Pranshutosh Kumar - P

TEAM CODE:
XVII INTERNAL MOOT COURT COMPETITION, 2022
UNIVERSITY OF PETROLEUM AND ENERGY STUDIES
BEFORE THE SUPREME COURT OF THE REPUBLIC OF CENIN
WRIT PETITION NO._____/2022

APPEAL FILED UNDER ARTICLE THIRTY TWO [32] OF THE
CONSTITUTION OF REPUBLIC OF CENIN
SMILE FOUNDATION PETITIONER
Versus
UNION OF CENIN
(THROUGH THE MINISTRY OF LAW & JUSTICE) RESPONDENT
AS SUBMITTED TO THE CHIEF JUSTICE & OTHER COMPANION JUDGES OF THE HON’BLE
SUPREME COURT OF THE REPUBLIC OF CENIN
MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS
I. TABLE OF ABBREVIATIONS 4
II. INDEX OF AUTHORITIES 6
III. STATEMENT OF JURISDICTION 10
IV. STATEMENT OF FACTS 11
V. ISSUES RAISED 13
VI. SUMMARY OF ARGUMENTS 14
VII. ARGUMENTS ADVANCED 16
1. ‘THE CONSTITUTION (ONE HUNDRED AND FIRST) AMENDMENT ACT, 2016’
VIOLATES THE BASIC STRUCTURE OF THE CONSTITUTION OF CENIN
A. THE FEDERAL STRUCTURE OF THE CONSTITUTION IS A BASIC FEATURE OF
THE CONSTITUTION THAT CANNOT BE ABROGATED BY AMENDMENT 16
i. Every state in the country has its own individuality 16
ii. Federalism is the basic structure of constitution 17
iii. Federalism in context of taxation 17
B. THE DIVISION OF POWERS BETWEEN THE UNION AND STATES IS AN

ESSENTIAL FEATURE OF THIS FEDERAL CHARACTER 18
i. Pragmatic loss of federalism in the State autonomy 18

ii. Sections omitted in the amendment 18
2. THE PM CARES FUND CLASSIFIES AS A PUBLIC AUTHORITY AND FALLS

WITHIN THE PURVIEW OF RTI ACT, 2005
A. PM CARES FUND IS A PUBLIC CHARITABLE TRUST, FALLS UNDER SEC 2(H) OF

THE RTI ACT, 2005 19
i. Notification issued by the government under Sec 2(h)(d) of the Act 19
ii. “Substantially Financed” and “Controlled” by the Government under Sec 2(h)(ii) 20
1
MEMORIAL ON BEHALF OF PETITIONER
B. PM CARES FUND IS A PUBLIC CHARITABLE TRUST, FALLS UNDER SEC 2(H) OF

THE RTI ACT, 2005 21
i. No exemption can be taken under Sec 8 of the RTI Act 21
ii. PM-CARES fund violating the fundamental rights of the citizens 22
3. RECOMMENDATION MADE BY THE GST COUNCIL TO THE CENTRAL

GOVERNMENT OF CENIN ARE NOT BINDING UPON THE SAID GOVERNMENT
A. STATUTORY VIOLATIONS 23
i. Non-compliance with sec. 90(1) of the CGST Act 23
ii. Non-adherence to sec. 83(d) & (g) of the Patent Act 23
B. DEFEAT OF THE PURPOSE AND OBJECTIVES RESPONSIBLE FOR THE GENESIS

OF THE GST COUNCIL, IF RECOMMENDATION CONSIDERED BINDING 24
i. Lack of a repugnancy provision in art. 246A 24
ii. One-third of the vote share within the council lies with the Central Government 25
C. THE CONTEXTUAL MEANING OF “RECOMMENDATIONS” IS PERSUASIVE NOT

OBLIGATORY OR BINDING 25
i. The Council’s recommendations are non-qualified 26
ii. Non-Obstante Clause absent in art. 279A; no exceptions made in art. 26
iii. Article 279A does not provide for tabling of recommendations 27
iv. Several Judicial pronouncements speak to the persuasive nature of “recommendations” 27
4. THE ORDER DATED 25TH MAY, 2022 IS CONSTITUTIONALLY INVALID DUE TO

ARBITRARY EXERCISE OF POWER BY THE CENTRAL GOVERNMENT UNDER
THE PATENTS ACT, 1970.
2
A. NON-CONFORMITY WITH THE BINDING DECLARATION OF PUBLIC HEALTH

EMERGENCIES OF INTERNATIONAL CONCERN (PHEIC), ISSUED BY WHO 28
B. THE STIPULATED LICENSING CRITERIA IS FULFILLED BY OTHER COMPANIES
29
C. FALLACIOUS CONDUCTION OF THE TECHNICAL AND TECHNOLOGICAL
RESOURCE ASSESSMENT 30
i. Logistical Impossibility 30
ii. Statutorily Unnecessary 31
D. THE DRUG “CERFIN” IS “NORMAL” AND THERE EXISTS NO COMPARABLY

SIGNIFICANT POTENTIAL FOR ITS MISUSE 32
E. VIOLATION OF SEC. 83(A) OF THE PATENT ACT 33
VIII. PRAYER 34
3
LIST OF ABBREVIATIONS
S.NO. ABBREVIATION EXPRESSION

1. sec. SECTION
2. & AND
3. CGST Central Goods and Services Tax
4. AIR ALL INDIA REPORTER
5. Anr. ANOTHER
6. SCC SUPREME COURT CASES
7. SC SUPREME COURT
8. Ed. EDITION
9. HC HIGH COURT
10. HON’BLE HONORABLE
11. UOI UNION OF INDIA
12. v. VERSUS
13. CrLJ Civil Rules for Courts of Limited Jurisdiction
4
14. IEA, 1872 Indian Evidence Act, 1872
15. CrPC Code of Criminal Procedural
16. CONSTI. Constitution
17. INDI. Indian
18. art. Article
19. WHO World Health Organisation
20. WTO World Trade Organisation
21. TRIPS Trade-Related Intellectual Property Rights
22. PHEIC Public Health Emergency of International

Concern
23. CGST Central Goods and Service Tax
5
INDEX OF AUTHORITIES
LIST OF CASES
INDIAN CASES
SUPREME COURT CASES
S.NO NAME OF THE CASE PAGE NO.
1. C.I.T Andhra Pradesh v. Taj Mahal Hotel, (1971) 3 SCC 550 20
2. CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497 22
3. Chief Information Commissioner V. State of Manipur, (2011) 15 20

SCC 1
4. Chief Justice of Andhra Pradesh v. L.V.A. Dixitulu, (1979) 2 SCC 21
34
5. Dinesh Trivedi v. Union of India, (1997) 4 SCC 306 22
6. District Mining Officer V. Tata Iron & Steel Co, (2001) 7 SCC 358 20
7. Indra Nehru Gandhi V. Raj Narain, (1975) Supp SCC 1 16
8. Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 29
9. Kesavananda Bharti vs. State of Kerala, AIR 1973 SC 1461 16
10. Kesoram Industries and Cotton Mills Ltd. v. CWT, (1966) 2 SCR 4,16
688
11. Manohar v. State of Maharashtra, (2012) 13 SCC 14 27
12. Maulavi Hussein Haji Abraham Umarji v. State of Gujarat, (2004) 6 20

SCC 672
13. Nagpur v. Ramchandra, (1981) 2 SCC 714 21
14. Naraindas Indurkhya v. State of Madhya Pradesh, (1974) 4 SCC 27

788
15. Padma Sundara Rao [Dead] V. State of Tamil Nadu, (2002) 3 SCC 20
533
16. Radha Mohan Lal v Rajasthan High Court, (2003) 3 SCC 427 23
6
17. Ram Singh v. Union Territory, Chandigarh, (2004) 1 SCC 126 21
18. Reserve Bank of India v. Peerless General Finance and Investment 20

Co. Ltd., (1987) 1 SCC 424
19. S.R. Bommai V. Union of India, (1994) 3 SCC 1 16
20. Som Mittal v. Government of Karnataka, (2008) 3 SCC 753 27
21. State (NCT) v. Union of India, (2020) 12 SCC 259 15
22. State of AP v. T. Gopalakrishnan Murthi, (1976) 2 SCC 883 27
23. State of West Bengal v. Nripendra Nath Bagchi, (2004) 10 SCC 21

201, 289
24. Supreme Court Advocate on Record v. Union of India, 2022 SCC 19
OnLine SC 657
25. Thalappalam Service Coop. Bank Ltd. v. State of Kerala, (2013) 16 20
SCC 82
26. TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481 21
27. Union Of India V. Elphinstone Spinning & Weaving Co. Ltd, 20

(2001) 4 SCC 139
28. Union of India v. Mohit Minerals, 2022 SCC OnLine SC 657 17,
24,26,28,35
29. Union of India v. Pradip Kumar Dey, (2000) 8 SCC 580 27
30. West Bengal vs. Kesoram Industries Ltd. 21
HIGH COURT CASES
1. Army Welfare Housing Organization v. Adjutant Generals 21

Branch, (2015) 216 DLT 184 (DB).
2. Bayer Corporation v. Union of India, 2014 (60) PTC 277 (Bom) 31
3. Dharmendra Kumar Aggarwal vs Govt. of NCT Of Delhi, 2021 SCC 32

OnLine Del 1995
7
4. Kanai Lal Sur V. Paramnidhi Sadhukhan, 1958 SCR 360 20
5. National Stock Exchange of India Limited v. Central Information 21

Commission, 2010 SCC OnLine Del 1513a
6. Supreme Court of India v. Subhash Chandra Agarwal, (2010) 166 DLT 22
305
FOREIGN CASES
1. Kleindiest v Mandel, 408 US 753, 763. 23
2. Palser v. Grimling, (1948) 1 All ER 1, 11 (HL). 21
3. Wolf v. Superior Court, 2003 (107) California Appeals, 4th 25 22
STATUTES
S.NO NAME OF THE STATUTE
1. Company Act, 2013
2. Constitution of CENIN
3. Indian Income Tax Act, 1961
4. Right to Information Act, 2005
5. The Constitution (One Hundred and First) Amendment Act, 2016
6. The Integrated Goods and Services Tax Act, 2017
7. The Patents Act, 1970
8. The Central Goods and Services Tax Act, 2017
BOOKS
8
S.NO NAME OF THE BOOK
1. DR. J.N. BAROWALIA COMMENTARY ON THE RIGHT TO INFORMATION

ACT, 3RD EDITION
2. MP JAIN INDIAN CONSTITUTIONAL LAW EIGHTH EDITION
3. TAXMANN'S COMPANY LAW & PRACTICE, 25th edition
OTHER SOURCES
1. Jessica Bulman-Pozen and Heather K. Gerken, ‘Uncooperative Federalism’ Yale Law

Journal, Vol. 118. No. 7 (May, 2009)
2. Ministry of electronics and information technology,
https://registry.gov.in/pdfdocs/Gov.In_Guidelines.pdf.
3. Robert A. Schapiro, ‘Justice Steven's theory of Interactive Federalism’ Fordham L. Rev.

2133 (2006)
4. BDR Pharmaceuticals International Pvt. Ltd.v. Bristol Myers Squibb Co., C.L.A No.1 of
2013
5. TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15,
1994, Marrakesh Agreement Establishing the World Trade Organization, Annex 1C, 1869
U.N.T.S. 299, 33 I.L.M. 1197 (1994)
6. Suo Moto WP(C) No. 3/2021 (supra)
7. WORLD HEALTH ORGANISATION, https://apps.who.int/iris/handle/10665/272977

(last visited Aug. 12, 2022)
8. WORLD HEALTH ORGANIZATION, https://www.who.int/news-room/questions-and-
anwers/item/emergencies-international-health-regulations-and-emergency-committees
(last visited Aug. 12, 2022)
9. WORLD TRADE ORGANISATION,
https://www.wto.org/english/tratop_e/trips_e/public_health_faq_e.htm#:~:text=Compuls
ory%20licensing%20must%20meet%20certain,be%20subject%20to%20legal%20revie
w (last visited Aug. 12, 2022)
9
STATEMENT OF JURISDICTION
The Petitioner i.e. Smile Foundation has approached the Hon’ble Supreme Court of the Republic
of CENIN under Article 32 of the Constitution of the Republic of CENIN.
ARTICLE 32: REMEDIES FOR ENFORCEMENT OF FUNDAMENTAL RIGHTS
(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.
(3) Without prejudice to the powers conferred on the Supreme Court by cl. (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under cl. (2)
(4) The right guaranteed by this article shall not be suspended except as otherwise provided for
by this Constitution.
The present memorial on behalf of the petitioner sets forth the facts, contentions and
arguments in the present case.
10
STATEMENT OF FACTS
BACKGROUND
The Republic of CENIN is a democratic republic having a quasi-federal governance structure upon
the basis of the Constitution of CENIN subsequent to the decolonization of the country in 1955.
The said constitution establishes autonomous governance structures at the Central level and at the
state level with clearly demarcated legislative subjects for the Union and State governments.
Owing to the same, both Central and State governments brought about statutes for the levy and
collection of varied taxes as per their legislative competencies thereby leading to a multifaceted
and complex tax system.
ESTABLISHMENT OF THE GST REGIME
The CENIN Democratic Party (CDP), during the general elections of the year 2015, promulgated
their desire to eradicate the aforementioned taxation system with the incorporation of the same in
their election manifesto as a result of which they emerged victorious in the elections.In the wake
of their victory, a uniform taxation mechanism of “One Nation, One Tax” by subsumation of all
varied indirect taxes into one was proposed. Upon having a consultation with the state governments
as regards the said mechanism, with a majority of states, but not all, voting in the affirmative, The
Constitution (One Hundred And First) Amendment Act, 2016 was passed by the Parliament of
CENIN enabling the Central and State governments to enact legislations with respect to “Goods
and Service Tax” legislations. Thereafter, The Central Government, enacted “The Central Goods
and Service Tax Act, 2016” and the state governments enacted goods and service tax legislations
for their respective states.
THE PERFIPOX PANDEMIC
In July 2021, a worldwide pandemic, “Perfipox” the spread across the globe affecting billions of
people all over the globe and killing 5.4 lakh people in CENIN. Having stemmed from the newly
discovered PERO-20 virus of which there existed no effective medicine, it lead to the CENIN
Government imposing strict countrywide lockdowns which, in turn, negatively effected the
economy; the GDP plumeted down very quickly.
THE PM-CARES FUND

11
Thereafter, the Central government, introduced PM-CARES fund to support and undertake
assistance and relief in relation to any calamity, distress or emergency whilst providing complete
tax exemptions to its donors. Thereafter, an RTI application filed by a person named ‘Raj’ seeking
information regarding the expenditure of the fund was denied on the grounds of the PM-CARES
Public Charitable Trust coming under the purview of the Societies Registration Act, 1860 thereby
not falling under the ambit of the RTI Act.
COMPULSORY LICENSING
Within six months of the onset of the pandemic, a company called “Sylern Labs” came out with a
drug called “Cerfin” to treat the patients of the PERO-20 virus. Upon receiving regulatory
approvals, it began the mass production of the said drug, producing ten million doses a day, with
Cerfin being the only effective medicine at the time. However, due to the gigantic resultant
national and international demand of Cerfin, the company was not able to fulfill its orders because
of its limited production capacity of ten million doses a day. At the same time, The World Health
Organization (WHO), viewing the urgency of the outbreak, declared “Perfipox” as Public Health
Emergency of International Concern (PHEIC) to fast-track the availability of effective tests,
vaccines and medicines that can be used to save lives throughout the world. Smile Foundation, a
Non-Governmental-Non-Profit Organization made an application to the Government of CENIN
on 20th May, 2022 to exercise powers under The Patents Act, 1970 for grant of compulsory
licensing of the drug Cerfin to other pharmaceutical companies functioning within the nation
CENIN to more efficiently cater the affected persons from “Perfipox”.
The application was subsequently rejected on 25th May, 2022 due to no company having fulfilled
the stipulated licensing criteria and not possessing the relevant technology and resources with
Cerfin not being a “normal” drug and there also being great potential for its misuse, according to
the government. On 27th May, 2022, the Central government imposed a 28% tax rate upon Cerfin
under the CGST Act based upon the recommendations of the GST Council, constituted under the
aforementioned amendment act.
12
ISSUES RAISED
______________________________________________________________________________
ISSUE 1: WHETHER ‘THE CONSTITUTION (ONE HUNDRED AND FIRST)

AMENDMENT ACT, 2016’ VIOLATES THE BASIC STRUCTURE OF THE
CONSTITUTION OF CENIN?
______________________________________________________________________________
ISSUE 2: WHETHER THE PM-CARES FUND, COMES WITHIN THE PURVIEW OF

RTI ACT 2005?
______________________________________________________________________________
ISSUE 3: WHETHER THE RECOMMENDATION MADE BY THE GST COUNCIL TO

THE CENTRAL GOVERNMENT OF CENIN IS BINDING ON THE CENTRAL
GOVERNMENT?
______________________________________________________________________________
ISSUE 4: WHETHER THE ORDER DATED 25TH MAY, 2022 IS CONSTITUTIONALLY

VALID DUE TO ARBITRARY EXERCISE OF POWER BY THE CENTRAL
GOVERNMENT UNDER THE PATENTS ACT, 1970?
______________________________________________________________________________
13
SUMMARY OF ARGUMENTS
ISSUE 1: ‘THE CONSTITUTION (ONE HUNDRED AND FIRST) AMENDMENT ACT,

2016’ VIOLATES THE BASIC STRUCTURE OF THE CONSTITUTION OF CENIN.
It is humbly submitted before the Hon’ble Supreme Court of CENIN that the Constitution (One
hundred and first) amendment act violates the basic structure of the constitution of CENIN. This
is because; firstly, the federal structure of the constitution is a basic feature of the same and
cannot be abrogated by any amendment and secondly, the equal division of power between the
Union and the states is an essential feature of federalism.
ISSUE 2: THE PM CARES FUND CLASSIFIES AS A PUBLIC AUTHORITY AND FALL

WITHIN THE PURVIEW OF RTI ACT, 2005.
It is humbly contended that PM Cares Fund falls under RTI due to the following reasons: firstly,
PM CARES Fund is a public authority under sec 2(h) of the RTI Act, 2005 and lastly, PM CARES
Fund, being a public authority is required to disclose all pertinent information as per the said act.
ISSUE 3: THE RECOMMENDATION MADE BY THE GST COUNCIL TO THE

CENTRAL GOVERNMENT OF CENIN ARE NOT BINDING UPON THE SAID
GOVERNMENT.
It is humbly contended that the GST council’s recommendations cannot be construed as binding
for; firstly, it is guilty of statutory violations. Secondly, considering said recommendations as
binding would be tantamount to a defeat of the purposes for which the council came into being.
Lastly, the contextual meaning of the term “recommendations” is simply persuasive and not
binding because said recommendations are non-qualified under art. 379A of the constitution of
CENIN. Additionally, the said art. does not provide for a non-obstante clause, with the prospect
of tabling of recommendations also being absent from it. Moreover, several case laws speak to the
persuasive nature of the aforementioned term as opposed to obligatory or binding.
14
ISSUE 4: THE ORDER DATED 25TH MAY, 2022 IS CONSTITUTIONALLY INVALID

DUE TO ARBITARY EXERCISE OF POWER BY THE CENTRAL GOVERNMENT
UNDER THE PATENTS ACT, 1970.
It is humbly contended that the aforesaid order is constitutionally invalid due to arbitrary exercise
of power under the Patents Act because; firstly, it does not conform to the binding, WHO-issued
declaration of Public Health Emergencies of International Concern (PHEIC). Secondly, the
stipulated licensing criteria is fulfilled by other companies. Thirdly, the technical and technological
resource assessment, as conducted by the central government is logistically fallacious and
statutorily unnecessary. Lastly, the drug “Cerfin” is “normal” and there exist no comparably
significant potential for its misuse.
15
ARGUMENT ADVANCED
WRIT PETITION No.____/2022
1. THAT ‘THE CONSTITUTION (ONE HUNDRED AND FIRST) AMENDMENT ACT,

2016’ VIOLATES THE BASIC STRUCTURE OF THE CONSTITUTION OF CENIN,
1955.
1. It is the contention of the Counsel of Petitioner in the Writ petition that the constitution (One
hundred and First) Amendment Act, 2016’ violates the basic structure of the Constitution of
CENIN, 1955. This contention is humbly advanced before the Hon’ble court in three-fold
manner. Firstly, the federal structure of the constitution of CENIN, hereinafter referred to as
“the constitution”, is a basic feature of the Constitution that cannot be abrogated by
amendment, Secondly, the division of powers between the Union and States is an essential
feature of this federal character and Thirdly, Anomalous situation in GST structure.
A. THE FEDERAL STRUCTURE OF THE CONSTITUTION IS A BASIC FEATURE OF

THE CONSTITUTION THAT CANNOT BE ABROGATED BY AMENDMENT
i. Every state in the country has its own individuality

2. It is humbly submitted before the Hon’ble court that in the case of SR Bommai vs UOI1, it
was asserted that the federal character of the Constitution was a basic feature of the
Constitution and that it could be used in contexts beyond testing the constitutional validity of
amendments. Also in the case of Govt of NCT vs. UOI2 it was held that Delhi's lieutenant
governor had no independent decision-making powers and had to follow the aid and advice
of the chief-minister-led council of ministers of the Government of Delhi on matters the
Delhi Legislative Assembly could legislate on. The court added that on matters referred to
him/her, the LG was bound to follow the orders of the president.
3. From both the cases it was understood that cooperative federalism is the basic structure of the
constitution and Union can nowhere enjoy extreme power.
1
S.R. Bommai v. Union of India, (1994) 3 SCC 1.
2
State (NCT of Delhi) v. Union of India, (2020) 12 SCC 259.
16
ii. Federalism is the basic structure of constitution
4. It is humbly submitted that the federal character of the Constitution is the basic feature of the
Constitution. In the case of Kesavananda Bharati v. State of Kerala3, where the Supreme
Court first articulated what came to be known as the “basic structure doctrine”. It held that
the “basic structure of the Indian Constitution could not be abrogated even by a constitutional
amendment. Also, in the case of SR Bommai vs UOI4 it was asserted that that the federal
character of the Constitution was a basic feature of the Constitution and that it could be used
in contexts beyond testing the constitutional validity of amendments.
5. In the case of Indira Nehru Gandhi v. Raj Narain5 it was held that the SC applied the theory
of basic structure and struck down Clause (4) of Article 329-A, which was inserted by the
39th Amendment in 1975 on the grounds that it was beyond the Parliament’s amending
power as it destroyed the Constitution’s basic features. In the same manner since ’One
Hundred and First’ Amendment Act is violating the basic structure that is federalism of the
country then it should be held unconstitutional.
iii. Federalism in context of taxation
6. In the judgement of State of W.B. v. Kesoram Industries Ltd,6 Supreme Court re-iterated the
powers of the State Governments in imposing taxes on mineral rights, even though the power
to regulate and control such minerals was vested with the Union. The court read the relevant
entries of List I and List II of the Seventh Schedule harmoniously, holding that the Union’s
power to regulate and control could not be said to have deprived the State of its power of
taxation on that subject. It premised this harmonious interpretation on the federal structure of
the Constitution, acknowledging that there definitely was a bias in favour of the Union in the
federal structure. The Court nonetheless states that interpretation of the Constitution should
avoid “whittling down” the powers of the State. H.M. Seervai to argue that India was a genuine
federal constitution.7
3
AIR 1973 SC 1461.
4
Supra note 2.
5
Indira Nehru Gandhi v. Raj Narain, (1975) Supp SCC 1.
6
(2004) 10 SCC 201, 289.
7
H.M. Seervai, Constitutional Law of India, 301 (N.K Tripathi ed., 4th ed. 1994).
17
7. Therefore, it is humbly submitted before the court that federalism is the basic structure of
constitution and any amendment cannot violate the basic structure of the constitution.
B. THE DIVISION OF POWERS BETWEEN THE UNION AND STATES IS AN

ESSENTIAL FEATURE OF THIS FEDERAL CHARACTER.
i. Pragmatic loss of federalism in the State autonomy

8. It is humbly submitted before the Hon’ble court that has toppled the clear division of power
between Union and the State. It removed from List II a slew of subjects over which hitherto
the state government had enjoyed absolute power.8 The amendment also introduced a new
provision, Article 246A, which would, as a stand-alone clause, provide a power to tax goods
and services.9 It overrides the general power to legislate vested in Parliament and the state
legislatures through Article 246.10 It also overrides Article 254, which deals with
inconsistencies between laws made by Parliament and a state legislature.11
9. The language used in Article 279A is somewhat puzzling. The provision uses the word
“recommendation” to refer to the GST Council’s advice but it also terms the results of the
Council’s deliberations as decisions. What is more, it establishes a mechanism to adjudicate
disputes that might arise between governments on any decision taken by the council. This
would, mean that the 101st amendment will have to be seen as dismantling the nature of fiscal
federalism that the Constitution in its original form established.
ii. Sections omitted in the amendment

10. The 101st Amendment Act leaves it to the GST Council itself to set up the manner in which
disputes will be resolved. Section 279(A) sub clause1112 of 101st Amendment Act does not
provide for any other separate procedure by which the dispute settlement mechanism must be
decided upon leaving one to conclude that this too will be subject to the rule of
supermajority, with the Union continuing to enjoy a veto over the decisions of the GST
8
Union of India v. Mohit Minerals, 2022 SCC OnLine SC 657.
9
Id.
10
INDIA CONST. art. 279A, amended by The Constitution (One Hundred and First) Amendment Act, 2016.
11
INDIA CONST. art. 254, amended by The Constitution (One Hundred and First) Amendment Act, 2016.
12
INDIA CONST. art. 279A(9)(a), amended by The Constitution (One Hundred and First) Amendment Act, 2016.
18
Council. In effect, the Union, which dominates decision making in the GST Council, will
also decide how these decisions may be challenged by aggrieved States. Also, in practicality
with Union having veto, it can be safely assumed the Union will never have a grievance
against any recommendation of the GST Council and it may, at best, use this dispute
settlement mechanism to enforce the decisions of the Council against States.
11. Only relief in the amendment was section 1813 of the act which held together by the loose
thread of "compensation guarantee", under which states surrendered their fiscal powers in
return for guaranteed revenues However, during the pandemic, the Union government
repeatedly violated the compensation guarantees to the States under the GST regime and
delay in paying the States their due worsened the impact of the economic slowdown. In the
Supreme Court Judgement of Advocates-on-Record Assn. v. Union of India14, the Court
struck down the Constitution (99th Amendment) Act, 2015 for the reason, inter alia, that the
Government, which was the largest litigant, had a say in the appointment of judges.
12. Therefore, it is humbly submitted before the Hon’ble court the Supreme Court of CENIN that
One Hundred One basic structure of constitution, wherein the state is not getting the power
and recognition they deserve in a democratic country.
2. THAT PM CARES FUND CLASSIFIES AS A PUBLIC AUTHORITY AND FALL

WITHIN THE PURVIEW OF RTI ACT, 2005.
13. It is humbly submitted that PM CARES Fund is a public Authority as it falls under the clauses
of sec 2(h) of the RTI Act, 2005. Establishing it as a Public Authority, no exemption can be
provided under Sec 8 of the RTI Act and the court needs to strike a balance between Right to
Information and Right to Privacy.
A. THAT PM CARES FUND IS A PUBLIC CHARITABLE TRUST, FALLS UNDER SEC

2(H) OF THE RTI ACT, 2005
i. Notification issued by the government under Sec 2(h)(d) of the Act
13
One hundred Amendment Act, 1970, No. 55 Acts of Parliament, 2016 (India).
14
Supreme Court Advocates-on-Record Assn. v. Union of India, (1993) 4 SCC 441.
19
14. Legislative intention is clear and is discernible from Sec. 2(h). It is trite law that the primary
language employed is the determinative factor of the legislative intention, and the intention of
the legislature must be found in words used by the legislature itself.15 Therefore, in light of the
object of the RTI Act, the term public authority must be subjected to a liberal interpretation.
15. Firstly, the Government brought in a Gazette notification by the Union Ministry of Corporate
affairs stating that the PM CARES Fund is now eligible to receive CSR Funding from
corporates by amending Schedule VII of the Companies Act,16 According to the section,
anybody established by the government would be deemed fit under the category of Public
Authority.17 The first line in the order stated that ‘Government of CENIN has set up the PM
CARES Fund.’ Though the subject of the notification was related to Schedule VII of the
Companies Act, 2013, this order was released the next day the Prime Minister announced in
his official twitter account.
16. Secondly, usage of gov.in in its domain name shall be allowed only to six categories of offices
or public authorities and all other legislative bodies and government institutions.18 It could not
have received gov.in in its domain name if PM CARES Fund was not a public authority. This
is conclusive enough to prove it as a Public Authority.
17. Thirdly, just before 2 days after PM CARES Fund, a government ordinance amended provision
of Income Tax Act as a result donation made to PM CARES Fund would be eligible for 100%
tax deduction. This was the clear use of government machinery to use PM CARES fund.
18. The object of the RTI Act is to promote transparency in the working of every public authority
and democracy requires an informed citizenry.19 Hence, it is humbly submitted before this
Hon’ble Court that PM CARES Fund is a public authority and transparency regarding the
money transactions need to be known to the citizens.
ii. “Substantially financed” and “controlled” by the Government under Sec 2(h)(ii)
15
Union of India v. Elphinstone Spg. and Wvg. Co. Ltd., (2001) 4 SCC 139; District Mining Officer v. Tata Iron and
Steel Co., (2001) 7 SCC 358, Padma Sundara Rao v. State of T.N., (2002) 3 SCC 533; Maulavi Hussein Haji Abraham
Umarji v. State of Gujarat, (2004) 6 SCC 672; Kanai Lal Sur v. Paramnidhi Sadhukhan, 1958 SCR 360; CIT v. Taj
Mahal Hotel, (1971) 3 SCC 550.
16
The Companies Act, 2013, §135, No.8, Acts of Parliament, 2013 (India).
17
Thalappalam Service Coop. Bank Ltd. v. State of Kerala, (2013) 16 SCC 82.
18
Ministry of electronics and information technology, https://registry.gov.in/pdfdocs/Gov.In_Guidelines.pdf.
19
Chief Information Commissioner v. State of Manipur, (2011) 15 SCC 1; Reserve Bank of India v. Peerless General
Finance and Investment Co. Ltd., (1987) 1 SCC 424.
20
19. It is pertinent to note that the three conditions mentioned in Section 2(h)(d)(i) of the RTI Act
are distinct and not cumulative, therefore, even if one of the three is satisfied as per the facts
of the case, it would be sufficient, and there is no need for all three to be satisfied.20
20. While testing the meaning of the expression ‘controlled’21 which figures in between the words
‘body owned’ and ‘substantially financed’, the control by the appropriate government must be
a control of a substantial nature. The mere ‘supervision’ or ‘regulation’ as such by a statute or
otherwise of a body would not make that body a ‘public authority’ within the meaning of Sec.
2(h)(d)(i) of the RTI Act. The word ‘substantially’22 has been defined to mean ‘in substance;
as a substantial thing or being; essentially, intrinsically.’ Therefore, the word ‘substantial’ is
not synonymous with ‘dominant’ or ‘majority’.
21. It has been accepted that merely because certain Government Servants hold a position in
his/her ex-officio capacity, ipso facto that does not mean that the Government is exercising
control through the ex-officio members.23 However, PM Cares Fund is not managed by mere
officers or government employees. It is headed by Constitutional Authority (the Prime
Minister). Furthermore, all disbursements from PM CARES Fund are made solely on his
discretion. He is a public authority and decisions taken by him or her concerning the operation
of PM CARES Fund cannot be said to be made in a personal capacity. The decisions of the
Prime Minister in this regard must be taken to be official decisions. To say that the use of funds
is a personal decision is a half-truth because the use of those funds are not for a personal
purpose; instead, it is always for some public purpose. As is evident from previous, it can be
reasonably concluded that there exists substantial governmental control in the management of
PM CARES Fund.
B. PM CARES FUND BEING A PUBLIC AUTHORITY, NEEDS TO DISCLOSE ALL

THE INFORMATION
i. No exemption can be taken under Sec 8 of the RTI Act
20
National Stock Exchange of India Limited v. Central Information Commission, 2010 SCC OnLine Del 1513.
21
State of West Bengal v. Nripendra Nath Bagchi, AIR 1966 SC 447, Chief Justice of Andhra Pradesh v. L.V.A.
Dixitulu, (1979) 2 SCC 34, Nagpur v. Ramchandra, (1981) 2 SCC 714.
22
TMA Pai Foundation v. State of Karnataka, (2002) 8 SCC 481, Ram Singh v. Union Territory, Chandigarh, (2004)
1 SCC 126, Palser v. Grimling, (1948) 1 All ER 1, 11 (HL).
23
Army Welfare Housing Organization v. Adjutant Generals Branch, (2015) 216 DLT 184 (DB).
21
22. According to Sec 8(e) there shall be no obligation to give any citizen information available to
a person in his fiduciary relationship, unless the competent authority is satisfied that the larger
public interest warrants the disclosure of such information.
23. The term ‘fiduciary relationship’24 is used to describe a situation or transaction where one-
person (beneficiary) places complete confidence in another person (fiduciary) regarding his
affairs, business or transaction(s). The fiduciary has to act in good faith, candour and is
expected not to disclose information to any third party.
24. In the present issue, the Fund does not offer any service to the donors or the beneficiaries.
Furthermore, the relationship between PM CARES and the donors/beneficiaries does not take
the colour of a fiduciary relationship as described above. The donors do not repose trust in PM
CARES in conducting their business, and the same holds for the beneficiaries.
25. The money given to PM CARES Fund is a contribution made by citizens of CENIN for the
welfare of their Nation more than a donation. They have not given it in any fiduciary
relationship as it is clear that it is a voluntary donation and not that the government holds an
advantage over the citizens.
ii. PM-CARES funds violating the fundamental rights of the citizen
26. It is humbly submitted before the Hon’ble Court article 19(1) is not merely right to speech and
expression but article 19(1)(a)25 includes right to express one’s opinion at any issue by any
medium with reasonable restrictions.26
27. Article 19(1)(a) corresponds to Amendment 1 of the US Constitution which says that congress
should not make any law restrict the freedom of speech and expression. The 1st amendment
preserves ‘‘an uninhibited market place of ideas in which the truth will ultimately prevail….It
is the right of the public to receive suitable access to social, political, aesthetic moral and other
ideas and expression”. 27
28. It is humbly pleaded that PM CARES Fund is violating this fundamental right by not sharing
the information for the public good and welfare of the society.
24
Wolf v. Superior Court, 2003 (107) California Appeals, 4th 25: Dinesh Trivedi v. Union of India, (1997) 4 SCC
306; CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497; Supreme Court of India v. Subhash Chandra
Agarwal, (2010) 166 DLT 305.
25
INDIA. CONST. art. 19 cl. (1)(a).
26
Radha Mohan Lal v Rajasthan High Court, (2003) 3 SCC 427.
27
Kleindiest v Mandel, 408 US 753, 763.
22
3. RECOMMENDATION MADE BY THE GST COUNCIL TO THE CENTRAL

GOVERNMENT OF CENIN IS NOT BINDING UPON THE SAID GOVERNMENT.
29. It is humbly contended before the Hon’ble court that to consider the recommendations made
by the GST council as binding would entail implied condoning of statutory violations and
would also amount to rendering null the objects and reasons for which the council was
established. Furthermore, the very meaning of the term “recommendations” cannot be
contextualised as binding as evidenced from the said recommendations being “non-qualified”
under art. 279A of the Constitution.
30. Additionally, a “non-obstante clause” is found absent within art. 379A of the constitution with
the art. also not providing for the recommendations “to be tabled”. Moreover, a myriad of court
cases also call for recommendations to be connoted with persuasive undertones, in contrast to
interpreting them as obligatory or binding.
A. STATUTORY VIOLATIONS
i. Non-compliance with sec. 90(1) of the CGST Act
31. It is humbly submitted that sec. 90(1) of the CGST Act28, dealing with the levy and collection
of taxes by the Central Government on intra-state goods and services fixes the maximum tax
rate levied upon such goods and services at twenty percent, barring some exceptions.
32. The drug Cerfin, in great need across the country and internationally, is certainly an intra-state
commodity and furthermore does not fall under any of the exceptions stipulated under the said
sec. Therefore, the recommendation as regards fixing a tax rate of twenty-eight percent upon
Cerfin is in breach of the said act and therefore not to be followed by the government for
following it would amount to violation of the constitutional principle of separation of powers.29
ii. Non-adherence to sec. 83(d) & (e) of the Patent Act
28
The Central Goods and Services Tax Act, 2017, § 9, No. 12, Acts of Parliament, 2017 (India).
29
Supra note 3.
23
33. It is humbly submitted that sec. 8330 of the Patent Act ennumerates the general principles
applicable upon the working of patented inventions wherein sec. 83(e)31 calls for the inventions
to not impede public health and nutrition whereas sec. 83(g)32 stipulates for the benefit of the
patented invention to be made available at reasonably affordable prices to the public.
34. Presently, when the economy is debilitated owing to the pandemic and the only effective
medicine lies with Sylern Labs which is needed for maintaining public health; a tax rate of
twenty-eight percent on a life-saving medicine greatly deters it usage and renders it
unaffordable for a large section of the ailing society thereby causing more people to become
afflicted with the virus and die. Therefore, the recommendation for the imposition of said tax
rate is violative of multiple statutory safeguards and is thus unconstitutional and not binding
upon the government.33
B. DEFEAT OF THE PURPOSE AND OBJECTIVES RESPONSIBLE FOR THE

GENESIS OF THE GST COUNCIL, IF RECOMMENDATIONS CONSIDERED
BINDING
i. Lack of a repungancy provision in art. 246A
31. It is humbly submitted that based upon a reading of the Statements of Objects and Reasons
of the Constitution (One Hundred and First) Amendment Bill34, alongside the associated
parliamentary speeches and reports written at the time clearly indicate that the bill was
introduced with the “stated objective” of “enhancing cooperative federalism and harmony
between the states and center.” and bringing about “fiscal federalism”.35
32. Moreover, Article 246A of the constitution states that both the center and the states have a
simultaneous power to legislate upon taxation.36 However, there is the absence of a
repugnancy provisions in matters of inconsistency in law promulgated in the center and
states. Such absence, when seen in light of the stated objectives reflects a legislative intent
of ensuring cooperation and harmonious functioning of the center and states.
30
The Patents Act, 1970, § 83, No. 39, Acts of Parliament, 1970 (India).
31
Id.
32
Id.
33
Supra note 3.
34
The Constitution (One Hundred and First) Amendment Act, 2016, Acts of Parliament, 2016 (India).
35
Supra note 8.
36
24
33. Therefore, if the council’s recommendations were binding, at the very least, on certain
occasions, some states might be in disagreement with such recommendations and
subsequently through the exercise of their legislative powers, enshrined under art. 246A
might enact a contrary policy, owing to the principle of separation of powers which is a
basic feature of the constitution.37
34. Therefore, there might arise inconsistencies in law in such a scenario wherein a repungancy
provision is required for resolution of the same. The absence of the said provision indicates
that the legislature never intended for such an inconsistency to arise and thus, the
recommendations of the council cannot be binding; if considered binding, they shall serve
contrary to legislative intent.
ii. One-third of the vote share within the council lies with the Central Government
35. Art. 279A(9)(a) confers a third of the vote share to the center as regards the council’s
decisions which thereafter become recommendations.38 The inclusion of said article means
no decision would be passed within the council without the center’s consent because the
council requires three-fourth majority for passage as per the same article.
36. If the recommendations were indeed binding, no recommendations not favoured by the
center would ever see the light of day for they would never be passed by the council. This
would be highly disruptive of the reasons stated for the very enactment of the act; harmony
and cooperation would be dislodged and denounced, not encouraged. Therefore, in lieu of
such envisaged objectives, the council’s recommendations cannot be considered binding;
such an interpretation would be contrary to the very purpose of introducing the GST
regime.
C. THE CONTEXTUAL MEANING OF “RECOMMENDATIONS” IS PERSUASIVE

NOT OBLIGATORY OR BINDING
37
Supra note 3.
38
INDIA CONST. art. 279A(9)(a), amended by The Constitution (One Hundred and First) Amendment Act, 2016.
25
i. The Council’s recommendations are non-qualified
37. It is humbly submitted that the GST Council which is a constitutional body is entrusted
with the duty to make recommendations on a wide range of areas concerning GST.39 The
GST Council has to arrive at its recommendations through harmonised deliberation
between the federal units as provided in Article 279A(6).40
38. Provisions of the constitution such as art. 28141, art. 338(6)42& art. 338A43 amongst others,
stipulate any recommendations to be accompanied by an “explanatory memorandum” i.e.
a note by the decision making authority describing the action or inaction taken on the
recommendations.
39. To cite a few examples, art. 338(6) calls for the president to forth the report prepared by
the National Commision for Scheduled Castes under art. 338(5)44 to be laid before the
parliament along with a memorandum explaining the action taken on the recommendations
or the reasons for non-acceptance, if any.
40. Unlike the provisions mentioned above, the recommendations made by the council under
art. 279A are non-qualified i.e. “there is no explanation on the value of such a
recommendation.” 45 This is indicative of their non-binding nature.
ii. Non-Obstante Clause absent in art. 279A; no exceptions made in art. 246A
41. It is humbly submitted that neither does art. 279A46 began with a “non-obstante clause”
that speaks to the binding nature of the council’s recommendations nor is any exception
made out in art. 246A47 wherein the states’ or the center’s power to legislate upon taxation
is subject to said recommendations.
42. If the GST Council were intended to be a constitutional body whose recommendations
transform into legislation without any intervening act, there would have been an express
39
Supra note 8.
40
INDIA CONST. art. 279A(6), amended by The Constitution (One Hundered and First) Amendment Act, 2016.
41
INDIA CONST. art. 281.
42
INDIA CONST. art. 338(6), amended by The Constitution (Eighty-Ninth) Amendment Act, 2003.
43
INDIA CONST. art. 338A, amended by The Constitution (Eighty-Ninth) Amendment Act, 2003.
44
INDIA CONST. art. 338(5), amended by The Constitution (Eighty-Ninth) Amendment Act, 2003.
45
Supra note 8.
46
47
Supra note 36.
26
provision in art. 246A to that effect or the presence of a non-obstante clause within art.
279A explicitly rendering the recommendations binding.48
iii. Article 279A does not provide for tabling of recommendations
43. Article 279A49 does not mandate tabling the recommendations in the legislature like the
aforementioned constitutional provisions, where the recommendations have to be
mandatorily tabled in the parliament along with an explanatory note. This goes to show
that since the imperative to justify the functioning and the consequence of an explanation
is absent and there exist a lack of safeguards as to the repurcussions of the council’s
recommendations, therefore they are not meant to be mandorily complied with but are
rather advisory in nature.50
iv. Several Judicial prouncements speak to the persuasive nature of
“recommendations” in general usage across the legal domain
44. It is humbly submitted before the Hon’ble court that in Manohar v. State of Maharashtra,
a two-judge Bench of this Court while interpreting Section 20(2) of the Right to
Information Act 2005 observed that the phrase ‘recommendation’ must be interpreted in
contradistinction to ‘direction’ or ‘mandate’.51
45. Furthermore, in Naraindas Indurkhya v. State of Madhya Pradesh, a Constitution Bench
observed that a ‘recommendation’ has persuasive value. In this case, this Court was dealing
with the question of whether textbooks ‘recommended’ by the Board could be held to be
52
in effect immediately. Similar stances have been taken by judges across multiple cases
leading to the development of a growing jurisprudence concerning the non-binding nature
of recommendations.53
48
Supra note 8.
49
Supra note 46.
50
Supra note 8.
51
Manohar v. State of Maharashtra, (2012) 13 SCC 14.
52
Naraindas Indurkhya v. State of Madhya Pradesh, (1974) 4 SCC 788.
53
Union of India v. Pradip Kumar Dey, (2000) 8 SCC 580; Kesoram Industries and Cotton Mills Ltd. v. CWT, (1966)
2 SCR 688; Som Mittal v. Government of Karnataka, (2008) 3 SCC 753; State of AP v. T. Gopalakrishnan Murthi,
(1976) 2 SCC 883.
27
4. THE ORDER DATED 25TH MAY, 2022 IS CONSTITUTIONALLY INVALID DUE TO

ARBITARY EXERCISE OF POWER BY THE CENTRAL GOVERNMENT UNDER
THE PATENTS ACT, 1970.
46. It is humbly contended before the Hon’ble court that the aforesaid order is based upon the
arbitary and improper exercise of power by the central government under the Indian Patents
Act, 1970 wherein it does not confirm with the binding declaration of Public Health
Emergencies of International Concern (PHEIC) as issued by WHO. Furthermore, all the
three grounds laid by the government in their response are invalid; companies are eligible
for compulsory licensing, the resource assessment conducted by the government is deeply
inacurate and there exist no comparably significant potential of misuse of the drug ‘Cerfin’.
A. NON-CONFORMITY WITH THE BINDING DECLARATION OF PUBLIC
HEALTH EMERGENCIES OF INTERNATIONAL CONCERN (PHEIC), ISSUED
BY WHO
47. It is humbly submitted that central government has not complied with its international
treaty obligations for having not conformed to the binding declaration of Public Health
Emergencies of International Concern (PHEIC).
48. The International Health Regulations (IHR) have been the governing framework for global
health security for the past decade and are a nearly universally recognized World Health
Organization (WHO) treaty, with 196 States Parties, including CENIN. Declaring public
health emergencies of international concern (PHEIC) is a cornerstone of the IHR. The IHR
are an instrument of international law that is legally binding on 196 countries, including
the 194 WHO Member States.54
49. The strength of PHEIC declarations is the ability to rapidly mobilize international
coordination, streamline funding and accelerate the advancement of the development of
vaccines, therapeutics and diagnostics under emergency use authorization. PHEIC requires
to fast-track the availability of effective tests, vaccines and medicines that can be used to
save lives and avert large scale crisis throughout the world.55
54
WORLD HEALTH ORGANISATION, https://www.who.int/news-room/questions-and-answers/item/emergencies-
international-health-regulations-and-emergency-committees (last visited Aug. 12, 2022).
55
Id.
28
50. Currently, only Sylern Labs possess the requiste vaccine paramount in saving lives and
averting further infections and is thus crucial in terms of combating the pandemic and
limiting its disastrous effects which is the very motive behind the genesis of PHEIC.
51. In Jeeja Ghosh v. Union of India, the court in its judgement, higlighted the rights of
disabled persons under the convention on the rights of people with disabilities of which
CENIN is a ratifier, further higlighting that CENIN is bound to honour its treaty
obligations. Para 13 of the judgement explicitly states that the Vienna Convention on the
Law of Treaties, 1963 requires CENIN’s internal legislation to comply with international
commitments.56
52. Therefore, by not providing for compulsory licensing to other companies in times of crisis,
CENIN is dishonouring PHEIC and violating its international treaty obligations.
B. THE STIPULATED LICENSING CRITERIA IS FULFILLED BY OTHER

COMPANIES
53. It is humbly contended that the argument put forth by the central government that none of
the companies met the licensing criteria is false. This is because Sec. 92 of the Patents Act,
1970 clearly provides for the grant of compulsory license under exceptional
circumstances.57
54. Sec. 92(1) particularly states that if the central government is satisfied in circumstances of
national emergency or great urgency that it is necessary to grant compulsory licenses, it
can do so via notification in the official gazette.58 Sec. 92(1)(i) further goes on to state that
the Controller can on application made to him, at any time after the notification by any
person interested, grant a licence to that applicant under the patent. on such terms and
conditions as he thinks fit.59
55. Foremost, the aforementioned sec. clearly provides for any person to seek compulsory
licensing in times of urgency such as that generated by a pandemic. Additionally, the
conditions essential for the grant of the compulsory enshrined under sec. 90 of the act are
56
Jeeja Ghosh v. Union of India, (2016) 7 SCC 761.
57
58
59
Id.
29
necessary when seeking a compulsory license under sec. 8460 under regular
circumstances.61
56. Under Sec. 92, as stipulated, the terms and conditions are variable, depending upon the
Controller who shall base upon the scenario prevalent at the time. Furthermore, crucially,
the sec. does not empower the Controller to reject applications upon the issuance of the
requisite notification, merely to confer varied conditions of usage on different applicants
in tune with he considers suitable at the time.
57. The Supreme Court, too has shown a similar stance via a suo moto petition asking the
government to invoke said sec. 92 to grant compulsory licensing to pharmaceutical
companies to boost vaccine production in the times of the pandemic.62
58. The current scenario is one marked by fear, urgency and a grave illness. Presently, the
companies need not satisfy all the usual requistes. Sylern Labs, even upon operating at full
capacity, is only able to produce 10 million doses of Cerfin, a day which is not even
remotely sufficient to cater to CENIN’s large population. To deny even a single company
the opportunity to produce the drug without describing the reasons for the same is illogical
and equivalent to arbitary use of power sans any valid justification.
C. FALLACIOUS CONDUCTION OF THE TECHNICAL AND TECHNOLOGICAL

RESOURCE ASSESSMENT
i. Logistical Impossibility
59. By the mere reading of facts, it can be discerned that the central government made a reply
to SMILE foundation’s application within a span of a mere five days replete with multiple
statements as to why a compulsory license cannot be granted.
60. One of the statements stipulated the lack of technical know-how and requisite technology
to be a reason for refusal. Any reasonably prudent man would be knowing of the fact that
to even prima facie gauge the technical and technological capabilities of even a single
pharmaceutical would entail, at the very least an assessment of its employees, their
60
61
62
Suo Moto WP(C) No. 3/2021 (supra).
30
technical skills of being able to comprehend and utilise the necessary production processes,
the infrastructure, the software in usage, its financial stability and therefore the capability
to scale up production, if needed, among a myriad of other factors.
61. To have done all such surveying for multiple pharmaceuticals operating within CENIN, in
five days, in a pandemic wherein restrictions abound, when the availability of surveyors
would itself be less than optimum, calls into the question the government’s response.
Furthermore, there are no justifications given to justify this supposed lack of resources.
62. To put into prespective, the time it took to conduct such assessments in the pre-pendemic
world; in the case of BDR Pharmaceuticals International Pvt. Ltd.v. Bristol Myers Squibb
Co., On 4th March, 2013 the applicant had filed an application for compulsory licensing
under Section 84 of the Patents Act, 1970 before the Controller of Patents, Mumbai. On
4th May, 2013 it was informed to the applicant that no prima facie case has been made out
for making of an order.63 The assessment took a period of two months.
63. In Bayer Corporation v. Union of India, in July, 2011 Natco applied for a compulsory
license to the Controller of Patents, Mumbai to produce and sell a generic version of the
drug Nexavar. It was in March 2012, that it had got the compulsory license, after a period
of eight months.64
64. The time taken to assess, regardless of the result in both cases in is in terms of months and
is certainly greater than five days because to assess the credibility of any application made
seeking compulsory licensing requires an efficient evaluation of the reasons for it seeking
compulsory licensing and its capabilities as regards its fruition.
ii. Statutorily Unnecessary
65. The usual procedures concerning the grant of compulsory licenses enhrined in section 87
are eschewed in emergency circumstances particularly those induced by health crises such
as epidemics, as stipulated under Section 92(3) wherein one of the circumstances described
relate to public health crises brought about by epidemics.65 Under such circumstances, it
63
BDR Pharmaceuticals International Pvt. Ltd.v. Bristol Myers Squibb Co., C.L.A No.1 of 2013.
64
Bayer Corporation v. Union of India, 2014 (60) PTC 277 (Bom).
65
Supra note 58.
31
becomes imperative to enhance local manufacturing of the requisite drug, at the earliest for
the welfare of people at large.66
66. The current pandemic, therefore, constitutes an emergency. Therefore, the evaluation
conducted by the government in alignment with the procedure followed under section 87
is not necessary or legally required to begin with.
D. THE DRUG “CERFIN” IS “NORMAL” AND THERE EXISTS NO

COMPARABLY SIGNIFICANT POTENTIAL FOR ITS MISUSE
67. The WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS)
is the most comprehensive multilateral agreement on intellectual property (IP). It extends
to all products and technologies that are tradable, essentially those which are transferrable
and can be sold and bought. 67
68. India, being a member of the world trade organisation is a member to the TRIPS agreement
and is legally bound to follow its stipulations. It is the overarching legislation upon which
a part of the Indian Patent Act is modelled. The most important global norm for the use of
compulsory licenses is Article 31 of the WTO TRIPS Agreement, which addresses uses
compulsory licensing i.e. the use “of a patent without the authorization of the right holder,
including use by government or third parties authorized by the government.”68
69. The said agreement makes no distinction amongst drugs as regards whether they are
“normal” or not. All drugs are patentable products and the grant of compulsory licensing
depends on the necessity and need. When the said agreement makes no distinctions
between drug, the Indian Patent Act which is based upon said agreement makes no such
distinctions and the central government itself makes no distinction as to what is “normal”
or not, then, in such a scenario, Cerfin cannot be deemed as “not normal”.
70. As regards its potential for misuse, patented vaccines especially, similar to cerfin, have
been subject to the grant of compulsory licenses. Several countries in the past including
66
Dharmendra Kumar Aggarwal vs Govt. Of Nct Of Delhi, 2021 SCC OnLine Del 1995.
67
WORLD TRADE ORGANISATION,
https://www.wto.org/english/tratop_e/trips_e/public_health_faq_e.htm#:~:text=Compulsory%20licensing%20must
%20meet%20certain,be%20subject%20to%20legal%20review (last visited Aug. 12, 2022).
68
TRIPS: Agreement on Trade-Related Aspects of Intellectual Property Rights, Apr. 15, 1994, Marrakesh Agreement
Establishing the World Trade Organization, Annex 1C, 1869 U.N.T.S. 299, 33 I.L.M. 1197 (1994).
32
Canada, USA, Malaysia, Zimbabwe, Ecuador, Brazil. have given compulsory licenses to
vaccines which have saved numerous lives, vaccines that have served similar purposes and
are just as likely to be misused.69 Presently, the health integrity of CENIN outweigh the
considerations for misuse.
71. Furthermore, to not allow compulsory licensing to other pharmaceuticals would be akin to
giving Sylern Labs exclusive control over the sale and production of the drug which might
not always coincide with the greater public interests in times of urgency, leading to it
developing monopolistic tendencies.
E. VIOLATION OF SEC. 83(A) OF THE PATENT ACT

72. It is humbly submitted that Sec. 83(a)70 of the Patent Act provides for inventions to be
worked in CENIN on a commercial scale and to the fullest extent that is reasonably
practicable without undue delay. Considering the urgent need for Cerfin and the gigantic
national and international demand for Cerfin, considering that Sylern labs has a limited
production capacity and that there are other pharmaceutical firms which may potentially
be able to manufacture Cerfin, the irrationally derived, absolutist order of the Central
Government violates the aforementioned sec. and therefore, is constitutionally invalid.71
69
WORLD HEALTH ORGANISATION, https://apps.who.int/iris/handle/10665/272977 (last visited Aug. 12, 2022).
70
71
Supra note 3.
33
PRAYER
Wherefore in the light of facts presented, issues raised, arguments advanced, and
authorities cited, the counsels on behalf of the petitioner humbly pray before this Hon’ble
court that it may be pleased to adjudge and declare that:
A. The Constitution (One Hundred And First) Amendment Act of 2016 violates the basic
structure of the constitution of CENIN and is thereby held unconstitutional.
B. The PM-CARES Fund is a public authority under the RTI Act, 2005 and the details
concerning donations received under the PM-CARES Fund are to be revealed by the Central
Government.
C. The recommendation made by the GST Council to the Central Government of CENIN is not
binding upon the Central Government.
D. The order dated 25th May, 2022 is constitutionally invalid due to arbitrary exercise of power
by the central government under the Patents Act of 1970.
And/or pass any other order, direction, or relief that it may deem fit in the best interests of
justice, fairness, equity, and good conscience
all of which is humbly and respectfully submitted.
Sd/-
(Counsel on behalf of the Petitioner)
34

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XVII INTERNAL MOOT COURT COMPETITION, 2022

UNIVERSITY OF PETROLEUM AND ENERGY STUDIES

BEFORE THE SUPREME COURT OF THE REPUBLIC OF CENIN

WRIT PETITION NO._____/2022

MEMORIAL ON BEHALF OF THE PETITIONER

i. Every state in the country has its own individuality 16

ii. Federalism is the basic structure of constitution 17

iii. Federalism in context of taxation 17

B. THE DIVISION OF POWERS BETWEEN THE UNION AND STATES IS AN

i. Pragmatic loss of federalism in the State autonomy 18

2. THE PM CARES FUND CLASSIFIES AS A PUBLIC AUTHORITY AND FALLS

A. PM CARES FUND IS A PUBLIC CHARITABLE TRUST, FALLS UNDER SEC 2(H) OF

i. Notification issued by the government under Sec 2(h)(d) of the Act 19

B. PM CARES FUND IS A PUBLIC CHARITABLE TRUST, FALLS UNDER SEC 2(H) OF

i. No exemption can be taken under Sec 8 of the RTI Act 21

ii. PM-CARES fund violating the fundamental rights of the citizens 22

3. RECOMMENDATION MADE BY THE GST COUNCIL TO THE CENTRAL

i. Non-compliance with sec. 90(1) of the CGST Act 23

ii. Non-adherence to sec. 83(d) & (g) of the Patent Act 23

B. DEFEAT OF THE PURPOSE AND OBJECTIVES RESPONSIBLE FOR THE GENESIS

i. Lack of a repugnancy provision in art. 246A 24

C. THE CONTEXTUAL MEANING OF “RECOMMENDATIONS” IS PERSUASIVE NOT

i. The Council’s recommendations are non-qualified 26

ii. Non-Obstante Clause absent in art. 279A; no exceptions made in art. 26

iii. Article 279A does not provide for tabling of recommendations 27

iv. Several Judicial pronouncements speak to the persuasive nature of “recommendations” 27

4. THE ORDER DATED 25TH MAY, 2022 IS CONSTITUTIONALLY INVALID DUE TO

A. NON-CONFORMITY WITH THE BINDING DECLARATION OF PUBLIC HEALTH

D. THE DRUG “CERFIN” IS “NORMAL” AND THERE EXISTS NO COMPARABLY

E. VIOLATION OF SEC. 83(A) OF THE PATENT ACT 33

S.NO. ABBREVIATION EXPRESSION

3. CGST Central Goods and Services Tax

4. AIR ALL INDIA REPORTER

6. SCC SUPREME COURT CASES

10. HON’BLE HONORABLE

11. UOI UNION OF INDIA

13. CrLJ Civil Rules for Courts of Limited Jurisdiction

14. IEA, 1872 Indian Evidence Act, 1872

15. CrPC Code of Criminal Procedural

16. CONSTI. Constitution

17. INDI. Indian

18. art. Article

19. WHO World Health Organisation

20. WTO World Trade Organisation

21. TRIPS Trade-Related Intellectual Property Rights

22. PHEIC Public Health Emergency of International

23. CGST Central Goods and Service Tax

SUPREME COURT CASES

S.NO NAME OF THE CASE PAGE NO.

1. C.I.T Andhra Pradesh v. Taj Mahal Hotel, (1971) 3 SCC 550 20

2. CBSE v. Aditya Bandopadhyay, (2011) 8 SCC 497 22

3. Chief Information Commissioner V. State of Manipur, (2011) 15 20

7. Indra Nehru Gandhi V. Raj Narain, (1975) Supp SCC 1 16

8. Jeeja Ghosh v. Union of India, (2016) 7 SCC 761 29

9. Kesavananda Bharti vs. State of Kerala, AIR 1973 SC 1461 16

12. Maulavi Hussein Haji Abraham Umarji v. State of Gujarat, (2004) 6 20

14. Naraindas Indurkhya v. State of Madhya Pradesh, (1974) 4 SCC 27

17. Ram Singh v. Union Territory, Chandigarh, (2004) 1 SCC 126 21

18. Reserve Bank of India v. Peerless General Finance and Investment 20

20. Som Mittal v. Government of Karnataka, (2008) 3 SCC 753 27

21. State (NCT) v. Union of India, (2020) 12 SCC 259 15

22. State of AP v. T. Gopalakrishnan Murthi, (1976) 2 SCC 883 27