TEAM CODE:

BEFORE THE HON’BLE SUPREME COURT OF PRIMADOR

IN THE MATTERS OF

TREE PEOPLE & OTHERS (PETITIONERS)

V.

UNION OF PRIMADOR & Anr. (RESPONDENTS)

2ND B.S. ABDUR RAHMAN NATIONAL MOOT COURT COMPETITION – 2023

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF PRIMADOR

UNDER ARTICLE 32 OF THE CONSTITUTION OF PRIMADOR

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS – UNION OF

PRIMADOR & Anr.

COUNSELS APPEARING ON BEHALF OF THE RESPONDENTS – UNION OF

PRIMADOR & Anr.

TABLE OF CONTENTS
2

MEMORIAL ON BEHALF OF RESPONDENTS

 LIST OF ABBREVIATIONS

¶ Para

PFCDA PRIMADOR Forest (Conservation) and Developmental

Activities Act
AIR All India Reporter

TTP Treeland Tribal Party

Art. Article

Ed. Edition

UOI Union of India

DPA Democratic Political Alliance

Ors. Others

Anr. Another

V. Versus

p. Page No.

SC Supreme Court

u/a Under Article

SCC Supreme Court Cases

SCR Supreme Court Reports

MEMORIAL ON BEHALF OF RESPONDENTS

 INDEX OF AUTHORITIES

CASE LAWS:

STATUTES:

 The Constitution of India, 1950

 Environment Protection Act, 1986
 Forest (Conservation) Act, 1980
 Indian Forest Act, 1927
 Indian Contract Act, 1872
BOOKS:

 Basu D.D, Constitution of India, 14th edition 2009, LexisNexis, Butterworths

Wadhwa Publication Nagpur.
 Jeffrey Goldsworthy, Interpreting Constitutions A Comparative Study.
 Granville Austin, Working a Democratic Constitution, Oxford University Press.
 Jain M.P., Indian Constitutional Law, 6th Edition 2011, LexisNexis Butterworth
Wadhwa Nagpur.
 S.C. Shastri, Environmental Law, 7th edition, Eastern Book Company Publication.
 Gurdip Singh, Environmental Law, 2nd edition 2016, Eastern Book Company
Publication.
 Divan Shyam , Rosencranz Armin ,Environmental Law and policy in India,
Second Edition 2004, Oxford India paperbacks.
 Desai. A. Ashok, Environmental Jurisprudence, 2nd Edition 2002, Modern Law
House.
 Behura N.K. Panigrahi Nilakantha, Tribals and the Indian Constitution, Edition
2006, Rawat Publications.
 Rajesh Kapoor, Avatar Singh’s Law of Contract & Specific, 13th edition, Eastern
Book Company Publication.
LEGAL DATABASES:

 Manupatra

MEMORIAL ON BEHALF OF RESPONDENTS

  SCC Online
 West Law
 Hein Online
WEBSITES:

MEMORIAL ON BEHALF OF RESPONDENTS

 STATEMENT OF JURISDICTION

The Petitioner humbly submits this memorandum for the petition filed before this Honourable
Supreme Court. The petition invokes its jurisdiction under Article 32 of the Constitution of
Primador. It sets forth the facts and the laws on which the claims are based.

Article 32 in The Constitution Of Primador: 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.
3. Without prejudice to the powers conferred on the Supreme Court by clause (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 clause (2).
4. The right guaranteed by this article shall not be suspended except as otherwise
provided for by this Constitution.

MEMORIAL ON BEHALF OF RESPONDENTS

 STATEMENT OF FACTS

1. PRIMADOR is a democratic nation with rich heritage and diversity, 38 per cent of the

PRIMADOR's geography surrounded by forest land, home to rare species, majestic

trees and indigenous people. PRIMADOR nation has been called the 'green abode' of
the world whose major source of income was agriculture.

2. During the year 2018, the Democratic Political Alliance (DPA) won the elections
throughout the nation with a thumping majority and formed governments in almost
every state except the state of TREELAND.

3. The state of TREELAND is world famous for its dense forest land. TREELAND is 45
per cent forest land and the people who reside there belong to an indigenous
community called ALOHA who follows a unique lifestyle and are also expertise in
ancient ways of natural treatment called 'ALO VEDA' that involves herbs and certain
rare plants which are produced naturally in the forest. The ALOHA community leads
a secluded life very much depended on the forest, believing in the principle that their
life begins and ends in the forest.

4. The young population of TREELAND is not only in harmony with their culture but
also believes that proper education can revolutionise them and can help their
community to achieve a better life. Certain young people with the help of some
NGO[s] had gained college level education in different disciplines and worked in the
grass root level to help their community.
5. TREE PEOPLE is a non-profit organisation formed by the educated youth of
TREELAND to serve their community which received welcoming recognition and
they managed to drive funds from various sources that including international
organisations.
6. During the year 2018, after the major win in the election, the DPA party formed
governments in all the states of PRIMADOR except TREELAND. In Treeland,
TREELAND TRIBAL PARTY (TTP) is ruling for decades. The DPA is the
opposition party of the TREELAND state.

MEMORIAL ON BEHALF OF RESPONDENTS

 7. In 2020, the DPA Government promulgated legislation under the name PRIMADOR
Forest (Conservation) and Developmental Activities Act of 2020 (PFCDA).
8. The Preamble of the PFCDA is as follows:

"An Act to provide for the conservation of forests and matters of developmental activities
connected therewith or ancillary or incidental thereto"

8.1 Section 6 of the PFCDA states as follows:

6. Dereservation of forest or usage of forest land for developmental purposes.

Notwithstanding anything contained in any other law for the time being in force in a state, the
Central Government or other authorities shall make, any order directing -

1. that any reserved forest (within the meaning of the expression "reserved forest" in any
law for the time being in force in that state) or any portion thereof, shall cease to be
reserved,
2. that any forest land or any portion thereof may be used for any non-forest purpose.

8.2 Section 16 of the PFCDA states as follows:

16. Licence of Practice and Registration of Additional Qualifications.

Notwithstanding anything contained in any other law for the time being in force in a state, all
traditional practitioners, who conduct treatment shall acquire a licence of practice.

8.3 Rule 4(2) and 4(3) of the PFCDA Rules states as follows:

4(2). Licence of Practice is for a period of 15 years and must be renewed after expiry.

4(3). All traditional practitioners applying for the licence of practice must mandatorily attend
two years of in-house training on allopathic medicine in a government medical college.

9. This measure has received a welcoming response in every state of PRIMADOR

except the state of TREELAND.
10. The people of TREELAND feared that this will destroy their cultural ethos and
devastate their forest land.
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MEMORIAL ON BEHALF OF RESPONDENTS

 11. The youth of TREELAND under the aegis of TREE PEOPLE started organizing
protests against the new law . The traditional ALO- VEDA practitioners also joined in
the protest with the claim that the new law would destroy the forest and thereby end
their life-means since the practice of ALO-VEDA is deeply associated with the forest.
12. In 2021, PRIMO CORP a multinational company entered into a contract with the TTP
Government invested 100 million Primador Rupees in TREELAND for establishing
various business concerns. As per the contract govt shall provide land and other aids
and the company shall provide employment to people of TREELAND.
13. After the promulgation of the PFCDA, the PRIMO CORP tabled a business proposal
before the TTP government and i.e., convert 250 hectares into tourist village without
destroying the ecological balance, where the tourists can visit and experience real
forest life.
14. TTP Government permitted the proposal of PRIMO CORP based on that the company
had made some initial investments in the TREELAND by spending some potential
amount of money.
15. The involvement of PRIMO CORP and the silent permission of the TTP Government
had provoked the people of TREELAND.
16. The people of TREELAND feared that this project will destroy their peaceful lives
which are deeply rooted in the forest.
17. In the aftermath of this, the state of TREELAND witnessed a massive protest from the
people. The united strength of the people had managed to make the TREELAND state
stand still. The TTP Government had no other choice than to withdraw the
permission.
18. During the progress of all these incidents
18.1 The TREE PEOPLE approached the Supreme Court of PRIMADOR
challenging the PFCDA alleging that the said Act violates the basic fundamental
rights of people of TREELAND.
18.2 Traditional practitioners of ALO-VEDA also filed a petition before the
Supreme Court of PRIMADOR challenging the constitutional validity of Section
16 and Rule 4 of PFCDA.
18.3 PRIMO CORP had approached the Supreme Court and filed a petition against
the TTP Government alleging grave and unruly violation of PFCDA.

MEMORIAL ON BEHALF OF RESPONDENTS

 18.4 Numerous petitions were filed before the High Court of TREELAND against
the PFCDA.
19. The Supreme Court of PRIMADOR had clubbed all the petitions, both filed in the
Supreme Court as well as the High Court of TREELAND together and posted them
for a joint hearing.

STATEMENT OF ISSUES

1. Whether the petition(s) is/ are maintainable?

2. Whether the PFCDA violates the fundamental rights of people of Treeland?

3. Whether section 16 and rule 4 of PFCDA are constitutionally valid?

4. Whether the TTP government violated the provisions of PFCDA?

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MEMORIAL ON BEHALF OF RESPONDENTS

SUMMARY OF ARGUMENTS

ISSUE 1:

Whether the petition(s) is/ are maintainable?

It is humbly submitted before the Hon’ble Court that the present petitions are not
maintainable against Union of Primador and State of Treeland. There is no violation of
fundamental rights that the petitioners are claiming. The allegations made by the petitioners
are only presumptions and there is no fact that proves the allegations of the petitioners. The
TTP government has withdrawn the contract only in the view of maintaining public order and
not to violate any rights of the PRIMO CORP. Hence the present petitions are not
maintainable.

ISSUE 2:

Whether the PFCDA violates the fundamental rights of people of Treeland?

It is humbly submitted before the Hon’ble Court that the fundamental rights of the people of
Treeland are not violated by the PFCDA. The rules of impugned Act are neither arbitrary nor
unreasonable. There is a reasonable classification as there is a nexus between the restriction
(if any) and the object to be achieved under Article 14 of Constitution. The government
doesn’t disturb the settlement and livelihood of the people and the restrictions that are
imposed under section 16 and rule 4 are only in the best interest of general public.

ISSUE 3:

Whether section 16 and rule 4 of PFCDA are constitutionally valid?

It is humbly submitted before the Hon’ble Court that the section 16 and rule 4 of PFCDA are
constitutionally valid as they are in consistent with the fundamental rights prescribed under
the constitution. The restriction imposed under section 16 to practice traditional medicine is
reasonable under Article 19(6) of the Constitution as the it is for the general public interest.
The licensing of traditional medicine practitioners does not prevent them from practicing
traditional medicine. It only requires them to meet certain standards of training and expertise

11

MEMORIAL ON BEHALF OF RESPONDENTS

before they are allowed to do so.

ISSUE 4:

Whether the TTP government violated the provisions of PFCDA?

It is humbly submitted before this Hon’ble Court that there have been no gross violations of
the terms of the agreement between TTP and PRIMO CORP. There is no single point in facts
available that infer that the contractual liability, if any arises, can even remotely be connected
with the impugned Act. The government has a duty to maintain law and order in the State and
if the exercise of certain rights poses a threat to law and order, it may be necessary to impose
restrictions in order to prevent chaos and maintain the rule of law. Therefore, the act done by
the government is only done to prevent threat to public order.

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MEMORIAL ON BEHALF OF RESPONDENTS

 ARGUMENTS ADVANCED

I. Whether the petition(s) is/ are maintainable?

It is humbly submitted before this Hon’ble Court that the sole object of Article 32 is the
enforcement of the fundamental rights guaranteed by the constitution. Whatever other
remedies may be open to a person aggrieved, he has no right to complain under Article 32
where no fundamental right has been infringed, and infringement of fundamental rights
cannot be founded on remote or speculative ground. It follows that no question other than
relating to a fundamental right will be determined in a proceeding under Article 32,including
interlocutory relief. It is humbly submitted by the Counsels that there is no violation of
fundamental rights secondly that the slated writ petitions cannot be entertained by this
Supreme Court as alternate
relief has not been exhausted.

I.1. The writ petitions are not maintainable under article 32.

It is humbly submitted that no action lies in the Supreme Court under Article 32 unless
there is an infringement of a fundamental right. A petitioners will not be entitled to relief
under this Article, unless he establishes that his fundamental right has been violated or
imminently threatened. Article 32 confers "extra ordinary" jurisdiction & the same must be
used wisely, sparingly and shall be brought into use under circumstances where there is no
alternate efficacious remedy is available."

In the case on hands the PFCDA was only enacted for the developmental purposes. People of
Treeland only feared that their rights might get violated due the enactment of this act. But in
reality there is no actual infringement of any fundamental rights. The sole purpose of PFCDA
is to provide for the conservation of forest and initiate developmental activities for the
economic and social growth of indigenous people. The indigenous people assumed that these
provisions might destroy their peaceful life which is deeply rooted within the forest. Thus the
petition filed by the petitioner is not maintainable.

Section 16 of PFCDA makes it mandatory for the traditional practitioners to acquire the
license of practice. This restriction is a reasonable restriction which helps in increasing in
standardising the expertise of the traditional practitioners. This restriction is not violating any
13

MEMORIAL ON BEHALF OF RESPONDENTS

of the fundamental rights of the traditional practitioners and also such restriction is placed by
the state in view of public interest i.e., to provide the patients with more robust healthcare
system.

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MEMORIAL ON BEHALF OF RESPONDENTS

 II. Whether the PFCDA violates the fundamental rights of people of Treeland?

It is humbly submitted before this Hon’ble Court that there is no violation of fundamental
rights of the constitution of Primador.

II.1. Non Violative of Article 14.

In the instant matter the Respondent humbly submits before the Court that the rules of
impugned Act is neither arbitrary nor unreasonable. The provisions of the Act falls under the
ambit of principle of reasonable classification. Article 14 does not forbid reasonable
classification which means that it must be based on reasonable and intelligible differentia 1;
and such differentia must have a rational nexus with the object of the Act. 2 The differentia or
classification have a rational nexus with the object sought to be achieved by the statute.

The Supreme Court in the case of Papnasam Labour Union v. Madura Coats Ltd., stated that
“There must be a direct and proximate nexus or a reasonable connection between the
restriction imposed and the object sought to be achieved”.3

The Central government has power to bring an enactment related to forests under the entry
no. 17A, 7th Schedule in the concurrent list of the Constitution and centre is well within the
power. There is a plethora of enactments 4 operating in the domain of environment or forests
already and the validity of which is not under the hammer of law. It is very imperative to note
that the PFCDA has a semblance with these legislations in one way or the other. The
impugned legislation incidentally touches upon the matters concerning the petitioners which

1
M.P. Jain, Indian Constitutional Law, Page no. 881 , (7th ed., Lexis Nexis, 2014).
2
Namit Sharma v. Union of India, (2012) 13 SCC 716.
3
Papnasam Labour Union v. Madura Coats Ltd, AIR 1995 SC 2200.
4
Forest (Conservation) Act, 1980.
Wildlife Protection Act, 1972.
Indian Forest Act, 1927.
National Green Tribunal Act, 2010.
Biological Diversity Act, 2002.
Scheduled Tribes and Other Traditional Forest Dwellers (Recognition of Forest Rights) Act, 2006.
Water (Prevention and Control of Pollution) Act, 1974.
Water (Prevention and Control of Pollution) Cess Act, 1977.
Air (Prevention and Control of Pollution) Act, 1981.
The Air (Prevention and Control of Pollution) Rules formulated in 1982.
Environment (Protection) Act, 1986 (EPA).
The Environment (Protection) Rules, 1986.
The National Environment Appellate Authority Act, 1997.
National Environment Tribunal Act, 1995.
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MEMORIAL ON BEHALF OF RESPONDENTS

however has no bearing on the validity of this Act and the same will be glaringly evident in
the following submissions.

The Supreme Court in the case K.T. Plantation Pvt. Ltd. v. State of Karnataka, 5 held that the
Karnataka Land Reforms Act, which imposed restrictions on transfer of agricultural lands to
non-agriculturists, did not violate Article 14 of the Constitution as the classification of
agricultural and non-agricultural lands was based on an intelligible differentia and the
restriction was rationally connected to the object of preventing concentration of agricultural
lands in the hands of non-agriculturists.

In the case at hands, there is a reasonable classification as there is a nexus between the
restriction (if any) and the object to be achieved. The object 6 of the Act is to provide for the
conservation of forests and matters of developmental activities connected therewith or
ancillary or incidental thereto and the provisions of the Act are stipulated for the purpose of
achievement of such development. The same has been stipulated in the Forest (conservation)
Act, 1980 the object7 of the which is for the conservation of forests and other incidental and
ancillary matters.8 The Act, under section 2, imposes a similar restriction and this stands
indisputable that the Act is still a valid enactment till date. Hence the classification in the
PFCDA shall be upheld.

II.2. Not Violative of Article 19.

The provisions of the Act do not violate any rights enshrined in the Article 19 of the
Constitution as contended by the petitioners.

The right of the indigenous people to settle and reside 9 and to own the property10 anywhere
in the territory of Treeland, guaranteed under Article 19(1)(e) of Constitution.

In the instant case, the Article 19(1)(e) of Constitution is not violated by the Act as the
government has no intention to affect the rights of the indigenous people that are guaranteed
5
K.T. Plantation Pvt. Ltd. v. State of Karnataka, (2011) 9 SCC 1.
State of West Bengal v. Anwar Ali Sarkar, (1952) SCR 284.
State of Kerala v. N.M. Thomas, (1976) 1 SCC 906.
Mohd. Arif v. The Registrar, (2014) 9 SCC 737.
6
¶8 Moot Proposition.
7
To provide for the conservation of forests and for matters connected therewith or ancillary or incidental
thereto.
8
Ibid.
9
Article 19, Constitution.
10
UDHR Articles 17 as well as in Article 6 of the ICESCR.
16

MEMORIAL ON BEHALF OF RESPONDENTS

under the Article. The de-reservation of forest refers to the process of removing the legal
designation of a forested area as a protected or reserved area but doesn’t necessarily mean
that the destruction of forest, any developmental procedures in such de-reserved forest area
can also be done in a way that maintains ecological balance. The indigenous people are not
actually dislocated from the forest, only proposals were made for the purpose of
development of the forest area. The facts doesn’t mention anywhere in the case that there is
a dislocation or relocation of the indigenous people. The government even while permitting
the business proposal of PRIMO CORP accepted it after ensuring that the development will
be done whilst maintain the ecological balance of the forest. Hence, there was no acquisition
of land in the forest by government officials and the people are not dislocated.

Article 19(1)(g) of the Constitution states that all citizens shall have the right to practice
any profession, or to carry on any occupation, trade, or business. The Article 19(1)(g) is
subject to reasonable restrictions imposed by the State in the public interest. 11 The
Article 19(6) prescribes that the state shall have authority to place reasonable restrictions on
the right that is guaranteed under Article 19(1)(g) and nothing in the said sub clause shall
prevent the State from making any law relating to the professional or technical
qualifications necessary for practicing any profession or carrying on any occupation,
trade or business.12

The restriction that is imposed in the instant case that the traditional practitioners are
required to obtain a license by mandatorily attending and taking in-house training on
allopathy as prescribed by rule 4(3) of PFCDA is a reasonable restriction. Traditional
practitioners may not have the necessary knowledge and training to diagnose and treat
complex medical conditions. By requiring them to take in-house training on allopathy and
obtain a license, can improve patient safety, increase access to healthcare, promote cultural
competence, encourage collaboration, and ensure regulatory compliance. Traditional healers
obtaining a license through in-house training on allopathy to ensure that they have a basic
understanding of modern medical practices.13

In the case Dr. Mukhtiar Chand & Others v. State of Punjab, the Court noted that any
restriction on the right to practice a profession must be reasonable and not arbitrary, and that
11
The State Of Gujarat And Another v. Shri Ambica Mills Ltd, (1974) 4 SCC 656.
12
Article 19(6), Constitution.
13
State of Maharashtra v. Dr. Praful B. Desai, (2003) 4 SCC 601.
Bhanumati v. State of Kerala, (2006) 6 SCC 670.
17

MEMORIAL ON BEHALF OF RESPONDENTS

the government must provide alternative livelihood opportunities for those affected by the
ban or restriction.

The de-reservation of forest that is provided under section 6 of PFCDA is done only for the
developmental purpose. This will increase the job opportunities to the people residing in
that area and government provides alternative opportunities to people if anyone lose their
livelihood. Hence it is reasonable and not arbitrary. The outcome of this whole process is
bound to create new avenues and opportunities of employment which will lead to job
creation on a massive scale and the same intention is discernible from the facts of the case. 14

II.3. Not Violative of Article 21.

The provisions of the Act do not violate any rights enshrined in the Article 21 of the
Constitution as contended by the petitioners.

It is the responsibility of state to ensure protection the rights of indigenous peoples, including
their right to livelihood and do everything in power develop standard of lives of the citizens
of the country, the provisions of the act never violated the fundamental rights guaranteed
under the constitution. The state is bound initiate projects which will escalate the economic
status of the country.

In the case on hands the right to livelihood guaranteed under Article 21 of the people of
Treeland is violated by PFCDA in the view of the fact that the indigenous people are pre-
empting into their apprehension that they might lose their livelihood with de-reservation of
the forest and there is no such thing on record.

It is distinctly observed that PFCDA do not impose any unreasonable restrictions on the
people of Treeland which would force them to leave their present livelihood behind. PFCDA
do not threaten the occupation, dwelling places and well-being of people of Treeland. The
people of Treeland are not dislocated, deprived of their livelihood and their fundamental
rights are not violated as the act is formatted for the betterment of public.

In the point of fact enforcing PFCDA creates employment by bringing MNC’s into the
picture and socially, employment can also promote social healing, encourage the return of

14
¶12 Moot Proposition.
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MEMORIAL ON BEHALF OF RESPONDENTS

displaced persons, and improve social welfare in the long run. The act do not compromise
with maintaining the ecological balance.

The decision to de-reserve forests in accordance with law is taken after keen observation of
consequences which would be beneficial to both citizens and government. In the case Lafarge
Umiam Mining Private Limited v. Union of India case, the court held that the government
can de-reserve a forest area for development projects or public welfare purposes, as long as
the decision is based on scientific evidence, takes into account the environmental impact.
However, it is important to note that the de-reservation of forests must be done in accordance
with the law and must not violate the fundamental rights of citizens or harm the
environment.15

In the case Rural Litigation and Entitlement Kendra v. State of U.P., the Supreme court held
that held that while the right to a clean environment is a fundamental right, it must be
balanced with other rights, such as the right to development. The court observed that the
government has the power to make decisions that balance these competing interests. 16

Section 16 of PFCDA imposes reasonable restriction on medical practitioners which is

ultimately improve their standard of life and also is way more safer. The people of Treeland
will not lose their livelihood based on this restriction and doesn’t violate any fundamental
rights. Therefore, The act only further helps in the increasing of livelihood of the people
residing in that area.

15
Lafarge Umiam Mining Private Limited v. Union of India, (2011) 7 SCC 338.
16
Rural Litigation and Entitlement Kendra v. State of U.P., AIR 1985 SC 652.
Centre for Environmental Law, Worldwide Fund India v. Union of India, (1999) 4 SCC 567.
State of Haryana v. Mukesh Kumar, (1994) 6 SCC 630.
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MEMORIAL ON BEHALF OF RESPONDENTS

 III.Whether section 16 and rule 4 of PFCDA are constitutionally valid?

It is humbly submitted before this Hon’ble Court that section 16 and rule 4 of PFCDA are
Constitutionally valid.

III.1. Consistent with Article 19.

The rule 4(3) of the PFCDA violates the Article 19(1)(g) read with Article 19(6) of the
Constitution. The Article 19(6) prescribes that the state shall have authority to place
reasonable restrictions on the right that is guaranteed under Article 19(1)(g) and nothing in
the said sub clause shall prevent the State from making any law relating to the
professional or technical qualifications necessary for practising any profession or carrying
on any occupation, trade or business. 17 The phrase "reasonable restrictions" in Article
19(1)(g) means that the restriction must be necessary for the purpose of protecting the
interests of the general public and must not be arbitrary or excessive or disproportionate.18
Any restrictions imposed on this right must be reasonable and not arbitrary. 19 The
procedure followed for imposing the restriction must be just, fair and reasonable.20

In the present case, the restriction imposed under section 16 to practice traditional medicine is
reasonable as the it is for the general public interest.

In the case State of Maharashtra v. Abhijit Deshmukh, 21 the traditional healer had prescribed
a medication to a patient without having the necessary license to practice traditional
medicine. The patient suffered an adverse reaction to the medication and filed a complaint
against the traditional healer for medical negligence. The Bombay High Court upheld the
requirement for traditional healers to obtain a license before practicing traditional medicine.
The court held that the licensing requirement was necessary to ensure that traditional healers
have the necessary knowledge and skills to provide safe and effective healthcare to patients.
The court further emphasized that traditional healers who practice without a license are liable
for medical malpractice. The court held the traditional healer liable for medical negligence
17
Article 19(6), Constitution.
18
State Of Madras v. V.G. Row, AIR 1952 SC 196
19
Romesh Thappar v. The State Of Madras, AIR 1950 SC 124.
Municipal Corporation of the City of Ahmedabad v. Jan Mohammed Usmanbhai, AIR 1986 SC 120.
Indian Handicrafts Emporium and Ors v. Union of India and Ors, (2003) 7 SCC 589.
Brij Bhushan And Another v. The State Of Delhi, AIR 1950 SC 129.
20
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
21
State of Maharashtra v. Abhijit Deshmukh, (2008) 15 SCC 450.
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MEMORIAL ON BEHALF OF RESPONDENTS

and stated that the lack of a license was a clear indication that the traditional healer did not
have the necessary knowledge and skills to practice traditional medicine safely. The court
also emphasized that the licensing requirement was in the best interest of public health and
safety, and that traditional healers must comply with this requirement to avoid liability for
medical malpractice.

The rule 4(3) of the PFCDA specifies that all traditional practitioners applying for the licence
of practice must mandatorily attend two years of in-house training on allopathic medicine in a
government medical college.22 Traditional practitioners may not have the necessary
knowledge and training to diagnose and treat complex medical conditions. By requiring them
to take in-house training on allopathy and obtain a license, patient safety can be ensured as
these practitioners will have a better understanding of modern medical practices and can
provide better care to their patients, they can provide a wider range of healthcare services to
their patients, including access to modern medical treatments and technologies and can better
integrate modern medical practices with traditional healing practices and promote cultural
competence in healthcare and also helps in improving the overall quality of healthcare.

In the case of State of Uttarakhand v. Balbir Singh, 23 the state of Uttarakhand in India passed
a law requiring traditional healers to register with the state medical council and obtain a
license by taking in-house training on allopathy. The law was challenged by traditional
healers who argued that it violated their right to practice their profession freely. The Supreme
Court of India upheld the law, stating that the government has the power to regulate the
practice of medicine to protect the health and safety of citizens. The court also held that the
requirement of in-house training on allopathy was necessary to ensure that traditional healers
have a basic understanding of modern medical practices and can provide safe and effective
healthcare services. The court recognized the importance of traditional medicine and stated
that traditional healers should be encouraged to practice their profession. However, it also
emphasized that the government has a responsibility to ensure that healthcare providers are
competent and able to provide safe and effective care to patients.

Hence the restriction imposed on obtaining licence under rule 4(3) of the Act is a
reasonable restriction and abided to the law.

22
¶8.3 Moot Proposition.
23
State of Uttarakhand v. Balbir Singh, (2019) 6 SCC 146.
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MEMORIAL ON BEHALF OF RESPONDENTS

 III.2. Consistent with Article 21.

The impugned provision are not violative of any rights conferred by Article 21 of the
Constitution as alleged by the petitioners.

The licensing of traditional medicine practitioners does not prevent them from practicing
traditional medicine. It only requires them to meet certain standards of training and expertise
before they are allowed to do so. This ensures that patients receive safe and effective
treatment, and it does not violate the rights of traditional medicine practitioners under Article
21 of the Indian Constitution.

Section 16 of the PFCDA, makes it mandatory for the traditional practitioners to acquire a
license of practice and rules 4(2) and 4(3) states the procedures to be followed during the
licensing process.

The only restriction placed before traditional practitioners to acquire a license is that, they
should compulsory attend two years of in-house training on allopathic medicine in a
government medical college. This restriction does on violate any of the rights of the
traditional practitioners granted under article 21 of the constitution. This restriction of
training under allopathic medicine will not only increase and standardise their expertise their
practice but it also helps in integrating the traditional medicine with allopathic medicine.

Several state governments in India have introduced regulations requiring traditional

practitioners to undergo training and obtain licenses in order to practice legally. For example,
in the state of Maharashtra, the Maharashtra Council of Indian Medicine was established to
regulate the practice of traditional medicine, and traditional practitioners are required to
undergo a specific course of study and pass an examination in order to obtain a license to
practice.

These regulations are designed to ensure that traditional medicine is practiced safely and
effectively, and that patients receive high-quality care from qualified practitioners. While
some traditional practitioners may resist these regulations, arguing that they have been
practicing for many years without formal training or licensing, it is important to recognize
that these regulations are intended to protect the health and well-being of patients and
promote the development of a more robust healthcare system in India.
22

MEMORIAL ON BEHALF OF RESPONDENTS

 It is also important to recognize that the statutory regulation of traditional medicine in their
geographies of origin, paired with state funding for service, provides large numbers of people
with safe, accessible, and quality care that is also culturally relevant.24

In the case of State of Punjab v. Mohinder Singh Chawla, where the Supreme Court held that
the state has the power to regulate the practice of medicine, including traditional medicine, in
the interest of public health and safety. The Court observed that the right to practice medicine
is not an absolute right and that it is subject to reasonable restrictions in the interest of public
health and safety. The Court held that the licensing of traditional medicine practitioners is a
reasonable restriction on their right to practice medicine and that it is in the larger public
interest.25

In the case of Poonam Verma v. Ashwin Patel, where the Supreme Court held that the
practice of medicine, including traditional medicine, is a regulated activity and that the state
has the power to regulate the practice of medicine in the interest of public health and safety.
The Court held that the licensing of traditional medicine practitioners is aimed at protecting
the public from unqualified and untrained practitioners who may cause harm to patients. The
Court observed that the licensing of traditional medicine practitioners is not an infringement
of their right to practice medicine, but rather a regulation of their practice to ensure that they
meet certain standards of training and expertise.26

It is clear that the licensing of traditional medicine practitioners does not violate their rights
under Article 21 of the Indian Constitution. The state has the power to regulate the practice of
medicine in the interest of public health and safety, and the licensing of traditional medicine
practitioners is a reasonable restriction on their right to practice medicine. The licensing
process ensures that traditional medicine practitioners meet certain standards of training and
expertise, and this is in the interest of both the practitioners and their patients

24
Statutory Regulation of Traditional Medicine Practitioners and Practices: The Need for Distinct Policy
Making Guidelines, Jᴏᴜʀɴᴀʟ ᴏғ ᴀʟᴛᴇʀɴᴀᴛɪᴠᴇ ᴀɴᴅ ᴄᴏᴍᴘʟᴇᴍᴇɴᴛᴀʀʏ ᴍᴇᴅɪᴄɪɴᴇ (Nᴇᴡ Yᴏʀᴋ, N.Y.) (March 3, 2023),
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC5909079/.
WHO Global Centre for Traditional Medicine, Wᴏʀʟᴅ Hᴇᴀʟᴛʜ Oʀɢᴀɴɪᴢᴀᴛɪᴏɴ (March 3, 2023),
https://www.who.int/initiatives/who-global-centre-for-traditional-medicine.
25
State of Punjab v. Mohinder Singh Chawla, (1997) 2 SCC 83.
26
Poonam Verma v. Ashwin Patel, (1996) 4 SCC 332.
23

MEMORIAL ON BEHALF OF RESPONDENTS

 IV. Whether the TTP government has caused grave and unruly violations of the
provisions of PFCDA?

It is humbly submitted before this Hon’ble Court that the allegations of grave and unruly
violations are just baseless and preposterous in the light of the reasons that are about to
unfold. There is four-fold argument that will conveniently prove to the satisfaction of the
Court that the petitioners in the instant issue are being pre-emptive without any cogent piece
of thought.

The first argument underlying is that in order to assert any right that the petitioner believes to
exist or have existed ever before in time, the burden of proof, indisputably, rests on the party
who wishes the Court to believe in its existence. 27 Even if this sustenance of the right(s) of
the petitioner rests on the provisions of the PFCD Act, which the respondents clearly wish to
negate, the burden to prove the existence of such a right rests on them. In honest opinion, the
respondent would like to bring this to the notice of the Hon’ble Court that if the PFCD Act is
read as a primary legislation dealing with subject of ‘forests’ and making provisions for ‘de-
reservation’ thereof, which that legislation undoubtedly is, the pleadings of the petitioners are
devoid of any merit as the respondents maintain and assert that the rights of the petitioner, if
any, have to be read separately from the fact of the PFCD Act. There is not a single clause in
the entire Act which the petitioners could successfully rely on to agitate their claims. By no
means of stretch or interpretation, can the clauses of the Act be applied to an agreement
which has commercial and contractual implications. Further, there is no single point in facts
available that infer that the contractual liability, if any arises, can even remotely be connected
with the impugned Act. The single fact 28 that might be conveniently (mis)construed by the
petitioners for their reliance refers to and qualifies, at most, the point of time, only. It is
similar to saying that after the passing of the Family Courts Act, 1984 or the Tamil Nadu
Flood Affected Areas Cultivating Tenants (Temporary Relief) Act, 1984 an institution in the
name of BS Abdur Rahman was established in the Tamil Nadu which is absolutely correct
only to the extent that the chronology of the events. Stretching the argument so elastic to
27
Sections 101 and 103 of the Indian Evidence Act, 1872 provide a statutory support to this argument. Section
101 provides “Whoever desires any Court to give judgment as to any legal right or liability dependent on the
existence of facts which he asserts, must prove that those facts exist. When a person is bound to prove the
existence of any fact, it is said that the burden of proof lies on that person.” Section 103, on the other hand, lays
down provisions for “Burden of proof as to particular fact”. It says “The burden of proof as to any particular fact
lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the
proof of that fact shall lie on any particular person.”
28
Fact Sheet….
24

MEMORIAL ON BEHALF OF RESPONDENTS

mean that the institution was established under those legislations, or even one of them, is
obviously a hilarious statement that everyone would laugh at and with which the prudence of
worthy opponents would intelligently agree. Needless to say that the tenor and tinge of the
liabilities being agitated by the petitioners under the agreement seems to be completely
extraneous and irrelevant to the Act.

The second line of argument that holds good is that if their right, if any violated, is agreed to
have been allegedly so violated under the terms of the agreement the respondent is grappled
with situation in the aftermath of the agreement that demonstrations and protests 29 have been
relentlessly witnessed in the State thereby disturbing the law and order which is far more
important than the other choice in case the State can fulfil only one. “Public order”, “public
safety” or “law and order” whatever be the terms of reference are cogent grounds on the basis
of which the State is empowered to limit, restrict and even curtail some Constitutional
freedoms30. There is trail of unending Indian 31 and foreign judicial precedents32 wherein the
Constitutional courts have admitted ‘public order’ as a reasonable embargo on the exercise of
the certain Constitutional freedoms. The government has a duty to maintain law and order in
the State and if the exercise of certain rights poses a threat to law and order, it may be
necessary to impose restrictions in order to prevent chaos and maintain the rule of law. These
cases demonstrate that restrictions on constitutional rights on the grounds of public order
must be reasonable, proportionate, and necessary to prevent a threat to public order. These
judicial pronouncements illustrate the importance of balancing fundamental rights and public
order concerns. While the government has a legitimate interest in maintaining public order
and national security, restrictions on constitutional rights may narrowly be tailored and based
on a compelling governmental interest. In the instant case, the state has witnessed
unprecedented law and order situation as there were ‘massive protests’ 33 by the populace and
‘the activities of the government were affected’ 34. The Government had ‘no other choice but
to withdraw’35 from the permission that had been granted to the petitioners. It is evident that
29
30
See, Article 19 (2), (6)….Article provides…
31
State of Madras v. V.G. Row 1952 SC 196, Kedar Nath Singh v. State of Bihar AIR 1962 SC 955; ADM
Jabalpur v. Shivkant Shukla AIR 1976 SC 1207 ; Maneka Gandhi v. Union of India AIR 1978 SC 597; Arup
Bhuyan v. State of Assam (2011) 3 SCC 377.
32
Schenck v. United States (1919) 249 U.S. 47; Brandenburg v. Ohio (1969) 395 U.S. 444; De Jonge v. Oregon
(1937) 299 U.S. 353; Korematsu v. United States (1944) 323 U.S. 214; New York Times Co. v. United States
(1971) 403 U.S. 713.
33
Fact No….
34
Fact No….
35
Fact No…..
25

MEMORIAL ON BEHALF OF RESPONDENTS

the respondents have been extremely upright while dealing with the macabre episode and
nothing has been done arbitrarily.

The third dimension of the argument is that it is a settled legal position that under the doctrine
of sovereign immunity and operational clause the state has the power

26

MEMORIAL ON BEHALF OF RESPONDENTS

 PRAYER

Wherefore in the light of issues raised, arguments advanced and authorities cited it is most
humbly and respectfully submitted that this Hon’ble Supreme Court, may hold, adjudge and
declare that:

 The petitions filed by the Treepeople, traditional practitioners of Alo Veda and
PRIMO CORP are not maintainable under Article 32 of the Constitution.
 The PFCDA doesn’t violate fundamental rights of the people of Treeland.
 The section 16 and rule 4(3) of the PFCDA shall be declared as constitutionally valid.
 The TTP government has not violated the provisions of PFCDA and acted in general
interest of the public.

AND/OR

Pass any other order that it deems fit in the interest of Justice, Equity and Good
Conscience. And for this, the Petitioner as in duty bound, shall humbly pray.

ALL OF WHICH IS HUMBLY PRAYED

RESPECTFULLY SUBMITTED

(COUNSEL ON BEHALF OF RESPONDENTS)

27

MEMORIAL ON BEHALF OF RESPONDENTS