Issue 3 Respondents: - 

Whether the failure on the part of the State to take into consideration, the public
opinion before enactment of the Policy constitutionally appropriate and valid, and if
not, was the same grave enough to challenge the entire Policy?

Public opinion.

It is Most Respectfully submitted before this Hon’ble Supreme court of Indisia that, the
Cabinet minister, Ministry of Road Transport and Highway has enacted the said subordinate
legislation1 by exercising its power of delegated legislation under the Constitution. 2 The said
authority has complied with all the provision of the constitution and does not violate any of
the provision of the constitution before enforcing the said policy.

It is also submitted that, there is no constitutional requirement or any provision enriched

under the constitution provides any constitutional right to its citizens or provides any
constitutional duty on the administrative authority to consult or take public opinion before
enacting the vehicle scrappage policy. Which makes the whole procedure appropriate and
constitutionally valid.

Difference between consultation in policy making procedure and consultation before

enacting the policy in notification.

It is submitted that, there no explicit provision present under the constitution of Indisia which
mandates the administrative authority to take prior public opinion or take prior consultation
in law making procedure of the policy.

A distinction needs to be drawn between the entire Vehicle Scrappage Policy and the
notification under which the one branch of the whole policy i.e., Registered Vehicle
Scrapping Facility under the Vehicle Scrappage Policy 3 is being brought. It is may be
contended that, there is some irregularities in publishing the notification (not the entire
policy) but on the basis of same irregularities the entire policy cannot be challenged.

Participation in policy making through Representation.

It is submitted that, the scope of a public participation in law making process is very limited
in indisia. Indisia is representative democracy where the people vote for representatives who

1
Moot Prop.
2
https://knowindia.india.gov.in/profile/the-union/executive.php
3
Moot Prop.
then enact policy initiatives.4 It is settled that public participation in Indisia is through the
representative mode, as the country have adopted the representative model of governance.

It is submitted that the public elects its representatives and the Council of Ministers are
collectively responsible to the Parliament.5

The principle of direct involvement in policy making procedure is not embedded in our
constitution. The reason why indirect involvement through political participation is given by
this Hon’ble supreme court in the case of Rajeev Suri v. Delhi Development Authorities &
Ors. as,

“188. The citizens are completely free to advocate any notion along the Government
policy or the manner of making it in their free exercise of right to speech and expression, but
enforcement of such notion cannot be fructified by resorting to judicial review. The idea of
public involvement in administrative matters is based upon the stage and extent of
representation prescribed by the legislature. No country with a sizeable population like ours
can give a promise of direct participation to every individual in the decision-making process
(of the Government) in administrative matters unless the law so prescribes.”6

Therefore, by referring to the above judgement it can be very well established that, there is no
provision under the constitution which talks about direct involvement of an individual or
group of people in law making process. It is settled that, the representatives who are enacting
the law, having being elected by the people of the country represents the will of the citizens.
It may be said that, there are some irregularities in publication of the notification; but the
same cannot be the basis to challenge the entire policy which is in consonance with the
provisions of the constitution.

Also, it is pertinent to note that, in the case of Doctors for Life International v. Speaker of the
National Assembly & Ors.,7 delivered by the Constitutional Court of South Africa, and
Kiambu County Government & Ors. v. Robert N. Gakuru & Ors 8 wherein an express
provision providing for public consultation was envisaged in the statutory regime and
constitution. It is submitted that, these case authorities are not of much relevance in absence

4
Budge, Ian (2001). "Direct democracy". In Clarke, Paul A.B.; Foweraker, Joe (eds.). Encyclopedia of Political
Thought. Taylor & Francis
5
Constitutionalism and Democracy, Transitions in the Contemporary World, Oxford University Press, 1993
6
Rajeev Suri v. Delhi Development Authorities.
7
Doctors for Life International v. Speaker of the National Assembly & Ors 2006 (12) BCLR 1399
8
Civil Appeal No. 200 of 2014 decided on 30.6.2017 (Court of Appeal, Kenya)
of statutory regime in Indisian context mandating public participation before formulation of
the policy, in the light of principles discussed above.

Therefore, it is constitutionally appropriate to not take into consideration any prior public
opinion before enacting the policy.

Non-Interference and Exclusion of Judicial Review.

Under the Constitution, the role of the Executive is not limited to implementing legislation, it
has also been given power under Art. 245 of the Constitution to delegate some of legislature’s
powers in favour of executive to function as the legislative function. 9 At the same time when
a delegated power is being exercised by the delegated authority under Art. 245, it has a very
little scope of judicial review. The court cannot interfere to check the correctness, suitability
and appropriateness of a policy nor the court can act as advisors to the executives to
formulate the policy.

An important reference needs to be made to the judgment of the Supreme Court, where the
Court while dealing with the scope of judicial review of an policy, held as follows:

“16. The scope of judicial review of governmental policy is now well defined. Courts
do not and cannot act as Appellate Authorities examining the correctness, suitability and
appropriateness of a policy nor are courts Advisors to the executive on matters of policy
which the executive is entitled to formulate. The scope of judicial review when examining a
policy of the Government is to check whether it violates the fundamental rights of the citizens
or is opposed to the provisions of the Constitution, or opposed to any statutory provision or
manifestly arbitrary. Courts cannot interfere with policy either on the ground that it is
erroneous or on the ground that a better, fairer or wiser alternative is available. Legality of
the policy, and not the wisdom or soundness of the policy, is the subject of judicial review”10

It is Submitted that, in judicial review, the question before this court hon’ble while dealing
with the legality of this notification is not whether proper procedural method of
implementation has been adopted by the administrative body before enacting the policy. The
scope of judicial review is only limited to check if the policy violates any fundamental rights

9
Art. 245 of Indian Constitution.
10
Directorate of Film Festivals & Ors. Vs. Gaurav Ashwin Jain & Ors., (2007) 4 SCC 737, Asif Hameed v.
State of J&K 1989 Supp (2) SCC 364, Sitaram Sugar Co. Ltd. v. Union of India (1990) 3 SCC 223, Khoday
Distilleries Ltd. v. State of Karnataka (1996) 10 SCC 304, BALCO Employees' Union v. Union of India (2002)
2 SCC 333, State of Orissa v. Gopinath Dash (2005) 13 SCC 495 and Akhil Bharat Goseva Sangh (3) v. State of
A.P. (2006) 4 SCC 162).
of the constitution or is against any provision of the constitution. The question of proper
implementation and adoption of procedural measure to properly implement the policy is
solely in the hands of the administrative authority, as established in the case of Sitaram Sugar
Co. Ltd. v Union of India.11 and State of Rajasthan & ors. vs. Basant Nahata.12

Also, the view has recently been reiterated by the Apex Court in Parisons Agrotech Private
Limited & Anr Vs Union of India & Ors; ,where the Supreme Court observed as under:

”14. No doubt, the Writ Court has adequate power of judicial review in respect of
such decisions. However, once it is found that there is sufficient material for taking a
particular policy decision, bringing it within the four corners of Article 14 of the Constitution
of India, power of Judicial Review would not extend to determine the correctness of such a
policy decision or to indulge into the exercise of finding out whether there could be more
appropriate or better alternatives.”

“Once the court finds that the parameters of Article 14 are satisfied; there was due
application of mind in arriving at the decision which is backed by cogent material; the
decision is not arbitrary or irrational and; it is taken in public interest, the Court has to
respect such a decision of the Executive as the policy making is the domain of the Executive
and the decision in question has passed the test of the Judicial Review.”13

The doors of this hon’ble court to apply judicial review closes on the threshold when it is
proved that it is not arbitrary irrational and the policy is in public interest. As already
submitted in the previous issue, this policy is not arbitrary, is in accordance with the
provision of the constitution and is brought by looking at larger public interest.

The scope of judicial review closes, as the matter of procedural measures forms the
implementation is in the hands of law enforcing authority to achieve the objective of the
policy.

Therefore, this court should not further interfere to check correctness, suitability and
appropriateness of the policy as it is a matter of executives and not the writ court to decide
implementation of the policy.

Exclusion of Rules of Natural Justice.

11
Sitaram Sugar Co. Ltd. v Union of India (1990) 3 SCC 233
12
State of Rajasthan & ors. vs. Basant Nahata (2005) 12 SCC 77
13
Parisons Agrotech Private Limited & Anr Vs Union of India & Ors; (2015) 9 SCC 657
As submitted in the above submissions, the procedural and implementation are delegated to
the executives and it totally left on the administrative authority to how to publish the rules, to
achieve the greater object of the policy.

It is a settled proposition in Indisia that no hearing or consultation can be claimed by any one
as a matter of right or natural justice, when the administration is engaged in discharging a
legislative function.14 and the same cannot be challenged on the ground of non-observance of
the principle of natural justice.15

“That subordinate legislation cannot be questioned on the ground of violation of

principles of natural justice on which administrative action may be questioned. It cannot, no
doubt, be done merely on the ground that it is not reasonable or that it has not taken into
account relevant circumstances which the Court considers relevant.”

Executive while exercising their power of enacting a policy, has been delegated procedural
powers too, to decide what it best for the implementation of the policy and what procedure
needs to be adopted for the better implementation of the policy. Therefore, rules of natural
justice don’t come into the picture where no consultation can be asked by the affected
citizens as the discretion in on the administrative authorities to take consultation or not.

Administrative power to exclude consultation before enacting the notification.

It is submitted that administrative authorities enjoy certain power under the constitution and
at the same time it need not be required to follow the same procedure as given under the
statute.

As submitted earlier, Indisia is has representative democracy embedded under the

constitution where the citizen participates in law making procedure through elected
representative who represents their will. In the same sense it can be said that the minister is
vested with the discretion to consult these bodies which he considers to be representative of
the interests likely to be affected or where he is to consult such bodies.

Also let us understand why there is a need to delegate few legislative powers to the executive
authority the basic objective of doing so.

14
Tulsipur Sugar Co. v Notified Area Committee, Tulsipur, AIR 1980 SC 882: (1980) 2 SCC 295.
15
I.E.Newspaper (Bombay) Pvt. Ltd. V Union of India, AIR 1986 SC 515,540: (1985) 1 SCC 641,
Rameshchandra Kachardas Porwal v. State of Maharashtra (1981) 2 SCC 722 : AIR 1981 SC 1127 : (1981) 2
SCR 866 and in Bates v. Lord Hailsham of St. Marylebone (1972) 1 WLR 1373 : (1972) 1 A11 ER 1019 (Ch D)
The same is being observed in the case of Sidhartha Sarawgi V. Board Of Trustees For The
Port of Kolkata And Others where it was observed that,

“Subordinate legislation which is generally in the realm of Rules and Regulations

dealing with the procedure on implementation of plenary legislation is generally a task
entrusted to a specified authority. Since the Legislature need not spend its time for working
out the details on implementation of the law, it has thought it fit to entrust the said task to an
agency.” And by saying so, it delegates even the procedural powers to the executive
authorities.

A reference may also be made to the case of State of Rajasthan & ors. vs. Basant Nahata 16
Section 22-A of the Registration Act, 1908 which was inserted by Rajasthan Amendment Act
16 of 1976, the court pointed out what kind of legislative powers can be delegated to the
executive held that,

“64. Essential functions of the legislature cannot be delegated and it must be judged
on the touchstone of Article 14 and Article 246 of the Constitution. It is, thus, only the
ancillary and procedural powers which can be delegated and not the essential legislative
point. The procedural powers are, therefore, normally left to be exercised by the executive by
reason of a delegated legislation.”

Once the power is conferred, after exercising the said power, how to implement the decision
taken in the process, is a matter of procedure. The Legislature may, after laying down the
legislative policy, confer discretion on an administrative agency as to the execution of the
policy and leave it to the agency to work out the details within the framework of that policy.17

Therefore, in the same sense it is submitted that, the administrative executive authority enjoys
powers to set up rules and to take necessary measures of procedural implementation of the
policy and therefore can also exclude public consultation or opinion before enacting a part of
policy under the notification.

Entire Policy cannot be struck down.

As submitted earlier, there is a difference between the entire policy and a part of policy under
which is brought under the head of notification. Similarly, there is a difference between the

16
State of Rajasthan & ors. vs. Basant Nahata (2005) 12 SCC 77
17
Khambalia Municipality v. State of Gujarat AIR 1967 SC 1048
objective of the entire policy and the objective of the notification under which a branch of
policy is being brought.

The objective of the notification is only to set up, authorisation and operation of Authorised
Vehicle Scrapping Facilities (AVSF) in the country which completely different from the
objective of the entire policy (i.e, Vehicle Scrappage Policy) who has an objective to preserve
the ecosystem which in turn may attract additional investments of around Rs. 10,000 Crore
and aim for creation of as many as 35,000 job opportunities.

Therefore, mere setting up of an authorisation and operation of Authorised Vehicle

Scrappage facility cannot violate any fundamental right or affect any interest of the
Individual or group of Individual. constitutional provision of Indisia. Which does not require
any public consultation according to the provision of Indisia.

Therefore, it is not competent for the court to examine the policy on merit and demerits
whether the necessary procedure is being followed or not while enacting the notification
which has nothing to do with rights and interests of the citizens.

A reference may again be made to the of Sitaram Sugar Co. Ltd. v Union of India where it
was held that, the Court does not concern itself with the wisdom or efficacies of the rules. It
is for the rule maker to decide as matter of policy, how to implement the provisions of the
statute and what measures to take to efficaciously achieve the object of the act. It is not for
the court to examine the merit and demerit of the case.18

Therefore, in respect of all the submissions it is most respectfully submitted that, it would not
be constitutionally appropriate and valid to challenge the entire policy, just on the basis that
the notification which aims to brings only one part of the policy, faces some procedural
irregularities.

18
Sitaram Sugar Co. Ltd. v Union of India (1990) 3 SCC 233.