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Constitution Moot Memo Harish
Constitution Moot Memo Harish
12IP60009
HARISH.N
_______________________________________________________
SWASTH NAGRIK
(PETITIONER)
V.
UNION OF INDIA
(RESPONDENTS)
_______________________________________________________
MEMORIAL ON BEHALF OF
PETITIONERS
2012
i
--MEMORIAL FOR APPELLANT--
TABLE OF CONTENTS
i
--MEMORIAL FOR APPELLANT--
1. ¶ Paragraph
3. Anr Another
4. Art. Article
5. Cal Calcutta
7. Co Company
8. Ed Edition
9. ER England Reports
11. Ltd Limited
12. M.P Madhya Pradesh
13. Ors. Others
14. Pvt. Private
15. RBI Reserve Bank Of India
16. SC Supreme Court
17. SCC Supreme Court Cases
18. SCR Supreme Court Reports
19. U.O.I Union of India
20. U.P Uttar Pradesh
22. v. Versus
23. Vol. Volume
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--MEMORIAL FOR APPELLANT--
CONSTITUTION OF INDIA
I. LIST OF STATUTES
15. M/s Bengal Chemical & Pharmaceutical Works Ltd., AIR 1959 SC 633
v. Their Workmen
16. Maneka v. Union of India AIR 1978 SC 597 38
17. Master Construction (P) Ltd v. State of Orissa and (2005) 1 SCC 481 3
Anr
iii
--MEMORIAL FOR APPELLANT--
23. Punjab Beverages Pvt Ltd., v. Suresh Chand and Anr 1978 SCR (3) 370 29
5. M.P. Jain, INDIAN CONSTITUTIONAL LAW, 265 (6TH Ed., Lexis Nexis Butter 2
Worths Wadhwa 2011)
6. Venkataramiya’s LAW LEXICON-VOLUME 1, (HUMAN RIGHTS) 18
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--MEMORIAL FOR APPELLANT--
The Honorable Supreme Court of India can exercise its jurisdiction under Article 32 of
the Constitution of India. The Appellant most humbly and respectfully submits to the
jurisdiction of the Honorable Supreme Court of India.
1. The election for Patna Municipal Corporation was held during May/June of 2007 which
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--MEMORIAL FOR APPELLANT--
comprises of 72 member seats. After the election all the elected members will elect the
2. In this election councilors elected Shri Sanjay Kumar as the Mayor and Shri Santosh Mehta
as the Deputy Mayor. Two years after the elections, no confidence motions were moved
against both of them on 13.06.2009 and passed on 14.07.2009 were 42 members voted in
3. Following this Sanjay Kumar challenged the decision on no confidence motion by filing a
writ petition in Patna High Court and was allowed followed by stay order by the Single
Judge. This order was challenged in an appeal in the Divisional Bench of Patna High Court
and the Divisional Bench reversed the Judgment given by single judge by its judgment on
14.05.2010.
4. This decision by Divisional Bench was again challenged by Sanjay Kumar by filling Special
Leave Petition to this court, praying for election to fill the vacancy should not be permitted,
which this court did not grant. Then directed election to be held for filling the vacancy and
5. On 14.07.2010 Afzal Imam (Herein after, ‘appellant’) was elected as mayor with 44 votes in
his favour. He gave his oath of his office and on same day he nominated 7 councillors to be
6. District Magistrate of Patna declined to give them the oath of office saying that such
nomination by Mayor is only a one time act. So the appellant filed a writ petition to
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--MEMORIAL FOR APPELLANT--
Divisional Bench of Patna High Court for declaration that section 27 of the act is ultra vires
to the provisions of Constitution of India and to Section 21 of the Act and also prayed for
writ of mandamus against D.M of Patna to administer oath of office to those nominees to
and the bench dismissed the petition in limine. Following this the judgment is challenged in
COURT.
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T HIS P ETITION
The writ petition is maintainable under Article 32 as there has been a
violation of fundamental rights of the public at large.
xv
[G]. PLEAD I N GS ADVANCED
1
AIR 1951 SC 41
2
Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA 3711 (8rd Ed., Lexis Nexis Butterworths
Wadhwa 2008).
5. A Public Interest Litigation can be filed before the Supreme Court under
Article 32 of the Constitution.
6. In this case, equals are not treated, central government arbitrary in its action
by not making the drugs available at reasonable affordable price for drugs of
special type and there is no nexus between the classification made and the
object that sort to be achieved i.e. making vital drugs available to public at
reasonably affordable price3. And the Right to Health of an individual which
comes under the purview of Article 21 “Right to Life” also violated.
9. The fact that 8 persons die out of every 100, out of which 5 persons die due to
lack of accessibility to proper medicines and these 5 persons belong to middle
and lower classes of society made parliament to enact a new legislation
Essential Commodities(Vital Drugs) Act, 2012 and delegated central
government to decide which drugs are vital
10. But the central government did not made any effort to make availability of
drugs coming under vital drugs of special type as result of which many
people belonging to these classes died.
3
Preamble of the act
4
AIR 1982 SC 149
11. Since diseases listed under second category are very serious one central
government should make efforts of the medicines for them will be available
at reasonable affordable price.
12. The petitioner has filed a Public Interest Litigation for protection and
enforcement of rights of public at large and seeks remedy for the fundamental
right that has been deprived for them by making the Vital drugs of special
type available at reasonable affordable price.
13. It was made clear in Janata Dal v H.S. Chaudhary5 that only a person ‘acting
bona fide6’and ‘having sufficient public interest’ 7in the proceeding of public
interest litigation will have alone the locus standi8 but not a person for
personal gain or political motive or any oblique consideration.
14. The rule of locus standi have been relaxed and a person acting bonafide and
having sufficient interest in the proceeding of Public Interest Litigation will
alone have a locus standi and can approach the court to wipe out violation of
fundamental rights and genuine infraction of statutory provisions, but not for
personal gain or private profit or political motive or any oblique
consideration.
15. The petitioner Swasth Nagrik being an NGO which actively works in the
field of public health and welfare particularly to those belonging to lower
strata therefore capable of being acting bonafide.
Hence, it is humbly submitted that since there has been a violation of the
fundamental rights, the Court has the requisite jurisdiction to entertain this writ
5
AIR 1993 SC 892 ,¶ 64
6
Fertilizer Corporation Kamgar Union v Union of India, AIR 1981 SC 844
“whenever there is a public wrong or public injury caused by an act or omission of the State or public authority which
is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can
maintain an action for redressal of such public wrong or public injury.
7
In Black's Law Dictionary (Sixth Edition)
Public Interest- Something in which community at large has some pecuniary interest or some interest by which their
legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the
particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of
local, state or national government. See also Vineet Narain v Union of India, AIR 1998 SC 889.
8
In Blacks’s Law dictionary (6th Edition)
Locus standi- the right to bring an action or to be heard in a given forum.
petition under Article 32 of the Constitution of India bought as a Public Interest
Litigation.
16. Right to health is not included directly in as a fundamental right in the Indian
Constitution .The Constitution maker imposed this duty on state to en-sure
social and economic justice. Part four of Indian constitution which is DPSP
imposed duty on States.
17. If we only see those provisions then we find that some provisions of them has
directly or indirectly related with public health.
18. The Constitution of India not provides for the right to health as a fundamental
right.
19. The Constitution directs the state to take measures to improve the condition
of health care of the people. Thus the preamble to the Constitution of India,
inter alia, seeks to secure for all its citizens justice-social and economic. It
provides a framework for the achieve-ment of the objectives laid down in the
preamble. The preamble has been amplified and elaborated in the Directive
Principles of State policy.
20. In the India the Directive Principle of State Policy under the Article 47
considers it the primary duty of the state to improve public health, securing of
justice, human condition of works, extension of sick-ness, old age,
disablement and maternity benefits and also contemplated. Further, State's
duty includes pro-hibition of consumption of intoxicating drinking and drugs
are injurious to health.
21. These factors influenced for enactment of “The Essential Commodities (vital
drugs) Act, 2012”, the act has been enacted keeping in mind the crucial role
of importance of Public Health.
22. The main objective of the Act is to make vital drugs available to the public at
reasonably affordable price. The directive principles of state policy
enumerated in our Constitution lay down that the State shall raise the level of
nutrition and the standard of living and improve public health.
23. The provisions of this act are intended to provide vital life saving drugs to the
people at reasonably affordable price in order to preserve their health and life
which the preamble of act clearly says.
24. Hence the Parent Act is not violative of Constitution.
25. The act gives power to Central Government to classify drugs as vital or non-
vital and make rules for availability of these vital drugs at reasonably
affordable price9. And the same provision says reasonable affordable price
means price to be fixed by Central Government taking into consideration of
lower economic strata of the society.
26. This act enacted with the object of removing financial barrier which prevents
a person from accessing medical drugs on account of high market price. The
act also says Central Government shall take into consideration on the public
interest in deciding vital drugs.
27. Right to live in Article 21 covers right to health, but unaffordability defeats
that access. It defeats state’s endeavour to raise the level of nutrition and
standard of living and improve public health.
28. It has been enacted primarily to remove financial barriers which impede
access to drugs.
29. But Central Government made only drugs coming under vital drugs of Basic
Type available at reasonably affordable price whereas vital drugs of Special
Type at market price only.
17
(1995) 3 SCC 42.
18
(1996) 4 SCC 37.
19
AIR 1992 SC 573,585
20
AIR 1987 SC 990
21
AIR 1993 SC 2178
made only Vital drugs of Basic type to available at reasonable affordable
price but whereas the Vital Drugs of Special type is available only at market
price.
44. This delegated legislation is ultra vires to the constitution but the Parent Act
is not violative. The Parent Act gives power to Central Government to
classify and make vital drugs available at affordable price but it makes only
drugs of basic type affordable.
45. This goes against the main objective of Parent Act and also violates persons
right to equality and right to health under right to life.
Wherefore in the light of the facts stated, issues raised, authorities cited and
pleadings advanced, it is most humbly prayed before this Honorable Court that it may
be pleased to:
And pass any other order that it deems fit in the interests of justice, equity and
good conscience. All of which is respectfully submitted.