PETITIONER MEMORIAL Final Modern

15TH SHAKARRAO KANITKAR NATIONAL MOOT COURT COMPETITION
15th SHAKARRAO KANITKAR NATIONAL MOOT COURT COMPETITION
MARATHWADA MITRA MANDAL’S SHANKARRAO CHAVAN LAW COLLEGE,

PUNE
SAVITRIBAI PHULE PUNE UNIVERSITY, PUNE
Speaker 1- Harsha Sharma
Speaker 2- Pareen Solanki
Researcher- Siddharth Sutaria
In the Hon’ble Supreme Court of Indiana
Writ Petition invoked Under Article 32 of the Constitution of Indiana
In the matter of
W.P. No……/2021
Modern Legal Research Centre (MLRC)…………………………………PETITIONER
V.
Supreme Court of Indiana through its Registrar………………………..RESPONDENT
Upon Submission to the Hon’ble Supreme Court of Indiana
MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS
LIST OF ABBREVIATION…………………………………………………………………………………1
INDEX OF AUTHORITY AND BIBLIOGRAPHY......................................................…...........................2
STATEMENT OF JURISDICTION………………………………………………………………………..4
STATEMENT OF FACTS…………………………………………………………………………………..5
ISSUES RAISED……………………………………………………………………………………………..6
STATEMENT OF ARGUMENTS………………………………………………………………………….7
A. Whether the PIL filed by MLRC is maintainable?.................................................................................7

a. Locus standi of MLRC
b. Judiciary inclusive within the meaning of ‘state’
B. Whether the action of judiciary has led to violation of the fundamental rights of citizens as
bestowed under the Constitution of Indiana?........................................................................................11
a. Discrimination in the process of hearing.
b. Lack of procedural fairness depriving life and liberty of the individuals
c. lack of transparency
C. Whether the Chief Justice of Indiana is insufficient in allocation of cases as ‘Master of

Roaster’?...................................................................................................................................................16
a. The authority to be exercised in accordance with the procedures and should be refrain from being
subjective
b. Procedure and rule governing the allocation of cases to be made elaborate
c. The chief justice and the collegiums
PRAYER…………………………………………………………………………………………………….21

LIST OF ABBREVIATION
& And
u/s. Under Section
u/A. Under Article
S.L.P. Special Leave Petition
W.P. Writ Petition
Art. Article
Sec. Section
CrPc. Criminal Procedural Code
FIR First Information Report
Hon’ble Honourable
Ors. Others
SC Supreme Court
SCC Supreme Court Case
V. Versus
AIR All India Reporter
Ed. Edition
HC High Court
LJ Law Journal
No. Number
UOI Union of India
1
INDEX OF AUTHORITY AND BIBLIOGRAPGHY
A. BOOKS
1. M.P Jain, Indian Constitutional Law, 1343 (7th ed. 2016).
2. D.D. Basu, Commentary on the Constitution of India, (8th ed., Justice C.K. Thakker,
2012).
3. J.N Pandey, Constitutional law of India, (55 th Ed., Central Law Publication).
B. DICTIONARY
Bryan A. Garner, Eighth Edition, Black’s Law Dictionary.
C. LIST OF CASES
i. Calcutta Gas Co. Ltd. v. State of West Bengal (AIR 1962 SC 1044)
ii. Janata Dal v. H.S. Chowdhary and Ors (1991 SCR (3) 752, 1991 SCC (3) 756)
iii. D.C.Wadhwa v. State of Bihar (1987 AIR 579, 1987 SCR (1) 798)
iv. S. P. Gupta v. Union of India (AIR 1982 SC 149, 1981 Supp (1) | SCC 87, 1982 2 SCR 365)
v. Naresh Shridhar Mirajkar v. State of Maharashtra (1967 AIR, 1 1966 SCR (3) 744)
vi. Budhan v. State of Bihar (1955 AIR 191, 1955 SCR (1)1045)
vii. Shivshankar v. State of Madhya Pradesh (I.L.R(1851)Nag 656)
viii. Rupa Ashok Hurra v. Ashok Hurra (Writ Petition (civil) 509 of 1997)
ix. Sri Srinivas Theatre v. Government of Tamil Nadu (1992 AIR 999, 1992 SCR (2) 164)
x. Bachan Singh v. State of Punjab (AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2
SCC 684, 1983 1 SCR 145)
xi. State of West Bengal v. Anwar Ali
xii. Haryana State Electricity Board v. Suresh (AIR 1999 SC 1160)
xiii. Maneka Gandhi v. Union of India (1978 AIR 597, 1978 SCR (2) 621)
xiv. Romila Thapar vs Union of India (WRIT PETITION (CRIMINAL) NO. 260 OF 2018)
xv. Central public information officer, Supreme Court of India ….. Appellant(s) versus Subhash Chandra
Agarwal ….. respondent(s) civil appeal no. 10044 of 2010
xvi. State of Uttar Pradesh and others Vs. Neeraj Chaubey and Others ((2010) 10 SCC 320)
xvii. Ranjit Thakur v. Union of India and Other
xviii. Supreme Court Advocates-On-Record Supreme Court Advocates-On-Record Association and Others
v. Union of India.
2
D. BIBLIOGRAPHY
1. www.scconline.com
2. www.manupatra.com
3
STATEMENT OF JURISDICTION
The Hon’ble Supreme Court of Indiana has the inherit jurisdiction to try and entertain present PIL Under
Article 32 of the Constitution of Indiana, which reads as follows:
Article 32. Remedies for enforcement of rights conferred by this Part-
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part.
THE PETITIONERS HAVE THE HONOR TO SUBMIT BEFORE THE HON’BLE SUPREME COURT OF
INDIANA, THE MEMORANDUM FOR THE PETITIONERS.
4
STATEMENT OF FACTS
i. Mr. Anay Nawaami is the editor-in-chief and founder of ‘Democratic TV’ which is a news Channel
having its registered office at Pumbai in the Saharashtra State of Indiana.
ii. Mr. Anay Nawaami got into an agreement with Mr. Abhay Sharma, an interior decorator to furnish
and decorate his office at the cost of 5 crore rupees and Rs. 1 crore were paid in advance and remaining
balance was to be paid after work completion.
iii. Even after many reminders Mr. Abhay Sharma did not receive his money and in 2017 due to heavy
debt he committed suicide leaving a suicide note holding Mr. Anay Nawaami responsible for his death.
Mrs. Abhay Sharma filed an FIR against Mr. Anay Nawaami.
iv. The Complaint pursuing this FIR was quashed by the Sessions Court on the ground ‘lack of evidence
to show direct nexus’ in the year 2018.
v. In the year 2020, Mr. Nawaami reported fiercely against the newly appointed Govt. in Saharashtra
state. The Govt. in power took advantage of the complained filed against Mr. Anay Nawaami and
reopened the case.
vi. Mr. Anay Nawaami applied for bail in the Sessions Court and before the hearing could take place, he
appealed in the High Court where the High Court rejected his petition, asking him to go back to the
Sessions Court to exhaust the local remedies first.
vii. Against this order of the High Court, he approached the Supreme Court under Art. 32 and immediately
the case was taken up for hearing on urgent basis and he was granted Bail.
viii. There was an outrage in the country for the selective hearing when 3560 similar petitions for bail were
pending in the Supreme Court of Indiana.
ix. Modern Legal Research Center (MLRC), an NGO, being the torch bearer of civil and political rights
collected the signatures of all the 3560 pending petitioners to file a PIL questioning the selective
hearing.
5
ISSUES RAISED
ISSUE 1
Whether the PIL filed by MLRC is maintainable?
ISSUE 2
Whether the action of judiciary has led to violation of the fundamental rights of citizens as bestowed
under the Constitution of Indiana?
ISSUE 3
Whether the Chief Justice of Indiana is insufficient in allocation of cases as ‘Master of Roaster’?
6
STATEMENT OF ARGUMENTS
A. Whether the PIL filed by MLRC is maintainable?
1. It is humbly submitted to this Hon’ble court that the present writ petition is preferred by the Petitioners
under Art. 32 of the Constitution of Indiana, herein since the Petitioners are aggrieved by the procedure
adopted by the Supreme Court through it registry, in the process of disposal of petitions on selective
basis, encroaching upon the Fundamental Rights of the citizens as bestowed under part III of the
Constitution & thereby questioning the procedure adopted by this Hon’ble court as a redressal
mechanism and the role played by the Chief Justice of Indiana as Master of Roaster.
a. Locus standi of MLRC

2. It is submitted by the Counsel that the petitioner, MLRC, is an NGO, dedicated to the objective to defend
the civil and political rights of individuals, collected the signatures of all the 3560 pending petitioners to
file a PIL questioning the selective hearing.1
3. It is further submitted in this Hon’ble Court that, a person acquires a locus standi, when he has to have a
personal or individual right which has been violated or threatened to be violated.2
4. However, the strict rule was relaxed and extended to public wrong and injury as observed by this Hon’ble
court in Janata Dal v. H.S. Chowdhary and Ors.3in the words as follows:
‘.......strict rule of locus standi applicable to private litigation is relaxed and a broad rule is evolved
which gives the right of locus standi to any member of the public acting bona fide and having sufficient
interest in instituting an action for redressal of public wrong or public injury, but who is not a mere busy
body or a meddlesome interloper; since the dominant object of PIL is to ensure observance of the
provisions of the Constitution or the law which can be best achieved to advance the cause of community
or disadvantaged groups and individuals or public interest by permitting any person, having no personal
gain or private motivation or any other oblique consideration but acting bona fide and having sufficient
interest in maintaining an action for judicial redress for public injury to put the judicial machinery in
motion like action popularize of Roman Law whereby any citizen could bring such an action in respect
of a public delict.’
1
Fact sheet ¶ 6
2
Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044
3
1991 SCR (3) 752, 1991 SCC (3) 756
7
5. Wherein public interest is defined in the Black’s law Dictionary as; “(1) The general welfare of the public
that warrants recognition and protection; and (2) Something in which the public as a whole has a stake;
especially an interest that justifies government regulation.”4
6. In D.C.Wadhwa v. State of Bihar,5 Supreme Court held that a petitioner, a professor of political science
who had done substantial research and deeply interested in ensuring proper implementation of the
constitutional provisions, challenged the practice followed by the state of Bihar in repromulgating a
number of ordinances without getting the approval of the legislature. The court held that the petitioner
as a member of public has 'sufficient interest' or locus standi to maintain a petition under Article 32.
7. In 1981, Justice P. N. Bhagwati in S. P. Gupta v. Union of India6, articulated the concept of PIL as
follows;
‘Where a legal wrong or a legal injury is caused to a person or to a determinate class of persons by
reason of violation of any constitutional or legal right or any burden is imposed in contravention of any
constitutional or legal provision or without authority of law or any such legal wrong or legal injury or
illegal burden is threatened and such person or determinate class of persons by reasons of poverty,
helplessness or disability or socially or economically disadvantaged position unable to approach the
court for relief, any member of public can maintain an application for an appropriate direction, order
or writ in the High Court under Article 226 and in case any breach of fundamental rights of such persons
or determinate class of persons, in this court under Article 32 seeking judicial redress for the legal wrong
or legal injury caused to such person or determinate class of persons.’
8. The counsel on behalf of the petitioner contends that the said PIL is filed by MLRC to preserve and
protect the interest of the aggrieved individuals with their pending petitions awaiting to be heard.
b. Judiciary inclusive within the meaning of ‘state’
9. It is further submitted to this Hon’ble Court that part III of the constitution provides relief for action
against the encroachment of fundamental rights by the State as defined in Art. 12 of the constitution
which as follows:
“Definition in this part, unless the context otherwise requires, the State includes the Government and
Parliament of India and the Government and the Legislature of each of the States and all local or other
authorities within the territory of India or under the control of the Government of India.”
10. The French writer Montesquieu in 1748, while formulating the doctrine of separation of power observed
the role of separate organs of the government to be performed separately he wrote that; “When the
4
Bryan A. Garner (ed.), Black’s Law Dictionary. 7th ed., St. Paul, Minn.: West Publishing Co., 1979.
5
1987 AIR 579, 1987 SCR (1) 798
6
AIR 1982 SC 149, 1981 Supp (1) | SCC 87, 1982 2 SCR 365
8
legislative and the executive powers are united in the same person or in the same body of magistrates,
there can be no liberty, because apprehensions may arise, lest the same monarch or senate
should exact tyrannical laws, to execute them in a tyrannical manner. Again there is no liberty if the
judicial power be not separated from the legislative and the executive. Where it joined with the
legislative, the life and the liberty of the subject would be exposed to arbitrary control; for the judge
would be then a legislator. Where it joined to the executive power, the judge might behave with violence
and oppression. There would be an end of everything, where the same man or the same body whether of
nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public
resolutions and of trying the causes of individuals. As such, the three powers should not be combined
and given neither to a single organ nor to two organs. These three powers should be used by three
separate organs of the government. It is essential for safeguarding the liberty of the people.”7
11. Article 12 was originally introduced in the draft Constitution as Article 7. While defining the scope of
this Article, Dr. Ambedkar said the fundamental rights would be binding on every authority and by the
word ‘authority’ he meant every authority that has the power to make laws or the power to have discretion
vested in it.
12. In the case of Naresh Shridhar Mirajkar v. State of Maharashtra,8 Justice Hidayatullah in its dissenting
opinion opined that the Judiciary should be put under the ambit of Article 12, stating that the word ‘State’
must include the ‘courts’ because otherwise the courts would be allowed to make rules which violate the
fundamental rights of the citizens.
13. The Supreme Court in the case of Budhan v. State of Bihar9 has regarded the action of the Judiciary as
a state action under Article 12 in the case of violation of Article 14, but it has further created a limitation
that there should be a ‘wilful and purposeful discrimination’ which would essentially depend on the facts
and circumstances of the case.
14. The National Commission to Review the Working of the Constitution (NCRWC) has recommended that
an Explanation should be added to the Article 12 wherein the word ‘other authorities’ would mean the
authorities whose functions relate to that of a public nature.10 Since the courts were established to decide
and interpret the law, which is related to the public sphere, therefore Judiciary would fall under the
definition of ‘State’ under Article 12. Also, in Section 6(3) (b) of the UK Human Rights Act, 1998, the
definition of public authority includes any person whose functions are of a public nature.
7
Montesquieu in De l’esprit des lois (1748)
8
1967 AIR, 1 1966 SCR (3) 744
9
1955 AIR 191, 1955 SCR (1)1045
10
Ministry of Law & Justice, Government of India, NCRWC Report 2002, available at
http://legalaffairs.gov.in/sites/default/files/chapter%203.pdf, last seen on 26/9/2019.).
9
15. In Rupa Ashok Hurra v. Ashok Hurra,11the Apex Court reaffirmed and ruled that no judicial proceeding
could be said to violate any of the Fundamental rights and that it is a settled position of law that superior
courts of justice did not fall within the ambit of ‘state’ or ‘other authorities’ under Article 12. This gave
the rationale that a Superior Judicial body when acting “Judicially” would not fall under the definition
of State but when it performs any administrative or similar functions e.g conducting examination, it will
fall under the definition of “state” and that remedy could be sought in that context only in case of violation
of fundamental rights.
16. The counsel contends that the procedure and rules to be followed as determined by this Hon’ble court
falls in the administrative duty bestowed to the Court and therefore contends that the Judiciary is
inclusive within the meaning of state as governed by the constitution and an action can be sought against
the same, in the present case against this Hon’ble court.
11
Writ Petition (civil) 509 of 1997
10
B. Whether the action of judiciary has led to violation of the fundamental rights of citizens as
bestowed under the Constitution of Indiana?
17. It is humbly submitted to this Hon’ble Court that the procedure adopted by this Court has led to, not only
infringement of the ideal of Equality as enshrined in the preamble and bestowed under part III of the
Constitution of Indiana, titled as ‘Fundamental Right to Equality’ but also questioning of its selective
procedure as a redressal mechanism, thereby affecting the life and liberty of aggrieved individuals.
18. The aforesaid principles are stated under Art. 14 and 21 of the Constitution of Indiana, which read as
follows:
Art. 14. “The State shall not deny to any person equality before the law or the equal protection of the
laws within the territory of India.”
Art 21. “No person shall be deprived of his life or personal liberty except according to procedure
established by law.”
a. Discrimination in the process of hearing.
19. It is humbly submitted that the said Art. 14 is clearly in two parts – while it commands the State not to
deny to any person ‘equality before law’, it also commands the State not to deny the ‘equal protection of
the laws’. Equality before law prohibits discrimination. It is a negative concept. The concept of ‘equal
protection of the laws’ requires the State to give special treatment to persons in different situations in
order to establish equality amongst all. It is positive in character. Therefore, the necessary corollary to
this would be that equals would be treated equally, whilst un-equals would have to be treated unequally.
The present case involves infringement of the former concept.
20. Professor Dicey in explaining the concept of legal equality, as operating in England, said: “with us every
official from Prime Minister down to constable or a collector of taxes, is under the same responsibility
for every act done without any legal justification as any other citizen.”12
21. “Democracy arises out of the notion that those who are equal in any respect are equal in all respects;
because men are equally free, they claim to be absolutely equal.”13
22. It is further submitted to this Hon’ble court that the said act violates or infringes upon the aggrieved
individuals who have been bestowed under the Constitution, ‘Equality before law.’ The counsel contends
on behalf of the petitioner’s that Mr. Anay Nawaami is the editor-in-chief and founder of ‘Democratic
12
Dicey; law of constitution, 10th edition , pg 193
13
Aristotle
11
TV14 who, against the order of the High Court, approached the Supreme Court under Art. 32 and
immediately his case were taken up for hearing on urgent basis and were granted Bail while 3560 similar
petitions for bail were pending in the Supreme Court of Indiana.15
23. According to Dr. Jennings, “Equality before the law means that equality among equals the law should
be equal for all. And should be equally administered, that like should treated alike. The right to sue and
be sued, to prosecute and prosecuted for the same kind of action should be same for all citizens of full
age and understanding without distinctions of race, religion, wealth, social status or political
influence.”16, he further expounded the principle of equality thus: Equal before the law means that among
the equals the law should be equal & should be equally administered, that like should be treated alike.
At the same time, equality before the law does not mean absolute equality of men, which is a physical
impossibility. Nor does it mean that things -which are different, shall be treated as though they were the
same. What it does mean is the denial of any special privilege by reason of birth, creed or the like & also
equal subjection of all individuals & classes to the ordinary law of the land.
24. Almost all Constitutions, which guarantee the right to equality, contain the expression "equality before
the law" or '"equal before the law". The Constitution of the United States of America, however, used the
expression "equal protection of the laws". Our Constitution has thus incorporated both the expressions.
While both the expressions aim at establishing what may be regarded as equality of legal status for all,
there is some difference between those expressions. The former expression is somewhat a negative
concept implying the absence of any special privilege in favour of an individual while the latter is a more
positive concept implying equality of treatment in equal circumstances. There is, however, one dominant
idea common to both the expressions, that is, equal justice.17
25. In the case of Sri Srinivas Theatre v. Government of Tamil Nadu,18 the Supreme Court explained that
the term equality before the law is a dynamic concept with many aspects; one such aspect being that
there should be an absence of any privilege or a person being above the law.
26. In the case of Bachan Singh v. State of Punjab,19 explaining the new dimensions of Article 14, Justice
PN Bhagwati had observed that Rule of law permeated the entire fabric of the Indian Constitution and it
excludes arbitrariness. According to him whenever there is arbitrariness, there is a denial of Rule of Law.
So, every action of the State should be free from arbitrariness otherwise the Court will strike the act as
unconstitutional.
14
¶,1 of the fact sheet
15
¶,5 of the fact sheet
16
Jennings on the Law of the Constitution
17
Shivshankar v. State of Madhya Pradesh I.L.R(1851)Nag 656
18
1992 AIR 999, 1992 SCR (2) 164
19
AIR 1980 SC 898, 1980 CriLJ 636, 1982 (1) SCALE 713, (1980) 2 SCC 684, 1983 1 SCR 145
12
27. In the leading case the supreme court20 held that section 5(1) of the west Bengal special court act 1856,
contravened article 14 and was void since it conferred arbitrary power on the government to classify
offences or cases at its pleasure .The majority held that the procedure laid down by the act for the trial
by the special courts varied substantially from the procedure laid down on the trial of offences generally
by the criminal procedure code.
28. In Secretary, Haryana State Electricity Board v. Suresh,21 the Court observed that, “equality clause in
Constitution does not speak of mere formal "equality before law" but embodies the concept of real and
substantive equality which strikes of the inequalities arising on account of vast social, economic
differentiation and is thus consequently an essential ingredient of social and economic justice.......”
29. In Maneka Gandhi v. Union of India,22 the Supreme Court clearly ruled out the room for arbitrariness.
‘Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The
principle of reasonableness, which logically as well as philosophically, is an essential element of equality
or non-arbitrariness, pervades Article 14 like a brooding omnipresence.’ Rule of law which permeates
the entire fabric of the Indian Constitution excludes arbitrariness. Wherever we find arbitrariness or
unreasonableness there is denial there is denial of rule of law.
b. Lack of procedural fairness depriving life and liberty of the individuals
30. It is humbly submitted in this Hon’ble Court that the said petition questions the procedure adopted by
this Hon’ble Court in hearing matters, whereby 3560 bail petitions were awaiting to be heard pertaining
to be similar in nature.
31. The counsel contends that the said act of the listing and procedure for conducting trials is rather subjective
and lacks procedural fairness pertaining to be bestowed under Art. 21 of the constitution, depriving the
Right to life and liberty to the aggrieved individuals.
32. Lord Denning‘s powerful invocation in the first Hamlyn Lecture, titled ‘Freedom under the Law’43:
―Whenever one of the judges takes seat, there is one application which by long tradition has priority
over all others. The counsel has but to say, ‘My Lord, I have an application which concerns the liberty
of the subject’, and forthwith the judge will put all other matters aside and hear it. …”23
33. In the case of Romila Thapar vs Union of India,24 it was observed by this court that; ‘The basic
entitlement of every citizen who is faced with allegations of criminal wrongdoing, is that the investigative
20
State of West Bengal v. Anwar Ali
21
AIR 1999 SC 1160
22
1978 AIR 597, 1978 SCR (2) 621
23
Sir Alfred Denning, Freedom under the Law, the Hamlyn Lectures,
24
WRIT PETITION (CRIMINAL) NO. 260 OF 2018
13
process should be fair. This is an integral component of the guarantee against arbitrariness under Article
14 and of the right to life and personal liberty under Article 21. If this Court were not to stand by the
principles which we have formulated, we may witness a soulful requiem to liberty.’
34. The remedy of bail is the solemn expression of the humaneness of the justice system.25
35. The counsel contends that such detention on pretence of procedure by law, with delayed trials is nothing
but denial of right to life and liberty, of the aggrieved individuals and therefore requests expeditious
process to safeguard their rights.
c. Lack of transparency
36. The Counsel contends the procedure so adopted is questioned for it being evident that the same should
be made transparent, wherein in consonance with its duty; Parliament enacted the Right to Information
Act in 2005. The Preamble of the Act reads as under:
“An Act to provide for setting out the practical regime of right to information for citizens to secure access
to information under the control of public authorities, in order to promote transparency and
accountability in the working of every public authority, the constitution of a Central Information
Commission and State Information Commissions and for matters connected therewith or incidental
thereto.”
37. Justice Chandrachud has acknowledged: “Failure to bring about accountability reforms would erode
trust in the courts’ impartiality, harming core judicial functions. Further, it also harms the broader
accountability function that the judiciary is entrusted within democratic systems including upholding
citizens’ rights and sanctioning representatives of other branches when they act in contravention of
the law. Transparency and the right to information are crucially linked to the rule of law itself. There
is a fallacy about the postulate that independence and accountability are conflicting values.” 26
38. Further Section 8 (1)(j) exempts: “information which relates to personal information the disclosure
of which has no relationship to any public activity or interest, or which would cause unwar ranted
invasion of the privacy of the individual unless the Central Public Information Officer or the State
Public Information Officer or the appellate authority, as the case may be, is satisfied that the larger
public interest justifies the disclosure of such information: provided that the information, which
cannot be denied to the Parliament or a State Legislature shall not be denied to any person.”
25
Saharashri and the Supremes‘, (The Wire, 23 June 2015)
26
central public information officer, supreme court of india ….. appellant(s) versus subhash chandra agarwal ….. respondent(s
civil appeal no. 10044 of 2010
14
39. The counsel contends that the aforesaid exception sustains when no such public interest is at stake.
Or in other words the Court has to furnish the information when it relates to Public interest and
requires the publication of the same.
The counsel concludes that not only there has been discrimination amongst individuals in pursuance
to hearing been taken up selectively but also denial of right to life to aggrieved individuals to lack in
procedural fairness by this Court.
15
C. Whether the Chief Justice of Indiana is insufficient in allocation of cases as ‘Master of Roaster’?
40. It may be mentioned at the outset that the petition acknowledges and accepts the legal principles that the
Chief Justice is the “Master of Roster” and has the authority to allocate the cases to different
Benches/Judges of the Supreme Court.
41. In this writ petition, the petitioner seeks this Court to clarify the administrative authority of the Chief
Justice of Indiana, as the Master of Roster and for laying down the procedure and principles to be
followed in preparing the Roster for allocation of cases for it being been selective.
42. It is contended by the Counsel that the said procedure is unfair and opaque i.e., lacks transparency as
pleaded by the petitioners on the ground of insufficiency and probable misuse by the Chief justice in
allocation of cases.
a. The authority to be exercised in accordance with the procedures and should be refrain from being
subjective
43. It is submitted before this Hon’ble Court that that the office of chief justice is introduced by way of art.
124 of the Constitution which read as follows;
‘(1) There shall be a Supreme Court of India constituting of a Chief Justice of India and, until Parliament
by law prescribes a larger number, of not more than seven other Judges(original)’27
44. The counsel submits that the chief justice is the senior most judge of the Supreme Court and is referred
to be first among equals thereby holding equal judicial power. However, at the same time bestowed with
the prerogative of allocation of cases to benches/judges for hearing, which the counsel contends that
should be exercised in fair, just and transparent manner.
45. The apprehension expressed is that keeping in view the predisposition of particular Judges; the Chief
Justice may assign cases to those Judges to achieve a predetermined outcome. Therefore, a transparent
system of devising cases is a prerequisite. The petition is confined to the scope and ambit of the powers
of the Chief Justice in listing matters and to seek declaration that the power must be exercised lawfully
and on objective consideration, thereby eschewing any subjective considerations.
46. In the case of State of Uttar Pradesh and others Vs. Neeraj Chaubey and Others (supra)28 has made
following weighty observations:-
27
Presently by 2019 the amendment the minimum number of other judges is 33 as determined by the parliament
28
(2010) 10 SCC 320
16
“9. ………………If the Judges were free to choose their jurisdiction or any choice was given to them to do
whatever case they may like to hear and decide, the machinery of the Court would collapse and the judicial
work of the Court would cease by generation of internal strife on account of hankering for a particular
jurisdiction or a particular case………………………”
47. In S.P. Gupta v. Union of India and Another29 the court commented on prejudices in proceedings held
by judges in the following manner;
“31...We are all human beings with our own likes and dislikes, our own predelictions and prejudices
and our mind is not so comprehensive as to be able to take in all aspects of a question at one time and
moreover sometimes, the information on which we base our judgments may be incorrect or inadequate
and our judgment may also sometimes be imperceptibly influenced by extraneous or irrelevant
considerations. It may also be noticed that it is not difficult to find reasons to justify what our bias or
predeliction or inclination impels us to do. It is for this reason that we think it is unwise to entrust power
in any significant or sensitive area to a single individual, howsoever high or important may be the office
which he is occupying. There must be checks and controls in the exercise of every power, particularly
when it is a power to make important and crucial appointments and it must be exercisable by plurality
of hands rather than be vested in a single individual...”
48. Further it is contended by the counsel that fairness in action is the hallmark of any administrative power
and while exercising the power as a Master of Roster in allocating a Bench to hear particular kind of
cases, the Chief Justice performs his function in an administrative capacity. The applicability of the
principle of bias is to be judged by applying the test of reasonable apprehension of bias in the mind of a
party.30
49. The counsel contends that assuming such discretionary power cannot be used arbitrarily deifying the rule
of law as held in the Second Judges’ case under para 427 and 466 respectively;
“427. It is, therefore, realistic that there has to be room for discretionary authority within the operation
of the rule of law, even though it has to be reduced to the minimum extent necessary for proper
governance; and within the area of discretionary authority, the existence of proper guidelines or norms
of general application excludes any arbitrary exercise of discretionary authority. In such a situation, the
exercise of discretionary authority in its application to individuals, according to proper guidelines or
norms, further reduces the area of discretion; but to that extent discretionary authority has to be given
to make the system workable. A further check in that limited sphere is provided by the conferment of the
discretionary authority not to one individual but to a body of men, requiring the final decision to be taken
29
Ibid 6
30
Ranjit Thakur v. Union of India and Other
17
after full interaction and effective consultation between themselves, to ensure projection of all likely
points of view and procuring the element of plurality in the final decision with the benefit of the collective
wisdom of all those involved in the process. The conferment of this discretionary authority in the highest
functionaries is a further check in the same direction. The constitutional scheme excludes the scope of
absolute power in any one individual. Such a construction of the provisions also, therefore, matches the
constitutional scheme and the constitutional purpose for which these provisions were enacted.
466. It has to be borne in mind that the principle of non-arbitrariness which is an essential attribute of
the rule of law is all pervasive throughout the Constitution; and an adjunct of this principle is the absence
of absolute power in one individual in any sphere of constitutional activity.....”
b. Procedure and rule governing the allocation of cases to be made elaborate
50. The counsel submits in this Hon’ble court that the Supreme Court is entitled with power to make rules
for the conduct of its business under art 14531 of the constitution. The counsel submits before this Hon’ble
court that the petitioners are well aware of the existence of Manual of office procedure on judicial side
and the Supreme Court rules, 2013 which under Order III Rules 7 and 8 to deal with preparation of lists
and fixing of hearings of petitions, which would include appropriate listings framed in accordance with
art. 145 of the constitution and that the matters be listed strictly as per these Rules.
51. However, the counsel contends that the procedures so adopted and the rules so laid down should be made
more elaborate for proceeding to be held in a fair and transparent manner. For instance the counsel relies
upon the matters that are listed as urgent32 in accordance with the manual of office procedure on judicial
side; matters include (1). Death penalty awarded (2).habeas corpus (3). Disposition eviction
(4).demolition of property (5). Violation of human rights (6). Anticipatory bail.
52. The counsel contends the ground for urgent applications have been listed in the aforesaid however, the
same is left to the discretion of the Chief Justice and thereby, leaving the matter on his whims what is
31
‘145. Rules of Court, etc
(1) Subject to the provisions of any law made by Parliament the Supreme Court may from time to time, with the approval of the
President, make rules for regulating generally the practice and procedure of the Court including
(a) rules as to the persons practising before the Court, (b) rules as to the procedure for hearing appeals, and other matters
pertaining to appeals including the time within which appeals to the Court are to be entered; (c) rules as to the proceedings in the
Court for the enforcement of any of the rights conferred by Part III; (cc) rules as to the proceedings in the Court under Article
139A; (d) rules as to the entertainment of appeals under sub clause (c) of clause ( 1 ) of Article 134; (e) any judgment pronounced
or order made by the Court may be received and rules as to the conditions the procedure for such review including the time within
which applications to the Court for such review are to be entered; (f) rules as to the costs of and incidental to any proceedings in
the Court and as to the fees to be charged in respect of proceeding therein; (g) rules as to the granting of bail; (h) rules as to stay of
proceedings; (i) rules providing for the summary determination of any appeal which appears to the Court to be frivolous or
vexatious or brought for the purpose of delay; (j) rules as to the procedure for inquiries referred to in clause ( 1 ) of Article 317’
32
Manual of office procedure on judicial side.
18
said to be urgent according his perspective rather than laying down certain grounds for its acceptance or
any recording of reasons to prevent him from probable misuse of his prerogative.
53. There being no such recording of reasons the legality of such administrative actions become immune to
judicial review which is the solemn duty of the judiciary to keep the organs of the State within the limits
of the power conferred by the Constitution by exercising the power of judicial review which is the
sentinel on the qui vive. When such an important task is assigned to the judiciary, power of listing the
cases has to be exercised in a fair and transparent manner so as to instill confidence in the public at large
that the matter shall be decided by the Court (or for that matter, by a particular Bench) strictly on legal
principles to ensure that Rule of Law, which is a part of the basic structure of the Constitution, prevails.
In this context, it was argued that the power to allocate the cases should not be with one individual
c. The chief justice and the collegiums
54. It is humbly submitted to the counsel that the counsel is aware that the as per the petitioner, the matters
need to be listed by strictly following the provisions of the Supreme Court Rules,2013.These Rules, no
doubt, empower the Chief Justice to allocate certain cases by exercising his discretionary power. The
petitioner submits that in order to ensure that such a discretion is exercised in a fair manner, the
expression ‘Chief Justice’ should be interpreted to mean ‘Collegium’ of first five Judges of the Supreme
Court, as held by this Court in Supreme Court Advocates-On-Record Supreme Court Advocates-On-
Record Association and Others v. Union of India.
55. Constitution of India expressly confers powers on the Supreme Court under Article 145 to make Rules
“for regulating generally the practice and procedure of the court” with the approval of the President.
Such Rules may include, ‘rules as to the procedure for hearing appeals and other matters pertaining to
appeals including the time within which appeals to the Courts are to be entered’Sub-Articles (2) and (3)
thereunder fix minimum number of judges to sit for any purpose including for deciding a case involving
substantial question of law as to the interpretation of the Constitution or a Reference under Article 143.
56. Article 124 establishes and constitutes the Supreme Court; the expression ‘Supreme Court’ includes the
Chief justice along with other judges. Thus, although the Chief Justice is the Master of the Roll under
the convention, the Constitution has departed from the conventional Scheme to confer power upon the
Supreme Court.
57. The expression ‘Chief Justice’ has been interpreted by a Constitution Bench of this Court in S.P. Gupta
v. Union of India and Another33to mean a ‘Collegium’. This was done to ensure a guard against the
33
Ibid 6
19
absolute power being conferred upon the Chief Justice alone. This principle has been subsequently
followed by this Court in the Second and Third Judges’ case.
58. The counsel contends that functions as ‘framing of Roster’ and ‘listing of important and sensitive
matters’ are extremely crucial and cannot be left to the sole discretion of the Chief Justice as per the law
laid down in the First Judges’ case. In any case, such exclusive discretion is anathema to the
constitutional scheme.
59. It is correctly pointed out by Hugo L. Black that, “The public welfare demands that constitutional cases
must be decided according to the terms of the Constitution itself, and not according to judges’ views of
fairness, reasonableness, or justice. I have no fear of constitutional amendments properly adopted, but I
do fear the rewriting of the Constitution by judges under the guise of interpretation.”
20
PRAYER
WHEREFORE IN THE LIGHT OF ARGUMENTS ADVANCED, AUTHORITIES CITED AND FACTS

MENTIONED THE HONOURABLE COURT MAY BE PLEASED TO ADJUDICATE:
(a) That this Hon’ble court uphold the maintainability of the PIL as filed by the petitioners;
(b) That this Hon’ble Court may be pleased to issue a writ of habeas corpus or of like nature for the individuals
aggrieved by their bail petitions been pending of similar nature and give orders for expeditious trial of the
aggrieved individuals who have been denied there liberty;
(c) That this Hon’ble Court may be pleased to issue a writ of declaration or a writ in the nature of declaration
or any other appropriate writ, order or direction holding and declaring that listing of matters must strictly
adhere to the Supreme Court Rules, 2013 and Handbook on Practice and Procedure and Office Procedure,
and declaring that the consultation by the Registry Officials for listing purposes, if any with the Hon’ble
CJI must include consultation with such number of senior-most judges as this Hon’ble court may fix in
the interest of justice and take such steps to make such procedure descriptive and elaborate to prevent
subjective considerations;
(d) That this Hon’ble Court may be pleased to issue a writ of prohibition or a writ in the nature of prohibition
or any other appropriate writ, order or direction prohibiting the Hon’ble CJI from listing any matter
contrary to the Supreme Court Rules, 2013 and Handbook on Practice and Procedure and Office Procedure
or picking and choosing Benches for the purpose of listing contrary thereto.
That this Hon’ble Court may be pleased to grant such other and further relief as may be deemed fit in the
facts and circumstances of the case and as may be required in the interests of justice.
All of which is most humbly prayed
Sd-
Counsel of Petitioner
21

PETITIONER MEMORIAL Final Modern

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15TH SHAKARRAO KANITKAR NATIONAL MOOT COURT COMPETITION

15th SHAKARRAO KANITKAR NATIONAL MOOT COURT COMPETITION

MARATHWADA MITRA MANDAL’S SHANKARRAO CHAVAN LAW COLLEGE,

In the Hon’ble Supreme Court of Indiana

Writ Petition invoked Under Article 32 of the Constitution of Indiana

Modern Legal Research Centre (MLRC)…………………………………PETITIONER

Supreme Court of Indiana through its Registrar………………………..RESPONDENT

Upon Submission to the Hon’ble Supreme Court of Indiana

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

INDEX OF AUTHORITY AND BIBLIOGRAPHY......................................................…...........................2

A. Whether the PIL filed by MLRC is maintainable?.................................................................................7

C. Whether the Chief Justice of Indiana is insufficient in allocation of cases as ‘Master of

MEMORIAL ON BEHALF OF THE PETITIONER

INDEX OF AUTHORITY AND BIBLIOGRAPGHY

1. M.P Jain, Indian Constitutional Law, 1343 (7th ed. 2016).

Article 32. Remedies for enforcement of rights conferred by this Part-

Whether the PIL filed by MLRC is maintainable?

A. Whether the PIL filed by MLRC is maintainable?

a. Locus standi of MLRC

b. Judiciary inclusive within the meaning of ‘state’

a. Discrimination in the process of hearing.

b. Lack of procedural fairness depriving life and liberty of the individuals

b. Procedure and rule governing the allocation of cases to be made elaborate

c. The chief justice and the collegiums

WHEREFORE IN THE LIGHT OF ARGUMENTS ADVANCED, AUTHORITIES CITED AND FACTS

All of which is most humbly prayed

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