X SEMESTER MOOT COURT

X SEMESTER MOOT COURT TEAM CODE -12

DHARMASHASTRA NATIONAL LAW UNIVERSITY, JABALPUR

______________________________________________________________________________________________________________

BEFORE THE HON’BLE SUPREME COURT OF CENIN UNDER ARTICLE 32 OF THE CONSTITUTION OF CENIN

SMILE FOUNDATION…………(Petitioner)

Vs.

GOVERNMENT OF CENIN……………….(Respondent)

ON SUBMISSION TO THE REGISTRY OF THE COURT OF THE HON’LE SUPREME COURT OF CENIN

________________________________________________________________________________________________

1
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... 3

ARTICLES ..................................................................................................................................... 4

BOOKS ........................................................................................................................................... 4

STATEMENT OF JURISDICTION............................................................................................... 5

STATEMENT OF FACTS ............................................................................................................. 6

STATEMENT OF ISSUES ............................................................................................................ 8

SUMMARY OF ARGUMENTS .................................................................................................... 9

1. THE CONSTITUTION (ONE HUNDRED AND FIRST) AMENDMENT ACT,

2016’ violates the basic structure of the Constitution of Cenin,1955 ................................... 9

2. PM CARES FUND COMES WITHIN THE PURVIEW OF RTI. ............................... 9

3. THE RECOMMENDATIONS OF GST COUNCIL ARE NOT BINDING ON THE

CENTRAL GOVERNMENT. .................................................................................................. 9

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 ...................................................................................... 9

ARGUMENTS ADVANCED ...................................................................................................... 10

PRAYER ....................................................................................................................................... 19

2
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

TABLE OF AUTHORITIES

CASES

State of Rajasthan v. Union of India, (1977) 3 SCC 592 (India)………………………………..

Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648 (India)……………………………….

S.R. Bommai v. Union of India, (1994) 3 SCC 1 : AIR 1994 SC 1918 (India)...………………..

ITC Ltd. v. Agricultural Produce Market Committee, (2002) 9 SCC 232 (India)…………………

L.Rs. v. State of Assam, 2017 (7) SCJ 134 (India)................................................................

Viswanathan v. Abdul Wajid, (1963) 3 SCR 22 (India)………………………………………

Canara Bank v. Sri Debasis Das, (2003) 4 SCC 557 (India)………………………………….

Hari Shankar Nagla v. State of M.P., AIR 1954 SC 465………………………………………

Makhan Singh v. State of Punjab, AIR 1964 SC 381 (India)...................................................

National stock exchange of India limited v.Central Information commission WP no (civil) 4748
of 2007……………………………………………………………………………….

Thalappalam Service Coop Bank ltd v. State of Kerala (2013) 16 SCC 82....................................

Commr of Customs v. Dilip Kumar & Co., (2018) 9 SCC 1....................................................

Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama, (1990) 1 SCC 277..............

Union of India v. Braj Nandan Singh, (2005) 8 SCC 325………………………………..

3
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

Institute of Chartered Accountants of India v. Price Waterhouse, (1997) 6 SCC 312…………..

NaraindasIndurkhya v. State of Madhya Pradesh, (1974) 4 SCC 788 : AIR 1974 SC

232……………………………………………………………………………………

Union of India s. Mohit Minerals Pvt. Ltd., Civil Appeal No. 1390 of
2022………………………………………………………………

M. Karunanidhi v. Union of India, (1979) 3 SCC 431……………………………

West U.P. Sugar Mills Association v. State of Uttar Pradesh, 2020 SCC OnLine SC
380……………………………………………………………………………..

Rajiv Sarin v. State of Uttarakhand, (2011) 8 SCC 708………………………………….

ARTICLES
S. KRISHNSWAMY, DEMOCRACY AND CONSTITUTIONALISM IN INDIA A STUDY

OF THE BASIC STRUCTURE DOCTRINE (OXFORD ED., 2013)

BOOKS

 M.P. JAIN, INDIAN CONSTITUTIONAL LAW (8 ed., 2018)

 I.P. MASSEY, ADMINISTRATIVE LAW (9 ed., 2020)

 CONSTITUTION OF INDIA

 STATE EMBLEM ACT 2005

4
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

STATEMENT OF JURISDICTION
______________________________________________________________________________

The Petitioner has approached the Hon’ble Supreme court of CENIN under Article 32 &136 of
Constitution of Cenin.

 “Article 32” Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this part is guaranteed.

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition,quo warranto and certiorari, whichever may
be appropriate, for the enforcement of any of the rights conferred by this Part…”

 “Article 136”. Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any cause
or matter passed or made by any court or tribunal in the territory of India.

(2) Nothing in clause (1 ) shall apply to any judgment, determination, sentence or order passed or
made by any court or tribunal constituted by or under any law relating to the Armed Forces.

5
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

STATEMENT OF FACTS

1. The Republic of CENIN got decolonized and framed its Constitution in 1955. The
Constitution establishes autonomous governance structures at the Central level and at the state
level with clearly demarcated legislative fields. Both Central Government and State
Governments levied numerous taxes according to their legislative competence, leading to a
complex taxation system.

2. The CENIN DEMOCRATIC PARTY (CDP) promised in their election manifesto that if they
formed government at the Centre, they would make necessary legal changes to abolish the
age-old complex tax system. On 20 June, 2015, the CDP were declared victorious and in
order to fulfill their promise, the elected government decided to bring in significant reforms
in the taxation structure of the nation.

3. The new proposed taxation mechanism seeks to bring in a system of "One Nation, One Tax"
subsuming majority of indirect taxes levied by Central and State Governments differently,
with the Central Government keeping in mind multiple objectives for the new taxation. The
most important details in this text are that the Central Government and State Governments
agreed to abolish the age-old system and replace it with a new structure of indirect taxation.

4. The Constitutional Amendment Act, 2016 was passed by the Parliament of CENIN. 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.

5. In July 2021, a worldwide pandemic, "Perfipox" spread across the globe and killed 5.4 lakh
people in CENIN, leading to a strict lockdown all over the country which had a drastic effect
on the economy. The PM-CARES fund was introduced to support and undertake assistance
or relief of any kind relating to calamity or distress, public health or any other kind of
emergency. It provided tax exemption to all its donors and fulfilled the demand of the
country.

6
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

6. An RTI application was filed by a person named Raj seeking information about the
expenditure of the fund, but the government rejected the application stating that it comes
under the purview of the Societies Registration Act, 1860.

7. Many companies incorporated in CENIN started preparing medicine for PERFIPOX and
within six months, an effective medicine to cure PERO-20 virus was discovered and clinical
trials were at the final stage before making it available to the public at large. Clinical trials
also came out to be positive and regulatory approvals were also given to the drug named
"CERFIN" by the Drug Regulatory Authority (DRA) of CENIN.

8. The most important details in this text are that SYLERN LABS initiated the manufacturing
of the medicine "PEROFAXACIN" to treat the patients suffering from "Perfipox". This
medicine was the only effective medicine at the time, and the company was flooded with
orders. SMILE FOUNDATION, a Non-Governmental-Non-Profit Organization, applied to
the Ministry of Health, Government of CENIN to grant compulsory licensing of the drug
"CERFIN" to other pharmaceutical companies functioning within the nation CENIN so that
the production of the medicine could be enhanced to cater for the affected persons.

9. The Ministry of Health rejected the application on the grounds that no other company has
fulfilled the licensing criteria, and that the other companies located within the territorial
limits of the CENIN does not have relevant technical and technological resources to
manufacture the drug. The WHO declared the outbreak as a Public Health Emergency of
International Concern (PHEIC) to fast-track the availability of effective tests, vaccines and
medicines.

7
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

STATEMENT OF ISSUES

1. Whether ‘THE CONSTITUTION (ONE HUNDRED AND FIRST) AMENDMENT ACT,

2016’ violates the basic structure of the Constitution of CENIN, 1955?

2. Whether the PM-CARES fund comes within the purview of RTI Act 2005?

3. Whether the recommendation made by the GST Council to the Central Government of CENIN
is binding on the Central Government?

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?

8
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

SUMMARY OF ARGUMENTS

1. THE CONSTITUTION (ONE HUNDRED AND FIRST) AMENDMENT ACT,

2016’ violates the basic structure of the Constitution of Cenin,1955
It is humbly submitted to the Hon'ble Supreme Court that the Article 279 A of the 101
Constitutional amendment is not constitutionally valid. First, Article 279A violates basic
structure of the Constitution of Cenin[A]; Secondly, Article 279A violates features of federalism
[B]; Thirdly, Article 279A violates doctrine of separation of powers,

2. PM CARES FUND COMES WITHIN THE PURVIEW OF RTI.

It is humbly submitted before the Hon’ble Court that PM Cares fund comes within the purview
of RTI because PMNRF is headed by the Prime Minister of Cenin and administered by a Joint
Secretary to the Prime Minister as Secretary of the fund, in addition, he is assisted by the officer
of the rank of a director, thus, the fund is completely managed by the government officials and
comes under the Prime Minister's Office.

3. THE RECOMMENDATIONS OF GST COUNCIL ARE NOT BINDING ON THE

CENTRAL GOVERNMENT.
It is humbly submitted before this Hon'ble Court that the literal meaning of the word should be
used in the present case because the ordinary meaning of the word ‘recommendation’ is plain
and unambiguous and when read it is read in its ordinary meaning it satisfies the intention of the
legislature through doctrine of repugnancy.

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
It is humbly submitted before the Hon’ble court that Perbiflox is a public health emergency
Furthermore, as per section 92 of the Act, Central Government can grant a compulsory license in
national emergency or urgency, the provision enshrines the spirits of Article 31 of the TRIPS
Agreement. The legislative intent has been crystal clear as the procedure mentioned under
section 87 of the Act, ought to be ignored during a public healthcare crisis.

9
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

ARGUMENTS ADVANCED
______________________________________________________________________________

1. ‘THE CONSTITUTION (ONE HUNDRED AND FIRST) AMENDMENT ACT, 2016’

violates the basic structure of the Constitution of CENIN, 1955

It is humbly submitted to the Hon'ble Supreme Court that the Article 279 A of the 101
Constitutional amendment is not constitutionally valid. First, Article 279A violates basic
structure of the Constitution of Cenin [A]; Secondly, Article 279A violates features of federalism
[B]; Thirdly, Article 279A violates doctrine of separation of powers.

A. ARTICLE 279A VIOLATES THE BASIC STRUCTURE OF THE CONSTITUTION

OF CENIN.

It is humbly submitted that the Constitution is the supreme fundamental law of the Union of
Cenin.1The Constitution is suprema lex and is considered the preponderant law of the land.
Therefore, all laws are required to be in consonance of and conform to the Constitution
considering no branch of the government is above or beyond it 2. The Constitution of Cenin
imbibes and imparts the fundamental principles of federalism, economic cooperation, and state
autonomy.

The doctrine of basic structure is an independent Constitutional judicial review applying to all
forms of state action3. The doctrine incarnates rule of law and aims at instating a limitation on
the power of amendment to ensure the essential law of the land cannot be amended. Therefore,
the parliament under the exercise of its constituent power cannot emasculate, abrogate or change
the basic structure of the Constitution and its Constitutional identity. In the present matter,
Article 279A is ultra vires as it restricts Constitutional supremacy by violating the doctrine of
basic structure.

1
State of Rajasthan v. Union of India, (1977) 3 SCC 592 (India).
2
Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648 (India).
3
S. KRISHNSWAMY, DEMOCRACY AND CONSTITUTIONALISM IN INDIA A STUDY OF THE BASIC
STRUCTURE DOCTRINE (OXFORD ED., 2013)

10
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

B. ARTICLE 279A IS VIOLATIVE OF THE FEATURES OF FEDERALISM.

It is humbly submitted that the Union of Cenin follows a federal structure which is the basic
structure of its Constitution.4It imparts the principles of cooperative federalism, economic
cooperation along with promising the States autonomous legislative and residuary powers except
when vested with the Union. Therefore, every State must have the power to legislate entries
vested under their competency without any dependency on the Union. Such a federal structure
further necessitates independence in the exercise of legislative and executive power of both the
Union and the State.

(a) Article 279A is violative of the divisions of power as established by the Constitution.

It is humbly submitted that distribution of powers is an essential feature of federalism. The

Centre and State both derive their power and authority from the Constitution, therefore, it is
essential to ensure that the power is not abrogated with the Centre but it distributed in accordance
with the Constitution. The Union through the 101st Constitutional Amendment Act, 2016
promised a unified tax structure and under it exercised its amending powers to make provisions
to levy tax concurrently changing the federal economic structure of the Union 5.

Article 279A6violates the provisions providing the State the right to levy certain taxes in the
same capacity as the Union by facilitating the Union with a veto power. Article 279A empowers
the GST Council to make laws on all matters relating to GST which in addition to the veto, poses
a limitation on the legislative capacity of the State to levy tax considering it cannot make a law
repugnant to the Union. In addition, the Article empowers the Council to pass recommendations
on the matters exclusively in the State list. Therefore, this Article does not abide to the equitable
distribution of power and reduces the States capacity due to a centre dominated tax structure.

(b) Article 279A violates the autonomous functioning of the States.

4
S.R. Bommai v. Union of India, (1994) 3 SCC 1 : AIR 1994 SC 1918 (India).
5
ITC Ltd. v. Agricultural Produce Market Committee, (2002) 9 SCC 232 (India); see also Bimolangshu Roy (Dead)
through L.Rs. v. State of Assam, 2017 (7) SCJ 134 (India).
6
“Article 279 A” of Constitution of India

11
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

It is humbly submitted that the formation of Union of Cenin was guided by the principle of
Constitutional autonomy of the States. It was provided to the States that they will possess the
power of autonomous units with residuary powers and legislative competency is varies spheres.
State autonomy is not complete independence from the Union but instead focuses on reduced
dependence on the Union7. In the present matter, Article 279A poses a limitation to the
legislative powers of the States on matter within their competence and territorial nexus.Hence,
limiting the fiscal federal structure of revenue allocation and collection,unified tax structure and
state autonomy. In addition, the essence of cooperative federalism prevails in the judiciary as
well under the original jurisdiction of the Hon'ble Supreme Court. The autonomous function of
the States is protected through this as the States can approach the Supreme Court for a violation
of their legal right or under a Constitutional expectation.

The Article poses a limitation on the right of the States to approach the Hon'ble Supreme Court
by providing the Council to adjudicate the dispute related to its own proceedings.The Article
instructs the Council to establish a mechanism to adjudicate disputes between the Union and the
States. However, in the present matter, the States when in disagreement had to approach the GST
Council for dispute resolution prior to approaching the courts.This creates an essential bias in the
hearing of the dispute and violates the principles of natural justice which requires the adoption of
a fair, impartial procedure of adjudication under all bodies with judicial capacity 8.

C. ARTICLE 279A IS VIOLATIVE OF THE DOCTRINE OF SEPARATION OF

POWERS.

It is humbly submitted that doctrine of separation of powers is the basic structure of the
Constitution of Cenin and provides for a separation in functions of the organs of the government
and the bodies created through them9. The functions of the organs are sufficiently differentiated
to prevent against concentration of powers and ensure harmonious functioning. Each organ
performs essential features of enactment, implementation and interpretation of laws and

7
M.P. JAIN, INDIAN CONSTITUTIONAL LAW (8 ed., 2018)
8
Viswanathan v. Abdul Wajid, (1963) 3 SCR 22 (India); see also Canara Bank v. Sri Debasis Das, (2003) 4 SCC
557 (India)
9
I.P. MASSEY, ADMINISTRATIVE LAW (9 ed., 2020).

12
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

delegation of these essential functions to another body violates the doctrine 10. It is submitted that
Art. 279A by empowering the GST Council with excessive powers limits the exercise of powers
and functions by the organs efficiently.

2. PM CARES FUND IS A PUBLIC AUTHORITY UNDER SECTION 2(h) OF RIGHT

TO INFORMATION ACT, 2005.

It is humbly submitted before the Hon’ble Supreme Court that PM cares fund comes under the
preview of RTI act. Recently, the Prime Minister's Office refused to disclose information relating
to the PM Cares Fund by stating it does not fall under the definition of public authority under
the Right to Information (RTI) Act, 2005.

Right to information act, 2005 defines what constitutes “public authority”. The definition
consists of two parts. The former part provides that a public authority includes a) body
established by the Constitution, b) body established by any law made by the Parliament, c) body
established by law made by the State Legislature, and .The latter parts covers bodies established
by a notification or order issued by the government and includes) a body owned, controlled or
substantially financed by funds provided by the government and ;ii) non-governmental
organizations substantially financed by funds provided by the government 11.

The PM Cares Fund does not fall within the definition under category a, b, c and ii, because it
has not been constituted under the Constitution or by Parliament. We are left with two categories
- body owned, controlled or substantially financed by the government; and body created under
notification or order issued by government. It has to be noted that the three conditions - owned,
controlled, and substantially financed, are distinct. Even if one of the three is satisfied by a body,
it would be sufficient to declare it a public authority12.

The Petitioner argues that the PM Cares Fund falls under the definition of public authority
because the government exercises substantial control over the Fund. However, it may not be a

10
Hari Shankar Nagla v. State of M.P., AIR 1954 SC 465; see also Makhan Singh v. State of Punjab, AIR 1964 SC
381 (India).
11
Section 2(h) Right To Information Act,2005
12
National stock exchange of India limited v.Central Information commission WP no (civil) 4748 of 2007.

13
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

public authority on the ground that it is owned or substantially financed by the government or
created under notification/order issued by the government. Body owned, controlled or
substantially financed by the appropriate government .The term “controlled” has not been
defined under the Act. The Supreme Court, while interpreting it in Thalappalam Service Coop
Bank ltd v. State of Kerala, stated:“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
Section 2(h)(d)(i) of the RTI Act. In other words…the control of the body by the appropriate
Government would also be substantial and not merely supervisory or regulatory.”13

Advertisements seeking contributions to the PM Cares Fund have been made by government
agencies from their budgetary allocation. The Prime Minister's office has made an appeal to the
public for the contribution to the Fund through media. Furthermore, the PM's pictorial
representation has been used in government advertisements making appeals for contribution.Use
of the State Emblem of India on the official website of PM Cares Fund website and its logo gives
an impression of a public office. Use of State Emblem is explicitly prohibited under The State
Emblem Act, 200514 unless its use by any authority is notified by the government under this Act.

Gov.in is the official domain of the PM Cares website. The use of this domain is regulated under
the ministry of electronics and information technology Ministry of Electronics and Information
Technology guidelines framed for the purpose of allocating the domain gov.inThe aforesaid
points suggest a deep and substantial control by the government. Therefore, the PM Cares Fund
is a public authority under the meaning of the RTI Act.

13
Thalappalam Service Coop Bank ltd v. State of Kerala (2013) 16 SCC 82
14
The State Emblem Act, 2005

14
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

3. THE RECOMMENDATIONS OF GST COUNCIL ARE NOT BINDING ON THE

CENTRAL GOVERNMENT.

If the words in the statute are plain and unambiguous, it becomes necessary to expound those
words in their natural and ordinary sense15. The paramount object in statutory interpretation is to
discover what the legislature intended16. The intention of the legislature is primarily to be
gathered from the language used, which means that attention should be paid to what has been
said as also to what has not been said17. Where, however, the words were clear, there is no
obscurity, there is no ambiguity and the intention of the legislature is clearly conveyed, there is
no scope for the court to innovate or take upon itself the task of amending or altering the
statutory provisions18.

It is humbly submitted before this Hon'ble Court that the literal meaning of the word should be
used in the present case because the ordinary meaning of the word ‘recommendation’ is plain
and unambiguous and when read it is read in its ordinary meaning it satisfies the intention of the
legislature through doctrine of repugnancy.

(a) The ordinary meaning of recommendation is plain and unambiguous

The ordinary meaning of recommendation is “a suggestion or proposal as to the best course of action”.19In
NaraindasIndurkhya20 the Court differentiated between the meaning of ‘recommendation’ and
‘prescription’ in the context of school syllabus and held that prescription is a legal binding obligation
while recommendation has a merely persuasive effect.

15
Commr. of Customs v. Dilip Kumar & Co., (2018) 9 SCC 1.
16
Union of India v. Filip Tiago De Gama of Vedem Vasco De Gama, (1990) 1 SCC 277.
17
Union of India v. Braj Nandan Singh, (2005) 8 SCC 325.
18
Institute of Chartered Accountants of India v. Price Waterhouse, (1997) 6 SCC 312
19
Lexico Dictionary by Oxford, Meaning of ‘recommendation’,(Oct. 24, 2020, 20:42 P.M.),
https://www.lexico.com/definition/recommendation/.

20
NaraindasIndurkhya v. State of Madhya Pradesh, (1974) 4 SCC 788 : AIR 1974 SC 1232.

15
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

It is humbly submitted before this Hon'ble Court that the words recommendation or its substitute should
be construed in its ordinary meaning as the ordinary meaning is plain and unambiguous. It clearly gives
the meaning that these recommendations are merely advices 21 and like other commissions or
councils where Centre has a superseding authority over the advices, Centre also have the same
superseding authority over the recommendations of the Council in the larger public interest,
therefore, the word recommendation should be interpreted in its literal form as its meaning is
plain and unambiguous.

(b) Doctrine of repugnancy satisfies the intention of legislature when recommendation is

ready in ordinary

The petitioner might rely on the claim that if recommendations are not binding than States are
free to develop their own mechanisms of levying GST and therefore nullifying the intention for
which the legislation was brought. But it is hereby brought to the knowledge of the Court that
powers conferred to the Parliament and the State Legislature to make laws governing GST are
concurrent.22 In M. Karunanidhi v. Union of Cenin,23 the Court opined that where there is a
direct collision between the law made by the State and the law made by the Parliament, State law
would be void to the extent of repugnancy.24 In a nutshell, in order to attract the doctrine of
repugnancy, both the legislations must be substantially on the same subject. 25

It is humbly submitted before this Hon'ble Court that Centre have a greater hand in accepting and
rejecting the recommendations of the GST Council in greater public interest and the decision of
Centre will be binding on States, if the States did not accept Centre's decision and laid down
their own laws, then those laws will have repugnancy effect, therefore, it is clear that the
intention of the legislature is to make recommendations having only an advisory effect so as the
Centre can have a last stance of implementing the recommendations in the larger public interest
and as well preventing States from developing their own mechanisms.

21
Union of India Vs. Mohit Minerals Pvt. Ltd., Civil Appeal No. 1390 of 2022
22
101 Amendment Act, 2016, Act No. 55, Acts of Parliament, Statement of Objects and Reasons.
23
M. Karunanidhi v. Union of India, (1979) 3 SCC 431
24
West U.P. Sugar Mills Association v. State of Uttar Pradesh, 2020 SCC OnLine SC 380.
25
Rajiv Sarin v. State of Uttarakhand, (2011) 8 SCC 708.

16
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

4. WHETHER THE ORDER DATED 25TH MAY, 2022 IS CONSTITUTIONALLY

VALID DUE TO ARBITARY EXERCISE OF POWER BY THE CENTRAL
GOVERNMET UNDER THE PATENTS ACT, 1970?

a. Perfipox is a matter of public health emergency

It is humbly submitted before the Hon’ble court that the Right to life is a fundamental right under
Art. 21 of the constitution and impugned order is resulting in direct violation of fundamental
rights which makes the impugned order constitutionally invalid. PERFIPOX is a national health
emergency and a declared pandemic by the WHO.26

Several drugs that are at the core of the PERFIPOX treatment protocol are under patents in India
including “CERFIN”. A communication was issued by the UOI, along with South Africa, to the
Council for Trade-Related Aspects of Intellectual Property which stated that there were several
reports about intellectual property rights hindering timely provisioning of affordable medical
products to patients. The communication also reported that some members of the World Trade
Organization had carried out urgent amendments to their national patent laws to expedite the
process of issuing compulsory/government use licenses.

It is matter of fact that the production of the “CERFIN” is necessary for combating and curing
the PERFIPOX and denial of the said vaccine would lead to deaths of millions of peoples and
will lead to gross violation of right to life and the impugned order leads to such scenario and
hence it is constitutionally invalid.

(b) The impugned order is in violation of general principles applicable to working of

patented inventions.

It is humbly submitted before the Hon’ble court that the section 83 of the Patents Act, 1970
clearly states the general principles applicable to working of patented inventions read as “that
patents granted do not impede protection of public health and nutrition and should act as
instrument to promote public interest specially in sectors of vital importance for socio-economic

26
Para 9. Moot preposition.

17
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

and technological development of India”27 and “that patents granted do not in any way prohibit
Central Government in taking measures to protect public health” 28. The patent regime is
governed by the Patents Act, 197029, Section 92 of which envisages the grant of a compulsory
license, inter alia, in circumstances of national emergency and extreme urgency.

Once a declaration of national emergency is made, and the relevant patents notified, any person
interested in manufacturing the drug can make an application to the Controller General of Patents
who can then issue a compulsory license. Further, under Section 100 of the Patents Act, the
Central Government can authorize certain companies to use any patents for the “purpose of the
government”. Another alternative is for the Central Government to acquire the patents under
Section 102 from the patentees. If the Central Government and the patentee is not able to reach a
consensus on the price of the patents, it is up to the High Court to fix the royalty. Additionally,

27
Section 83(d), The Patents Act, 1970.
28
Section 83(e), The Patents Act, 1970.
29
The Patents Act, 1970.

18
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, the Petitioner
most humbly and respectfully pray that this Hon'ble Court may be pleased to:

1. Declare Article 279A as Constitutionally invalid and hold the recommendations of the GST
Council to be only advisory on the Union Government

2. Declare PM Care’s fund as Public Authority under the ambit of RTI.

3. Hold Government’s Order dated 25th May 2022 regarding rejection of patent is Invalid.

AND/OR

Pass any such orders, or issue such direction, or grant such relief, that this Hon'ble Court may
deem fit in the interest of justice, equity and good conscience. And for this act of kindness, the
Petitioner shall duty bound forever pray

19
MEMORIAL ON BEHALF OF PETITIONER
 X SEMESTER MOOT COURT

20
MEMORIAL ON BEHALF OF PETITIONER