D] the law imposing such
prohibition is passed by an incompetent authority; [E] the medicinal and toilet preparations
cannot be prohibited; and [F] that the Human Rights of the citizens are violated.

It is submitted that a law made by the Parliament or the Legislature can be struck down by
courts on two grounds alone, viz., (1) lack of legislative competence and (2) violation of any
of the fundamental rights guaranteed in Part-III of the Constitution or of any other
constitutional provision.30

A. THAT THE ARTICLE 14 HAS BEEN VIOLATED

31. It is submitted before this Court that, in the instant matter, there is no reasonable
classification made with regard to the exclusion of “beer” from the purview of the Prohibition

27
Tata Iron & Steel Co. v. Workmen, AIR 1972 SC 1917; Gwalior Ryan Mills v. Assistant Commissioner,
Sales Tax, AIR 1974 SC 1660; P.N. Kaushal v. Union of India, AIR 1978 SC 1457; Ajoy Kumar Banerjee v.
Union of India, (1984) 3 SCC 127; Ramesh Birch v. Union of India, AIR 1990 SC 560.
28
Hereinafter, “Petitioner 2”.
29
¶ 7, Factsheet.
30
State of Andhra Pradesh and Ors. v. McDowell & Co., (1996) 3 SCC 709.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 9 of 19

Order passed by the Lt. Governor. 31 For this, arguments have been premised on (i)
Intelligible Differentia; (ii) Alcohol Content; (iii) Interpretation; and (iv) Reasonableness.

i. Intelligible Differentia

32. Article 14 of the Constitution forbids discrimination, however, it does not forbid creation of
class on well founded principles which implies the twofold requirements of Article 14, that is,
that it must be on an intelligible differentia and second, that, it must have a reasonable nexus
to the object sough to be achieved by the law. Further, such classification cannot be arbitrary
but has to be rational.

33. While interpreting Article 14, J. S.K. Das, of the Supreme Court has held in The State of West
Bengal v. Anwar Ali Sarkar32,:

“In order to pass the test, two conditions must be fulfilled, 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.”
34. It was further held that where there is no nexus between a classification and the object of the
Act, then there is no intelligible differentia, and such classification will be wholly arbitrary
and be liable to be struck down.33

35. The law laid down by the landmark case of Bachan Singh v. State of Punjab and Ors.34,
provides that it will be arbitrary if the State makes discriminatory cl0assification which is not
founded on intelligible differentia having rational relation to the object sought to be achieved
by the law or they arbitrarily select persons or things for discriminatory treatment.

36. In the present scenario, trade or business in country liquor is a class by itself,35 and creation
of a class within a homogenous class without any rationale to the object is clearly violative of
Article 14 of the Constitution.36

37. On this point, in the case of Raj Pal Sharma and Ors. v. State of Haryana and Ors.,37 the
Court said that:

31
¶ 7, Factsheet.
32
AIR 1952 SC 75.
33
Id. at ¶67.
34
AIR 1982 SC 1325.
35
Amar Chandra Chakraborty v. The Collector of Excise, Government of Tripura and Ors., (1972) 2 SCC 442.
36
Gurumukh Singh and Ors. v. Union of India (UOI), 2006 (108(4)) BomLR 3702; See, Raj Pal Sharma and
Ors. v. State of Haryana and Ors., AIR 1985 SC 1263.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 10 of 19

“it is not possible to single out certain persons of the same class for
differential treatment”
38. To this point, it is imperative to look into a ruling of the Allahabad High Court in Sheo
Kumar v. State of U.P.38:

“No reason is apparent in the provisions of Section 37-A to make this

invidious distinction against other kinds of intoxicating liquors. [...] any
rational basis for classifying intoxicating liquors other than foreign liquor,
far adverse treatment. Foreign liquor is as much intoxicating liquor as
country liquor, or for that matter Tari. From the point of view of enforcing
the policy of prohibition both stand on an identical footing. The placing of
foreign liquor and country liquor in separate classes is arbitrary, fanciful and
illicit. This classification is not based on any intelligible differentia which
may have any rational nexus with the object sought to be achieved. The object
of Section 37-A [of the U.P. Excise Act, 1910] was to execute the policy of
prohibition in this State. This classification defeats, rather than achieves, the
aim and object. Section 37-A (2) is clearly violative of the equality clause of
the Constitution.”
39. Therefore, it is submitted that the homogenous class here is “intoxicating liquor” and further
dividing it into sub-classes is violative of Article 14 of the Constitution.

ii. Alcohol Content

40. It is submitted that the Prohibition Order has imposed a ban on “sale, distribution, marketing
and consumption of whisky, wine, rum, vodka, gin, tequila or any other alcohol” within the
territory of Dilli Pradesh, however, in the said Order, beer and any other alcoholic beverage
where the alcohol content is less than 5 % were excluded from the ambit of prohibition.39
Such prohibition imposed on a particular type of a commodity does not entail reasonable
classification as enshrined under Article 14 of the Constitution of Indus.

41. The word "liquor" as understood in India since the Government of India Act, 1935, covers
not only those alcoholic liquids which are generally used as beverages and cause intoxication,
but also liquids containing alcohol.40 Liquor is classified broadly into three classes, viz., [i]
potable liquor which is used as beverage, [ii] liquor used in medicinal and toilet preparations
37
AIR 1985 SC 1263.
38
AIR 1978 All 386.
39
Ibid.
40
The State of Bombay and Another v. F. N. Balsara, AIR 1951 SC 318.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 11 of 19

and [iii] industrial liquor used for industrial purpose.41 The Supreme Court has held that the
term “intoxicating liquor” is not confined to “potable liquor” alone but includes all liquors
which contain alcohol. 42 It was further held that the definition of "alcohol" includes both
ordinary as well as specially denatured spirit.43 Such alcoholic liquids which are generally
used as beverages and produce intoxication also very well include “beer” which is a type of
alcoholic beverage. However, the Prohibition Order, in the instant matter, has expressly
excluded this from its ambit.

42. It is submitted that the reason given in the Prohibition Order for such exclusion is an alcohol
content of less than 5% in beer/other beverages44. However, reports have gone to say that
beer 'generally' includes around 6% of alcohol content. As per the Dietary Guidelines Report
by the United States Department of Agriculture and the United States Department of Health
and Human Services, “regular” beer includes 6% percent of alcohol in it.45 Further, Institute
of Alcohol Studies, London, U.K., states that, a strong beer includes 6% or greater alcohol.46
Moreover, the World Health Organisation, in its Country Profiles of South East Asia Region
said that, a popular drink, Toddy, is an alcoholic drink made by fermenting the sap of a
coconut palm. It is white and sweet with a characteristic flavour and has between 4% and 6%
alcohol.47

43. Moreover, the Supreme Court has recently held in The Kerala Bar Hotels Association and
Ors. v. State of Kerala and Ors.,48 said that,

“ The argument of the Respondent State is that allowing public consumption

of liquor of a lower alcohol content [such as beer] is acceptable as such
liquor is less likely to lead to intoxication or addiction and less harmful to the
health of the consumer. This assessment may be misplaced. ”
44. In the aforesaid cases as well, the Court had accepted that beer can be of a high alcohol
content as well, and it is further submitted that beer is a malt liquor and is intoxicating is a

41
Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors., (1995) 1 S.C.C. 574.
42
Synthetics and Chemicals Ltd. and Ors. v. State of U.P. and Ors., (1990) 1 SCC 109.
43
Ibid. See, Har Shankar and Ors. etc. v. The Deputy Excise & Taxation Commissioner and Ors., [1975] 3
SCR 254.
44
¶7, Factsheet.
45
Dietary Guidelines for Americans, U.S. Department of Agriculture and U.S. Department of Health and
Human Services (7th ed. 2010).
46
Alcohol Consumption Factsheet, Institute of Alcohol Studies, London, U.K. (Aug. 2013).
47
Country Profile, India, World Health Organization, available at http://www.who.int/countries/ind/en/ (last
accessed, 26.09.2016).
48
AIR 2016 SC 163.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 12 of 19

matter of common knowledge and, requires no proof.49 Therefore, to say that banning liquor
on the basis of alcohol content does not justify the instant Prohibition Order.

45. It is further submitted that the expression “alcohol” must be construed to include not only
alcohol for human consumption but also all other kinds of alcohol.50

46. It is contended that, the Prohibition Order imposes a ban on alcohols but excludes Beer from
its purview which passes the same criteria of being an intoxicating drink and therefore, such
classification is not reasonable under Article 14 of the Constitution of Indus.

iii. Interpretation

47. A word which is commonly used must be construed in its popular sense meaning that sense
which people conversant with the subject matter with which the statute is dealing would
attribute to it. It is to be construed as understood in common language. 51 The Supreme Court
while dealing with the meaning of the word “cement” which was not defined in the
motivation said that:

“The word 'cement' has not been defined in the relevant notification,
therefore it has to be understood in the same way as is understood in common
parlance. Cement is exclusively used as a building material and is a
commodity of everyday use therefore we have to go only by the popular or
commercial meaning of the term. ”52
48. The same principle came to be affirmed by the Supreme Court in Nawn Estates (P) Ltd v.
C.I.T., West Bengal. 53 Therefore, it is contended that following the principles enunciated
above, the expression “or any other alcohol”54 is to be construed in common parlance which
will accordingly include beer in its ambit.

iv. Reasonableness

49. Reasonableness postulates that the restrictions imposed should not be excessive but only to
the extent necessary to secure the public good. In Mohd. Faruk v. State of Madhya Pradesh
and others55, it was held that the restriction imposed may be partial or total, but the principle

49
Wayne v. United States, 138 F.2d 1 (8th Circuit, Court of Appeals). See, Mulane v. United States, 8 Cir., 20
F.2d 903; Jacob Ruppert v. Caffey, Inc., 251 U.S. 264, 282-283, 40 S.Ct. 141, 64 L.Ed. 260.
50
Union of India (UOI) and Ors. v. Raman Kantilal Bhandari, 1991(35) ECR 212 (Bombay) (Bom. HC).
51
Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, AIR 1961 SC 1325; Nawn Estates (P) Ltd v. C.I.T.,
West Bengal, AIR 1977 SC 153.
52
Associated Cement Co. Ltd. v. State of M.P. and Ors., (2004) 9 SCC 727.
53
AIR 1977 SC 153.
54
¶7, Factsheet.
55
1970 (1) SCR 156.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 13 of 19

remains the same. In case of a total restriction or a total ban, the onus of proving that such a
ban is for the maintenance of the general public interest, lies heavily on the State to show that
such total restriction is in public interest.

50. It is submitted that legislation, which arbitrarily or excessively invades the right, cannot be
said to be reasonable. If does not strike a proper balance between the freedom guaranteed
under Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be
held to be wanting in reasonableness.56 The Court while applying the test of reasonableness
must consider the background of the facts and circumstances under which the order was
made, taking into account the nature of the evil sought to be remedied, the ratio of the harm
caused by the proposed remedy, to the beneficial effect reasonably expected to result to the
general public. It is also necessary to consider whether the restraint caused by law is more
than necessary in the interest of the general public.57

51. In a landmark case58 relating to prohibition of employment of women in places where liquor
was served, the Supreme Court has considered the validity of the Punjab Excise Act relating
to Delhi. The Court held that instead of prohibiting employment for protection and state
policy, State should develop other alternatives. In that regard the interference prescribed by
the State for pursuing the ends of protection should be proportionate to the legitimate aims.59

52. It is submitted that where a restriction imposed by a law is in excess of what was “requisite”
in achieving the object of law, such restriction is to be struck down.60

53. On a very sound reasoning, the Supreme Court in State of Maharashtra and Anr. v. Indian
Hotel and Restaurants Assn. and Ors.,61 has considered the validity of an Act to prohibit
dance bars. The Court negatived the argument of morals and obscenity and ruled in Para 124
that:

“that instead of putting curbs on women’s freedom, empowerment would be

more tenable and socially wise approach. This empowerment should reflect in
the law enforcement strategies of the State as well as law modeling done in

56
M/s. Dwarka Pd. Laxmi Narain v. State of U.P. & others, 1954 S.C.R. 803 (2) citing Chintaman Rao v. The
State of Madhya Pradesh, 1950 S.C.R. 759 (3); Mohd. Hanif Quareshi and others v. The State of Bihar, 1959
S.C.R. 629 (4).
57
Narendra Kumar and others v. The Union of India and others, 1960 SCR (2) 375.
58
Anuj Garg and Ors. v. Hotel Association of India and Ors., (2008) 3 SCC 1.
59
Id. at ¶ 35.
60
Chintaman Rao v. State of Madhya Pradesh, [1950] 1 SCR 759. See, R.M.D. Chamarbaugwalla v. Union of
India, 1957 SCR 930.
61
(2013) 8 SCC 519.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 14 of 19

this behalf. In our opinion, in the present case, the restrictions in the nature
of prohibition cannot be said to be reasonable, inasmuch as there could be
several lesser alternatives available which would have been adequate to
ensure safety of women than to completely prohibit dance. In fact, a large
number of imaginative alternative steps could be taken instead of completely
prohibiting dancing, if the real concern of the State is the safety of women.”
54. Further, it is submitted that the legislature can confer large powers on a person or body of
persons for the purpose of administering the Act. However, it must prescribe the principles on
which these powers are to be exercised. If there are no rules for guiding and controlling the
exercise of discretion, then such power must be held to be arbitrary and unreasonable, 62 and
consequentially invalid.63

B. THAT THE ARTICLE 19 HAS BEEN VIOLATED

55. The principles adopted by the various legal luminaries at a Conference held at Dublin, known
as the “Dublin Principles” state that the legal and responsible consumption of alcohol should
be promoted by the beverage alcohol industry and others involved in the production, sale,
regulation, and consumption of alcohol.64

56. On the point, the Supreme Court in 2015 held in The Kerala Bar Hotels Association and Ors.
v. State of Kerala and Ors.:

“A right Under Article 19(1)(g) to trade in liquor does exist provided the
State permits any person to undertake this business. It is further qualified by
Article 19(6) and Article 47. The question, then, is whether the restrictions
imposed on the Appellants are reasonable.”65
Very importantly, the Court said that:

“In Krishan Kumar Narula [case], the Constitution Bench was of the opinion
that dealing in liquor is a legitimate business, although the State can impose
reasonable restrictions. A few years later, however, in Khoday [Distilleries
case], the concept of res extra commercium came to be accepted and applied
to the business of manufacture and trade in potable liquor. This Court,
however, did not place any embargo or constraints on the State to transact

62
Balakrishnan v. State of Madras, AIR 1952 Mad 565; Smt. Kaushailiya v. State of U.P., AIR 1963 All 71.
63
Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.
64
The Dublin Principles, National College of Ireland and the International Center for Alcohol Policies (1997).
65
Kerala Hotels Bar Association v. State of Kerala, AIR 2016 SC 163.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 15 of 19

this business. History has painstakingly made it abundantly clear that

prohibition has not succeeded. Therefore strict state Regulation is imperative.
The State of Kerala had in the past forayed into prohibition, but found it to be
un-implementable. Thereafter, keeping in mind the heavy consumption of
alcohol within the territory, it has experimented with other measures to user
temperance if not abstemiousness.”66
“Banning public consumption of alcohol, therefore, in our considered
opinion, cannot but be seen as a positive step towards bringing down the
consumption of alcohol, or as preparatory to prohibition.”
57. Most importantly, the Supreme Court in the case of Krishna Kumar Narula etc. v. The State
of Jammu and Kashmir and Ors.,67 it was held that:

“We, therefore, hold that dealing in liquor is business and a citizen has a
right to do business in that commodity; but the State can make a law
imposing reasonable restrictions on the said right, in public interests.”
58. It is submitted that article 19(1)(g) of the Constitution has conferred a right of choosing to
carry on a trade, business or any profession the same is controlled by reasonable restrictions.
Such restrictions cannot be held as illegal as long as such restrictions are regulatory in nature,
however, herein, such restrictions are not regulatory but complete prohibition has been made,
therefore, it is contended that such restriction must be held invalid by this Court.

C. ARTICLE 21 OF THE PEOPLE WILL BE VIOLATED

59. It is submitted that, in the instant matter, the total prohibition imposed by way of an executive
order infringes upon the rights of the workers employed in the industry of Petitioner 1. As
this prohibition will lead to shutting down of business, the workers working will be forced to
leave due to closure of the manufacturing thereby violating their right to livelihood, an
implied right, recognised under Article 21 of the Constitution.68 Therein, the Supreme Court
of India had held that right to livelihood is an important facet of the right to life.

60. It is submitted that the Supreme Court in State of Maharashtra and Anr. v. Indian Hotel and
Restaurants Assn. and Ors69. was considering the validity of an Act to prohibit dance bars.
The Court negatived the argument of morals and obscenity and ruled on that:

66
Id. at ¶ 25.
67
AIR 1967 SC 1368.
68
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
69
(2013) 8 SCC 519.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 16 of 19

“I fully endorse the suggestions made in paragraph 123 of the judgment

prepared by my learned Brother that, instead of generating unemployment, it
may be wiser for the State to look into ways and means in which reasonable
restrictions may be imposed on bar dancing, but without completely
prohibiting or stopping the same.”
61. It is therefore submitted that these rights under Article 14, 19 and 21 have been violated and
that such rights are entitled to a greater protection as compared to other right. 70 This right to
livelihood is an integral part of the right to life guaranteed under Article 21 of the
Constitution. The deprivation of right to livelihood can be justified if it is according to
procedure established by law under Article 21. Such a law has to be fair, just and reasonable
both substantively and procedurally.

D. THAT ALCOHOL IS USED IN OTHER COMMODITIES AS WELL

62. It is submitted that the Prohibition Order banning alcohol is vague and is capable of being
interpreted very broadly, thus violating a citizen's right enshrined under Article 19(1) (g) of
the Constitution of Indus.

63. In the words of the Hon'ble Supreme Court of India in State of Bombay and Another v. F. N.
Balsara71:

“the restrictions imposed by sections 12 and 13 of the Act on the possession,

sale, use and consumption of liquor were not reasonable restrictions on the
fundamental right guaranteed by article 19(1)(f), so far as medicinal and
toilet preparations containing alcohol were concerned and that the said
sections were invalid so far as they prohibited the possession, sale, use and
consumption of these articles”
64. Further, referring to the above case and authority, the Supreme Court in Behram Khurshed
Pesikaka v. The State of Bombay72 held that:

The very foundation of this declaration was that the prohibition imposed by
this section against the consumption or use of liquid medicinal or toilet
preparations was an unreasonable restriction on the exercise of the
fundamental right of citizens to acquire, hold and dispose of property which
in that case was liquid medicinal or toilet preparations containing alcohol' ”
70
I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu, (2007) 2 SCC 1.
71
AIR 1951 SC 318.
72
AIR 1955 SC 123.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 17 of 19

65. It is submitted that the Drugs and Cosmetic Rules, 1945, itself talk about the alcohol content
and its permissive level to be used in various types of medicines. Reference must be made to
Rule 106-B of the Rules which state the limit for Homoeopathic medicines' manufacturing to
use at a maximum of 12% of alcohol73, which itself is an indication that the government is
aware that alcohol, apart from liquor, is used in medicinal preparations. As per the same
rules, the ayurvedic medicines such as Mritsanjivani Sura and Mahadrakshava are permitted
to use at a maximum of 16 % of alcohol content. The rules also mention the sanitary use of
alcohol, wherein under the Sanitation, the alcohol is permitted to be used as disinfectants.74
Regard must also be had to the reports which throw significant light on the use of alcohol by
percent in medicines, wherein some medicines use alcohol as high as 85% and some use as
low as, 0.5%.75 Similarly, Dr. Joseph D. Beasley, has given medicines with their respective
alcoholic content for their preparations.76 Therefore, all such reports and guidelines show the
prominent and essential use of alcohol in medicinal and toiletries preparations.

E. THAT THE IMPUGNED LAW IS PASSED BY AN INCOMPETENT AUTHORITY

66. The notion of inherent or autonomous law-making power in' the executive administration is a
notion that must be emphatically rejected. 77 A law, if that is an executive act, can be
challenged on the ground that the executive did not apply its mind while doing or carrying
out such act.78 It is submitted that in case of a policy decision, the executive decision could be
rendered invalid on the ground of mala fide, unreasonableness and arbitrariness alone, unlike
that of a statute.79 Further, the affected party can always challenge an executive act on the
ground that such an act is arbitrary, mala fide or unrelated to the purposes and guidelines
under the parent act or enabling statute. 80 Moreover, regulatory measures in the matter of
trade and business in potable liquor have been taken by reason of a statute. All regulations on
the trade, thus, must be governed by the statutes operating in the field and not by way of
executive action.81

73
Rule 106-B, Drugs and Cosmetic Rules, 1945.
74
Rule 6, Part IA, Specific Requirements, Drugs and Cosmetic Rules, 1945.
75
Joseph Pappy Corbitt, Medications Containing Alcohol, THE HEALTH PROFESSIONALS’ SERVICES PROGRAM,
available at https://www.rbhmonitoring.com/Content/Oregon/Resources/Medications%20Containing%20
Alcohol%20and%20Options%20Without%20Alcohol.pdf (last accessed, 26.09.2016).
76
JOSEPH D. BEASLEY, HOW TO DEFEAT ALCOHOLISM: NUTRITIONAL GUIDELINES (Times Books, 1990).
77
Chief Settlement Commissioner v. Om Parkash & Ors, Etc, AIR 1969 SC 33.
78
Nagaraj K. v. State of A.P., AIR 1985 SC 551 (¶¶ 31, 36).
79
Government of Andhra Pradesh & Ors. v. Smt. P. Laxmi Devi, (2008) 4 SCC 720.
80
P. N. Kaushal etc. v. Union of India, AIR 1978 SC 1457.
81
Per B.N. Agarwal, J. in State of Punjab v. Devand Modern Breweries, (2004) 11 SCC 26. ¶92.

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 18 of 19

67. It is submitted in this context that the Supreme Court of India in Kharak Singh v. State of
Punjab82, held that a restriction cannot be imposed through an executive or departmental
instructions. Reasonable restriction can be imposed by “law enacted by the legislature”. In
that case, it was held that:

“the regulations contained in Ch. XX bad no such statutory basis but were
merely executive or departmental instructions framed for the guidance of the
police officers. They would not therefore be "'a law" which the State is
entitled to make under the relevant clauses 2 to 6 of Article 19 in order to
regulate or curtail fundamental rights guaranteed by the several sub-clauses
of Article 19 (1); nor would the same be “a procedure established by law"
within Article 21. The position therefore is that if the action of the police
which is the arm of the executive of the State is found to infringe any of the
freedoms guaranteed to the petitioner the petitioner would be entitled to the
relief of mandamus which he seeks to restrain the State from taking action
under the regulations.”83
68. Therefore, it is submitted that in the instant matter, the executive action that is, the
Prohibition Order could not have restricted the fundamental rights guaranteed under the
Constitution of Indus because there is no law authorising the executive to impose such a
blanket ban altogether thereby taking away the right of the individuals.

F. THAT THE HUMAN RIGHTS OF THE PEOPLE WILL BE VIOLATED

69. It is submitted that the present case involves pertinent Human Rights issues of prime
importance. When considering a prohibition like that of the present case violates the basic
rights of privacy which everyone is entitled to. This right includes right to conduct oneself in
a manner which one deems appropriate. It is urged that it was the individual's “right to be left
alone.” Brandeis, J. argued that privacy was the most cherished of freedoms in a
democracy.84 It also includes the desire of people to choose freely under what circumstances
and to what extent they will expose themselves, their attitude and their behavior to others.85
Such right protects a person's individuality and integrity, which must not be interfered with.86
Therefore, a person has a right to drink liquor, at his own personal choice, and such right is a

82
AIR 1963 SC 1295.
83
Ibid.
84
Samuel Warren & Louis Brandeis, The Right to Privacy 4 HARVARD L. REV. 193-220 (1890).
85
ALAN F. WESTIN, PRIVACY AND FREEDOM 7 (Atheneum, 1967)
86
E.J.Bloustein, Privacy as an Aspect of Human Dignity 39 N.Y. UNIV. L. REV. 962, 971 (1964).

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PLEADINGS AND AUTHORITIES- Page 19 of 19

part of his own conduct of life with respect to adulthood and his own decision making
capacity. The State can put restrictions on drinking but such restriction must not take the
form of prohibition.

70. With respect to freedom of liberty, in the words of Harold J. Laski:

“we cannot suppress all modes of conduct in which excess does harm. In
most cases, we have to leave the individual free to judge at what point excess
is harm.”87
71. Laski also says that:

“when a particular law is regarded as foolish or obnoxious by a considerable

body of persons, they will rejoice in breaking it. In such cases, illegal conduct
becomes a pride.”
72. Therefore, it is contended that imposing such a draconian restriction will not serve the
purpose of the Order, but education and awareness will. Accordingly, it is submitted before
this Hon'ble Court that the impugned Prohibition Order be struck down as violative of
Fundamental and Human Rights.

87
HAROLD J. LASKI, LIBERTY IN THE MODERN STATE (Routledge, 2014)

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-

 -PRAYER FOR RELIEF- Page xi of xi

PRAYER FOR RELIEF

WHEREFORE, IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS GIVEN

AND AUTHORITIES CITED, THIS HON’BLE COURT MAY BE PLEASED TO:

I. HOLD THAT THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI PRADESH DID NOT

HAVE THE LEGISLATIVE COMPETENCE TO ENACT THE IMPUGNED ORDER

II. HOLD THAT THE IMPUGNED ORDER IS VIOLATIVE OF FUNDAMENTAL RIGHTS UNDER PART-
III OF THE CONSTITUTION OF INDUS.

III. DECLARE THAT THERE IS A RIGHT TO DRINK ALCOHOL.

AND ANY OTHER RELIEF THAT THIS HON’BLE COURT MAY BE PLEASED TO GRANT IN THE
INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE, ALL OF WHICH IS RESPECTFULLY

SUBMITTED.

Sd /-
COUNSELS FOR THE PETITIONERS

-WRITTEN SUBMISSIONS ON BEHALF OF THE PETITIONERS-