091R

BEFORE THE HON’BLE SUPREME COURT OF MODUS, AT GARVPUR

IN THE MATTERS OF:

C.A. NO. 1072/2017

(UNDER ARTICLE 132 OF THE CONSTITUTION OF MODUS READ WITH RULE 1&3 OF ORDER

XV OF THE SUPREME COURT RULES, 2013)

ARSHIN & ANR ...

PETITIONER

(REPRESENTED BY MANAGING DIRECTOR)

V.

THE FEDERATION OF MODUS ...

RESPONDENT

(REPRESENTED BY HOME SECRETARY)

AND

W.P. NO. 1112/2017 ARISING OUT OF WRIT PETITION (CIVIL)

(UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA READ WITH ORDER XXXVIII RULES 1

AND 7 OF THE SUPREME COURT RULES, 2013)

ARSHIN & ANR …

PETITIONER

(REPRESENTED BY XXX)

V.
THE FEDERATION OF MODUS …

RESPONDENT

(REPRESENTED BY HOME SECRETARY)

AND

C.A. NO. 1094/2017

(UNDER ARTICLE 133 OF THE CONSTITUTION OF INDUS READ WITH RULE 1 OF ORDER XIX

OF THE SUPREME COURT RULES, 2013)

NAARUSHI MODUS PVT. LTD. ...PETITIONER

(REPRESENTED BY MANAGING DIRECTOR)

V.

THAKUR TRAVELS PVT. LTD. ...RESPONDENT

(REPRESENTED BY MANAGING DIRECTOR)

ALL THE PETITIONS HAVE BEEN CLUBBED UNDER ARTICLE 142 OF THE CONSTITUTION OF

MODUS

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS

 TABLE OF CONTENTS

Index of Authorities.....................................................................................................v

Statement of Jurisdiction.............................................................................................x

Statement of Facts.......................................................................................................xi

Statement of Issues...................................................................................................xiii

Summary of Arguments...........................................................................................xiv

Arguments.....................................................................................................................1

I. THE FOOD STANDARDS ACT IS IN CONFORMITY WITH PART-III OF

THE CONSTITUTION OF MODUS........................................................................1

A. There is a presumption of Constitutionality of an Enactment...........................1

B. There is no violation of Right to Equality guaranteed by Article 14 of the

Constitution............................................................................................................1

C. Article 19(i) is not absolute in nature and total prohibition amount to

reasonable restriction.............................................................................................4

D. Articles 21 read with Article 47 of the Constitution directs state to curb sale

of Junk Food...........................................................................................................5

E. That the right to health under Article 21 overrides the right to trade and

profession under Article 19 (1) (g)........................................................................5

II. Modus is not liable under International Law......................................................6

A. Kritistan has come to the Court with Unclean Hands....................................7

B. Violation of Sovereignty is justified by The Doctrine of Humanitarian

Intervention............................................................................................................8

C. Modus has the responsibility of the Children under International Law.........9

iii
 III. THE ARBITRATION CLAUSE IN THE AGREEMENT IS NULL AND

VOID........................................................................................................................11

A. Domestic Courts can adjudicate upon the validity of the Arbitration

agreement.............................................................................................................11

B. The arbitration clause is null, void and inoperative.....................................12

Prayer..........................................................................................................................14

iv
 INDEX OF AUTHORITIES

Cases

A.L. Kalra v. P&E Corpn of India,Ltd., AIR 1984 SC 1361.........................................3

All Delhi Rickshaw Union v. Municipal Corpn., AIR 1987 SC 648.............................6

Aushotosh Gupta v. State of Rajasthan, AIR 2002 SC 1533.........................................2

Avinder Singh v. State of Punjab, AIR 1979 SC 321....................................................2

Bhagat Ram v. State of Himachal Pradesh, (1983) 2 SCC 555.....................................3

Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006) 3

SCC 434.....................................................................................................................1

Bombay v. F.N. Balsara, AIR 1951 SC 318..................................................................1

Chaitanya Prakash v. Board of Secondary Education, Rajasthan, Jaipur, AIR 1960 Raj

185..............................................................................................................................5

Chaitanya Prakash vs. Board of Secondary Education, Rajasthan, Jaipur, AIR 1960

Raj 185 (187,188) (DB).............................................................................................5

Charanjit lal Chowdhary v. Union of India, AIR 1951 SC 41.......................................1

D.D. BASU, SHORTER CONSTITUTION OF INDIA, 62, VOL.1(13th ed., 2001)..................2

Delhi Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101............1

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

Express Newspapers v. Union Of India, AIR 1958 SC 578..........................................6

Food Corporation of India v. Bhanulodh, (2005) 3 SCC 618........................................4

Garg RK v. Union of India, AIR 1981 SC 2138............................................................3

Glass Chatons v. UOI, AIR 1961 SC 1514....................................................................6

v
Gujarat Ambuja Cements v. Chhavi Raj Singh ,(2007) 15 SCC 632............................6

Hanif v. State of Bihar, AIR 1958 SC 731.....................................................................2

Indian Metal and Metallurgical Corporation v. Industrial Tribunal, Madras and Anr.,

AIR 1953 Mad 98......................................................................................................4

Indian Metal and Metallurgical Corporation vs. Industrial Tribunal, Madras and Anr.,

AIR 1953 Mad 98 (101) (DB)....................................................................................4

Jagjit Singh v. State of Hyderabad, AIR 1954 Hyd 28..................................................3

Jonnala v. State of A.P., (1971) 2 SCC 163..................................................................2

Kasturi Lal Lakshmi Reddy . State of J &K, AIR 1980 SC 1992.................................2

Kasturi Lal Lakshmi Reddy v. State of J &K, AIR 1980 SC 1992...............................2

Kausha PN v. Union of India, AIR 1978 SC 1457........................................................2

Kedar Nath Bajoria v. State of W.B, AIR 1953 SC 404................................................2

Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225...........................................5

Khoday Distilleries v. State of Karnataka, (1995) 1 SCC 574......................................4

Krishnamurthy v. Venkatesivaran, AIR 1952 Mad 186................................................6

M.M. Yaragatti v. Vasant and Ors., ILR (1987) Kant 3069..........................................6

M/s Sharma Transport v. Government of A.P., (2002) 2 SCC 188...............................3

Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942.........................................................1

Maneka Gandhi v. Union of India,(1978) 1 SCC 248...................................................3

Nagaraj v. State of Karnataka, (1977) 2 SCC 148.........................................................2

Nagaraj v. State of Karnataka, AIR 1977 SC 876 : (1977) 2 SCC 148 (para. 7);.........2

Narendra v. UOI (1960) 2 SCR 375; UOI v. Bhanmal, (1960) 2 SCR 627...................6

Natural Resources Allocation, In re Special Reference, (2012) 10 SCC 1....................3

Neelima Misra v. Harinder Kaur Paintal And Others, AIR 1990 SC 1402...................3

vi
Nicaragua v. United States of America, 1986 I.C.J. 14, ¶272; (Congo v. Belgium),

2002 I.C.J. 3, ¶35.......................................................................................................7

Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180...............................5

Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180...............................5

P. B. Roy v. Union of India, AIR 1972 SC 908.............................................................2

Pathumma v. State of Kerala, AIR 1979 SC 771...........................................................2

Prabhu Das v. Union of India, AIR 1966 SC 1044........................................................1

Prithwish Roy v. Adrish Majumdar, AIR 1952 Cal 273................................................6

Salem Advocate Bar Association v. Union of India , (2005) SCC 344.........................3

Schneideman v. Barnett [1951] N.Z.L.R. 301 {Case from New Zealand cited in

Stewart v. McKenna}.;.............................................................................................13

Sivaranjan v. UOI, AIR 1959 SC 556............................................................................6

Smt. Ganga Bai v. Vijay Kumar and Ors. AIR 1974 SC 1126....................................12

State of Bombay v. Balsara F. N, AIR 1951 SC 609.....................................................2

State of Karnataka v. Hansa Corp., AIR 1981 SC 463..................................................6

State of Maharashtra v. Himmatbhai AIR 1970 SC 1157..............................................6

State of Orissa v. Klockner and Company and Ors. AIR 1996 SC 2140.....................12

State of Punjab v. Ram, (1998) 4 SCC 117...................................................................5

The Diversion of Water from the Meuse (Netherlands v. Belgium), 1937 P.C.I.J.

(ser.A/B) No .70 (June 28); Eastern Greenland, 95...................................................7

Union of India v. Kishorilal Gupta and Bros. AIR 1953 CAL 642.............................13

Union of lndia v. Kishorilal Gupta and Bros. AIR 1959 SC 1362..............................13

Young achievers v IMS, 2013......................................................................................12

Young achievers v. IMS Learning Resources Ltd.(2013) 10 SCC 535, ¶6.................12

vii
Other Authorities

Committee on the Rights of the Child (1991). General Guidelines, CRC/C/5, 30

October 1991............................................................................................................10

Convention on the Elimination of All Forms of Discrimination Against Women, G.A.

Res. 34/180, U.N. GAOR 3d Comm., 34th Sess., Supp. No. 46, at 193, U.N. Doc.

A/34/830 (1979) (declaring equality of women and men); International Conference

on Human Rights (the "Proclamation of Teheran"), 1968 U.N.Y.B. 538, 539

(declaring that economic development cannot come about without protection of

human rights); see Louis B. SOHN & THOMAS B. BUERGENTHAL,

INTERNATIONAL PROTECTION OF HUMAN RIGHTS (1973)........................9

Franck & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention

by Military Force, 67 AM.J. INT'L L. 275, 305 (1973)............................................9

Guy Goodwin Gill, The Language of Protection, 1 Int'l J. Refugee L. 6, 13 (1989).....7

Int’l Law Comm’n, Summary Record of 2793rd Meeting, Diplomatic Protection,

[2004] I Y.B. Int’l L. Comm’n 11, ¶4, U.N.Doc. A/CN.4/SR.2793..........................7

International Federation of Red Cross and Red Crescent Societies (2012). ‘“Expedited

adoptions”: Forced migration by another name’,in World Disasters Report 2012.

Geneva: IFRC, pp. 68–70........................................................................................10

Jack Donnelly, Human Rights, Humanitarian Intervention and American Foreign

Policy: Law. Morality, and Politics, J. INT'L AFFAIRS 311, 313 (1984)................8

Legality of Use of Force (Yugoslavia v. United States of America), Doc. CR.99/24,

¶3.17 (May 12, 1999).................................................................................................7

See, http://www.law.harvard.edu/faculty/bartholet/5-27-07%20BHRLR

%20Article.pdf. [As accessed on 31 January 2017]................................................10

viii
Snow, R. and K. Covell (2006). ‘Adoption and the Best Interests of the Child: The

dilemma of cultural interpretations’, The International Journal of Children’s

Rights, vol. 14, no. 2, pp. 109-117...........................................................................11

U.N. General Assembly, International Co-operation to Avert New Flows of Refugees:

Note by the Secretary-General, ¶66(b), U.N.Doc. A/41/324 (May 13, 1986)...........7

Rules

International Convention on the Protection of the Rights of All Migrant Workers and

Members of their Families, art. 68, Dec.18 1990, U.N.Doc. A/RES/45/158............7

U.N. CHARTER art. 1, 3...............................................................................................9

U.N. CHARTER Preamble............................................................................................9

U.N.H.C.R., Handbook on Procedure and Criteria for Determining Refugee Status

under the 1951 Convention and the 1967 Protocol Relating to the Status of

Refugees, ¶65, U.N. Doc. HCR/IP/4/Eng/REV.1 (Jan. 1979)...................................7

Treatises

Fonteyne at 243-258.......................................................................................................8

G Fitzmaurice, The General Principles of International Law, Considered from the

Standpoint of the Rule of Law, 92(2) RdC 1, 119 (1957).........................................7

OPPENHEIM, INTERNATIONAL LAW 312 (H. Lauterpacht ed., 8th ed. 1955)......8

ix
 STATEMENT OF JURISDICTION

The Petitioners most humbly submit that this Court has the requisite territorial and

subject matter jurisdiction to hear and adjudge the present matter as under:

W.P. NO. 1112/2017 ARISING OUT OF WRIT PETITION (CIVIL)

Under Article 32 of the Constitution of India read with Order XXXVIII Rules 1 and 7

of the Supreme Court Rules, 2013.

C.A. NO. 1072/2017

Under Article 132 of The Constitution of Modus read with Rule 1&3 of Order XV of

the Supreme Court Rules, 2013.

C.A. NO. 1094/2017

Under Article 133 of The Constitution of Indus read with Rule 1 of Order XIX of the

Supreme Court Rules, 2013.

ALL THE PETITIONS ARE CLUBBED UNDER ARTICLE 142 OF THE CONSTITUTION OF

MODUS.

x
 STATEMENT OF FACTS

1. The material case arises out of three claims : first a claim by Alankaar, an NGO

before the Supreme Court of Modus against the Government of Modus; second a

claim by the Mr. Arshin , a student of law in Modus before the High Court and

subsequently an appeal to the Supreme Court of Modus against the Murthypur

Universities Foods Standard Act,2016; thirdly a substantial question of law was

discovered by the High Court and the matter between Naarushi Modus and Thakur

Travels has been taken up by the Supreme Court.

BACKGROUND

2. Modus is a developed country the laws of which are pari meteria to the laws of

India. Modus shares its borders with Kritistan which is a developing country. At

the time of independence of Modus in 1947 from the Mansingh Empire , the

territory of Modus was divided into small princely states which came together

except Shiviland.

3. Shiviland was a princely state which signed an instrument of accession with

Kritistan. A tsunami hit Shiviland and wiped out the entire population except 600

children who were protected in the Pahri Cave. Kritistan could not launch a rescue

mission due to paucity of resources. Considering the close ties between Shiviland

and Modus , Modus successfully rescued the children and subsequently put them

up for adoption considering their trauma and safety.

THE FOOD STANDARDS ACT, 2016

4. The state of Murthypur enacted the Food Standanrds Act which prohibited the sale

of junk food in Universities.

xi
 THE JV AGREEMENT

5. Two Companies, Naarushi and Thakur Travels, entered into a Joint Venture

agreement and agreed upon an arbitration clause.

6. When Modus and Kritistan escalted, Naarushi transferred all its rights and

obligations to its wholly owned subsidiary Naarushi Modus.

7. Disputes arose between Naarushi Modus and Thakur travels and Thakur Travels

coontended that the Arbitration Agreement is null and void.

THE EFFECT

8. Modus gave the evacuated children up for adoption.

9. There was a ban on sale of junk food inside University Campuses.

RESULTANT LITIGATION

10. Pursuant to these facts , a NGO Aalankar moved to the Supreme Court seeking an

order for the governemnt to submit to the jurisdiction of International Court of

Justice.

11. Mr. Arshin moved to the High Court praying for the unconstitutionality of the

Food Standards Act.

12. Thakurtravels moved to the District Court for an order to declare the Arbitration

Agreement as void.

xii
 STATEMENT OF ISSUES

I. WHETHER THE FOODS STANDARDS ACT, 2016 IS CONSTITUTIONALLY

VALID?

II. WHETHER THE FEDERATION OF MODUS SHOULD SUBMIT TO THE

JURISDICTION OF ICJ?

III. WHETHER THE ARBITRATION AGREEMENT IS VALID?

xiii
 SUMMARY OF ARGUMENTS

I.

The Foods Standards Act should be presumed to be valid. The Act classified the

youth from the others and based on this intelligible diffrentia and the rational nexus is

to attain a higher level of nutrition for the youth. Thus Article 14 is not violated.

Article 19 is not an absolute right and can be curtailed for the interest of the public.

Article 21 casts an obligation on the state to raise the level of nutrition and health

when read with Article 47.

II.

The Federation of Modus is not allowed to make such claims since , as Kritistan has

come to the Court with unclean hands . Violation of Sovereignty is justifiedon

humanitarian grounds. Modus has the responsibility of the Children under

International Law and can exercise international adoption.

III.

Domestic Courts can intervene in cases of arbitration when the agreement is null and

void. The novation of the agreement and the absence of the notice of the arbitration

clause being continued. Hence the agreement is inoperative.

xiv
 ARGUMENTS

I. THE FOOD STANDARDS ACT IS IN CONFORMITY WITH PART-III OF THE

CONSTITUTION OF MODUS

[A] It is submitted that there is a presumption of Constitutionality of an enactment when

challenged under Article 14 and P. O. is in accordance of [B] Article 14, [C] 19 and [D] 21 of

Constitution.

A. THERE IS A PRESUMPTION OF CONSTITUTIONALITY OF AN ENACTMENT

Every enacted law when challenged on the grounds of Article 14 is presumed to be valid. 1

This presumption is imperative if the legislatures and executives independence is to be

maintained and its powers given some credibility. The presumption of validity is predicted on

the Central Government or the executive being in the best position to evaluate the need of its

citizens.2 Therefore, the presumption is in favour of the constitutionality of the statue and the

onus to prove that the statute is unconstitutional lies upon the person who is challenging it.3

In the present case, therefore, the Court must draw a presumption in favour of the validity of

the Food Standards Act, which aims at raising the health and nutrition of the youth of the

country.

B. THERE IS NO VIOLATION OF RIGHT TO EQUALITY GUARANTEED BY ARTICLE 14 OF THE CONSTITUTION.

1
Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC
434 at ¶201
2
Prabhu Das v. Union of India, AIR 1966 SC 1044.
3
Charanjit lal Chowdhary v. Union of India, AIR 1951 SC 41 at ¶89; Bombay v. F.N.
Balsara, AIR 1951 SC 318; Mahant Moti Das v. S.P. Sahi, AIR 1959 SC 942; Delhi
Transport Corporation v. D.T.C. Mazdoor Congress, AIR 1991 SC 101 at ¶¶210,217.

1
 i. The act has classified Universities on the basis of intelligible diffrentia to

achieve the objective stated in Articles 47.

Article 14 envisages equality before law and equal protection of law.4 The principle of equal

protection does not take away from the state the power of classifying persons for the

legitimate purpose.5 It must be presumed that the legislation understands and correctly

appreciates the need of its own people.6

Mere discrimination or inequality of treatment does not amount to discrimination within the

ambit of Article 14.7 For an order of the executive to be not violative of the fundamental

rights, it must not be an arbitrary act of the state,8 and fulfil the following two conditions:

[a] intelligible differentia, which distinguishes persons or things that are grouped together

from others, left out in the group. 9 This is done by examining the purpose and policy of the

Act, which can be ascertained from an examination of its title, preamble10 and provisions.11

[b] Rational nexus12that connects the object sought to be achieved by the act with the

intelligible differentia ascertained in [a].13 The reasonableness of the nexus is to be

ascertained with reference to the object of the legislation and not on the basis of any moral

considerations.14 Reasonable Classification is not just permitted but also necessary in the

interest of actual justice.15

4
Nagaraj v. State of Karnataka, (1977) 2 SCC 148 at ¶7; Jonnala v. State of A.P., (1971) 2
SCC 163 at ¶9
5
State of Bombay v. Balsara F. N, AIR 1951 SC 609.
6
Aushotosh Gupta v. State of Rajasthan, AIR 2002 SC 1533 at ¶5.
7
D.D. BASU, SHORTER CONSTITUTION OF INDIA, 62, VOL.1(13th ed., 2001).
8
Kasturi Lal Lakshmi Reddy v. State of J &K, AIR 1980 SC 1992 at ¶14.
9
Pathumma v. State of Kerala, AIR 1979 SC 771, at ¶41.
10
Kausha PN v. Union of India, AIR 1978 SC 1457 at ¶¶60-62; Avinder Singh v. State of
Punjab, AIR 1979 SC 321 at ¶9.
11
P. B. Roy v. Union of India, AIR 1972 SC 908.
12
Kedar Nath Bajoria v. State of W.B, AIR 1953 SC 404 at ¶39.
13
Hanif v. State of Bihar, AIR 1958 SC 731 at ¶15.
14
Garg RK v. Union of India, AIR 1981 SC 2138 at ¶17.
15
Natural Resources Allocation, In re Special Reference, (2012) 10 SCC 1 at ¶¶97-107.

2
In the present case , both the condition for reasonable classification have been fulfilled and

thus the Act does not violate Article 14. [a] The act has made a classifiication on the basis of

age group of the consumers. The Act soughts to increase the level of nutrition in accordace

with Article 47 of the youth of the country as against the older population since the impact on

the youth will be more beneficial to the country. This qualifies for intelligible diffrentia.

[b] There is thus a rational nexus between the objective of the Act which was to stay in

consonance with Article 47 of the Indian Constitution and matintain a high level of health

and prohibit junk food if needed.

ii. The Act is not arbitrary under Article 14

If a law is arbitrary or irrational then it violates Article 14. 16 It is also established that

negation of equality is a must.17 Where an act is arbitrary, it is implicit in it that it is unequal

and discriminatory and therefore violative of Article14. 18 The expression “arbitrarily” means

something done in an unreasonable manner, without adequate determining principle, and

depending on the will alone.19

Article 14 requires every action of the Government or any of its instrumentalities to inform

by reason. Non-Arbitrariness is an accessory to the rule of law, it is important that all actions

of every public functionary must be guided by reason and not personal predilections.20

It is submitted that the Act is not arbitrary simply because it only applies to Universities.

Since the main object of the Act is to achieve and improve ‘health of the youth’ and therefore

sale of junk food outside the universities per se it’s not an impediment to achieve the same.

16
Bhagat Ram v. State of Himachal Pradesh, (1983) 2 SCC 555; E.P. Royappa v. State of
T.N., (1974) 4 SCC 3; Salem Advocate Bar Association v. Union of India , (2005) SCC 344;
Neelima Misra v. Harinder Kaur Paintal And Others, AIR 1990 SC 1402.
17
A.L. Kalra v. P&E Corpn of India,Ltd., AIR 1984 SC 1361,1367.
18
Maneka Gandhi v. Union of India,(1978) 1 SCC 248 at ¶ 7.
19
M/s Sharma Transport v. Government of A.P., (2002) 2 SCC 188 at ¶25.
20
Food Corporation of India v. Bhanulodh, (2005) 3 SCC 618.

3
The mischief which the Act seeks to remedy is the high consumption of unhealthy junk food.

Moreover, such traderss outside the Universities are not prohibited to sell the junk food

outside the Universities as the Act prohibits sale of junk food near University Campuses.21

C. ARTICLE 19(I) IS NOT ABSOLUTE IN NATURE AND TOTAL PROHIBITION AMOUNT TO REASONABLE

RESTRICTION.

The rights protected by Article 19(1) are not absolute but qualified, the fundamental rights

guaranteed in Article 19(1)(a) to (g) are, therefore, to be read along with the said

qualifications, these implied qualifications are made explicit by clauses (2) to (6) of Article

19 of our Constitution. 22

The State has the requisite authority to limit or prohibit trades. The restrictions must be in the

interests of general public, an expression which is a very wide one and will include all

matters affecting public weal, such as public safety, public health, and public morals.23

In the present case, it is submitted that the Act in the State of Murthypur is a reasonable

restriction in pursuance of Article 47 of the Constitution.

D. ARTICLES 21 READ WITH ARTICLE 47 OF THE CONSTITUTION DIRECTS STATE TO CURB SALE OF JUNK

FOOD.

It is submitted that, the Directive Principles are also fundamental and can be effective if they

are to prevail over fundamental rights of a few in order to substantiate the common good

thereby not allowing the economic system to result to the common detriment.24

Article 47 of the Constitution aims at the raising of level of nutrition and the standard of

living of the people and improvement of the public health.

21
Proposition at ¶ 7
22
Khoday Distilleries v. State of Karnataka, (1995) 1 SCC 574 at ¶ 60.
23
Indian Metal and Metallurgical Corporation v. Industrial Tribunal, Madras and Anr., AIR
1953 Mad 98 at ¶¶ 101.
24
Kesavananda Bharti v. State of Kerala, (1973) 4 SCC 225 at ¶ 1015, Per Ray J.

4
It is humbly submitted that to invoke Article 21 of the Constitution, it is necessary that there

should be an actual violation of right. Mere future possibility of infringement would not

attract Article 19 and 21. The right under Article 19(1)(g) does not cast an obligation on the

State or any authority subordinate authority to create conditions so as to make the trade

lucrative or to bring customers to the trader or businessman.25 State may not by affirmative

action; be compellable to provide adequate means of livelihood or work to the citizens.26

Right of a citizen to live under Article 21 casts obligation on the State. This obligation is

further reinforced under Article 47; it is for the State to secure health to its citizens as its

primary duty.27

E. THAT THE RIGHT TO HEALTH UNDER ARTICLE 21 OVERRIDES THE RIGHT TO TRADE AND PROFESSION

UNDER ARTICLE 19 (1) (G).

It is the submitted that the cardinal rule of harmonious construction is that one article of the

Constitution cannot be used to defeat the object of the other. 28 Further, it is submitted that

restrictions is a wide expression29 and would comprise within itself the interests of public

health and morals30, which may include a section of the public 31, economic stability of the

nation32 and equitable distribution of essential commodities at fair prices. 33The state may

25
Chaitanya Prakash v. Board of Secondary Education, Rajasthan, Jaipur, AIR 1960 Raj 185
at ¶¶187,188.
26
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180 at ¶33.
27
State of Punjab v. Ram, (1998) 4 SCC 117 at ¶26.
28
M.M. Yaragatti v. Vasant and Ors., ILR (1987) Kant 3069.
29
All Delhi Rickshaw Union v. Municipal Corpn., AIR 1987 SC 648 at ¶¶5,6.
30
State of Maharashtra v. Himmatbhai AIR 1970 SC 1157 at ¶12.
31
Prithwish Roy v. Adrish Majumdar, AIR 1952 Cal 273; AIR 1956 Trav-Co 19 (22) (FB)
32
Glass Chatons v. UOI, AIR 1961 SC 1514 at ¶6.
33
Narendra v. UOI (1960) 2 SCR 375; UOI v. Bhanmal, (1960) 2 SCR 627.

5
consider the relation of fundamental rights, and accommodate their co-existence and, in the

interests of the community, limit one right so that others may be enjoyed.34

A restriction which is commensurate with the need for protection of the public cannot be said

to be excessive or unreasonable, even though it goes up to the extent of extinguishment of the

individual’s title to a property,35 or causes hardship in individual cases,36 or to traders.37

In Gujarat Ambuja Cements v. Chhavi Raj Singh 38, the fundamental rights were enforced

against a private party who was ordered to pay compensation who suffered due to the

pollution caused by the loading and unloading of coal causing health complications. The

judgment held that the Right to proper health and health care was an integral part of Article

21.

II. MODUS IS NOT LIABLE UNDER INTERNATIONAL LAW

The Federation of Modus is not allowed to make such claims since , [A] has come to the

Court with unclean hands ,[B] Violation of Sovereignty is justified,[C] Modus has the

responsibility of the Children under International Law

A. KRITISTAN HAS COME TO THE COURT WITH UNCLEAN HANDS

34
Krishnamurthy v. Venkatesivaran, AIR 1952 Mad 186, at ¶¶25,26; AIR 1951 Bom 459;
AIR1951 Pepsu 59.
35
Express Newspapers v. Union Of India, AIR 1958 SC 578 at ¶38.
36
Sivaranjan v. UOI, AIR 1959 SC 556 at ¶7.
37
State of Karnataka v. Hansa Corp., AIR 1981 SC 463 at ¶34.
38
Gujarat Ambuja Cements v. Chhavi Raj Singh ,(2007) 15 SCC 632 at ¶2.

6
Kritistan is foreclosed from making such claims as it has come to the Court with unclean

hands.39 The PCIJ40, the ICJ41, jurists42 and state practice43 held that the principle of clean

hands precludes a State guilty of illegal conduct from making claims with regard to

illegalities by another States which have resulted as a consequence.

There exists a duty to prevent creation of refugee flows in customary international law. The

UNGA has confirmed such a duty, in light of comments prepared by a Group of

Governmental Experts.44 These flows result from lack of effective protection 45 or control over

territory.46 States of origin are considered to have lost the right to protect refugees fleeing

from them.47

In the present case, Kritistan despite knowing the climatic disturbances , did not make any

arrangements for the evacuation of the population of Shiviland thus are not allowed to make

39
Int’l Law Comm’n, Summary Record of 2793rd Meeting, Diplomatic Protection, [2004] I
Y.B. Int’l L. Comm’n 11, ¶4, U.N.Doc. A/CN.4/SR.2793.

The Diversion of Water from the Meuse (Netherlands v. Belgium), 1937 P.C.I.J.(ser.A/B)
40

No .70 (June 28); Eastern Greenland, 95.

41
Nicaragua v. United States of America, 1986 I.C.J. 14, ¶272; (Congo v. Belgium), 2002
I.C.J. 3, ¶35.
42
G Fitzmaurice, The General Principles of International Law, Considered from the
Standpoint of the Rule of Law, 92(2) RdC 1, 119 (1957).

Legality of Use of Force (Yugoslavia v. United States of America), Doc. CR.99/24, ¶3.17
43

(May 12, 1999) .

44
U.N. General Assembly, International Co-operation to Avert New Flows of Refugees:
Note by the Secretary-General, ¶66(b), U.N.Doc. A/41/324 (May 13, 1986)
45
U.N.H.C.R., Handbook on Procedure and Criteria for Determining Refugee Status under
the 1951 Convention and the 1967 Protocol Relating to the Status of Refugees, ¶65, U.N.
Doc. HCR/IP/4/Eng/REV.1 (Jan. 1979).
46
Guy Goodwin Gill, The Language of Protection, 1 Int'l J. Refugee L. 6, 13 (1989).

International Convention on the Protection of the Rights of All Migrant Workers and
47

Members of their Families, art. 68, Dec.18 1990, U.N.Doc. A/RES/45/158.

7
such claims since they approach the court with unclean hands. The Republic of Kritistan has

lost the right to the children since fleeing was not an option for the children.

B. VIOLATION OF SOVEREIGNTY IS JUSTIFIED BY THE DOCTRINE OF HUMANITARIAN INTERVENTION.

When a state perpetrates human rights abuses against its citizens, however, another state may

violate the state's territorial sovereignty and protect the abused citizens under the doctrine of

humanitarian intervention.48

Humanitarian intervention is defined as "intervention in order to remedy mass and flagrant

violations of the basic human rights of foreign nationals by their government." 49 International

law recognizes humanitarian intervention and can, on occasion, justify it.

The rights of the citizens in Shiviland under the ICCPR were violated when no evacuation

procedure or protection had been provided by the State of Kritistan.

Humanitarian intervention does not violate Article 2(4) of the Charter because an altruistic

humanitarian intervention impairs neither the territorial integrity nor the political

independence of the target state.50

No Breach of sovereign rights has taken place since humanitarian intervention by Modus

does not violate the territorial integrity nor the political independence of Kritistan.

Since the U.N. Charter drafters could have explicitly banned humanitarian intervention but

did not do so, it remains legal.51 humanitarian motives justified the use of force.52

48
OPPENHEIM, INTERNATIONAL LAW 312 (H. Lauterpacht ed., 8th ed. 1955).
49
Jack Donnelly, Human Rights, Humanitarian Intervention and American Foreign Policy:
Law. Morality, and Politics, J. INT'L AFFAIRS 311, 313 (1984).
50
Id.
51
Fonteyne at 243-258
52
Franck & Nigel S. Rodley, After Bangladesh: The Law of Humanitarian Intervention by
Military Force, 67 AM.J. INT'L L. 275, 305 (1973)

8
The Charter permits humanitarian intervention as evidenced by its preamble,53 the Charter

itself,54 and the number of derivative resolutions passed since its inception 55 have equalized

the importance of the protection of human rights with the preservation of state sovereignty.56

When collective security breaks down, individual states should act to uphold the purposes of

the international community.'57

Modus has acted to uphold the purposes of the international community when it carried out

an opeteration to rescue the Children trapped in Pahri Cave.

C. MODUS HAS THE RESPONSIBILITY OF THE CHILDREN UNDER INTERNATIONAL LAW

Modus has the responsibility of the children under [i] International Adoption, [ii] Best

Interest Theory

i. International Adoption

The 1986 UN Declaration on the Social and Legal Principles Relating to the and the Welfare

of Children (the UN Declaration), the 1989 UN Convention on the Rights of the Child

(CRC), and the 1993 Hague Convention on the Protection of Children and Co-operation in

Respect of Intercountry Adoption (the Hague Convention or HCCH) established rights and

assurances for children. The UN Declaration and the CRC positioned international adoption

as an option of last resort. The UN declared in Article 17 that ICA ‘may be considered as an

53
U.N. CHARTER Preamble
54
U.N. CHARTER art. 1, 3.
55
Convention on the Elimination of All Forms of Discrimination Against Women, G.A. Res.
34/180, U.N. GAOR 3d Comm., 34th Sess., Supp. No. 46, at 193, U.N. Doc. A/34/830
(1979) (declaring equality of women and men); International Conference on Human Rights
(the "Proclamation of Teheran"), 1968 U.N.Y.B. 538, 539 (declaring that economic
development cannot come about without protection of human rights); see Louis B. SOHN &
THOMAS B. BUERGENTHAL, INTERNATIONAL PROTECTION OF HUMAN RIGHTS
(1973).
56
Louis B. Sohn, The Universal Declaration of Human Rights, 8J. INT'L
COMMISSIONJUR. 17, 23 (1967).
57
Teson . pp.131

9
alternative means of providing the child with a family’.58

International Adoption is a developing principle and is used as a measure of last resort , in the

present case , the best interests of the children lie with Modus since, the children share deep

cultural ties with Modus and Modus has enough resources to cater to the needs of the children

as against Kritistan.

ii. Best Interest Theory

There is general agreement that measures to protect and ensure the healthy development of

children, whether initiated by parents, caregivers, third parties or the state ,must be guided by

the best interests of those children.59

The UNHCR [United Nations High Commissioner for Refugees] has ‘Three Rules’ for

evacuation :

1. To protect and assist in the place where the child and his or her family are physically

located;

2. If evacuation cannot be avoided, a child must be moved with a primary care-giver;

3. Never evacuate unless a plan has been made that will protect children’s rights and

well-being”60

Modus carried out the evacuation in consonence with the abovementioned steps and a plan

has been made by Modus to protect the environmental refugees. On the other hand Kritistan

does not have any plan or resources to look after the best interests of the children.

58
See, http://www.law.harvard.edu/faculty/bartholet/5-27-07%20BHRLR%20Article.pdf.
[As accessed on 31 January 2017]
59
Committee on the Rights of the Child (1991). General Guidelines, CRC/C/5, 30 October
1991.
60
International Federation of Red Cross and Red Crescent Societies (2012). ‘“Expedited
adoptions”: Forced migration by another name’,in World Disasters Report 2012. Geneva:
IFRC, pp. 68–70.

10
Expedited transfer may be in the best interests of a child with a pre-existing adoption

judgement, but it should be decided on a case-by-case basis and should never take place

before the child can first recover from initial trauma in a familiar environment, verifications

can be carried out and appropriate preparations made in a calm manner. 61 The principle of

subsidiarity suggests that it is generally in children’s best interests to remain in their own

community. A balance should also be struck between supporting efforts to improve living

conditions and children’s life chances in their home communities and promoting forms of

alternative care that may be more appropriate to the specific cultural context.62

The Shiviland refugees will feel familiar in Modus due to the deep cultural ties the two

States had shared. Therefore it is in the best interests of the children and by the application of

the principle of Subsidiarity , the children should remain in Modus.

III. THE ARBITRATION CLAUSE IN THE AGREEMENT IS NULL AND VOID

The Arbitration clause in the agreement is null and void as,[A] Domestic Courts can

intervene to determine the validity of the agreement,[B] The arbitration clause is novated and

hence null and void.

A. DOMESTIC COURTS CAN ADJUDICATE UPON THE VALIDITY OF THE ARBITRATION AGREEMENT.

Section 5 of the A&C Act, 1996 bars the intervention of Judicial Authorities except where

provided by that part. Section 45 of the same act directs courts to refer the parties to

Arbitration at the request of any of the parties unless the agreement is void. Section 45

therefore empowers the judicial authority when seized of to a matter relating to an arbitration

agreement to decide as to whether such agreement is null and void or inoperative or incapable

of being performed prior to referring the parties to arbitration. Such power prevails over the

61
International Federation of Red Cross and Red Crescent Societies (2012).
62
Snow, R. and K. Covell (2006). ‘Adoption and the Best Interests of the Child: The dilemma
of cultural interpretations’, The International Journal of Children’s Rights, vol. 14, no. 2, pp.
109-117.

11
provisions contained in Part I of the Act (which includes section 5 of the Act) or the Civil

Procedure Code due to the operation of the non-obstante clause contained in such provision.63

It is therefore amply clear that the power of the judicial authority to decide the issue as to

existence/validity of the arbitration agreement is provided under the statute itself and is not

whittled down by operation of section 5 of the Act.

Power to entertain an action or cause by a Civil Court is inherent in itself. It does not derive

its source from the statute. Hence the nature of action which may be entertained by the Court

is not regulated by section 45 of the Act.

There is inherent right conferred on every person by Section 9 of the Code of Civil

Procedure, 1908, (for short 'CPC') to bring a suit of a civil nature unless it is barred by a

statute.64

Under the Indian Law, greater obligation is cast upon the Courts to determine whether the

agreement is valid, operative and capable of being performed at the threshold itself. Such

challenge has to be a serious challenge to the substantive contract or to the agreement, as in

the absence of such challenge, it has to be found that the agreement was valid, operative and

capable of being performed; the dispute would be referred to arbitration.65

The Court can intervene with an order of injunction to restrain the arbitration agreement in

case the court finds that the agreement is null and void. Like in the present case.

B. THE ARBITRATION CLAUSE IS NOVATED AND NOT ASSIGNED.

An arbitration clause in an agreement cannot survive if the agreement containing arbitration

clause has been superseded/novated by a later agreement.66

At no point in time did Naarushi or any of its constituent affiliate, saved or reserved their

right to seek arbitration under the alleged Arbitration Agreement which they now seek to

63
Chloro Controls Pvt. Ltd. V. Severn Trent Water Purification Ltd. (2013) 1 SCC 641,¶55
64
Smt. Ganga Bai v. Vijay Kumar and Ors. AIR 1974 SC 1126
65
State of Orissa v. Klockner and Company and Ors. AIR 1996 SC 2140.
66
Young achievers v. IMS Learning Resources Ltd.(2013) 10 SCC 535, ¶6..

12
enforce. This Court has already declined the reliefs on merit as well as on the point of

jurisdiction. Therefore, invoking the arbitration clause is clearly vexatious and abuse of the

process of law.

In Union of India v. Kishorilal Gupta and Bros. (1953) 67 this Court held that accord and

satisfaction recorded in the substituted agreement extinguished the original contract resulting

in the extinguishment of the arbitration clause contained in the said original contract. The

said judgment was upheld by the Supreme Court in Union of lndia v. Kishorilal Gupta and

Bros. (1959)68.

MacGillivray on Insurance Law (12th edition), at 639, cites Schneideman69 in support of the

contention that notice of an assignment must be provided. Therefore, consent may not be

required but a notice is essential which is not present in the case at hand.

The agreement has been substituted and no notice has been provided about the assignment of

the previous arbitration clause.

67
Union of India v. Kishorilal Gupta and Bros. AIR 1953 CAL 642
68
Union of lndia v. Kishorilal Gupta and Bros. AIR 1959 SC 1362.
69
Schneideman v. Barnett [1951] N.Z.L.R. 301 {Case from New Zealand cited in Stewart v.
McKenna}.;

13
 PRAYER

WHEREFORE, in light of the issues raised, arguments advanced and authorities cited, it is

most humbly and respectfully prayed that this Hon’ble Court may be pleased to adjudge and

declare that:

 The Food Standards Act is Constitutionally valid.

 Modus should not be directed to submit to the jurisdiction of International Court of

Justice.

 The Arbitration Agreement is Null,Void and Inoperative.

The court may also be pleased to pass any other order, which this Hon’ble Court may deem

fit in light of justice, equity and good conscience.

All of which is respectfully submitted

Date: 03.02.2017 Counsel Code – 091R

Place: Garvpur (Counsel for Respondents)

14