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TEAMCODE: 70

10TH NALSAR JUSTICE B.R. SAWHNY MEMORIAL MOOT COURT COMPETITION, 2016

IN THE SUPREME COURT OF INDUS

W.P.

/ 2016

(suo motu transfer from the High Court of Dilli Pradesh)

STATE OF DILLI PRADESH

versus

CENTRAL GOVERNMENT OF INDUS

Petitioner 1

………………….Respondent

(THROUGH LIEUTENANT GOVERNOR OF STATE OF DILLI PRADESH)

W.P.

/ 2016

KING BIRD PRIVATE LIMITED

versus

CENTRAL GOVERNMENT OF INDUS

Petitioner 2

………………….Respondent

(THROUGH LIEUTENANT GOVERNOR OF STATE OF DILLI PRADESH)

As Submitted to the Chief Justice & other Companion judges of the

Hon’ble Supreme Court of Indus.

-TABLE OF CONTENTS-

Page i of xi

TABLE OF CONTENTS

INDEX OF AUTHORITIES

III

STATEMENT OF JURISDICTION

VII

STATEMENT OF FACTS

VIII

QUESTIONS PRESENTED

IX

SUMMARY OF PLEADINGS

X

PLEADINGS AND AUTHORITIES

1

I. WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI PRADESH HAS THE

LEGISLATIVE COMPETENCE TO ENACT THE IMPUGNED ORDER?

1

A. That The State of Dilli Pradesh has power to make Law with respect to Entry 8 of List

II

1

i.

Ejusdem Generis

1

ii.

That the Pith and Substance of the order is to regulate usage/consumption of

Liquor

2

iii. The Article 239AA of the Constitution of Indus gives the power to the State

Legislature

4

B. That This Law Is A Colorable Legislation

5

C. That Lieutenant Governor is bound by the aid and advise of the council of ministers

5

D. Arguendo, The Lt. Governor has acted beyond his competency under Delhi Excise

Act

7

II. WHETHER THE RIGHTS OF THE PETITIONER 2 HAVE BEEN VIOLATED?

8

A. That the Article 14 has been violated

8

i. Intelligible Differentia

9

ii. Alcohol Content

10

iii. Interpretation

12

iv. Reasonableness

12

B. That the Article 19 has been violated

14

C. Article 21 of the people will be violated

15

D. That alcohol is used in other commodities as well

16

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E. That the impugned law is passed by an incompetent authority

17

F. That the Human Rights of the people will be violated

18

PRAYER FOR RELIEF

XI

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INDEX OF AUTHORITIES

Indian Cases

Ajoy Kumar Banerjee v. Union of India, (1984) 3 SCC 127; Amar Chandra Chakraborty v. The Collector of Excise, Government of Tripura and Ors., (1972) 2 SCC 442 Amar Chandra v. Collector of Excise, Tripura, AIR 1972 SC Anuj Garg and Ors. v. Hotel Association of India and Ors., (2008) 3 SCC 1 Associated Cement Co. Ltd. v. State of M.P. and Ors., (2004) 9 SCC 727 B. Viswanathiah v. State of Karnataka, (1991) 3 SCC 358 B.N. Agarwal, J. in State of Punjab v. Devand Modern Breweries, (2004) 11 SCC 26 Bachan Singh v. State of Punjab and Ors, AIR 1982 SC Balakrishnan v. State of Madras, AIR 1952 Mad 565 Behram Khurshed Pesikaka v. The State of Bombay, AIR 1955 SC Bhola Prasad v. R. (1942) F.C.R 17 Bihar Distillery & Another v. Union of India & Ors. AIR 1997 SC Chief Settlement Commissioner v. Om Parkash & Ors, Etc, AIR 1969 SC 33 Chintaman Rao v. State of Madhya Pradesh, [1950] 1 SCR Cooverjee B. Bharucha v. Excise Commr. and the Chief Commr. Ajmer, 1954 SCR 873; Government of Andhra Pradesh & Ors. v. Smt. P. Laxmi Devi, (2008) 4 SCC 720 Gurumukh Singh and Ors. v. Union of India (UOI), 2006 (108(4)) BomLR 3702;

7

9

2

13

12

3

17

9

13

16

3

4

17

13

3

17

9

Guruswamy & Co. v. State of Mysore,

[1967] 1 S.C.R. 548

3

Gwalior Ryan Mills v. Assistant Commissioner, Sales Tax, AIR 1974 SC 1660 Hamdard Dawakhana v. Union of India, AIR 1960 SC

7

13

Har Shankar and Ors. etc. v. The Deputy Excise & Taxation Commissioner and Ors., [1975]

3

SCR

10

I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu, (2007) 2 SCC

15

Ishwari Khetan Sugar Mills (P) Ltd. and Ors. v. State of Uttar Pradesh and Ors, [1980] 3 SCR

331

3

Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080

2

Kharak Singh v. State of Punjab, AIR 1963 SC

17

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

3,

4, 10

Kishori Shetty v. R. (1949) F.C.R 650

3

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Krishna Kumar Narula Etc v. State of Jammu and Kashmir & Ors., 1967 SCR (3) 50

3,

14

M/s. Dwarka Pd. Laxmi Narain v. State of U.P. & others, 1954 S.C.R. 803 (2)

12

Mohd. Faruk v. State of Madhya Pradesh and others, 1970 (1) SCR 156

12

Mohd. Hanif Quareshi and others v. The State of Bihar, 1959 S.C.R. 629

12

N.K. Doongaji v. State of Madhya Pradesh, AIR 1951 M.P. 1

4

Nagaraj K. v. State of A.P., AIR 1985 SC 551

17

Narendra Kumar and others v. The Union of India and others, 1960 SCR (2)

13

Nawn Estates (P) Ltd v. C.I.T., West Bengal, AIR 1977 SC

12

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

15

Om Prakash Pahwa v. State of Delhi, (1998) 46 DRJ

6

Orissa v. Hari Narayan Jaiswal, AIR 1972 SC

3

P.N. Kaushal v. Union of India, AIR 1978 SC 1457;

7

R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR

13

Raj Pal Sharma and Ors. v. State of Haryana and Ors., AIR 1985 SC 1263

9

Rajendra Singh Verma v. Lt. Governor, (2011) 10 SCC 1

5

Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, AIR 1961 SC 1325

12

Ramesh Birch v. Union of India, AIR 1990 SC

7

Samsher Singh v. State of Punjab, (1974) 2 SCC 831

6

Sheo Kumar v. State of U.P., AIR 1978 All

9

Siddeshwari Cotton Mill (P) Ltd. v. Union of India, AIR 1989 SC

2

Smt. Kaushailiya v. State of U.P., AIR 1963 All 71

13

State of Andhra Pradesh and Ors. v. McDowell & Co., (1996) 3 SCC 709

8

State of Assam v. A. N. Kidwai, Commissioner Of Hills Division And Appeals, (1957) SCR

295;

3

State of Bombay v. F.N. Balsara, (1951) S.C.R

2,

3, 5

State of Maharashtra and Anr. v. Indian Hotel and Restaurants Assn. and Ors, (2013) 8 SCC

519

13,

15

Sunny Markose v. State of Kerala, AIR 1966 Ker. 379

4

Synthetics and Chemicals Ltd. and Ors. v. State of U.P. and Ors., (1990) 1 SCC 109

10

Tata Iron & Steel Co. v. Workmen, AIR 1972 SC 1917

7

Thakur Amarasinghji v. State of Rajasthan, AIR 1955 SC 504

2

The State of Bombay and Another v. F. N. Balsara, AIR 1951 SC 318

10

The State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC

9

Tirbhuwan Prakash Nayyar v. Union of India, AIR 1970 SC

2

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Union of India (UOI) and Ors. v. Raman Kantilal Bhandari, 1991(35) ECR 212 (Bombay) (Bom. HC)

Foreign Cases

11

Australian National Airways Proprietory Ltd. v. The Commonwealth (No 1), (1945) 71 CLR

29

7

Brownsea Haven Properties v. Pools Corporation, (1958) 1 All ER 205

2

Mulane v. United States, 8 Cir., 20 F.2d 903

11

Ruppert v. Caffey, Inc., 251 U.S. 264, 282-283, 40 S.Ct. 141, 64 L.Ed.

11

Wayne v. United States, 138 F.2d 1 (8th Circuit, Court of

11

Books

ALAN F. WESTIN, PRIVACY AND FREEDOM (Atheneum, 1967)

18

BLACK'S LAW DICTIONARY (9 th ed. 2009)

1, 2

D.D. BASU, SHORTER CONSTITUTION OF INDIA (14 th ed. 2009)……………………………………

11

HAROLD J. LASKI, LIBERTY IN THE MODERN STATE (Routledge, 2014)

18

JOSEPH D. BEASLEY, HOW TO DEFEAT ALCOHOLISM: NUTRITIONAL GUIDELINES (Times

Books,

17

M.P. JAIN, INDIAN CONSTITUTIONAL LAW (7 th ed. 2014)……………………………………………

Articles

4

E.J.Bloustein, Privacy as an Aspect of Human Dignity 39 N.Y. UNIV. L. REV. 962, 971

18

Samuel Warren & Louis Brandeis, The Right to Privacy 4 HARVARD L. REV. 193-220 (1890).

Reports & Other Authorities

Alcohol Consumption Factsheet, Institute of Alcohol Studies, London, U.K. (Aug. Country Profile, India, World Health Organization, available at http://www.who.int/countries/ind/en/ (last accessed, Dietary Guidelines for Americans, U.S. Department of Agriculture and U.S. Department of Health and Human Services (7 th ed. 2010) Joseph Pappy Corbitt, Medications Containing Alcohol, THE HEALTH PROFESSIONALSSERVICES PROGRAM, available at

18

11

11

11

https://www.rbhmonitoring.com/Content/Oregon/Resources/Medications%20Containing%

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20 Alcohol%20and%20Options%20Without%20Alcohol.pdf (last accessed, 26.09.2016).

 

16

The Dublin Principles, National College of Ireland and the International Center for Alcohol Policies (1997) The Kerala Bar Hotels Association and Ors. v. State of Kerala and Ors., AIR 2016 SC 163.

14

11,

14

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STATEMENT OF JURISDICTION

THE PETITIONER 1 HAS APPROACHED THE COURT IN PURSUANCE OF A SUO MOTU TRANSFER

ORDER BY THIS HON'BLE COURT TRANSFERRING THE CASE FILED UNDER ARTICLE 226 OF THE

CONSTITUTION OF INDUS AT THE HIGH COURT OF DILLI PRADESH.

THE PETITIONER 2 HAS APPROACHED THE COURT UNDER ARTICLE 32 OF THE CONSTITUTION OF

INDUS .

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STATEMENT OF FACTS

Indus is a Republic in the continent of Asia and is divided into various states and union territories. The State of Dilli Pradesh is one such Union Territory, which is situated in the central part of Indus and has a very rich cultural and historical importance. The State of Dilli Pradesh has been given a special status under Article 239AA of the Constitution of Indus.

In 2015, there had been certain demands and concerns were raised due to the proliferation and consumption of alcohol in the territory.

The Central Government, which was newly elected, through the Lieutenant Governor, passed a Prohibition Order in July, 2016 putting an embargo on sale, distribution, marketing and consumption of whisky, wine, rum, vodka, gin, tequila or any other alcohol within the territory of Dilli Pradesh. However, beer and any other alcoholic beverage with alcoholic content of less than 5% were excluded from its purview.

Pursuant to such act, Kind Bird Pvt. Ltd. approached the Hon'ble Supreme Court of Indus under Article 32 of the Constitution of Indus. Further, a petition under Article 226 of the Constitution was filed by the State of Dilli Pradesh against the Lieutenant Governor for the latter's incompetency towards legislating such an Order.

The Supreme Court, through suo motu cognizance, transferred the petition under Article 226 to itself and clubbed both the matters for the final disposal.

-The matter is slated to be heard on 2nd October, 2016-

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QUESTIONS PRESENTED

THE PETITIONERS VERY RESPECTFULLY PUT FORTH TO THE HONBLE SUPREME COURT, THE

FOLLOWING QUERIES:

I.

WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI PRADESH HAS THE LEGISLATIVE COMPETENCE TO ENACT THE IMPUGNED ORDER?

II.

WHETHER THE IMPUGNED ORDER VIOLATES THE FUNDAMENTAL RIGHTS OF THE CITIZENS?

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SUMMARY OF PLEADINGS

I. WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI PRADESH HAS THE LEGISLATIVE COMPETENCE TO ENACT THE IMPUGNED ORDER?

It is submitted that the Central Government (through the Lieutenant Governor) passed the Prohibition Order in July, 2016 putting an embargo on sale, consumption, distribution and marketing of liquor in the State of Dilli Pradesh. However, the State of Dilli Pradesh contends that the Lt. Governor had no legislative competence to enact such a law, and therefore this Prohibition Order needs to be struck down by this Court. This is because, the State of Dilli Pradesh is competent to enact the law with respect to Entry 8 of List II, and that this law is a colourable legislatio and the Lieutenant Governor is bound by aid and advice of council of ministers. In Arguendo, that the Lt. Governor has acted beyond his competence under the law.

II. WHETHER THE IMPUGNED ORDER VIOLATES THE FUNDAMENTAL RIGHTS OF THE CITIZENS?

It is submitted that a law made by the Parliament or the Legislature can be struck down by courts on two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional provision. It is submitted that the fundamental rights of the petitioner, King Bird Liquor Private Limited, have been violated by the imposition of the Prohibition Order passed by the Central Government. This is because Article 14 has been violated, Article 19 has been violated; Article 21 of the People will be violated; the law imposing such prohibition is passed by an incompetent authority; the medicinal and toilet preparations cannot be prohibited; and that the Human Rights of the citizens are violated.

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PLEADINGS AND AUTHORITIES

W.P.

/ 2016

(suo motu transfer from the High Court of Dilli Pradesh)

I. WHETHER THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI PRADESH HAS THE LEGISLATIVE COMPETENCE TO ENACT THE IMPUGNED ORDER?

1.

It is submitted that the Central Government (through the Lieutenant Governor 1 ) passed the Prohibition Order in July, 2016 putting an embargo on sale, consumption, distribution and marketing of liquor in the State of Dilli Pradesh. However, the State of Dilli Pradesh 2 contends that the Lt. Governor had no legislative competence to enact such a law, and therefore this Prohibition Order needs to be struck down by this Court. This is because, [A] The State of Dilli Pradesh is competent to enact the law with respect to Entry 8 of List II; [B] This law is a colourable legislation; [C] The Lieutenant Governor is bound by aid and advice of council of ministers; [D] In Arguendo, that the Lt. Governor has acted beyond his competence under the law.

2.

It is submitted that the word “incompetent” means “the state or fact of being unable or unqualified to do something”. 3 Moreover, “incompetency” means “lack of legal ability in some respect. 4 Accordingly, legislative incompetency would mean the lack of legal ability of a legislature to make law with respect to subject matter which the petitioner will prove in the instant case.

A.

THAT THE STATE OF DILLI PRADESH HAS POWER TO MAKE LAW WITH RESPECT TO ENTRY

8 OF LIST II

3.

It is submitted before this Court that, the State Legislature of Dilli Pradesh has the power to make such a law, as the case in the instant matter. The said argument is based on two premised, (i) the rule of ejusdem generis; (ii) Pith and Substance; and (iii) The Article 239AA of the Constitution of Indus gives the power to the State Legislature

i. Ejusdem Generis

1 Hereinafter “Lt. Governor.

2 Hereinafter the State.

3 BLACK'S LAW DICTIONARY 833 (9 th ed. 2009).

4 Ibid.

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4. It is humbly submitted that when particular words pertaining to a class, category or genus are followed by general words, the general words are construed as limited to things of the same kind as those specified. 5 This rule, which is known as the rule of ejusdem generis reflects an attempt to reconcile incompatibility between the specific and general words. This must be applied considering all words in a statute must be given effect, and that the statute be construed as a whole without any word being superfluous. 6 The rule applies when the law contains an enumeration of specific words, the subjects of enumeration constitute a class or category, that class or category is not exhausted by the enumeration, the general terms follow the enumerations, there is no indication of a different legislative intent. 7

5. According to the Black's Law Dictionary 8 the principle of ejusdem generis is where:

“general words follow an enumeration of persons or things, by words of a particular and specific meaning, such general words are not to be construed in their widest extent, but are to be held as applying only to persons or things of the same general kind or class as those specifically mentioned.”

6. It is submitted that in the case of State of Bombay v. F.N. Balsara, 9 Fazl Ali J., relying on Article 47, gave a wide meaning to the word liquor as including all liquids containing alcohol, and also because it was necessary to make prohibition law effective. The Court further said that intoxicating alcohol excluded medicinal preparations under Article 47.

7. In the instant case, the Prohibition Order passed by the Lt. Governor states “sale, distribution, marketing and consumption of whisky, wine, rum, vodka, gin, tequila or any other alcohol”. 10 By the application of the above mentioned principle, it is clear that the phrase “any other alcohol” will only include “intoxicating liquor(s)”. All the particulars mentioned form the same genus and therefore, they form a class by themselves.

ii. That the Pith and Substance of the order is to regulate usage/consumption of Liquor.

8. It is submitted that in order to determine legislative competence through entries in legislative lists Courts have evolved the theory of pith and substance. The theory provides that the true

5 Kavalappara Kottarathil Kochuni v. State of Madras, AIR 1960 SC 1080; Thakur Amarasinghji v. State of Rajasthan, AIR 1955 SC 504; Brownsea Haven Properties v. Pools Corporation, (1958) 1 All ER 205; Siddeshwari Cotton Mill (P) Ltd. v. Union of India, AIR 1989 SC 1019.

6 Tirbhuwan Prakash Nayyar v. Union of India, AIR 1970 SC 540.

7 Amar Chandra v. Collector of Excise, Tripura, AIR 1972 SC 1863.

8 BLACK'S LAW DICTIONARY 594 (9 th ed. 2009).

9 (1951) S.C.R 682.

10 ¶7, Factsheet.

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import and purport of the enactment must be determined. Further, as mentioned in the case of Ishwari Khetan Sugar Mills (P) Ltd. and Ors. v. State of Uttar Pradesh and Ors., 11

“where a legislation falls within one Entry or the other but some portion of the subject matter of the legislation incidentally trenches upon and might enter a field under another list, the Statute as a whole would be valid notwithstanding such incidental trenching.”

9. Therefore, no question of conflict arises between two lists if the impugned legislation appears to fall exclusively under one list, and the encroachment upon another list is only incidental. 12

10. Accordingly, it is contended that the Prohibition Order is on the subject of intoxicating liquor, which has been specifically assigned to Entry 8, List II, Schedule VII of the Constitution of Indus. Entry 8 reads as:

“8.

Intoxicating

liquors,

that

is

to

say,

the

production,

manufacture,

possession, transport, purchase and sale of intoxicating liquors.”

11. The Supreme Court of India in State of Bombay v. F.N. Balsara 13 stated that:

“the words ‘possession and sale’ occurring in Entry 31 14 of List II are to be read without any qualification whatsoever, and it will not be doing any violence to the construction of that Entry to hold that the Provincial Legislature has the power to prohibit the possession, use and sale of intoxicating liquor”.

12. This case was with reference to Entry 31 of the erstwhile Schedule, and Entry 31 is the same as the existing Entry 8 of List-II, of the Seventh Schedule of the Constitution. With reference to this, under the Government of India Act, 1935, the Federal Court had held that, the power to legislate in respect of intoxicating liquor carries the power to prohibit the use of, or trade in, intoxicating liquor. 15 Further under the Constitution, the legislative power in respect of intoxicating liquor is same as under Government of India Act, 1935.

11 [1980] 3 SCR 331.

12 B. Viswanathiah v. State of Karnataka, (1991) 3 SCC 358 at ¶ 9.

13 (1951) S.C.R. 682.

14 Entry 31, List II, Sch. 7, G.I. Act, 35. See D.D. BASU, SHORTER CONSTITUTION OF INDIA 1123 (14 th ed.

2009).

15 Bhola Prasad v. R. (1942) F.C.R 17; Kishori Shetty v. R. (1949) F.C.R 650; Cooverjee B. Bharucha v. Excise Commr. and the Chief Commr. Ajmer, 1954 SCR 873; Krishna Kumar Narula Etc v. State of Jammu and Kashmir & Ors., 1967 SCR (3) 50; State of Assam v. A. N. Kidwai, Commissioner Of Hills Division

[1967] 1 S.C.R. 548; Orissa v. Hari

And Appeals, (1957) SCR 295; Guruswamy & Co. v. State of Mysore, Narayan Jaiswal, AIR 1972 SC 816.

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13. The Courts have held that improvement in public health to be a primary duty of the state. The Constitutional bench has held in Khoday Distilleries v. State of Karnataka, 16 that the State shall cause a prohibition of the consumption of intoxicating drinks and drugs which are injurious to health. Further the Court has held in Bihar Distillery & Another v. Union of India & Ors. 17 in which the Court stated that:

“The power to permit the establishment of any industry engaged in the manufacture of potable liquors including I.M.F.Ls., beer, country liquor and other intoxicating drinks is exclusively vested in the States. The power to prohibit and/or regulate the manufacture, production, sale, transport or consumption of such intoxication liquors is equally that of the States”. 14. This evinces that the legislature has power to prohibit the possession, use and sale of intoxicating liquors absolutely whether indigenous or foreign, in public interest and public health. 18 Therefore, since it is the responsibility of legislature to improve public health, the Legislature of the State of Dilli Pradesh shall have the power to make law in this regard. It is pertinent to note that the regulation or prohibition of liquor is made under the legislative field of Entry 8 of list II read with Entry 6 of list II. Thus, regulation or prohibition of liquor encompasses in itself the legislative fields enjoined by two entries in the State List, thereby giving the sole power to the Legislature of the State of Dilli Pradesh.

iii. The Article 239AA of the Constitution of Indus gives the power to the State Legislature

15. It is submitted that Article 239AA of the Constitution of Indus gives the power to the Legislature of State of Dilli Pradesh 19 to make laws with respect to the matters contained in List II and List III of the Seventh Schedule of the Constitution. The said Article reads as:

“Subject to the provisions of this Constitution, the Legislative Assembly shall have power to make laws for the whole or any part of the National Capital Territory with respect to any of the matters enumerated in the State List or in the Concurrent List in so far as any such matter is applicable to Union territories except matters with respect to Entries 1, 2 and 18 of the State List and Entries 64, 65 and 66 of that List in so far as they relate to the said Entries 1, 2, and 18.”

16 (1995) 1 SCC 574.

17 AIR 1997 SC 1208. See M.P. JAIN, INDIAN CONSTITUTIONAL LAW 591 (7 th ed. 2014).

18 N.K. Doongaji v. State of Madhya Pradesh, AIR 1951 M.P. 1; Khoday Distilleries Ltd. v. State of Karnataka, (1995) 1 SCC 574; Sunny Markose v. State of Kerala, AIR 1966 Ker. 379.

19 ¶ 1, Factsheet.

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16.

Therefore, as per the mandate of the grund norm of the country, the State Legislature, in the instant matter, shall have the powers to enact laws with respect to entries under the two lists specified.

B.

THAT THIS LAW IS A COLORABLE LEGISLATION

17.

The Doctrine of Colorable Legislation is based on the principle that what cannot be done directly, cannot also be done indirectly. This doctrine is applicable when a legislature seeks to enact a statute in an indirect manner which it cannot do directly. The doctrine, thus, refers to the question of competency of the legislature to enact the impugned law.

18.

In the case of State of Bombay v. F.N. Balsara, 20 it was discussed by the Supreme Court that Entry 8 and Entry 6 of List II, will cover all incidental things related to intoxicating liquor and any regulation relating to prohibition or consumption will come under abovementioned entries. Further, when the Attorney-General, in the said case, relied upon Entry 1 of List II, i.e. “public order”, the judge preferred to leave out this Entry which has a remote bearing, if any, on the object and scope of the Act. 21

19.

The Respondent has contended that the Prohibition Order is issued under Entry 1, of the List II, i.e. public order however, the law in substance deals with usage/consumption of intoxicating alcohol, on which State Legislature of Dilli Pradesh is empowered to legislate. Therefore, the impugned Order takes the colour of “public order” but in essence, the law only deals with liquor. The ambit of “public order” essentially entails warfare, or such situations. However, effecting the scope of the present impugned Order into that of the “public order” makes a special entry for liquor redundant.

20.

Hence, since the pith and substance of the Prohibition Order is usage/consumption of liquor, therefore, this order will come under Entry 8 of the List II, making the State competent to enact any such law in that respect.

C.

THAT LIEUTENANT GOVERNOR IS BOUND BY THE AID AND ADVISE OF THE COUNCIL OF

MINISTERS

21.

It is contended that, the Lt. Governor, is bound by the aid and advise of the council of ministers as according to the principles laid down by the Constitution and interpreted by the judiciary in that behalf.

20 (1951) S.C.R 682.

21 Ibid.

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22. It is submitted that in the case of Rajendra Singh Verma v. Lt. Governor, 22 the Hon’ble Supreme Court held as under:

“A meaningful and conjoint reading of Article 163 of the Constitution makes it clear that the Governor has to act on the aid and advice of the Council of Ministers with the Chief Minister at the head except insofar as he is by or under this Constitution required to exercise his functions or any of them in his discretion. In view of the provisions of Clause (4) of Article 239-AA of the Constitution, the Lt. Governor has to take aid and advice of the Council of Ministers in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws.”

23. It is submitted that in the case of Om Prakash Pahwa v. State of Delhi 23 the Delhi High Court observed that:

“Consequent to the exclusive legislative competence conferred upon the Legislative Assembly of the Government of NCT of Delhi by clause (3) of Article 239AA in respect of all subjects other than those specifically excluded therein, the Lt. Governor is bound to act only on the aid and advise of the Council of Ministers in the exercise of his functions in relation to those matters with respect to which the Legislative Assembly has power to make laws.”

24. Therefore, for the laws relating to “liquor”, the Lt. Governor will act only on the aid and advice of council of ministers. Moreover, it is submitted that the Constitution Bench of the Supreme Court in Samsher Singh v. State of Punjab 24 stated that:

“Under the Cabinet system of Government as embodied in our Constitution, the Governor is the constitutional or formal head of the State and he exercises all his powers and functions conferred on him by or under the Constitution on the aid and advice of his Council of Ministers save in spheres where the Governor is required by or under the Constitution to exercise his functions in his discretion.”

25. It is submitted that as per Section 41 of the Government of the National Capital Territory of Delhi Act, 1991, 25 the discretion of the Lt. Governor extends only to matters which fall

22 (2011) 10 SCC 1.

23 (1998) 46 DRJ 719.

24 (1974) 2 SCC 831.

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outside the legislative competence of the Legislative Assembly of Delhi or in respect of matters of which powers are entrusted or delegated to him by the President or where he is required by law to act in his discretion or to exercise any judicial or quasi-judicial functions. Therefore the said provision implied that the Lt. Governor cannot exercise discretionary powers in any other matter. Also, in terms of Section 41 of the NCT Act and Rule 45 Proviso (2) of the Transaction of Business Rules, 1993, even in respect of Entries 1, 2 and 18 of the State List, to the extent the Lt. Governor is authorized by Presidential delegation, the Lt. Governor is required to consult the Chief Minister except in those cases where for reasons to be recorded in writing he does not consider it expedient to do so.

26. While the Legislative Assembly has been empowered to make laws for the whole or any part of the National Capital Territory (or the State of Dilli Pradesh) with respect to certain matters provided in Clause (3) of Article 239AA, Clause (4) of Article 239AA enabled the Council of Ministers with the Chief Minister at the head to take part in executive functions by tendering aid and advice to the Lt. Governor in the exercise of his functions in relation to matters with respect to which the Legislative Assembly has power to make laws.

D. ARGUENDO, THE LT. GOVERNOR HAS ACTED BEYOND HIS COMPETENCY UNDER DELHI

EXCISE ACT

27. As an arguendo, it is submitted that Section 2(35) of the Delhi Excise Act, 2009, defines “Government” as “the Lieutenant Governor of the National Capital Territory of Delhi appointed by the President under article 239 and designated as such under article 239 AA of the Constitution”.

28. Further, Section 77 of the same Act states that the:

Power of Government to regulate drinking and to enforce prohibition. - The Government may issue such order and take such measures as may be deemed appropriate to regulate drinking or to enforce prohibition in whole or in any part of Delhi.”

29. Therefore, it can be concluded that the Lt. Governor has clearly acted beyond its competence in enacting the law, as he was authorised only to regulate drinking and not to prohibit it completely. Referring to the case of Australian National Airways Proprietory Ltd. v. The Commonwealth (No 1) 26 his Lordship had expressed his agreement with the view that “simple

25 Hereinafter, “the NCT Act”.

26 (1945) 71 CLR 29.

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prohibition was not regulation”. Therefore, even if he had the power to do so, he could only have regulated the consumption of liquor and not prohibit sale, distribution or marketing it. Such power has been conferred on the Legislative Assembly of the Delhi Excise Act, 2010, in terms of Section 81, which provides that any “Rule” to regulate sale, consumption, etc. of liquor shall be required to be laid before the Legislative Assembly, and therefore, the delegate is only empowered to carry out the policy with the guidelines laid down by the legislature. 27 Since, no such step or guidelines had been taken in the instant matter the Lt Governor had acted beyond its competence conferred on him by law.

W.P.

/ 2016

II. WHETHER THE RIGHTS OF THE PETITIONER 2 HAVE BEEN VIOLATED?

30. It is submitted that the fundamental rights of the petitioner, King Bird Liquor Private Limited 28 , have been violated by the imposition of the Prohibition Order passed by the Central Government. 29 This is because, [A] Article 14 has been violated; [B] Article 19 has been violated; [C] Article 21 of the People will be violated; [D] the law imposing such prohibition is passed by an incompetent authority; [E] the medicinal and toilet preparations cannot be prohibited; and [F] that the Human Rights of the citizens are violated.

It is submitted that a law made by the Parliament or the Legislature can be struck down by courts on two grounds alone, viz., (1) lack of legislative competence and (2) violation of any of the fundamental rights guaranteed in Part-III of the Constitution or of any other constitutional provision. 30

A. THAT THE ARTICLE 14 HAS BEEN VIOLATED

31. It is submitted before this Court that, in the instant matter, there is no reasonable classification made with regard to the exclusion of “beer” from the purview of the Prohibition

27 Tata Iron & Steel Co. v. Workmen, AIR 1972 SC 1917; Gwalior Ryan Mills v. Assistant Commissioner, Sales Tax, AIR 1974 SC 1660; P.N. Kaushal v. Union of India, AIR 1978 SC 1457; Ajoy Kumar Banerjee v. Union of India, (1984) 3 SCC 127; Ramesh Birch v. Union of India, AIR 1990 SC 560.

28 Hereinafter, Petitioner 2.

29 ¶ 7, Factsheet.

30 State of Andhra Pradesh and Ors. v. McDowell & Co., (1996) 3 SCC 709.

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Order passed by the Lt. Governor. 31 For this, arguments have been premised on (i) Intelligible Differentia; (ii) Alcohol Content; (iii) Interpretation; and (iv) Reasonableness.

i. Intelligible Differentia

32. Article 14 of the Constitution forbids discrimination, however, it does not forbid creation of class on well founded principles which implies the twofold requirements of Article 14, that is, that it must be on an intelligible differentia and second, that, it must have a reasonable nexus to the object sough to be achieved by the law. Further, such classification cannot be arbitrary but has to be rational.

33. While interpreting Article 14, J. S.K. Das, of the Supreme Court has held in The State of West Bengal v. Anwar Ali Sarkar 32 ,:

“In order to pass the test, two conditions must be fulfilled, namely, that the classification must be founded on an intelligible differentia which distinguishes those that are grouped together from others and that that differentia must have a rational relation to the object sought to be achieved by the Act.”

34. It was further held that where there is no nexus between a classification and the object of the Act, then there is no intelligible differentia, and such classification will be wholly arbitrary and be liable to be struck down. 33

35. The law laid down by the landmark case of Bachan Singh v. State of Punjab and Ors. 34 , provides that it will be arbitrary if the State makes discriminatory cl0assification which is not founded on intelligible differentia having rational relation to the object sought to be achieved by the law or they arbitrarily select persons or things for discriminatory treatment.

36. In the present scenario, trade or business in country liquor is a class by itself, 35 and creation of a class within a homogenous class without any rationale to the object is clearly violative of Article 14 of the Constitution. 36

37. On this point, in the case of Raj Pal Sharma and Ors. v. State of Haryana and Ors., 37 the Court said that:

31 ¶ 7, Factsheet.

32 AIR 1952 SC 75.

33 Id. at ¶67.

34 AIR 1982 SC 1325.

35 Amar Chandra Chakraborty v. The Collector of Excise, Government of Tripura and Ors., (1972) 2 SCC 442.

36 Gurumukh Singh and Ors. v. Union of India (UOI), 2006 (108(4)) BomLR 3702; See, Raj Pal Sharma and Ors. v. State of Haryana and Ors., AIR 1985 SC 1263.

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“it is not possible to single out certain persons of the same class for differential treatment”

38. To this point, it is imperative to look into a ruling of the Allahabad High Court in Sheo Kumar v. State of U.P. 38 :

“No reason is apparent in the provisions of Section 37-A to make this

any

invidious distinction against other kinds of intoxicating liquors. [

]

rational basis for classifying intoxicating liquors other than foreign liquor, far adverse treatment. Foreign liquor is as much intoxicating liquor as country liquor, or for that matter Tari. From the point of view of enforcing the policy of prohibition both stand on an identical footing. The placing of foreign liquor and country liquor in separate classes is arbitrary, fanciful and illicit. This classification is not based on any intelligible differentia which may have any rational nexus with the object sought to be achieved. The object of Section 37-A [of the U.P. Excise Act, 1910] was to execute the policy of prohibition in this State. This classification defeats, rather than achieves, the aim and object. Section 37-A (2) is clearly violative of the equality clause of the Constitution.”

39. Therefore, it is submitted that the homogenous class here is “intoxicating liquor” and further dividing it into sub-classes is violative of Article 14 of the Constitution.

ii. Alcohol Content

40. It is submitted that the Prohibition Order has imposed a ban on “sale, distribution, marketing and consumption of whisky, wine, rum, vodka, gin, tequila or any other alcohol” within the territory of Dilli Pradesh, however, in the said Order, beer and any other alcoholic beverage where the alcohol content is less than 5 % were excluded from the ambit of prohibition. 39 Such prohibition imposed on a particular type of a commodity does not entail reasonable classification as enshrined under Article 14 of the Constitution of Indus.

41. The word "liquor" as understood in India since the Government of India Act, 1935, covers not only those alcoholic liquids which are generally used as beverages and cause intoxication, but also liquids containing alcohol. 40 Liquor is classified broadly into three classes, viz., [i] potable liquor which is used as beverage, [ii] liquor used in medicinal and toilet preparations

37 AIR 1985 SC 1263.

38 AIR 1978 All 386.

39 Ibid.

40 The State of Bombay and Another v. F. N. Balsara, AIR 1951 SC 318.

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and [iii] industrial liquor used for industrial purpose. 41 The Supreme Court has held that the term “intoxicating liquor” is not confined to “potable liquor” alone but includes all liquors which contain alcohol. 42 It was further held that the definition of "alcohol" includes both ordinary as well as specially denatured spirit. 43 Such alcoholic liquids which are generally used as beverages and produce intoxication also very well include “beer” which is a type of alcoholic beverage. However, the Prohibition Order, in the instant matter, has expressly excluded this from its ambit.

42. It is submitted that the reason given in the Prohibition Order for such exclusion is an alcohol content of less than 5% in beer/other beverages 44 . However, reports have gone to say that beer 'generally' includes around 6% of alcohol content. As per the Dietary Guidelines Report by the United States Department of Agriculture and the United States Department of Health and Human Services, “regular” beer includes 6% percent of alcohol in it. 45 Further, Institute of Alcohol Studies, London, U.K., states that, a strong beer includes 6% or greater alcohol. 46 Moreover, the World Health Organisation, in its Country Profiles of South East Asia Region said that, a popular drink, Toddy, is an alcoholic drink made by fermenting the sap of a coconut palm. It is white and sweet with a characteristic flavour and has between 4% and 6% alcohol. 47

43. Moreover, the Supreme Court has recently held in The Kerala Bar Hotels Association and Ors. v. State of Kerala and Ors., 48 said that,

“ The argument of the Respondent State is that allowing public consumption of liquor of a lower alcohol content [such as beer] is acceptable as such liquor is less likely to lead to intoxication or addiction and less harmful to the health of the consumer. This assessment may be misplaced. ” 44. In the aforesaid cases as well, the Court had accepted that beer can be of a high alcohol content as well, and it is further submitted that beer is a malt liquor and is intoxicating is a

41 Khoday Distilleries Ltd. and Ors. v. State of Karnataka and Ors., (1995) 1 S.C.C. 574.

42 Synthetics and Chemicals Ltd. and Ors. v. State of U.P. and Ors., (1990) 1 SCC 109.

43 Ibid. See, Har Shankar and Ors. etc. v. The Deputy Excise & Taxation Commissioner and Ors., [1975] 3 SCR 254.

44 ¶7, Factsheet.

45 Dietary Guidelines for Americans, U.S. Department of Agriculture and U.S. Department of Health and Human Services (7 th ed. 2010).

46 Alcohol Consumption Factsheet, Institute of Alcohol Studies, London, U.K. (Aug. 2013).

47 Country Profile, India, World Health Organization, available at http://www.who.int/countries/ind/en/ (last accessed, 26.09.2016).

48 AIR 2016 SC 163.

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matter of common knowledge and, requires no proof. 49 Therefore, to say that banning liquor on the basis of alcohol content does not justify the instant Prohibition Order.

45. It is further submitted that the expression “alcohol” must be construed to include not only alcohol for human consumption but also all other kinds of alcohol. 50

46. It is contended that, the Prohibition Order imposes a ban on alcohols but excludes Beer from its purview which passes the same criteria of being an intoxicating drink and therefore, such classification is not reasonable under Article 14 of the Constitution of Indus.

iii.

Interpretation

47. A word which is commonly used must be construed in its popular sense meaning that sense which people conversant with the subject matter with which the statute is dealing would attribute to it. It is to be construed as understood in common language. 51 The Supreme Court while dealing with the meaning of the word “cement” which was not defined in the motivation said that:

“The word 'cement' has not been defined in the relevant notification, therefore it has to be understood in the same way as is understood in common parlance. Cement is exclusively used as a building material and is a commodity of everyday use therefore we have to go only by the popular or commercial meaning of the term. ” 52

48. The same principle came to be affirmed by the Supreme Court in Nawn Estates (P) Ltd v. C.I.T., West Bengal. 53 Therefore, it is contended that following the principles enunciated above, the expression “or any other alcohol” 54 is to be construed in common parlance which will accordingly include beer in its ambit.

iv.

Reasonableness

49. Reasonableness postulates that the restrictions imposed should not be excessive but only to the extent necessary to secure the public good. In Mohd. Faruk v. State of Madhya Pradesh and others 55 , it was held that the restriction imposed may be partial or total, but the principle

49 Wayne v. United States, 138 F.2d 1 (8th Circuit, Court of Appeals). See, Mulane v. United States, 8 Cir., 20 F.2d 903; Jacob Ruppert v. Caffey, Inc., 251 U.S. 264, 282-283, 40 S.Ct. 141, 64 L.Ed. 260.

50 Union of India (UOI) and Ors. v. Raman Kantilal Bhandari, 1991(35) ECR 212 (Bombay) (Bom. HC).

51 Ramavatar Budhaiprasad v. Assistant Sales Tax Officer, AIR 1961 SC 1325; Nawn Estates (P) Ltd v. C.I.T., West Bengal, AIR 1977 SC 153.

52 Associated Cement Co. Ltd. v. State of M.P. and Ors., (2004) 9 SCC 727.

53 AIR 1977 SC 153.

54 ¶7, Factsheet.

55 1970 (1) SCR 156.

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remains the same. In case of a total restriction or a total ban, the onus of proving that such a ban is for the maintenance of the general public interest, lies heavily on the State to show that such total restriction is in public interest.

50. It is submitted that legislation, which arbitrarily or excessively invades the right, cannot be said to be reasonable. If does not strike a proper balance between the freedom guaranteed under Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in reasonableness. 56 The Court while applying the test of reasonableness must consider the background of the facts and circumstances under which the order was made, taking into account the nature of the evil sought to be remedied, the ratio of the harm caused by the proposed remedy, to the beneficial effect reasonably expected to result to the general public. It is also necessary to consider whether the restraint caused by law is more than necessary in the interest of the general public. 57

51. In a landmark case 58 relating to prohibition of employment of women in places where liquor was served, the Supreme Court has considered the validity of the Punjab Excise Act relating to Delhi. The Court held that instead of prohibiting employment for protection and state policy, State should develop other alternatives. In that regard the interference prescribed by the State for pursuing the ends of protection should be proportionate to the legitimate aims. 59

52. It is submitted that where a restriction imposed by a law is in excess of what was “requisite” in achieving the object of law, such restriction is to be struck down. 60

53. On a very sound reasoning, the Supreme Court in State of Maharashtra and Anr. v. Indian Hotel and Restaurants Assn. and Ors., 61 has considered the validity of an Act to prohibit dance bars. The Court negatived the argument of morals and obscenity and ruled in Para 124 that:

“that instead of putting curbs on women’s freedom, empowerment would be more tenable and socially wise approach. This empowerment should reflect in the law enforcement strategies of the State as well as law modeling done in

56 M/s. Dwarka Pd. Laxmi Narain v. State of U.P. & others, 1954 S.C.R. 803 (2) citing Chintaman Rao v. The State of Madhya Pradesh, 1950 S.C.R. 759 (3); Mohd. Hanif Quareshi and others v. The State of Bihar, 1959 S.C.R. 629 (4).

57 Narendra Kumar and others v. The Union of India and others, 1960 SCR (2) 375.

58 Anuj Garg and Ors. v. Hotel Association of India and Ors., (2008) 3 SCC 1.

59 Id. at ¶ 35. 60 Chintaman Rao v. State of Madhya Pradesh, [1950] 1 SCR 759. See, R.M.D. Chamarbaugwalla v. Union of India, 1957 SCR 930.

61 (2013) 8 SCC 519.

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this behalf. In our opinion, in the present case, the restrictions in the nature of prohibition cannot be said to be reasonable, inasmuch as there could be several lesser alternatives available which would have been adequate to ensure safety of women than to completely prohibit dance. In fact, a large number of imaginative alternative steps could be taken instead of completely prohibiting dancing, if the real concern of the State is the safety of women.”

54.

Further, it is submitted that the legislature can confer large powers on a person or body of persons for the purpose of administering the Act. However, it must prescribe the principles on which these powers are to be exercised. If there are no rules for guiding and controlling the exercise of discretion, then such power must be held to be arbitrary and unreasonable, 62 and consequentially invalid. 63

B.

THAT THE ARTICLE 19 HAS BEEN VIOLATED

55.

The principles adopted by the various legal luminaries at a Conference held at Dublin, known as the “Dublin Principles” state that the legal and responsible consumption of alcohol should be promoted by the beverage alcohol industry and others involved in the production, sale, regulation, and consumption of alcohol. 64

56.

On the point, the Supreme Court in 2015 held in The Kerala Bar Hotels Association and Ors. v. State of Kerala and Ors.:

“A right Under Article 19(1)(g) to trade in liquor does exist provided the State permits any person to undertake this business. It is further qualified by Article 19(6) and Article 47. The question, then, is whether the restrictions imposed on the Appellants are reasonable.” 65 Very importantly, the Court said that:

“In Krishan Kumar Narula [case], the Constitution Bench was of the opinion that dealing in liquor is a legitimate business, although the State can impose reasonable restrictions. A few years later, however, in Khoday [Distilleries case], the concept of res extra commercium came to be accepted and applied to the business of manufacture and trade in potable liquor. This Court, however, did not place any embargo or constraints on the State to transact

62 Balakrishnan v. State of Madras, AIR 1952 Mad 565; Smt. Kaushailiya v. State of U.P., AIR 1963 All 71.

63 Hamdard Dawakhana v. Union of India, AIR 1960 SC 554.

64 The Dublin Principles, National College of Ireland and the International Center for Alcohol Policies (1997).

65 Kerala Hotels Bar Association v. State of Kerala, AIR 2016 SC 163.

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this business. History has painstakingly made it abundantly clear that prohibition has not succeeded. Therefore strict state Regulation is imperative. The State of Kerala had in the past forayed into prohibition, but found it to be un-implementable. Thereafter, keeping in mind the heavy consumption of alcohol within the territory, it has experimented with other measures to user temperance if not abstemiousness.” 66 “Banning public consumption of alcohol, therefore, in our considered opinion, cannot but be seen as a positive step towards bringing down the consumption of alcohol, or as preparatory to prohibition.”

57.

Most importantly, the Supreme Court in the case of Krishna Kumar Narula etc. v. The State of Jammu and Kashmir and Ors., 67 it was held that:

“We, therefore, hold that dealing in liquor is business and a citizen has a right to do business in that commodity; but the State can make a law imposing reasonable restrictions on the said right, in public interests.”

58.

It is submitted that article 19(1)(g) of the Constitution has conferred a right of choosing to carry on a trade, business or any profession the same is controlled by reasonable restrictions. Such restrictions cannot be held as illegal as long as such restrictions are regulatory in nature, however, herein, such restrictions are not regulatory but complete prohibition has been made, therefore, it is contended that such restriction must be held invalid by this Court.

C.

ARTICLE 21 OF THE PEOPLE WILL BE VIOLATED

59.

It is submitted that, in the instant matter, the total prohibition imposed by way of an executive order infringes upon the rights of the workers employed in the industry of Petitioner 1. As this prohibition will lead to shutting down of business, the workers working will be forced to leave due to closure of the manufacturing thereby violating their right to livelihood, an implied right, recognised under Article 21 of the Constitution. 68 Therein, the Supreme Court of India had held that right to livelihood is an important facet of the right to life.

60.

It is submitted that the Supreme Court in State of Maharashtra and Anr. v. Indian Hotel and Restaurants Assn. and Ors 69 . was considering the validity of an Act to prohibit dance bars. The Court negatived the argument of morals and obscenity and ruled on that:

66 Id. at ¶ 25.

67 AIR 1967 SC 1368.

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

69 (2013) 8 SCC 519.

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“I fully endorse the suggestions made in paragraph 123 of the judgment prepared by my learned Brother that, instead of generating unemployment, it may be wiser for the State to look into ways and means in which reasonable restrictions may be imposed on bar dancing, but without completely prohibiting or stopping the same.”

61.

It is therefore submitted that these rights under Article 14, 19 and 21 have been violated and that such rights are entitled to a greater protection as compared to other right. 70 This right to livelihood is an integral part of the right to life guaranteed under Article 21 of the Constitution. The deprivation of right to livelihood can be justified if it is according to procedure established by law under Article 21. Such a law has to be fair, just and reasonable both substantively and procedurally.

D.

THAT ALCOHOL IS USED IN OTHER COMMODITIES AS WELL

62.

It is submitted that the Prohibition Order banning alcohol is vague and is capable of being interpreted very broadly, thus violating a citizen's right enshrined under Article 19(1) (g) of the Constitution of Indus.

63.

In the words of the Hon'ble Supreme Court of India in State of Bombay and Another v. F. N. Balsara 71 :

“the restrictions imposed by sections 12 and 13 of the Act on the possession, sale, use and consumption of liquor were not reasonable restrictions on the fundamental right guaranteed by article 19(1)(f), so far as medicinal and toilet preparations containing alcohol were concerned and that the said sections were invalid so far as they prohibited the possession, sale, use and consumption of these articles”

64.

Further, referring to the above case and authority, the Supreme Court in Behram Khurshed Pesikaka v. The State of Bombay 72 held that:

The very foundation of this declaration was that the prohibition imposed by this section against the consumption or use of liquid medicinal or toilet preparations was an unreasonable restriction on the exercise of the fundamental right of citizens to acquire, hold and dispose of property which in that case was liquid medicinal or toilet preparations containing alcohol' ”

70 I.R. Coelho (Dead) by LRs. v. State of Tamil Nadu, (2007) 2 SCC 1.

71 AIR 1951 SC 318.

72 AIR 1955 SC 123.

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65. It is submitted that the Drugs and Cosmetic Rules, 1945, itself talk about the alcohol content and its permissive level to be used in various types of medicines. Reference must be made to Rule 106-B of the Rules which state the limit for Homoeopathic medicines' manufacturing to use at a maximum of 12% of alcohol 73 , which itself is an indication that the government is aware that alcohol, apart from liquor, is used in medicinal preparations. As per the same rules, the ayurvedic medicines such as Mritsanjivani Sura and Mahadrakshava are permitted to use at a maximum of 16 % of alcohol content. The rules also mention the sanitary use of alcohol, wherein under the Sanitation, the alcohol is permitted to be used as disinfectants. 74 Regard must also be had to the reports which throw significant light on the use of alcohol by percent in medicines, wherein some medicines use alcohol as high as 85% and some use as low as, 0.5%. 75 Similarly, Dr. Joseph D. Beasley, has given medicines with their respective alcoholic content for their preparations. 76 Therefore, all such reports and guidelines show the prominent and essential use of alcohol in medicinal and toiletries preparations.

E. THAT THE IMPUGNED LAW IS PASSED BY AN INCOMPETENT AUTHORITY

66. The notion of inherent or autonomous law-making power in' the executive administration is a notion that must be emphatically rejected. 77 A law, if that is an executive act, can be challenged on the ground that the executive did not apply its mind while doing or carrying out such act. 78 It is submitted that in case of a policy decision, the executive decision could be rendered invalid on the ground of mala fide, unreasonableness and arbitrariness alone, unlike that of a statute. 79 Further, the affected party can always challenge an executive act on the ground that such an act is arbitrary, mala fide or unrelated to the purposes and guidelines under the parent act or enabling statute. 80 Moreover, regulatory measures in the matter of trade and business in potable liquor have been taken by reason of a statute. All regulations on the trade, thus, must be governed by the statutes operating in the field and not by way of executive action. 81

73 Rule 106-B, Drugs and Cosmetic Rules, 1945.

74 Rule 6, Part IA, Specific Requirements, Drugs and Cosmetic Rules, 1945.

75 Joseph Pappy Corbitt, Medications Containing Alcohol, THE HEALTH PROFESSIONALSSERVICES PROGRAM, available at https://www.rbhmonitoring.com/Content/Oregon/Resources/Medications%20Containing%20 Alcohol%20and%20Options%20Without%20Alcohol.pdf (last accessed, 26.09.2016).

76 JOSEPH D. BEASLEY, HOW TO DEFEAT ALCOHOLISM: NUTRITIONAL GUIDELINES (Times Books, 1990).

77 Chief Settlement Commissioner v. Om Parkash & Ors, Etc, AIR 1969 SC 33.

78 Nagaraj K. v. State of A.P., AIR 1985 SC 551 (¶¶ 31, 36).

79 Government of Andhra Pradesh & Ors. v. Smt. P. Laxmi Devi, (2008) 4 SCC 720.

80 P. N. Kaushal etc. v. Union of India, AIR 1978 SC 1457.

81 Per B.N. Agarwal, J. in State of Punjab v. Devand Modern Breweries, (2004) 11 SCC 26. ¶92.

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67. It is submitted in this context that the Supreme Court of India in Kharak Singh v. State of Punjab 82 , held that a restriction cannot be imposed through an executive or departmental instructions. Reasonable restriction can be imposed by “law enacted by the legislature”. In that case, it was held that:

“the regulations contained in Ch. XX bad no such statutory basis but were merely executive or departmental instructions framed for the guidance of the police officers. They would not therefore be "'a law" which the State is entitled to make under the relevant clauses 2 to 6 of Article 19 in order to regulate or curtail fundamental rights guaranteed by the several sub-clauses of Article 19 (1); nor would the same be “a procedure established by law" within Article 21. The position therefore is that if the action of the police which is the arm of the executive of the State is found to infringe any of the freedoms guaranteed to the petitioner the petitioner would be entitled to the relief of mandamus which he seeks to restrain the State from taking action under the regulations.” 83 68. Therefore, it is submitted that in the instant matter, the executive action that is, the Prohibition Order could not have restricted the fundamental rights guaranteed under the Constitution of Indus because there is no law authorising the executive to impose such a blanket ban altogether thereby taking away the right of the individuals.

F. THAT THE HUMAN RIGHTS OF THE PEOPLE WILL BE VIOLATED

69. It is submitted that the present case involves pertinent Human Rights issues of prime importance. When considering a prohibition like that of the present case violates the basic rights of privacy which everyone is entitled to. This right includes right to conduct oneself in a manner which one deems appropriate. It is urged that it was the individual's “right to be left alone.” Brandeis, J. argued that privacy was the most cherished of freedoms in a democracy. 84 It also includes the desire of people to choose freely under what circumstances and to what extent they will expose themselves, their attitude and their behavior to others. 85 Such right protects a person's individuality and integrity, which must not be interfered with. 86 Therefore, a person has a right to drink liquor, at his own personal choice, and such right is a

82 AIR 1963 SC 1295.

83 Ibid.

84 Samuel Warren & Louis Brandeis, The Right to Privacy 4 HARVARD L. REV. 193-220 (1890).

85 ALAN F. WESTIN, PRIVACY AND FREEDOM 7 (Atheneum, 1967)

86 E.J.Bloustein, Privacy as an Aspect of Human Dignity 39 N.Y. UNIV. L. REV. 962, 971 (1964).

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part of his own conduct of life with respect to adulthood and his own decision making capacity. The State can put restrictions on drinking but such restriction must not take the form of prohibition.

70. With respect to freedom of liberty, in the words of Harold J. Laski:

“we cannot suppress all modes of conduct in which excess does harm. In most cases, we have to leave the individual free to judge at what point excess is harm.” 87 71. Laski also says that:

“when a particular law is regarded as foolish or obnoxious by a considerable body of persons, they will rejoice in breaking it. In such cases, illegal conduct becomes a pride.” 72. Therefore, it is contended that imposing such a draconian restriction will not serve the purpose of the Order, but education and awareness will. Accordingly, it is submitted before this Hon'ble Court that the impugned Prohibition Order be struck down as violative of Fundamental and Human Rights.

87 HAROLD J. LASKI, LIBERTY IN THE MODERN STATE (Routledge, 2014)

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PRAYER FOR RELIEF

WHEREFORE, IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS GIVEN

AND AUTHORITIES CITED, THIS HONBLE COURT MAY BE PLEASED TO:

I.

HOLD THAT THE LIEUTENANT GOVERNOR OF THE STATE OF DILLI PRADESH DID NOT

HAVE THE LEGISLATIVE COMPETENCE TO ENACT THE IMPUGNED ORDER

II.

HOLD THAT THE IMPUGNED ORDER IS VIOLATIVE OF FUNDAMENTAL RIGHTS UNDER PART-

III OF THE CONSTITUTION OF INDUS.

III.

DECLARE THAT THERE IS A RIGHT TO DRINK ALCOHOL.

AND ANY OTHER RELIEF THAT THIS HONBLE COURT MAY BE PLEASED TO GRANT IN THE

INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE, ALL OF WHICH IS RESPECTFULLY

SUBMITTED.

Sd /-

COUNSELS FOR THE PETITIONERS

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