TEAM CODE: 20-T05 (P)

13TH NALSAR JUSTICE B. R. SAWHNYMEMORIAL MOOT COURT

COMPETITION, 2020

BEFORE THE HON’BLE SUPREME COURT OF MAYEECHIN

IN THE MATTER OF –

KRISHNA NEEL VERMA FEDERAL REPUBLIC OF MAYEECHIN I

(PETITIONER) V. (RESPONDENT)

CLUBBED WITH

KRISHNA NEEL VERMA FEDERAL REPUBLIC OF MAYEECHIN II

(PETITIONER) V. (RESPONDENT)

CLUBBED WITH

KRISHNA NEEL VERMA FEDERAL REPUBLIC OF MAYEECHIN III

(PETITIONER) V. (RESPONDENT)

MEMORANDUM ON BEHALF OF THE PETITIONER

MEMORANDUM for PETITIONER [TABLE OF CONTENTS]

TABLE OF CONTENTS

INDEX OF AUTHORITIES .................................................................................................IV

STATEMENT OF JURISDICTION ................................................................................ VIII

STATEMENT OF FACTS ....................................................................................................IX

STATEMENT OF ISSUES ...................................................................................................XI

SUMMARY OF ARGUMENTS ......................................................................................... XII

ARGUMENTS.......................................................................................................................... 1

I. A JUDGE WHO HAS EXPRESSED OPINION AS PART OF THE REFERRING

BENCH, OUGHT TO PARTICIPATE IN THE LARGER BENCH............................... 1

A. INCLUSION OF THE JUDGES OF REFERRING BENCH IN THE LARGER BENCH IS THE RULE
OF THE COURT ...................................................................................................................... 1

B. THERE IS NO REASONABLE GROUND FOR NON-INCLUSION OF THE REFERRING JUDGES . 2

1. Prejudging the same question of law does not bar inclusion in a larger bench ..... 2

2. There is no question of bias or predisposition present ............................................ 2

C. U.S. COURT PROCEDURE HAS ALSO INSCRIBED INCLUSION ........................................... 3

II. THE MASTER OF ROSTER MUST BE DEEMED TO INCLUDE FIVE

SENIOR-MOST JUDGES OF THE SUPREME COURT ................................................ 4

A. THE EXERCISE OF POWER OF ‘MASTER OF ROSTER’ BY CHIEF JUSTICE IN HIS

INDIVIDUAL CAPACITY VIOLATES THE PRINCIPLE OF NEMO JUDEX IN CAUSA SUA ................ 4

B. WIDE DISCRETIONARY POWERS SHOULD NOT BE HELD BY CHIEF JUSTICE IN HIS

INDIVIDUAL CAPACITY ......................................................................................................... 5

1. Absolute discretion exercised by Chief Justice is against the rule of law ............... 5

2. Absolute discretion exercised by Chief Justice is threat to the independence of the

judiciary .......................................................................................................................... 5

C. ‘MASTER OF ROSTER’ SHOULD BE REPLACED WITH THE COLLEGIUM SYSTEM ............. 6

1. Examination Of Constitutional Scheme Suggests incorporation of collegium syste .

................................................................................................................................. 7

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | I

MEMORANDUM for PETITIONER [TABLE OF CONTENTS]

2. Examination of objective behind inclusion suggests incorporation of collegium

system .............................................................................................................................. 7

III. SUPREME COURT SHOULD REGULATE THE FEES OF THE LAWYERS .... 8

A. THERE IS REQUIREMENT OF GUIDELINES FOR REGULATION OF FEES ............................. 8

1. Exorbitant fees charged by lawyers violates fundamental rights and state policy . 8

2. regulation of fees of lawyers is not in violation of article 19(1) (g) of Mayeechin

Constitution ..................................................................................................................... 9

B. SUPREME COURT HAS THE POWER TO LAY DOWN GUIDELINES ...................................... 9

1. Regulation of fees is under the ambit of the rule making power of the court .......... 9

a) Article 145 (1)(a) is wide enough to lay down guidelines on regulation of fees ...
............................................................................................................................ 10

b) Advocates Act does not affect the rule making power of the court ................... 10

2. Supreme Court is empowered to do complete justice ............................................ 11

IV. THE CONSTITUTIONAL AMENDMENT INSERTING ARTICLE 21B IS

LIABLE TO BE STRUCK DOWN BEING UNCONSTITUTIONAL .......................... 11

A. PROVISIONS OF ARTICLE 21B ABROGATE THE IDENTITY OF THE BASIC STRUCTURE.... 11

1. Provisions of Article 21B abrogates the principle of equality .............................. 12

a) Article 21B does not have a reasonable classification ....................................... 12

b) Classification under Article 21B is manifestly arbitrary ................................... 13

2. Article 21B abrogates the harmony between Part III and IV ................................ 14

B. TEST OF SEVERABILITY IS NOT APPLICABLE ON ARTICLE 21B .................................... 14

V. THE CITIZENSHIP AMENDMENT ACT, 2019 IS LIABLE TO BE STRUCK

DOWN BEING UNCONSTITUTIONAL ........................................................................ 15

A. PROVISIONS OF CAA ABROGATE THE BASIC STRUCTURE ........................................... 15

B. PROVISIONS OF CAA ARE IN DEROGATION WITH THE FUNDAMENTAL RIGHTS ............ 16

1. Classification stated under the provisions of CAA is not reasonable ................... 16

a) Classification is not founded on an intelligible differentia ................................ 17

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | II

MEMORANDUM for PETITIONER [TABLE OF CONTENTS]

b) There is no rational nexus between object and differentia ................................ 17

2. CAA is not narrowly tailored................................................................................. 18

C. TEST OF SEVERABILITY IS NOT APPLICABLE ON CAA ................................................. 19

PRAYER .............................................................................................................................. XIV

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | III
MEMORANDUM for PETITIONER [INDEX OF AUTHORITIES]

INDEX OF AUTHORITIES

CASES PAGE NO.

Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, ¶112 (India) 12, 14, 18

B. Sunitha v. State of Telangana, (2018) 1 SCC 638, 640 (India) 11

Bachan Singh vs. State of Punjab (1980) 2 SCC 684 (India) 3

Bal Patil v. Union of India, (2005) 6 SCC 690, 703 (India) 16, 17

Bhagat Ram v. State of H.P., (1983) 2 SCC 442, ¶15 (India) 13

Bijay Cotton Mills v State of Ajmer 1955 1 SCR 752,824 (India) 9

Campaign for Judicial Accountability and Reforms v. Union of India, 1, 4

(2018) 1 SCC 196 (India)

D.S. Nakara v. Union of India, (1983) 1 SCC 305, ¶12 (India) 17

Delhi Development Horticulture Employees’ Union v. Delhi Admn., 14

(1992) 4 SCC 99, ¶20 (India)

Delhi judicial serice association v state of Gujarat AIR 1991 SC 406 (India) 11

E.P. Royappa v. State of T.N., (1974) 4 SCC 3, ¶85 (India) 13

Hans Muller of Nurenburg v. Superintendent, Presidency Jail, AIR 1955 13

SC 367, ¶33 (India)

Hussainara Khatoon v. State of Bihar (1980) 1 SCC 81 (India) 8

Imtiyaz Ahmad v. State of U.P., (2012) 2 SCC 688,33 (India) 8

In re, Sant Ram AIR 1960 SC 932 (India) 10

Indian handicrafts emporium v Union of India, (2003) 7 SCC 589 (India) 9

Indore Devepolment Authority v. Manoharlal & Ors., 2019 SCC 1

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | IV

MEMORANDUM for PETITIONER [INDEX OF AUTHORITIES]

OnLine SC 1392, ¶ 23 (India)

Indra Sawhney v. Union of India, (1992) 2 SCR 454 (India) 5

Jamal Uddin Ahmad v. Abu Saleh Najmuddin, (2003) 4 SCC 257, 261 1
(India)

K m nanavati v. state of Bombay, AIR 1961 SC 112, ¶ 15 (India) 11

Kartar singh v. state of Punjab (1994) 3 SCC 569(India) 4

Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, ¶1662 (India) 12, 13

Leelabai Gajanan Pansare v. Oriental Insurance Co. Ltd., (2008) 9 SCC 16

720, 757 (India)

Liteky v. United States, 510 U.S. 540 (1994) (India) 3

M.H. Hoskot v. State of Maharashtra (1979) 1 SCR 192, ¶21 (India) 3

Madras Bar Association v Union of India, (2014) 10 SCC 1, ¶109 (India) 16

Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591, ¶56 (India) 14

Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591, 592 (India) 13

Minerva Mills Ltd. v. Union of India, (1981) 1 SCR 206, 746 (India) 15

Municipal corpn. v. Jan Md. AIR 1986 SC 1205, ¶ 7(India) 9

Prem chand v excise commr AIR (1963) SC 996, 1004 (India) 4

R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930, ¶22 (India) 15, 19

S. P. Gupta v. Union of India, AIR 1982 SC 149, 31 (India) 6

S.R. Bommai v Union of India, (1994) 3 SCC 1, ¶29 (India) 16

Saurabh Chaudri v. Union of India, (2003) 11 SCC 146, ¶36 (India) 18

Shayara Bano v. Union of India, (2017) 9 SCC 1, ¶101 (India) 13

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | V

MEMORANDUM for PETITIONER [INDEX OF AUTHORITIES]

Som Raj v. State of Haryana, (1990) 1 SCR 535, ¶5 (India) 5

Sonia v State of U. P., AIR 1981 SC 127 (India) 9

State of Gujarat v. Shri Ambica Mills Ltd., (1974) 4 SCC 656, 675 (India) 18

State of Karnataka v. Umadevi, (2006) 4 SCC 1, ¶51 (India) 14

State of Rajasthan v. Mukan Chand, (1964) 6 SCR 903, ¶8 (India) 16, 17

State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1, ¶58 (India) 6

State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513 (India) 2

Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 5, 6

SCC 441 (India)

United States v. Grinnell Corp., 384 U.S. 583 (India) 2

Vineet Narain v. Union of India, (1998) 1 SCC 226, 227 (India) 11

Vishaka v. State of Rajasthan, (1997) 6 SCC 241, ¶49 (India) 11

STATUTES PAGE NO.

INDIA CONST. art. 39-A 8

The Citizenship (Amendment) Act, 2019, No. 47, Act of Parliament, 2019 17
(India)

The Citizenship (Amendment) Bill, 2019, No. 370, Bills of Parliament, 18, 19
2019 (India)

BOOKS PAGE NO.

1 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 2695 (4th ed. 2008) 12

3 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 3610 (9th ed. 13

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | VI

MEMORANDUM for PETITIONER [INDEX OF AUTHORITIES]

2014)

M.P.JAIN, INDIAN CONSTITUTIONAL LAW 883 (8th ed. 2018) 16

LOK SABHA SECRETARIAT, CONSTITUENT ASSEMBLY DEBATES (Book no.4, 6

2003 reprint)

TREATIES AND CONVENTIONS PAGE NO.

G.A. Res. 217 (lll) A, Universal Declaration of Human Rights (Dec. 10, 13
1948)

ONLINE SOURCES PAGE NO.

Avinash Amarnath, Testing CAA on the Principles of Constitutional law, 16

LIVE LAW, (Feb. 10, 2020 4:08 PM),
https://www.livelaw.in/columns/testing-caa-on-the-principles-of-
constitutional-law-152194

Markandey Katju, Opinion: CJI Gogoi was blot on judiciary, but other SC 4
judges equally culpable, THE WEEK (Feb 08, 2020),
https://www.theweek.in/news/india/2020/02/04/opinion-cji-gogoi-was-
blot-on-judiciary-but-other-sc-judges-equally-culpable.html

131st Law Commission Report, Role of the Legal Profession in 11

Administration of Justice, (1988), http://lawcommissionofindia.nic.in/101-
169/Report131.pdf

Roshini Sinha, Explainer: The Citizenship (Amendment) Bill, 2019, PRS 17

LEGISLATIVE RESEARCH (Jan. 12, 2020 11:20 PM),
https://www.prsindia.org/theprsblog/explainer-citizenship-amendment-bill-
2019

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | VII
MEMORANDUM for PETITIONER [STATEMENT OF JURISDICTION]

STATEMENT OF JURISDICTION

The Petitioner has approached the Hon’ble Supreme Court of Mayeechin, under Article 32 of
the Constitution of Mayeechin.

The present memorial on behalf of the petitioner sets forth the facts, contentions and
arguments in the present case

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | VIII
MEMORANDUM for PETITIONER [STATEMENT OF FACTS]

STATEMENT OF FACTS

BACKGROUND:
The Federal Republic of Mayeechin came into existence in 1947 and has same neighbours,
law and legal systems as India. People wanted an honest and responsible government to deal
with the prevalent problems like unemployment, lack of good-governance, black money and
concentration of power and wealth. The coalition government that came to power in 2015
general elections, is known for its radical moves and new legislations.

THE SUPREME COURT:

Mayeechin has a very powerful and independent Supreme Court. Its judges are selected by
judges themselves. The senior-most judge is appointed as the Chief Justice. He decides the
roster which is vital to the Court’s functioning, and is Primus inter pares.
Scholars have written regarding the inconsistency in the manner of dispensation of justice by
the Supreme Court of Mayeechin. Studies have proved a trend of lesser dismissals in cases
where Senior Counsels appeared; these Counsels charge fees in millions per appearance.
Determination of priority and hearing order of cases has always been very difficult owing to
pendency of thousands of cases. Generally, chronology was followed, with an exception of
out of turn listing of urgent cases (at the prerogative of the Chief Justice). Owing to
pendency, this exception amounted to de-listing of other cases and proved cumbersome for
judges. To resolve this problem, ‘Mentioning’ was incorporated vide certain circulars issued
from time to time. In order to avoid ambiguity, a new circular providing for Mentioning
before an Hon’ble Registrar was issued.

PILS FILED BY KRISHNA NEEL VERMA:

Krishna Neel Verma v. Federal Republic of Mayeechin I: Krishna Neel Verma filed a PIL
in 2007 seeking capping of lawyers’ fees and providing a Senior Counsel for legal-aid. The
Confederation of Bar (COB) filed an affidavit in favour of capping of lawyers’ fees as the
current practice violates Article 14 and 21 of the Constitution. This was opposed by the Bar
Association of the Supreme Court of Mayeechin (BASCOM) being violative of Article 19
and counter-intuitive. It would hamper a lot of pro-bono work and cross-subsidisation done
by its members. This PIL was pending before a Constitution bench to which it was referred.
Krishna Neel Verma v. Federal Republic of Mayeechin II: The government passed a
constitutional amendment (Art. 21B) making right to work a fundamental right for everyone
w.e.f. Dec 11, 2019. Petition challenging the abovementioned amendment was filed by

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | IX

MEMORANDUM for PETITIONER [STATEMENT OF FACTS]

Krishna Neel Verma because its over-breadth amounts to taking away the rightful entitlement
of citizens. Art. 21B amounts to abrogation of life, principle of equality and justice-
economic as well as social.
Krishna Neel Verma v. Federal Republic of Mayeechin III: A case pertaining to accepting
migrants on the basis of their religion was referred to a larger bench and was pending, since
then. Meanwhile, the Citizenship Amendment Act, 2019, exempting specific migrants from
being treated as illegal migrants, came into force on December 12, 2019. A petition
challenging the Act was filed by Krishna Neel Verma, the very next day. The petition was
‘defective’ and pending clearance. However, upon mentioning by leading A lister senior
Counsel, Dr. Murali Lal, the Chief Justice was pleased, and he directed it to be heard by a
constitution bench along with the pending challenge to Article 21B.
However, Dr. Lal disagreed to work pro-bono and was agreeing to appear only if his full fee
is paid. Mr. Krishna Neel Verma approached several other Senior Counsels, but no one took
up the matter pro-bono. Thus, he wrote a letter to the Chief Justice seeking expedited hearing
of the PIL on Lawyer’s fee. This PIL was listed before the same constitutional bench which
was hearing other two cases vide an administrative order of the Chief Justice.

THE PRESS CONFERENCE:

The Constitution of these bench caused discomfiture and surprise to certain judges, over their
non-inclusion in the referring bench. A press conference was held by three puisne judges of
the Supreme Court raising certain issues regarding the assignment of matters by the Chief
Justice. They also discussed the issue of constitution of benches by such former Chief
Justices whose own conduct was in question. These judges were of the unanimous opinion
that it is violation of the principle that justice must not only be done, but seem to have been
done; and is against constitutional ethos.

The judges demanded that at least five judges must decide all matters pertaining to the roster,
listing, and the assignment of matters, because pendency in itself can decide the course of
justice. Furthermore, any interested party must recuse and Mentioning must be brought within
the framework of written rules. Based on this, the preliminaries were framed. Resultantly,
this matter was registered Suo Moto and called for hearing on 18/12/2019. The Chief Justice
constituted an 11-judge bench excluding himself, to hear all matters and to reinstate the
position of this Court as the Sentinel on the Qui Vive. The matters are now fixed for hearing
on all the points involved. Hence, the present petition.

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | X

MEMORANDUM for PETITIONER [STATEMENT OF ISSUES]

STATEMENT OF ISSUES

PRELIMINARIES:

ISSUE I

WHETHER A JUDGE WHO HAS EXPRESSED OPINION AS PART OF THE REFERRING BENCH, OUGHT
TO PARTICIPATE IN THE LARGER BENCH HEARING THE REFERRED CASE?

ISSUE II

WHETHER THE MASTER OF ROSTER MUST BE DEEMED TO INCLUDE FIVE SENIOR-MOST JUDGES OF
THE SUPREME COURT?

MERITS:

ISSUE III

WHETHER THE SUPREME COURT SHOULD REGULATE THE FEES OF LAWYERS?

ISSUE IV

WHETHER THE CONSTITUTIONAL AMENDMENT INSERTING ARTICLE 21B IS LIABLE TO BE

STRUCK DOWN BEING UNCONSTITUTIONAL?

ISSUE V

WHETHER THE CITIZENSHIP AMENDMENT ACT, 2019 IS LIABLE TO BE STRUCK DOWN BEING

UNCONSTITUTIONAL?

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | XI

MEMORANDUM for PETITIONER [SUMMARY OF ARGUMENTS]

SUMMARY OF ARGUMENTS

I. A JUDGE WHO HAS EXPRESSED OPINION AS PART OF THE REFERRING

BENCH, OUGHT TO PARTICIPATE IN THE LARGER BENCH

A judge who has expressed opinion as part of the referring bench, ought to participate in the
larger bench because inclusion of the judges of referring bench in the larger bench is the rule
of the court and there is no provision or reasonable ground for non-inclusion. Prejudging the
same question of law does not bar inclusion in a larger bench. Non-inclusion is provided for
only in case of bias, and there is no question of bias in participation of judge in larger bench.
Additionally, US Court procedures have time and again elucidated the advantages of
inclusion of judge in the larger bench; which is an effective guiding principle.

II. THE MASTER OF ROSTER MUST BE DEEMED TO INCLUDE FIVE SENIOR-

MOST JUDGES OF THE SUPREME COURT

The master of roster must be deemed to include five senior-most judges of the Supreme Court
becausethe exercise of power of ‘Master of Roster’ by Chief Justice in his individual
capacity, violates the principle of nemo judex in causa sua. Furthermore, such wide
discretionary power in the hands of the Chief Justice alone is against the rule of law and a
potential threat to the independence of the Judiciary. There is an urgent need to replace the
‘Master of Roster’ with the Collegium system so that collective wisdom can be applied to
make the process more effective. Also, the examination of constitutional scheme and the
objective behind inclusion suggests incorporation of collegium system.

III. SUPREME COURT SHOULD REGULATE THE FEES OF THE LAWYERS

Supreme Court should regulate the fees of the lawyers because there is requirement of the
guidelines for the same. Exorbitant fees charged by lawyers amounts to denial of acces to
justice. Such unreasonably high fees create hindrance and thereby violate fundamental rights
and state policy. Such a regulation is reasonable and not violative of Art. 19(1)(g) of the
Mayeechin Constitution. Power to lay guidelines is under the rule making power of the
Supreme Court. Article 145 is wide enough to empower the Court to lay down guidelines on

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | XII
MEMORANDUM for PETITIONER [SUMMARY OF ARGUMENTS]

the regulation of fees. Also, the Supreme Court is entitled to do complete justice under article
142 of the Mayeechin Constitution.

IV. THE CONSTITUTIONAL AMENDMENT INSERTING ARTICLE 21B IS

LIABLE TO BE STRUCK DOWN BEING UNCONSTITUTIONAL

Article 21B of the Mayeechin Constitution is liable to be struck down being unconstitutional
because its provisions abrogate the identity of the basic structure. Art. 21B abrogates the
principle of equality. It is manifestly arbitrary and devoid of reasonable classification.
Furthermore, the harmony between Part III and Part IV of the Constitution is abrogated by
Art. 21B. The purpose behind enactment stands defeated if the void clauses are severed.
Doctrine of severability does not apply to Article 21B, and it is liable to be struck down in its
entirety.

V. THE CITIZENSHIP AMENDMENT ACT, 2019 IS LIABLE TO BE STRUCK

DOWN BEING UNCONSTITUTIONAL

The Citizenship Amendment Act, 2019 is liable to be struck down being unconstitutional
because its provisions abrogate the basic structure of the Mayeechin Constitution. CAA is
against the principle of secularism. It it gives an unjustified preference to religious
persecution over other equally grave forms of persecution. Provisions of CAA are in
derogation with the fundamental rights guaranteed in Part III of the Constitution. CAA is
neither based on reasonable classification, nor is it narrowly tailored. After the invalid
provisions are omitted the remainder is very narrow and short to stand alone.Doctrine of
severability does not apply to CAA, and it is liable to be struck down in its entirety.

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | XIII
MEMORANDUM for PETITIONER [ARGUMENTS]

ARGUMENTS

I. A JUDGE WHO HAS EXPRESSED OPINION AS PART OF THE REFERRING

BENCH, OUGHT TO PARTICIPATE IN THE LARGER BENCH

It is humbly submitted before the Hon’ble Supreme Court of Mayeechin that a judge who has
expressed opinion as part of the referring bench, ought to participate in the larger bench as
first, inclusion of the judges of referring bench in the larger bench is the rule of the court (A);
secondly, there is no reasonable ground for non-inclusion of the referring judges (B); and
lastly, U.S. court procedure has also inscribed inclusion (C).

A. INCLUSION OF THE JUDGES OF REFERRING BENCH IN THE LARGER BENCH IS THE RULE

OF THE COURT

In the absence of rules, practice of the court is considered as the law of the Court and binding
and should normally be adhered to1 because it is the practice, even though no reason can be
assigned for it.2 Additionally, Handbook on practise and procedure and office procedure3
does not contemplate any rules as to who shall preside the bench.4

Moreover, the Judges or a Bench by whom any question or case is referred shall ordinarily be
members of the Division Bench or Full Bench.5 It is a consistent practice prevailing in
various High Courts as well as of the Supreme Court to include the same Judge/Judges in
larger benches.6 Judge or Judges who refer a case shall ordinarily sit on the bench which
considers the reference.7

In the impugned case, a judge who expressed opinion in the referring bench was not included
in the larger bench8 by the Chief Justice as there is no explicit provision directing this. The
same issue was raised in the press conference where judges expressed their discomfort upon

1
Indore Devepolment Authority v. Manoharlal& Ors., 2019 SCC OnLine SC 1392, ¶23 (India) [hereinafter
Indore Development Authority].
2
Jamal Uddin Ahmad v. Abu Saleh Najmuddin, (2003) 4 SCC 257, 261 (India).
3
Handbook on Practice and Procedure and Office Procedure,SUPREME COURT OF INDIA (2017) [hereinafter THE
Handbook].
4
Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196, 200 (India).
5
Indore Devepolment Authority,supra note 1, at ¶10.
6
Id. at 27.
7
Handbook, supra note 3.
8
Moot Proposition ¶13.

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | 1

MEMORANDUM for PETITIONER [ARGUMENTS]

the act of non-inclusion.9 The act of non-inclusion was a gross violation of the practice of the
court functioning as rules.

Therefore, it is submitted that inclusion of the judges of referring bench in the larger bench is
the rule of the court.

B. THERE IS NO REASONABLE GROUND FOR NON-INCLUSION OF THE REFERRING JUDGES

It is humbly submitted that there is no reasonable ground for non-inclusion of the referring
judges as first, prejudging the same question of law does not bar inclusion in a larger bench
(1); and lastly, there is no question of bias or predisposition present in participation of a judge
in a larger bench (2).

1. PREJUDGING THE SAME QUESTION OF LAW DOES NOT BAR INCLUSION IN A LARGER BENCH

In State of W.B. v. Shivananda Pathak10, this Court has laid down that- “prejudging the same
question of law, policy or discretion, Judge is not disqualified to hear a case.” A judge
rendering a judgement on a question of law would not be a bar to her or his participation if in
a larger bench that view is referred for reconsideration.11

In the impugned case, some judges of the Supreme Court found it unusual and surprising
when a judge who has expressed opinion in the referring bench was not included in the larger
bench.12 It was surprising for the judges because the larger bench deals with the same
question of law.

Therefore, it is submitted that prejudging a question of law does not bar inclusion in the
larger bench.

2. THERE IS NO QUESTION OF BIAS OR PREDISPOSITION PRESENT

A judge may not be included in the bench only when there is a reasonable apprehension of
bias.13 However, a previous judgment can neither constitute bias, a pre-disposition, or can it
seem to be such, so as to raise a reasonable apprehension of bias.14

9
Moot Proposition ¶13.
10
State of W.B. v. Shivananda Pathak, (1998) 5 SCC 513, 525 (India).
11
Indore Devepolment Authority,supra note 1 at 29.
12
Moot Proposition ¶13.
13
Indore Devepolment Authority Supra note 1 at ¶43.
14
Id.; United States v. Grinnell Corp., 384 U.S. 583, 1710 (1966).

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | 2

MEMORANDUM for PETITIONER [ARGUMENTS]

In the impugned case, the judge who was part of the referring bench was not included in the
larger bench,15 although, his opinion formed in the referring bench could not have resulted in
biased decision. This became one of the reason of discomfort amongst the judges.16

Therefore, it is submitted that there is no question of bias in participation of judge in larger

bench.

C. U.S. COURT PROCEDURE HAS ALSO INSCRIBED INCLUSION

The United States Supreme Court has held in Liteky case17 that-

“it may be advantageous to have them on a Bench hearing the matter as judgments are
rendered after hearing the arguments of learned counsel for the parties. There is always a
scope to further develop the law and to correct the errors, and this can better be done by
having Judges on the Bench, who have earlier rendered judgments with respect to the
subject-matter to which of the parties the view taken suits is not relevant. It is desirable to
have the same Judge in the successive causes. They have to be faithful to oath.”

Additionally, the Supreme Court has previously relied upon the U.S. court procedures and
always found it favourable to rely upon the U.S. court procedure in order to fill gaps where
there is no legislation. This was also observed in Bachan Singh v. Union of India18, where the
Apex court while upholding the death sentence, relied on U.S. cases and the judgement of
M.H. Hoskot v. State of Maharashtra19, where the Supreme Court explicitly relied on
American decisions to hold that “indigent persons were entitled to receive free legal
services.”

In the impugned case, the first preliminary issue interrogates if a judge of the referring bench
ought to be part of the larger bench on the ground that he has expressed opinion in the
referring bench.20 This has been answered in affirmative by the U.S. courts. The procedure
established in U.S. courts can be relied upon by the Apex Court as no definite guidelines are
available as to who shall preside the bench.21

15
Moot Proposition ¶13.
16
Moot Proposition ¶13.
17
Liteky v. United States, 510 U.S. 540 (1994).
18
Bachan Singh v. State of Punjab (1980) 2 SCC 684 (India).
19
M.H. Hoskot v. State of Maharashtra (1979) 1 SCR 192, ¶21 (India).
20
Moot Preliminary issue (a).
21
Submissions Issue-I.

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | 3

MEMORANDUM for PETITIONER [ARGUMENTS]

Therefore, it is submitted that U.S. courts have inscribed inclusion and the same can be
applied in Mayeechin’s contexture also.

II. THE MASTER OF ROSTER MUST BE DEEMED TO INCLUDE FIVE SENIOR-

MOST JUDGES OF THE SUPREME COURT

It is humbly submitted before the Hon’ble Supreme Court of Mayeechin that the master of
roster must be deemed to include five senior-most judges of the supreme court as first, the
exercise of power of ‘Master of Roster’ by Chief Justice in his individual capacity violates
the principle of nemo judex in causa sua(A); secondly, wide discretionary powers should not
be held by chief justice in his individual capacity (B); and lastly, the present ‘Master of
Roster’ should be replaced with the collegium system (C).

A. THE EXERCISE OF POWER OF ‘MASTER OF ROSTER’ BY CHIEF JUSTICE IN HIS

INDIVIDUAL CAPACITY VIOLATES THE PRINCIPLE OF NEMO JUDEX IN CAUSA SUA

The rule making power is subject to the fundamental rights guaranteed by the constitution.22
Further, fundamental rights of the Indian Constitution state that every procedure needs to be
“right, just and fair” and in order to be right, just and fair, it must conform to natural
justice.23 The principles of natural justice consists the rule, namely, "nemo
judex in causa sua", which implies that no man shall be a judge in his own cause.24

Additionally, It was observed in CJAR v. Union of India that the Chief Justice headed the
bench deciding the issue of authority of Chief Justice himself to decide the roster of cases.25
In another instance, the Chief Justice presided over a three-member bench constituted by him
to hear the complaint of the lady clerk that alleged the Chief Justice of sexual harassment.26

In the impugned case, the judges in the press conference27 pointed out that when the matters
in which outcome affects the chief justice, are assigned the chief justice, it is against the
constitutional ethos28 of natural justice.

22
Prem chand v. excise commr AIR (1963) SC 996, 1004 (India).
23
Kartarsingh v. state of Punjab (1994) 3 SCC 569(India).
24
ManekaGandhi v. Union of India, (1978) 2 SCR 621 (India) [hereinafter Maneka Gandhi].
25
Campaign for Judicial Accountability and Reforms v. Union of India, (2018) 1 SCC 196 (India).
26
Markandey Katju, Opinion: CJI Gogoi was blot on judiciary, but other SC judges equally culpable, THE WEEK
(Feb 08, 2020), https://www.theweek.in/news/india/2020/02/04/opinion-cji-gogoi-was-blot-on-judiciary-but-
other-sc-judges-equally-culpable.html.
27
Moot Proposition ¶13.
28
Moot Proposition ¶13.

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MEMORANDUM for PETITIONER [ARGUMENTS]

Therefore, it is submitted that the exercise of the power of the master of roster by chief justice
in his individual capacity violates the principle of nemo judex in causa sua

B. WIDE DISCRETIONARY POWERS SHOULD NOT BE HELD BY CHIEF JUSTICE IN HIS

INDIVIDUAL CAPACITY

It is humbly submitted that wide discretionary powers should not be held by Chief Justice in
his individual capacity as first, absolute discretion exercised by Chief Justice is against rule
of law (1), and lastly, absolute discretion exercised by Chief Justice is threat to the
independence of the judiciary (2).

1. ABSOLUTE DISCRETION EXERCISED BY CHIEF JUSTICE IS AGAINST THE RULE OF LAW

In Indira Sawhney v. Union of India29 rule of law was added to the basic features. Further, the
principle of non-arbitrariness envisage the absence of absolute power in one individual in any
sphere of constitutional, principle of non-arbitrariness is an essential attribute of the rule of
law.30Conferring discretion upon high functionaries and, whenever feasible, introducing the
element of plurality by requiring a collective decision, are further checks against
arbitrariness.31

In the impugned case, the absolute power of deciding the roster has been conferred to the
Chief Justice of Mayeechin.32 Along with this, formulation of guidelines upon mentioning is
also a prerogative right of the chief justice.33 Such wide ranging discretion is against the
principle of non-arbitrariness. In protest of the same, the judges that held the press conference
suggested that element of plurality should be added in various administrative procedures.34

Therefore, it is submitted that absolute discretion exercised by the Chief Justice in his
individual capacity is against the rule of law.

2. ABSOLUTE DISCRETION EXERCISED BY CHIEF JUSTICE IS THREAT TO THE INDEPENDENCE OF

THE JUDICIARY

29
Indra Sawhney v. Union of India, (1992) 2 SCR 454 (India).
30
Som Raj v. State of Haryana, (1990) 1 SCR 535, ¶ 5 (India).
31
Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441, ¶58 (India).
32
Moot Proposition ¶3.
33
Moot Proposition ¶6.
34
Moot Proposition ¶13.

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MEMORANDUM for PETITIONER [ARGUMENTS]

Independence of the judiciary is an essential part of the basic structure of the Constitution.35
Independence of judiciary takes within its fold independence of an individual judge from his
superiors in the judicial hierarchy, and so on.36 More than the external and institutional
safeguards, it is the internal independence of a judge which is reflected in his personality that
matters.37 Dr Ambedkar said in a Constituent Assembly debate38 that-

“There can be no difference of opinion in the House that our judiciary must both be
independent of the executive and must also be competent in itself. And the question is how
these two objects could be secured.”

Further, erosion of credibility of the judiciary, in the public mind, for whatever reasons, is
greatest threat to the independence of the judiciary. 39

In the impugned case, the judges that called the press conference and pointed out that all
through time, cases are being allocated to the benches by the Chief Justices and even at times
when their own conduct was in question.40 Additionally, the judges sitting in the press
conference also emphasised upon the requirement of guidelines as to the procedure of
mentioning which is presently held by the Chief Justice in his individual capacity.41 Issues
highlighted in the press conference as well as the remarks made by the judges pertaining to
the prerogative rights of the Chief Justice indicate the dependence created by the Chief
Justice within the judiciary. Additionally, the press conference42 also eroded the credibility of
the judiciary in the public mind.

Therefore, it is submitted that the absolute discretion exercised by Chief Justice in his
individual capacity is a threat to the independence of the judiciary.

C. ‘MASTER OF ROSTER’ SHOULD BE REPLACED WITH THE COLLEGIUM SYSTEM

The body of five senior-most judges has been formulated in the landmark judgement of
Second Judges’ case wherein the court laid the foundation of the Collegium system for the
appointment of Judges.43 It was brought in order to procure the element of plurality with the

35
Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441, (India) [hereinafter
Advocates-on-Record Assn]
36
S. P. Gupta v. Union of India, AIR 1982 SC 149, 31 (India).
37
Id.
38
LOK SABHA SECRETARIAT, CONSTITUENT ASSEMBLY DEBATES(Book no4, 2003 reprint).
39
State of Rajasthan v. Prakash Chand, (1998) 1 SCC 1, ¶ 58 (India).
40
Moot Proposition ¶13.
41
Moot Proposition ¶6.
42
Moot Proposition ¶13.
43
Advocates-on-Record Assn, supra note 35.

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MEMORANDUM for PETITIONER [ARGUMENTS]

benefit of collective wisdom of all those involved in the process. 44Chief Justice was read as
collegium, after examining the Constitutional Scheme and the objective behind such a
provision meant for appointment of Judges.45

In the impugned case, the collegium system should also be incorporated as first, examination
of constitutional scheme suggests incorporation of collegium system (1), and lastly,
examination of objective behind inclusion suggests incorporation of collegium system (2).

1. EXAMINATION OF CONSTITUTIONAL SCHEME SUGGESTS INCORPORATION OF COLLEGIUM

SYSTEM

The collegium system was incorporated in the second judges case after examining the
constitutional scheme and the constitutional scheme excludes the scope of absolute power in
any one individual.46

In the impugned case, the chief justice of Mayeechin is controlling the vital47 power of roster
absolutely in his personal discretion. The exercise of power of roster is also against the basic
structure48 of the constitution and fundamental rights of the citizens.49

Therefore, it is submitted that the examination of constitutional scheme suggests

incorporation of collegiums system

2. EXAMINATION OF OBJECTIVE BEHIND INCLUSION SUGGESTS INCORPORATION OF COLLEGIUM

SYSTEM

The objective of incorporating collegium system was to guard the independence of

judiciary.50 But, independence of judiciary is not just external but internal also.51

In the light of the impugned case, it can be culled out that there is requirement of
independence of judiciary not externally but internally.52

Therefore, it is submitted that examination of objectives behind suggest incorporation of

collegium system.

44
Id.
45
Advocates-on-Record Assn, supra note 35.
46
Id.
47
Moot Prosposition ¶3.
48
Submission Issue II.
49
Id.
50
Id.
51
Id.
52
Id.

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MEMORANDUM for PETITIONER [ARGUMENTS]

III. SUPREME COURT SHOULD REGULATE THE FEES OF THE LAWYERS

It is humbly submitted before the Supreme Court of Mayeechin that the Supreme Court must
regulate the fees of the lawyers as first, there is requirement of guidelines for the regulation
of fees [A]; and lastly, Supreme Court of Mayeechin has the power to lay down guidelines
for the regulation of fees of the lawyers [B].

A. THERE IS REQUIREMENT OF GUIDELINES FOR REGULATION OF FEES

It is humbly submitted that there is requirement of guidelines for regulation of fees as first,
exorbitant fees charged by lawyers violates fundamental rights and state policy (1); and
lastly, regulation of fees of lawyer will not violate Article 19(1)(g) of the Mayeechin
Constitution.

1. EXORBITANT FEES CHARGED BY LAWYERS VIOLATES FUNDAMENTAL RIGHTS AND STATE

POLICY

Access to justice is a facet of the right guaranteed under Article 14 and 21 of the Indian
Constitution.53 Article 39-A of the Indian Constitution recognizes the right of equal justice
and free legal aid.54The constitution mandates that as per Article 14 if a person is unable to
enforce his rights, he is denied equality as envisaged in the Indian Constitution.5556
Further, significance has been given to the legal profession on account of its role in providing
access to justice to the citizens.57 Commercialization to the extent of exploiting the litigant,
affecting the right of the citizen to speedy and inexpensive justice, need to be checked.58
In the impugned case, the fees charged by Senior Advocates in the courts of Mayeechin is
very high and even ranges up to several millions.59 The profession has been commercialized
to the extent of exploitation of the litigant as the study upon senior advocates concluded that
the highest chances of admission stand along with high priced advocate.60 This has caused
hindrance to access to justice which is fundamental right of the citizen as well as policy of the
state.
53
Imtiyaz Ahmad v. State of U.P., (2012) 2 SCC 688,33 (India).
54
INDIA CONST. art. 39-A.
55
Hussainara Khatoon v. State of Bihar (1980) 1 SCC 81.
56
INDIA CONST. art. 14.
57
B. Sunitha v. State of Telangana, (2018) 1 SCC 638, 640 (India).
58
V. C. Rangadurai v. D. Gopalan And Ors, 1979 AIR 281.
59
Moot Proposition ¶4.
60
Moot Proposition ¶4.

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MEMORANDUM for PETITIONER [ARGUMENTS]

Therefore, it is submitted that exorbitant fees charged by lawyers violates fundamental rights
and state policy.

2. REGULATION OF FEES OF LAWYERS IS NOT IN VIOLATION OF ARTICLE 19(1) (G) OF

MAYEECHIN CONSTITUTION

The Hon’ble Supreme Court and various High Courts took the view that the right of
advocates to practise law comes within the ambit of Article 19(1) (g) of the Constitution of
India and thereby assumes the character of fundamental right, in addition to being a statutory
right61 subject to the test of reasonable restriction, under Article 19(6) of the Constitution.62
Additionally, if a law is made to implement a directive principle, it would be regarded as a
reasonable restriction within the meaning of Article 19(6),63even though it causes hardship to
particular individuals.64
In the impugned case, the members of the Bar Association Supreme Court of Mayeechin
protested that regulation of fees is infringement to their right under Article 19. 65 Citizens of
Mayeechin have right to practice legal profession subject to reasonable restrictions imposed
by the government ofMayeechin. The regulations are prayed by the petitioner for the
implementation of the principle of free legal aid enshrined under Article 39-A of the
Mayeechin Constitution.
Therefore, it is submitted that the regulation of fees of lawyers is not in violation of Article
19(1)(g) of Mayeechin Constitution.

B. SUPREME COURT HAS THE POWER TO LAY DOWN GUIDELINES

It is humbly submitted that the Supreme Court of Mayeechin has the power to lay down
guidelines for the regulation of fees of the lawyers as first, power to lay down guidelines is
under the ambit of the rule making power of the court (1); and lastly, Supreme Court is
empowered to do complete justice (2).

1. REGULATION OF FEES IS UNDER THE AMBIT OF THE RULE MAKING POWER OF THE COURT

61
Rakesh Kumar v. The High Court of Judicature, W.P. (C) No. 5831 of 2012.
62
INDIA CONST. art. 19(6).
63
Bijay Cotton Mills v State of Ajmer 1955 1 SCR 752,824 (India); Municipal corpn. v. Jan Md. AIR 1986 SC
1205, ¶ 7(India).
64
Sonia v State of U. P., AIR 1981 SC 127, (India). Indian handicrafts emporium v Union of India, (2003) 7
SCC 589.
65
Moot Proposition ¶5.

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MEMORANDUM for PETITIONER [ARGUMENTS]

It is humbly submitted that the power to make guideline in the impugned matter is under the
ambit of the rule making power of the court as first, Article 145(1)(a) is wide enough to lay
guidelines on regulation of fees (a); and lastly, Advocates Act does not affect the rule making
power of the court (b).

a) Article 145 (1)(a) is wide enough to lay down guidelines on regulation of fees

Clause (a)66 of Article 145 of the Indian Constitution includes persons practising before the
Court under rule making power of the court. ‘Practice’ word is of wide amplitude and
empowers the Supreme Court to regulate not only its own proceedings but also the conduct of
all persons appearing before the court, in and out of court, in so far as such conduct has a
bearing on their professional relations and ethics.67
In the impugned case, the power to regulate the fees of the lawyers 68 can be read under the
rule making power of the Supreme Court of Mayeechin under Article 145(1)(a) as it is of
wide amplitude as to include the conduct of a lawyer including matters of fees as fees
charged by lawyers has an impact upon their conduct. This can be inferred from the study
that concluded that the advocates that high fees serve highest number of admissions in the
court.69
Therefore, it is submitted that Article 145 (1)(a) is wide enough to lay down guidelines on
regulation of fees.

b) Advocates Act does not affect the rule making power of the court

Right to practise legal profession is also a statutory right provided under the Advocates’
act.70Section 52 of the Advocates act states that nothing in this Act shall be deemed to affect
the power of the Supreme Court to make rules under Article 145 of the Constitution.71 This
means that notwithstanding what is contained in the Advocates Act Section 52 of the Act
keeps the powers of the Supreme Court under Article 145 of the Constitution intact.72

In the impugned case, the legislature has given overriding value to the rules formulated by the
Supreme Court under Article 145 of the Mayeechin Constitution by inserting Section 52 of

66
INDIA CONST. art. 145 cl. (a).
67
In Re, Sant Ram, AIR 1960 SC 932.
68
Moot Proposition ¶5.
69
Moot Proposition ¶4.
70
The Advocates Act, 2016.
71
Id. at §52.
72
Rakesh Kumar v. The High Court of Judicature, W.P. (C) No.5831 of 2012(India).

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MEMORANDUM for PETITIONER [ARGUMENTS]

the Advocates Act. Even if the Act includes regulation of fees within its ambit, the same shall
be subject to the rules formulated by the court.

Therefore, Advocates’ Act does not affect the rule making power of the court.

2. SUPREME COURT IS EMPOWERED TO DO COMPLETE JUSTICE

Article 142(1) has immense potential and when the occasion arises, court is obliged to
prevent injustice.73The legal system must continue to serve the victims of injustice.74
The Supreme Court has the power to issue directions under Article 142, where none already
exist and such directions shall be binding till such time as new rules are enacted by the
legislature on the subject.75 It has been held that the rule making power under article 145 may
be used by the Supreme Court in aid of Article 142.76 Moreover, there is no guideline as to
the matter of fees charged by the lawyers.77
In the impugned case, citizens of Mayeechin are suffering from hindrance in access to
justice78 due to the exorbitant fees charged by the lawyers.79 Additionally, regulations for the
matters of fees charged by lawyers are also not present in The Federal Republic of
Mayeechin.
Therefore, it is submitted that the Supreme Court is empowered to do complete justice in the
present case by laying down rules under Art. 145.

IV. THE CONSTITUTIONAL AMENDMENT INSERTING ARTICLE 21B IS

LIABLE TO BE STRUCK DOWN BEING UNCONSTITUTIONAL

It is submitted before the Hon’ble Supreme Court of Mayeechin that Article 21B of the
Mayeechin Constitution is liable to be struck down in entirety being unconstitutional as first,
its provisions abrogate the identity of the basic structure [A], and lastly, the test of
severability is not applicable to Article 21B of the Mayeechin Constitution [B].

A. PROVISIONS OF ARTICLE 21B ABROGATE THE IDENTITY OF THE BASIC STRUCTURE.

73
Delhi judicial serice association v state of Gujarat AIR 1991 SC 406, 461 (India).
74
131st Law Commission Report, Role of the Legal Profession in Administration of Justice, (1988),
http://lawcommissionofindia.nic.in/101-169/Report131.pdf.
75
Vineet Narain v. Union of India, (1998) 1 SCC 226, 227 (India). Vishaka v. State of Rajasthan, (1997) 6 SCC
241, ¶ 49 (India).
76
K.M.Nanavati v. State of Bombay, AIR 1961 SC 112, ¶ 15 (India).
77
B. Sunitha v. State of Telangana, (2018) 1 SCC 638, 640 (India).
78
Moot Proposition ¶ 4.
79
Moot Proposition ¶ 5.

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MEMORANDUM for PETITIONER [ARGUMENTS]

The power to amend the constitution is not unlimited so as to include the power to abrogate
or change the identity of the Constitution or its basic structure. 80 The dignity of the individual
secured by the various freedoms and basic rights in Part III and the mandate to build a
welfare State contained in Part IV can be regarded as the basic elements of the constitutional
structure.81
It is humbly submitted that provisions of Article 21B abrogate the identity of the basic
structure as first, provisions of Article 21B abrogates the principle of equality (1); and lastly,
Article 21B abrogates the harmony between Part III and IV (2).

1. PROVISIONS OF ARTICLE 21B ABROGATES THE PRINCIPLE OF EQUALITY

The principle of equality as stated in Article 14 may be understood as an element of the basic
structure.82 For a legislation to be in conscience with right to equality, it should permit
reasonable classification which is founded on intelligible differentia and the differential must
have a rational relation to the objects sought to be achieved. Further, the legislation should
not allow any kind of arbitrariness.83
Article 21B abrogates the principle of equality as first, Article 21B does not have a
reasonable classification (a); and lastly, classification under Article 21B is manifestly
arbitrary (b).

a) Article 21B does not have a reasonable classification

Article 19 speaks of only citizens as our country does not think it expedient to confer these
fundamental rights, mentioned in Art. 19, on non-citizens.84 The requirements of Art. 14 and
19 may converge, for instance, where a statute vests unguided or uncanalised discretion that
affects the right of citizens under Art. 19, the statue may be held to offend Art. 14 on the
ground that the power to classify conferred by it is unreasonable; at the same time, the
restriction imposed by the statute may be held to be an unreasonable restriction on the
citizens fundamental rights under Art. 19.85

80
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225, ¶1662 (India) [hereinafter Kesavananda Bharati].
81
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, ¶112 (India); Id.
82
INDIA CONST. art. 14.
83
1 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 2695 (4th ed. 2008).
84
Kesavananda Bharati, supra note 80.
85
3 D. D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 3610 (9th ed. 2014) [hereinafter D.D. BASU].

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MEMORANDUM for PETITIONER [ARGUMENTS]

Under the Indian Constitution, the right to work and its concomitant right receive their
succour and nourishment under Art. 19(1)(g).86
In the impugned case, the government of Mayeechin through constitutional amendment
inserted Article 21B.87 Article 21B prescribes right to work for everyone in the territory of
Mayeechin.88
On the contrary, right to work has been conferred exclusively to the citizens of Mayeechin
under Art. 19(g) and any law affecting the right of citizens under Art. 19 has to be held to
offend Art. 14 on the ground of unreasonable classification.
Therefore, it is submitted that Article 21B does not have a reasonable classification.

b) Classification under Article 21B is manifestly arbitrary

Manifest arbitrariness must be something done by the Legislature capriciously, irrationally

and/or without adequate determining principle.89 If a law is arbitrary or irrational it will fall
foul of Article 14.90
Further, the definition of ‘everyone’ will include every individual as defined in the UDHR91.
It includes under its purview foreigners92 and even illegal migrant i.e. a foreigner that has
entered the country without a valid passport.93 The rights of these people have been confined
Article 14 and 2194 and have not been conferred with the other rights as it is detrimental to
the interests of the country.95 Additionally, a limited amending power is one of the basic
features of Indian Constitution96
In the impugned case, the constitutional amendment inserting Article 21B grants the right to
work to everyone97. This right is also applicable to foreigners and even illegal immigrants
which are otherwise left out from the scheme of such fundamental rights for the reason of the
country’s interest. It is to be regarded as excessive use of amending power in ignorance of the
constitutional policy of Mayeechin.

86
Id. at Vol. 4 p. 4470.
87
Moot Proposition ¶8.
88
Moot Proposition ¶8.
89
ShayaraBano v. Union of India, (2017) 9 SCC 1, ¶101 (India).
90
E.P. Royappa v. State of T.N., (1974) 4 SCC 3, ¶85 (India); Bhagat Ram v. State of H.P., (1983) 2 SCC 442,
¶15 (India).
91
G.A. Res. 217 (lll) A, Universal Declaration of Human Rights (Dec. 10, 1948).
92
Hans Muller of Nurenburg v. Superintendent, Presidency Jail, AIR 1955 SC 367, ¶33 (India).
93
Maneka Gandhi, supra note 24.
94
3 D.D. BASU, supra note 85 at p. 3217.
95
Kesavananda Bharati, supra note 80.
96
Minerva Mills Ltd. v. Union of India, (1980) 2 SCC 591, 592 (India) [hereinafter Minerva Mills].
97
Moot Proposition ¶8.

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MEMORANDUM for PETITIONER [ARGUMENTS]

Therefore, it is submitted that classification under Article 21B is manifestly arbitrary.

2. ARTICLE 21B ABROGATES THE HARMONY BETWEEN PART III AND IV

Harmony and balance between fundamental rights and directive principles is an essential
feature of the basic structure of the constitution.98 Principles of Part IV have to be gradually
transformed into fundamental rights depending upon the economic capacity of the
State.99Article 41 provides that the State shall, within the limits of its economic capacity and
development, make effective provision for securing the right to work. 100 This country has so
far not found it feasible to incorporate the right to work in part III because the country has so
far not attained the capacity to guarantee it.101 The Directive Principles of State Policy have
to be reconciled with the rights available to the citizen under Part III of the Constitution and
the obligation of the State to one and all.102
In the impugned case, Article 21B provides protection against unemployment.103 It further
states that state will take appropriate steps to safeguard this right to work.104 These rights are
provided under the Directive principles of the state policy of Mayeechin which is subject to
its economic capacity and development. These rights were not incorporated in the Part III due
to economic incapacity. It is evident that at present stage Mayeechin is grappling, inter-alia,
with the problem of black-money, unemployment, lack of good-governance and
concentration of power and wealth.105 The present state of affairs suggest that the right to
work is not at a stage that it could be inducted into the Part III.
Therefore, it is submitted that Article 21B abrogates the harmony between Part III and Part
IV.

B. TEST OF SEVERABILITY IS NOT APPLICABLE ON ARTICLE 21B

The doctrine of severability has been applied by this court in cases of challenge to the validity
of an amendment on the ground of disregard of the substantive limitations on the amending
power, namely, alteration of the basic structure.106In determining whether the valid parts of a

98
Minerva Mills, supra note 96.
99
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, ¶50 (India).
100
INDIA CONST. art. 41.
101
Delhi Development Horticulture Employees’ Union v. Delhi Admn., (1992) 4 SCC 99, ¶20 (India).
102
State of Karnataka v. Umadevi, (2006) 4 SCC 1, ¶51 (India).
103
Moot Proposition ¶8.
104
Moot Proposition ¶8.
105
Moot Proposition ¶1.
106
Minerva Mills, supra note 96.

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MEMORANDUM for PETITIONER [ARGUMENTS]

statute are separable from the invalid parts thereof, it is the intention of the legislature that is
the determining factor.107 The test to be applied is whether the legislature would have enacted
the valid part if it had known that the rest of the statute was invalid.108
In the impugned case, inclusion of ‘everyone’109 in the amendment act and the obligation of
the state to ‘take appropriate steps to safeguard this right’110 as envisaged by the Article 21B
abrogates the identity of the basic structure111 of the Mayeechin constitution and are
severable.
The purpose of the amendment act was to provide right to work for everyone in the territory
of Mayeechin. The purpose behind enactment stands defeated if the void clauses i.e.
‘everyone’, ‘take appropriate steps to safeguard this right’ and ‘right against
unemployment’112 are severed. This is because these rights have otherwise been conferred to
the citizen in Part III of the Mayeechin Constitution under the canopy of Article 14,16,19 and
21.
Therefore, it is submitted that test of severability is not applicable upon Article 21B and the
whole Amendment act should be invalidated in its entirety.

V. THE CITIZENSHIP AMENDMENT ACT, 2019 IS LIABLE TO BE STRUCK

DOWN BEING UNCONSTITUTIONAL

It is humbly submitted that the Citizenship Amendment Act, 2019 (hereinafter CAA) is liable
to be struck down being unconstitutional as first, Provisions of CAA abrogate the basic
structure of the Mayeechin Constitution (A); secondly, Provisions of CAA are in derogation
with the fundamental rights (B); and lastly, test of severability is not applicable on CAA (C)

A. PROVISIONS OF CAA ABROGATE THE BASIC STRUCTURE

The ordinary legislation infringing the basic structure can be struck down for the same.113
The principle of secularism is a part of the basic structure of the Constitution.114 Indian

107
R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930, ¶22 (India).
108
Id.
109
Moot Proposition ¶8.
110
Moot Proposition ¶8.
111
Submission Issue IV.
112
Moot Proposition ¶8.
113
Madras Bar Association v Union of India, (2014) 10 SCC 1, ¶109.
114
Kesavananda Bharati, supra note 80; S.R. Bommai v Union of India, (1994) 3 SCC 1, ¶29 (India).

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MEMORANDUM for PETITIONER [ARGUMENTS]

concept of secularism is to treat all religions with equal respect and no state action will be
determined by any religion.115

In the impugned case, CAA in both its form and effect, views illegal immigrants belonging to
one religion as less deserving of equal consideration and respect than illegal immigrants
belonging to another religion.116 Furthermore, it gives an unjustified preference to religious
persecution over other equally grave forms of persecution.117 This discrimination premised
solely on religion amounts to blatant destruction of the principle of secularism.

Therefore, it is submitted that CAA abrogates the basic structure of the Mayeechin
Constitution.

B. PROVISIONS OF CAA ARE IN DEROGATION WITH THE FUNDAMENTAL RIGHTS

It is humbly submitted that a statute is declared unconstitutional and void if it comes in

derogation with a Fundamental Right.118 The impugned act is in derogation with fundamental
rights as first, classification stated under the provisions of CAA is not reasonable (1); and
lastly, CAA is not narrowly tailored (2).

1. CLASSIFICATION STATED UNDER THE PROVISIONS OF CAA IS NOT REASONABLE

For a classification to be reasonable and permissible under right to equality, two conditions
must be fulfilled. Firstly, “the classification must be founded on an intelligible
differentiation”.119 Secondly, the differentia must have a “rational nexus to the object sought
to be achieved by the statute in question”.120

In the impugned case, the classification is not reasonable as first, classification is not founded
on an intelligible differentia; and lastly, there is no rational nexus between object and
differentia.

115
Bal Patil v. Union of India, (2005) 6 SCC 690, 704 (India) [hereinafter Bal Patil].
116
Avinash Amarnath, Testing CAA on the Principles of Constitutional law, LIVE LAW, (Feb. 10, 2020 4:08
PM), https://www.livelaw.in/columns/testing-caa-on-the-principles-of-constitutional-law-152194.
117
Id.
118
M.P. JAIN, INDIAN CONSTITUTIONAL LAW 883 (8th ed. 2018).
119
State of Rajasthan v. Mukan Chand, (1964) 6 SCR 903, ¶8 (India).
120
Leelabai Gajanan Pansare v. Oriental Insurance Co. Ltd., (2008) 9 SCC 720, 757 (India).

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MEMORANDUM for PETITIONER [ARGUMENTS]

a) Classification is not founded on an intelligible differentia

The classification must be founded on an intelligible differentiation which distinguishes

persons or things that are to be put together from others left out of the group.121 The
classification must not be arbitrary but must be rational; that is to say, it must not only be
based on some qualities or characteristics which are to be found in all the persons grouped
together and not in others who are left.122

Further, CAA enables fast-track citizenship to people from certain religion and country of
origin despite the acceptance of constitution to one common citizenship for every Indian
regardless of his religion, language, culture or faith.”123

In the present case, CAA makes three separate classifications. First, it distinguishes migrants
from Pakistan, Bangladesh and Afghanistan from migrants from all other countries. Second,
it makes a sub-classification separating those belonging to the Hindu, Jain, Sikh, Buddhist or
Christian faiths from all other persons. And third, it confers privileges to those migrants
fulfilling the above criteria only if they have entered India on or before December 31,
2014.124

Moreover, the Classification in question excludes persons situated similarly such as the
exclusion of Bhutan and Sri Lanka from countries; exclusion of other people persecuted
based on religion etc. thereby treating people unequally situated in a like manner.125

Therefore, it is submitted that the act has no intelligible differentia in the classification of
beneficiaries.

b) There is no rational nexus between object and differentia

It is essential that there must be presence of nexus between the object of the act and the basis
of classification and when a reasonable basis is not present for classification then such
classification made by the legislature must be declared discriminatory.126

121
State of Rajasthan v. Mukan Chand, (1964) 6 SCR 903, ¶8 (India).
122
D.S. Nakara v. Union of India, (1983) 1 SCC 305, ¶12 (India).
123
Bal Patil, supra note 115.
124
The Citizenship (Amendment) Act, 2019, No. 47, Act of Parliament, 2019 (India).
125
Roshini Sinha, Explainer: The Citizenship (Amendment) Bill, 2019, PRS LEGISLATIVE RESEARCH (Jan. 12,
2020 11:20 PM), https://www.prsindia.org/theprsblog/explainer-citizenship-amendment-bill-2019.
126
Saurabh Chaudri v. Union of India, (2003) 11 SCC 146, ¶36 (India).

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MEMORANDUM for PETITIONER [ARGUMENTS]

Additionally, a classification is bad as under-inclusive when a State benefits or burdens

persons in a manner that furthers a legitimate purpose but does not confer the same benefit or
place the same burden on others who are similarly situated.127

In the impugned case, the Statement of Object and Reason shows that CAA is an Act for the
protection of persecuted religious minorities from Pakistan, Afghanistan, and Bangladesh.128
However, the act fails to protect the other minorities who are equally persecuted on the basis
of religion in these countries,129 and from other countries having state religion, thereby
defeating its object. It is an under-inclusive classification, which results in the creation of a
class within a class.

Therefore, it is submitted that there is no reasonable nexus between differentia and the object
of the act.

2. CAA IS NOT NARROWLY TAILORED

Narrow tailoring also known as the strict scrutiny applies a more searching judicial scrutiny
to guard against discriminations which could have made by the state against group of people
in violation of the constitutional guaranty of just and equal laws.130

Doctrine of strict scrutiny requires the classification or infringement to be narrowly tailored

to achieve a compelling governmental necessity to save the law from the taint of
unconstitutionality;131 strict scrutiny has application in two cases: First, where the legislation
was ex facie unreasonable, and second, where there was an alleged violation of Article 21.132

In the impugned case, the intention of the state is to provide citizenship to those persecuted
on religious grounds.133 However, the state is treating people of other religions who are
residing in Mayeechin for same reason differently. The excluded class of the persecuted
minorities are still deprived of their right to equality and a meaningful right to life and
personal liberty. This is in conflict with the interest of serving the persecuted minorities.

Therefore, it is submitted that CAA is not narrowly tailored.

127
State of Gujarat v. Shri Ambica Mills Ltd., (1974) 4 SCC 656, 675 (India).
128
The Citizenship (Amendment) Bill, 2019, No. 370, Bills of Parliament, 2019 (India).
129
Avinash Amarnath, Testing CAA on the Principles of Constitutional law, LIVELAW, (Feb. 10, 2020 4:08
PM) https://www.livelaw.in/columns/testing-caa-on-the-principles-of-constitutional-law-152194.
130
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1, 682-683 (India).
131
MoizTundawala, Invocation of Strict Scrutiny In
India: Why The Opposition?, MANUPATRA (Jan. 28, 2020)
http://docs.manupatra.in/newsline/articles/Upload/0D32ADDD-11B7-4466-8885-A1B3BB9DC04B.pdf.
132
Saurabh Chaudri v. Union of India, (2003) 11 SCC 146, ¶36 (India).
133
The Citizenship (Amendment) Bill, 2019, No. 370, Bills of Parliament, 2019 (India).

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MEMORANDUM for PETITIONER [ARGUMENTS]

C. TEST OF SEVERABILITY IS NOT APPLICABLE ON CAA

When the valid and invalid parts of a statute are independent and do not form part of a
scheme but what is left after omitting the invalid portion is so thin and truncated as to be in
substance different from what it was when it emerged out of the legislature, then also it will
be rejected in its entirety.134
In the impugned case, s. 2,3,5, and 6 of the impugned act are subject to be severed as they are
in violation of the fundamental rights135 and they also abrogate the basic structure of the
constitution.136 The remainder after omitting the invalid provisions is section 4. The subject
matter of Section 4 is different from the subject matter of invalid provisions as Section 4
deals with Overseas Citizens of Mayeechin cardholder. After the invalid provisions are
omitted the remainder i.e. section 4 is very narrow and short to stand alone.
Therefore, it is submitted that test of severability is not applicable on CAA.

134
R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930, ¶22 (India).
135
Submissions Issue V.
136
Id.

13TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MCC, 2020 PAGE | 19

MEMORANDUM for PETITIONER [PRAYER]

PRAYER

Wherefore, in the light of the issues raised, arguments advanced, reasons given and
authorities cited, it is most humbly prayed before this Hon’ble Court, that it may be pleased
to:

A. Declare that, a judge who has expressed opinion as part of the referring bench, ought
to participate in the larger bench hearing the referred case.
B. Declare that, the master of roster must be deemed to include five senior-most judges
of the Supreme Court.
C. Declare that the fees of lawyers should be regulated by the Supreme Court.
D. Declare that, the constitutional amendment inserting Article 21B is liable to be struck
down being unconstitutional.
E. Declare that, the Citizenship Amendment Act, 2019 is liable to be struck down being
unconstitutional.
F. Also, pass any other relief that the Hon’ble Court may be pleased to grant in favour of
the petitioner in the interest of justice, equity and good conscience, all of which is
respectfully submitted.

And for this act of kindness the petitioners as are duty bound shall ever pray.

DATE: 20/02/2020 (S/d)

PLACE:Supreme Court of Mayeechin (Counsels for the Petitioner)

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