Team Code: BR 13

BEFORE THE SUPREME COURT OF INDUS

At Dilli Pradesh

Under Article 32 read with Article 139-A of the Constitution of Indus

W.P. No. _____/2016 & T.P. No. ____/2016

KING BIRD LIQUOR PVT. LTD.

...PETITIONER NO. 1

GOVERNMENT OF NCT OF DILLI PRADESH

...PETITIONER NO. 2

Versus
REPUBLIC OF INDUS

RESPONDENT

Memorandum Submitted to the Honble Chief Justice of Supreme Court of Indus and His
Companion Justices of the Supreme Court of Indus

MEMORANDUM FILED ON BEHALF OF THE RESPONDENT

10TH NALSAR BODH RAJ SAWHNY MEMORIAL MOOT COURT COMPETITION
2016

MEMORANDUM ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS
TABLE OF CONTENTS.................................................................II
INDEX OF AUTHORITIES............................................................IV
STATEMENT OF JURISDICTION.................................................VIII
STATEMENT OF FACTS..............................................................IX
STATEMENT OF ISSUES.............................................................XI
SUMMARY OF ARGUMENTS......................................................XII
ARGUMENTS ADVANCED............................................................1
I.

THAT
A.

THE WRIT PETITIONS ARE NOT MAINTAINABLE..........................1

That Petitioner No. 1 does not have a locus standi to file the writ petition before

the Honble Supreme Court of Indus.................................................................................1

B.

That the Petitioner No. 2 filed the writ petition before the wrong forum................2

II. THAT

THE

RESPONDENT

HAS THE LEGISLATIVE COMPETENCE TO ISSUE

THE DILLI PRADESH PROHIBITION ORDER, 2016.................................3

A.

That the Prohibition Order is shielded by a presumption of Constitutionality........4

B.

That the executive power of the Respondent is co-extensive with the legislative

power of the Parliament.....................................................................................................4

C.

That The Dilli Pradesh Prohibition Order, 2016 is sound in law.............................6

i.

That the Prohibition Order satisfies the primary duty of enforcing the Directive

Principles of State Policy...............................................................................................7

ii.

That the Republic of Indus embodies a federal structure leaning heavily in

favor of a strong Centre.................................................................................................8

iii.

That the Prohibition Order has been passed without material encroachment

upon the legislative powers of the Legislative Assembly of the NCT.............................9

iv.
III.

That the Republic of Indus fulfilled its duties as a welfare state.......................10

THAT

THE

DILLI

CONSONANCE WITH THE

PRADESH

PART III

OF

PROHIBITION

ORDER,

2016

IS

IN

THE CONSTITUTION......................11

A.

That the Prohibition Order is not in violation of Article 14...................................11

B.

That the Prohibition Order is not in violation of Article 19(1)(g).........................12

i.

That Petitioner No. 1 is not a citizen under Article 19(1)(g)..............................12

ii.

That dealing in liquor does not deserve Fundamental Right protection...........13

iii.

That the Prohibition Order imposes reasonable restrictions on dealing in

liquor............................................................................................................................14
2

MEMORANDUM ON BEHALF OF THE RESPONDENT

C.

That the Prohibition Order is not in violation of Article 21...................................16

PRAYER.................................................................................XIV

MEMORANDUM ON BEHALF OF THE RESPONDENT

INDEX OF AUTHORITIES
STATUTES
The Constitution of India of 1950.....................................................................................passim
The General Clauses Act of 1897...............................................................................................1
The Industries (Development and Regulation) Act of 1951......................................................6
The Industries (Development and Regulation) Amendment Bill of 2015.................................6
FOREIGN CASES
Attorney General of Saskatchewan v. Attorney General of Canada, (1949) AC 110................9
Hoke v. U.S., (1913) 227 US 308............................................................................................14
Kishori v. The King, (1950) FCR 650........................................................................................9
Kramer v. Union School District, (1969) 395 U.S. 621.............................................................4
Ontario Home Builders v. York Region Board of Education, [1996] 2 SCR 929......................9
Russell v. The Queen, (1882) 7 AC 829.....................................................................................9
Union Colliery Co. v. Bryden, [1899] AC 580..........................................................................9
INDIAN CASES
B.R. Enterprises v. State of Uttar Pradesh, (1999) 9 SCC 700..................................................4
Baijnath v. State of Bihar, AIR 1970 SC 1436...........................................................................6
Bennett Coleman and Company v. Union of India, AIR 1973 SC 106....................................13
Bharat Hydro Power Corpn. Ltd. v. State of Assam, AIR 2004 SC 3173................................10
Chiranjit Lal Chowdhuri v Union of India and Ors., (1950) 1 SCR 869...........................11, 13
Cooverjee v. Excise Commr. (1954) SCR 873.........................................................................14
D.S. Nakara v. Union of India, (1983) 1 SCC 305...................................................................10
E.V. Chinnaiah v. State of Andhra Pradesh, AIR 2005 SC 162...............................................10
Fatehchand Himmatlal and Ors. v. State of Maharashtra, AIR 1977 SC 1825..........................6
Gidhey Club v. Delhi Administration, AIR 1980 Del 33...........................................................7
Har Shankar v. Dy. Excise Commr., AIR 1975 SC 1121.........................................................14
Hindustan Unilever Ltd. v. State of Maharashtra, AIR 2004 SC 326......................................10
Hoescht Pharmaceuticals v. State of Bihar, AIR 1983 SC 1019...............................................9
K.R. Lakshman and Ors. v. Karnataka Electricity Board and Ors., (2001) 1 SCC 442...........11
Kannan Devan Hills Produce v. State of Kerala, AIR 1972 SC 2301....................................6, 9
Kaushal v. Union of India, AIR 1978 SC 1457........................................................................14

MEMORANDUM ON BEHALF OF THE RESPONDENT

Kerala State Electricity Board v. Indian Aluminium Co., AIR 1976 SC 1031..........................9
Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461..................................................10
Khoday Distilleries v. State of Karnataka (1995) 1 SCC 574..................................................14
Kuldeep Nair v. Union of India, AIR 2006 SCC 3127...............................................................9
LIC of India v. Consumer Education and Research Centre, AIR 1995 SC 1811.....................15
M.J. Sivani v. State of Karnataka, (1995) 6 SCC 289..............................................................16
M.R.F. Ltd. v. Inspector, Kerala Govt., AIR 1999 SC 188......................................................15
Muralidhar v. State of Rajasthan, AIR 2000 Raj 170...............................................................14
Nashirwar v. State of Madhya Pradesh, AIR 1975 SC 360......................................................14
National Council for Teacher Education v. Shri Shyam Shiksha Prashikshan Sansthan, (2011)
2 SCR 291................................................................................................................................11
Olga Tellis and Anr. v. Bombay Municipal Corporation and Ors., (1985) 3 SCC 545............16
Om Prakash v. State of Uttar Pradesh, AIR 2004 SC 1896......................................................15
Pathumma v. State of Kerala, (1978) 2 SCC 1.........................................................................11
Peoples Union for Civil Liberties v. Union of India, (2004) 2 SCC 476...................................4
Prafulla v. Bank of Commerce, AIR 1947 PC 60....................................................................10
R.C. Cooper v. Union of India, (1970) 3 SCR 530..................................................................13
Rai Sahib Ram Jawaya Kapur v. State of Punjab, AIR 1955 SC 549........................................5
Satya Narain Shukla v. Union of India, (2006) 9 SCC 69.........................................................5
Sita Ram Sharma v. State of Rajasthan, AIR 1974 SC 1373.....................................................9
South India Film Chamber of Commerce v. Entertaining Enterprises, (1995) 2 SCC 462.....10
Southern Pharmaceuticals and Chemicals v. State of Kerala, AIR 1981 SC 1863..............9, 14
State of Assam v. Sristikar, AIR 1957 SC 414.........................................................................15
State of Bihar v. Bihar Distillery, (1997) 2 SCC 453.................................................................4
State of Bombay v. F.N. Balsara, AIR 1951 SC 318............................................................2, 13
State of Bombay v. RMD Chamerbaughwala, AIR 1957 SC 699.......................................2, 13
State of Karnataka v. Ranganatha Reddy, AIR 1978 SC 251.....................................................9
State of Karnataka v. Union of India, AIR 1978 SC 143...........................................................3
State of Maharashtra v. Bharat Shantilal Shah, (2008) 13 SCC 5............................................10
State of Maharashtra v. Himmatbhai AIR 1970 SC 1157........................................................15
State of Orissa v. Tulloch, AIR 1964 SC 1284...........................................................................6
State of Rajasthan v. Union of India, AIR 1977 SC 1361..........................................................3
State of Uttar Pradesh and Ors. v. Synthetics and Chemicals Ltd. and Ors., (1980) 2 SCC 441
....................................................................................................................................................6
5

MEMORANDUM ON BEHALF OF THE RESPONDENT

State of Uttar Pradesh v. Kaushailiya and Ors., AIR 1964 SC 416....................................11, 15
State of West Bengal v. Committee for Protection of Domestic Rights, AIR 2010 SCC 1476. 8
State of West Bengal v. Kesoram Industries, AIR 2005 SC 1646............................................10
State Trading Corporation of India v. The Commercial Tax Officer, Visakhapatnam, AIR 1963
SC 1811................................................................................................................................2, 13
Tata Cummins Ltd. v. State of Jharkand, (2005) 11 SCC 496...................................................2
Tata Engineering and Locomotive Co. Ltd. v. State of Bihar and Ors., AIR 1965 SC 40...2, 13
Union of India v. Shah Goverdhan L. Kabra Teachers College, AIR 2002 SC 3675..........9, 10
V.K.Ashokan v. CCE, (2009) 145 SCC 95...............................................................................14
Vincent Panikurlangara v. Union of India, (1987) 2 SCR 468...................................................7
Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, (2010) 5 SCC 246.............10
BOOKS
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed. LexisNexis 2012).......14
IVOR JENNINGS, SOME CHARACTERISTICS OF THE INDIAN CONSTITUTION (Oxford University
Press1953)..................................................................................................................................8
LASKIN, CANADIAN CONSTITUTIONAL LAW : CASES

AND

TEXT

ON

DISTRIBUTION

OF

LEGISLATIVE POWER (Carswell 1951).......................................................................................8

M. SAWER, MODERN FEDERALISM (Chicago Press 1969).........................................................8
M.C. SETALVAD, THE INDIAN CONSTITUTION (University of Bombay 1967)...........................8
MICHEAL D REAGON, THE NEW FEDERALISM (Oxford University Press 1972).......................8
INTERNATIONAL TREATIES, CONVENTIONS

AND

DECLARATIONS

UN General Assembly, International Covenant on Economic, Social and Cultural Rights, 16

December

1966,

United

Nations,

Treaty

Series,

available

at:

http://www.refworld.org/docid/3ae6b36c0.html........................................................................7
UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217 A
(III), available at: http://www.refworld.org/docid/3ae6b3712c.html.........................................7
ESSAYS, ARTICLES

AND

B.R.

comment

Ranad,

REPORTS
on

U.P.S.T.C

v.

Trilok

Chandra,

available

at:

http://www.supremecourtcases.com/index2.php?
option=com_content&itemid=54&do_pdf=1&id=218..............................................................4

MEMORANDUM ON BEHALF OF THE RESPONDENT

K.S. Jacob, Alcohol and Public Health policies in India, 23(4) National Medical Journal of
India 24 (2010).........................................................................................................................11
Micheal L. Stokes, Judicial Restraint And The Presumption Of Constitutionality, 35 Uni.
Toledo Law Rev. 347 (2003)......................................................................................................4
OTHER AUTHORITIES
Constituent

Assembly

Debates,

Vol

7,

p.476,

available

at:

http://parliamentofindia.nic.in/ls/debates/debates.htm...............................................................7

MEMORANDUM ON BEHALF OF THE RESPONDENT

STATEMENT OF JURISDICTION
King Bird Private Limited has approached the Honble Supreme Court of Indus by filing
a writ petition under Article 32 which confers upon this Court the jurisdiction to issue any
directions, orders or writs for the enforcement of any of the rights conferred by Part III of the
Constitution of Indus:
32. Remedies for enforcement of rights conferred by this Part
(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.
(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.
The Honble Supreme Court of Indus under the power provided under Article 139-A, has
tagged the petition filed by the Government of the National Capital Territory of Dilli Pradesh
under Article 226 before the Honble High Court of Dilli Pradesh with the aforementioned
Writ Petition.

MEMORANDUM ON BEHALF OF THE RESPONDENT

STATEMENT OF FACTS
I.
Republic of Indus is a Union of States, governed by the provisions of a written constitution.
The governing laws of Indus (including the Constitution of Indus) are in pari materia to the
laws of India. Unlike other union territories, the union territory of Dilli Pradesh has been
conferred with a special status of National Capital Territory of Dilli Pradesh, having a
separate Legislative Assembly under Article 239AA of the Constitution of Indus.
II.
Excessive consumption and high proliferation of alcohol has plagued the situation of Dilli
Pradesh since 2015, leading to a widespread menace in the Union territory. Various
stakeholders had vehemently voiced their concerns in terms of the burgeoning menace and
sought the implementation of constructive measures by the Government of Dilli Pradesh.
III.
The role of the Government of Dilli Pradesh was restricted to empathy as the Government
pondered over these deliberations to formulate the best possible solution for tackling the
menace. Upon the rise of the impending threat, the Government of Dilli Pradesh failed to
settle the waters by introducing any measure of relief.
IV.
In July 2016, the newly elected Central Government addressed the state of affairs by issuing
the Dilli Pradesh Prohibition Order, 2016. By virtue of this notification, the Respondent
enforced a complete prohibition on the sale, distribution, consumption and marketing of
whisky, wine, rum, vodka, gin, tequila or any other alcohol. The sphere of prohibition
excluded beer and any other alcoholic beverages, having alcohol content less than 5%. This
Order was slated to embody the Directive Principles of State Policy and regulate the
consumption of potable liquor.
V.
Petitioner No. 1 filed a writ petition under Article 32 before this Honble Court alleging that
the embargo on the sale, distribution, consumption and marketing of alcohol gravely affected
the business of the company. Furthermore, the Government of Dilli Pradesh filed a writ
petition before the High Court of Dilli Pradesh under Article 226 of the Constitution, alleging
that the Prohibition Order is beyond the legislative competence of the Respondent (through
the Lieutenant Governor) and counter-productive to the economy of the country.
VI.

MEMORANDUM ON BEHALF OF THE RESPONDENT

This Honble Court was pleased to transfer the petition, pending before the High Court of
Dilli Pradesh, and tag it with the petition filed by the company before this Court. In light of
this, the petitions have been placed before this Honble Court for final disposal.

10

MEMORANDUM ON BEHALF OF THE RESPONDENT

STATEMENT OF ISSUES
I. WHETHER THE WRIT PETITIONS ARE MAINTAINABLE?
II. WHETHER THE RESPONDENT HAS THE LEGISLATIVE

COMPETENCE TO ISSUE THE

DILLI PRADESH PROHIBITION ORDER, 2016?

III. WHETHER THE ISSUANCE OF THE DILLI PRADESH PROHIBITION ORDER, 2016
VIOLATES THE

FUNDAMENTAL RIGHTS OF PETITIONER NO. 1?

11

MEMORANDUM ON BEHALF OF THE RESPONDENT

SUMMARY OF ARGUMENTS
I. THAT THE WRIT PETITIONS ARE NOT MAINTAINABLE.
In the present case, Petitioner No. 1 has filed a writ petition under Article 32 before this
Honble Court alleging the violation of its fundamental rights guaranteed under Part III of the
Constitution. A company is required to fall within the purview of the expression any person
and citizen for soliciting fundamental rights protection under Part III of the Constitution. In
light of this, the Honble Court held that a corporation is not a citizen under the Citizenship
Act, 1955. Further, trade or business in liquor does not deserve fundamental right protection
for it is classified as res extra commercium. Hence, Petitioner No. 1 does not have the locus
standi to file the writ petition before this Honble Court. The Government of Dilli Pradesh
had filed a writ petition under Article 226 of the Constitution which was suo motu transferred
to this Honble Court under Article 139A of the Constitution. This Honble Court has held
that any claim or dispute between the Government of India and a State, as to their
competence to legislate over a subject under Schedule VII of the Constitution would attract
the provisions of Article 131 of the Constitution of Indus. Thus, the Government of Dilli
Pradesh has filed the writ petition before the wrong forum.
II. THAT

THE

RESPONDENT

HAS THE LEGISLATIVE COMPETENCE TO ISSUE

THE DILLI

PRADESH PROHIBITION ORDER, 2016.

The Doctrine of Presumption of Constitutionality is a rule of procedure applicable to
cases in which the constitutional validity of a law has been called into question. It was held
by this Honble Court that when there are two possible interpretations, one validating the law
and other invalidating the law, the former should be adopted. The presumption of
constitutionality has to be effectively rebutted before the allegations of unconstitutionality
can be sustained. The real purport of the extent of the executive power of the Union is the
interplay between the provisions of Article 73, Article 245, Article 246. It indicates that the
extent the executive power of the Union extends to all matters on which the Parliament is
competent to make laws.
The legislative power of the Parliament is co-extensive with legislative power. This coextensive power is exercised by the Central Government on the subject matter prescribed in
Entry 52 (List I) read with Entry 33(List III). Once the Union control over an industry is
declared by Parliament to be expedient in public interest, the States lose their power and
jurisdiction to legislate on that industry. The Prohibition Order issued by the Respondent does
not suffer from any procedural infirmities. Finally, the Prohibition Order embodies the

12

MEMORANDUM ON BEHALF OF THE RESPONDENT

Directive Principles of State Policy, thus, fulfilling the endeavor to improve public health and
standard of living which has been recognized as a vital human right on an international
platform. The Constitution of Indus is a constitution with a strong centralizing tendency. The
Republic of Indus does not follow the doctrine of limited power. As the federal structure in
India leans towards a strong centre, the Respondent is competent to issue the Prohibition
Order.
III. THAT THE DILLI PRADESH PROHIBITION ORDER, 2016

IS IN CONSONANCE WITH THE

PART III OF THE CONSTITUTION.

Fundamental Rights, provided under Part III, forms the bedrock of the Constitution. It is
incumbent upon the legislative bodies to make laws in consonance with the fundamental
rights. The Prohibition Order has been issued by upholding the duty to bring about
prohibition of the consumption of intoxicating drinks which are injurious to health as
provided under Article 47. Therefore, it is submitted that the Prohibition Order is in
consonance with the fundamental rights such as Article 14, Article 19(1)(g) and Article 21 of
stipulated under Part III of the Constitution.

13

MEMORANDUM ON BEHALF OF THE RESPONDENT

ARGUMENTS ADVANCED
I.

THAT

THE WRIT PETITIONS ARE NOT MAINTAINABLE.

The courts of law have been conferred with extraordinary writ jurisdiction under the
Constitution of Indus. According to the Constitution, the Supreme Court 1 and the High
Courts2 of the country have the power to enforce the fundamental rights and other legal rights
(under Article 226) by issuing directions or orders or high prerogative writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari. In light of the relevant
provisions, it is imperative to determine the nature of parties and reliefs sought through the
petitions.
A. That Petitioner No. 1 does not have a locus standi to file the
writ petition before the Honble Supreme Court of Indus.
In the present case, Petitioner No. 1 filed a writ petition under Article 32 before this
Honble Court. Petitioner No. 1 is a company engaged in the business of manufacture of
premium whiskies and vodkas. It has been alleged, through the writ petition, that the issuance
of the Prohibition Order has gravely affected the business of Petitioner No. 1 to trade in the
business of whiskies and vodkas.
It is pertinent to address the premise that Petitioner No. 1, as a company, deserves
fundamental rights protection. Much ink has been spilt over the interpretation of the subject
by this Honble Court. A company is required to fall within the purview of the expression
any person and citizen for soliciting fundamental rights protection under Part III of the
Constitution. The General Clauses Act, 1897 defines a person as, any person shall include a
company or association or a body of individuals, whether incorporated or not. 3 Therefore, a
private company comes under the definition of person and can claim fundamental right
protection under Article 14 and Article 21. However, Article 19 guarantees freedom to
practice any profession, or to carry on any occupation, trade or business to all citizens.
1 The Constitution of India of 1950, Article 32 [hereinafter The Constitution].

2 Id., Article 226.

3 The General Clauses Act of 1897, 2(42).

MEMORANDUM ON BEHALF OF THE RESPONDENT

Hence, it is pertinent to ascertain whether a company can be construed as a citizen under
Article 19 of the Constitution of Indus.
There have been a series of judicial precedents on the above contention, each one being
dissonant to another and vice versa. It was held by this Honble Court in State Trading
Corporation of India v. The Commercial Tax Officer Visakhapatnam,4 that the term citizen
must be literally construed in the context of citizenship. In light of this, the Honble Court
held that a corporation is not a citizen under the Citizenship Act, 1955. Nationality and
citizenship are not identical; and it has been rightly said that while every citizen will be a
national, national is not necessarily a citizen.
It is respectfully submitted that only citizens are guaranteed protection under Article 19 of
the Constitution of Indus. Furthermore, in Tata Engineering and Locomotive Company
Limited v. State of Bihar and Ors.,5 this Honble Court observed that the corporations and
companies are not citizens, which means that the constitution intended that they should not
get the benefit of Article 19. The court observed that the intention of the Parliament is clear
through the provisions and one need not read into it and draw inferences. In light of this, the
preliminary objection was upheld and the writ petitions were dismissed as being incompetent
under Article 32 of the Constitution.
It is also important to note that the profile of business of Petitioner No. 1 is restricted to
manufacturing premium whiskies and vodkas. Therefore, such act does not fall within the
scope of the terms trade and business under Article 19(1)(g) as dealing in alcohol attracts
the doctrine of res extra commercium.6
In light of the uncertainty in the position of law and the pernicious nature of the business,
it is submitted that Petitioner No. 1 does not have the locus standi to file the writ petition
before this Honble Court.
4 State Trading Corporation of India v. The Commercial Tax Officer, Visakhapatnam, AIR 1963 SC 1811
[hereinafter State].

5 Tata Engineering and Locomotive Co. Ltd. v. State of Bihar and Ors., AIR 1965 SC 40
[hereinafter Tata].

6 State of Bombay v. F.N. Balsara, AIR 1951 SC 318 [Balsara]; State of Bombay v. RMD
Chamerbaughwala, AIR 1957 SC 699 [hereinafter RMD].

MEMORANDUM ON BEHALF OF THE RESPONDENT

B. That the Petitioner No. 2 filed the writ petition before the
wrong forum.
The Government of Dilli Pradesh had filed a writ petition under Article 226 of the
Constitution which was suo motu transferred to this Honble Court under Article 139A of the
Constitution.
In Tata Cummins Ltd. v. State of Jharkhand,7 this Honble Court held that the right of a
party to raise objections as to maintainability is not lost by transfer of case from the High
Court to the Supreme Court under Article 139A of the Constitution of Indus. Objections that
could be raised before the Honble High Court could also be raised before the Honble
Supreme Court of Indus.
Article 131 of the Constitution of Indus lays down that the Honble Supreme Court shall
exercise original jurisdiction in any dispute between any state and the Government of India
where the existence and extent of a legal right is to be determined. It is respectfully submitted
that Article 131 authorizes the Honble Supreme Court to settle inter-governmental disputes.
The term legal right was liberally interpreted by this Honble court in State of Rajasthan v.
Union of India8 as a right founded on some rule of positive law as distinguished from
political considerations. Further, it contains no restrictions that a legal right must be asserted
in a preliminary objection. It is sufficient that the legal or constitutional right asserted by one
party, is questioned by the other.
In State of Karnataka v. Union of India,9 this Honble Court held that any claim or dispute
between the Government of India and a State, as to their competence to legislate over a
subject under Schedule VII of the Constitution would attract the provisions of Article 131 of
the Constitution of Indus. In the same judicial precedent, Justice P.N. Bhagwati observed that
The object of Article 131 is to provide a high-powered machinery for ensuring that the
Central Government and State Governments act within the respective spheres of their
authority and do not trespass upon each others constitutional functions or powers.

7 Tata Cummins Ltd. v. State of Jharkand, (2005) 11 SCC 496.

8 State of Rajasthan v. Union of India, AIR 1977 SC 1361.

9 State of Karnataka v. Union of India, AIR 1978 SC 143.

MEMORANDUM ON BEHALF OF THE RESPONDENT

As the Petitioner No. 2 has challenged the legislative competence of the Respondent to
enact the Prohibition Order, it is humbly submitted that the nature of dispute between the
Petitioner No. 2 and the Respondent of Indus squarely falls under the scope of Article 131 of
the Constitution of Indus. Thus, the Government of Dilli Pradesh has filed the writ petition
before the wrong forum.
II.

THAT

THE

RESPONDENT

HAS THE LEGISLATIVE COMPETENCE TO ISSUE

THE DILLI PRADESH PROHIBITION ORDER, 2016.

It is humbly submitted that the Respondent is competent to issue the Dilli Pradesh
Prohibition Order, 2016. (hereinafter referred to as the Prohibition Order) It does not
violate provisions of the Constitution of Indus as per Article 73 read with Article 245 and
Article 246.
A That the Prohibition Order is shielded by a presumption of
Constitutionality.
The Doctrine of Presumption of Constitutionality is a rule of procedure applicable to
cases in which the constitutional validity of a law has been called into question. It connotes
that the Act of the Parliament is shielded by reasonableness and constitutionality and the
burden shall lie upon him who wishes to disprove it. It allows a legislation to be upheld only
if any rational basis for its passage can be imagined and is so structured to represent fairly all
the people.10 An act of the legislature represents the will of the people and cannot be lightly
interfered with. Hence, unconstitutionality must be clearly and plainly established for an
enactment to be declared as void.11

10 Kramer v. Union School District, (1969) 395 U.S. 621.

11 State of Bihar v. Bihar Distillery, (1997) 2 SCC 453; B.R. Ranad, A comment on U.P.S.T.C
v.

Trilok

Chandra,

available

at:

http://www.supremecourtcases.com/index2.php?

option=com_content&itemid=54&do_pdf=1&id=218.

MEMORANDUM ON BEHALF OF THE RESPONDENT

It was held by this Honble Court in B.R. Enterprises v. State of Uttar Pradesh12 that,
when there are two possible interpretations, one validating the law and other invalidating the
law, the former should be adopted. The sacrosanctity of the legislative power of the
Parliament is unblemished and the interpretation favoring the intention of the Parliament
must be upheld. This presumption heightens the burden of legal persuasion to prove
unconstitutionality beyond a reasonable doubt.13 It is also pertinent to note that the
application of this doctrine extends to the executive actions of the Union on all the matters
vested with the Parliament, as validated by Article 73 of the Constitution.
Therefore, it is submitted that the presumption of constitutionality has to be effectively
rebutted before the allegations of unconstitutionality can be sustained.14
C. That the executive power of the Respondent is co-extensive
with the legislative power of the Parliament.
The Government of Indus embodies the Westminster system for governing the state,
according to which, the federal structure of government functions through three limbs,
namely the Executive, Legislature, and Judiciary. Importantly, the Constitution of Indus
provides for two pathways for an enactment to come into force, one, through legislative
means and other through executive means of the government. 15 It is submitted that the
Respondent has adopted the executive means to issue the Dilli Pradesh Prohibition Order,
2016.
The Constitution of Indus empowers the Parliament to make laws for the whole or any
part of the territory of Indus. 16 More particularly, Article 246(1) empowers the Parliament to
make laws on all the subjects enumerated in List I of Schedule VII. At this juncture, it is
submitted that the legislative power of the Parliament is cohesive with the Executive power
12 B.R. Enterprises v. State of Uttar Pradesh, (1999) 9 SCC 700.

13 Micheal L. Stokes, Judicial Restraint And The Presumption Of Constitutionality, 35 Uni.

Toledo Law Rev. 347 (2003).

14 Peoples Union for Civil Liberties v. Union of India, (2004) 2 SCC 476.

15 The Constitution, supra note 1, Article 73.

MEMORANDUM ON BEHALF OF THE RESPONDENT

of the Union. The real purport of the extent of the executive power of the Union must be read
light of the Article 245 and Article 246. Interplay between these provisions indicates that the
extent the executive power of the Union extends to all matters on which the Parliament is
competent to make laws. Hence, by virtue of Article 73(1)(a) read with Article 245 and
246(1), it is submitted that the legislative power of the Parliament is co-extensive with the
executive power of the Union. This Honble Court has found favor with the principle that the
executive power of the Respondent extends to the same subjects and to the same extent as of
the Parliament provided; there is no infringement of any legal or constitutional provision.17
Furthermore, it has been observed by this Honble Court in Rai Sahib Ram Jawaya Kapur
v. State of Punjab18 that the executive function comprises both the determination of the
policy as well as carrying it into execution. This evidently includes the initiation of
legislation, the maintenance of order, the promotion of social and economic welfare, the
direction of foreign policy, in fact the carrying on or supervision of the general administration
of the State. In the present case, there was no Central law governing the production, sale and
consumption of alcohol. Therefore, with respect to the source of power, the executive power
of the Union is co-extensive with legislative power of the Legislature.
After establishment of the source of power, it is imperative to trace the fields of
legislation for the purpose of issuing the Prohibition Order. Upon perusal of List I of
Schedule VII, the Respondent derives its executive power to rule on Entry 52 of List I
dealing with Industries, the control of which by the Union is declared by the Parliament by
law to be expedient in the public interest. By virtue of this entry, the Parliament enacted the
Industries (Development and Regulation) Act, 1951 (hereinafter referred to as IDRA) for
the purpose of declaring industries, specified in its First Schedule, to be under the control of
the Union in public interest.19
16 The Constitution, supra note 1, Article 245.

17 Satya Narain Shukla v. Union of India, (2006) 9 SCC 69; Rai Sahib Ram Jawaya Kapur v.
State of Punjab, AIR 1955 SC 549 [hereinafter Rai Sahib].

18 Id.

19 The Industries (Development and Regulation) Act of 1951, 2.

MEMORANDUM ON BEHALF OF THE RESPONDENT

The Schedule to the IDRA indicates that Entry 26 deals with Fermentation Industries
which includes Alcohol as an industry. At this juncture, it is pertinent to note that the IDRA
Amendment Act, 2016 amended the title of Entry 26 which read as Fermentation Industries
(Other Than Potable Alcohol). The object of this amendment was to ensure that the
industries engaged in the manufacture of alcohol meant for potable purposes shall be under
the total and exclusive control of States in all respects. However, the Respondent would
continue to be responsible for formulating policy and regulating foreign collaboration for all
products of fermentation industries, including industrial alcohol and potable alcohol. 20 In the
instant case, the Prohibition Order only relates to the sale, distribution, consumption and
marketing21 of potable alcohol. The powers vested with the Parliament are also exercisable
under the subject laid down in Entry 33 of List III in the Schedule VII.
It is further submitted that once the Union control over an industry is declared by
Parliament to be expedient in public interest, the States lose their power 22 and jurisdiction23 to
legislate on that industry, so that any state legislation to such declared industry shall be ultra
vires.24 The jurisdiction of the Parliament under entry 52 also includes incidental powers.25

20 The Industries (Development and Regulation) Amendment Bill of 2015, Statement of

Objects and Reasons.

21 Moot Proposition, 7.

22 Kannan Devan Hills Produce v. State of Kerala, AIR 1972 SC 2301 [hereinafter Kannan].

23 Baijnath v. State of Bihar, AIR 1970 SC 1436; State of Orissa v. Tulloch, AIR 1964 SC
1284.

24 State of Uttar Pradesh and Ors. v. Synthetics and Chemicals Ltd. and Ors., (1980) 2 SCC
441.

25 Fatehchand Himmatlal and Ors. v. State of Maharashtra, AIR 1977 SC 1825.

MEMORANDUM ON BEHALF OF THE RESPONDENT

Therefore, it is humbly submitted that the issuance of Prohibition Order by the
Respondent under Article 73, to effectively tackle the menace in the NCT through executive
means, is justified.
D. That The Dilli Pradesh Prohibition Order, 2016 is sound in law.
The Prohibition Order has been issued by the Respondent by exercising its executive
powers under Article 73 of the Constitution. This order has been issued by the Respondent
within the territory of Dilli Pradesh in the presence of a Legislative Assembly of the NCT of
Delhi. In such circumstances, it is respectfully submitted that the Prohibition Order is sound
in law and does not suffer from any procedural infirmities.
i. That the Prohibition Order satisfies the primary duty of enforcing the Directive
Principles of State Policy.
Dr. Ambedkar explained the purpose of the Constitution-makers in enacting the Directive
Principles of State Policy (hereinafter referred to as DPSP) in these terms:
In enacting this part of the Constitution, the Assembly is giving certain
directions to the future legislature and the future executive to show in what
manner they are to exercise the legislative and the executive power they will have.
Surely it is not the intention to introduce in this part these principles as mere
pious declarations. It is the intention of the Assembly that in future both the
legislature and the executive should not merely pay lip service to these principles
but that they should be made the basis of all legislative and executive action that
they may be taking hereafter in the matter of the governance of the country.26
In light of this excerpt, it is submitted that while issuing the Prohibition Order, the
Respondent has not only merely relied on the co-extensive power of the Executive, but also
on Article 37 and Article 47 of the Constitution. Article 47 deals with the states endeavour of
improving public health and standard of living by prohibiting the consumption of intoxicating
liquors except for medicinal purposes. This Honble Court has noted public health as
indispensable to the very existence of the physical community.27 Hence, the Prohibition order
completes the endeavour to prohibit consumption of intoxicating liquors for an improvement
26

Constituent

Assembly

Debates,

Vol

http://parliamentofindia.nic.in/ls/debates/debates.htm.

7,

p.476,

available

at:

MEMORANDUM ON BEHALF OF THE RESPONDENT

in public health and standard of living. It is incumbent upon the Respondent to safeguard the
importance of public health as it has been widely recognized as a vital human right on an
international platform.28
The Prohibition Order enforces the DPSP provided under Article 37 and Article 47.
Hence, it is humbly submitted that it can be validly implemented by executive action because
it does not contravene any law or rule enforced in the territory of Indus.29
ii. That the Republic of Indus embodies a federal structure leaning heavily in favor of
a strong Centre.
The meaning of federalism today lies in a process of joint action, not in a matter of legal
status. It lies not in what the governments are but what they do. It is a matter of action rather
than structure. It is dynamic and changing, rather than static and constant.30
The genesis of the wide powers of the Parliament over territories of the States is to be
found in the long history of the freedom struggle which preceded the Independence of Indus.
Ivor Jennings has chosen to describe the Constitution of Indus as a federation with a strong
centralizing tendency.31 The exercise of executive and legislative power in the fields allotted
27 Vincent Panikurlangara v. Union of India, (1987) 2 SCR 468.

28 UN General Assembly, Universal Declaration of Human Rights, 10 December 1948, 217

A (III), Article 25, available at: http://www.refworld.org/docid/3ae6b3712c.html; UN General
Assembly, International Covenant on Economic, Social and Cultural Rights, 16 December
1966,

United

Nations,

Treaty

Series,

vol.

993,

p.3,

available

at:

http://www.refworld.org/docid/3ae6b36c0.html.

29 Gidhey Club v. Delhi Administration, AIR 1980 Del 33.

30 MICHEAL D REAGON, THE NEW FEDERALISM 14 (Oxford University Press 1972).

31 IVOR JENNINGS, SOME CHARACTERISTICS

University Press1953).

OF

THE INDIAN CONSTITUTION 52 (Oxford

MEMORANDUM ON BEHALF OF THE RESPONDENT

to the States is in many ways restricted so that the states cannot be truly said to possess
coordinate and independent powers in the field.32
It is respectfully submitted that the Respondent does not abide by the doctrine of limited
power. Indus is a quasi-federal republic where the residuary powers of legislation are vested
in the Centre. This view has been reiterated by Marian Sawer, who regards distribution of
more powers to the Union than to the units as a redeeming feature of federalism in Indus.33
The words Notwithstanding anything contained in Clause (2) and (3) in Article 246
and the words Subject to clauses (1) and (2) in Article 246(3) lay down the principle of
federal supremacy. In case of an inevitable conflict between the Union and State Powers, the
Union Power as enumerated in List I shall prevail over the State powers as enumerated in List
II. While in case of overlapping, the State powers shall prevail.34
No amount of care in phrasing the division of powers in a federal scheme will prevent
difficulty when the division comes to be applied to the variety and complexity of social
relationships. There is nothing in human affairs which corresponds to the neat logical
divisions found in the Constitution.35 The existence of Entry 8 in List II and Entry 52 in List I
read with Entry 33 in List III inevitably gives rise to a conflict. This is also backed by
political wisdom36 and the urge to win over the hearts of people to achieve political
legitimacy.

32 M.C. SETALVAD, THE INDIAN CONSTITUTION 13 (University of Bombay 1967).

33 M. SAWER, MODERN FEDERALISM 44 (Chicago Press 1969).

34 State of West Bengal v. Committee for Protection of Domestic Rights, AIR 2010 SCC
1476.

35 LASKIN, CANADIAN CONSTITUTIONAL LAW: CASES

LEGISLATIVE POWER 4 (Carswell 1951).

36 Moot Proposition, 6.

10

AND

TEXT

ON

DISTRIBUTION

OF

MEMORANDUM ON BEHALF OF THE RESPONDENT

It is therefore submitted that Federalism in Indus leans in favour of a strong centre. 37
Hence, the Respondent is competent to issue the Prohibition Order as the power of Union
prevails over those of the states.
iii. That the Prohibition Order has been passed without material encroachment upon
the legislative powers of the Legislative Assembly of the NCT.
In cases of conflict and overlapping between the distribution of legislative powers and
legislative fields, it is submitted that the golden rule of pith and substance is to be applied. In
order to ascertain the pith and substance of an enactment, the foremost consideration is the
purpose or object38 of the impugned legislation, as distinguished from its effects. 39 It is
submitted that the Prohibition Order focuses on the prohibition of all intoxicating liquors with
alcohol content more than 5%,40 with the exception of beer. The prime objective of the
Prohibition Order is to eliminate the menace caused by heavy consumption and proliferation
of alcohol41 in Dilli Pradesh. Hence, the true nature, substance and character 42 of the

37 Kuldeep Nair v. Union of India, AIR 2006 SCC 3127.

38 Kishori v. The King, (1950) FCR 650.

39 Russell v. The Queen, (1882) 7 AC 829; Attorney General of Saskatchewan v. Attorney

General of Canada, (1949) AC 110; Kannan, supra note 22; Sita Ram Sharma v. State of
Rajasthan, AIR 1974 SC 1373; Kerala State Electricity Board v. Indian Aluminium Co., AIR
1976 SC 1031; State of Karnataka v. Ranganatha Reddy, AIR 1978 SC 251; Southern
Pharmaceuticals and Chemicals v. State of Kerala, AIR 1981 SC 1863 [hereinafter
Chemicals]; Hoescht Pharmaceuticals v. State of Bihar, AIR 1983 SC 1019; Union of India v.
Shah Goverdhan L. Kabra Teachers College, AIR 2002 SC 3675 [hereinafter Kabra].

40 Moot Proposition, 7.

41 Moot Proposition, 3.

11

MEMORANDUM ON BEHALF OF THE RESPONDENT

Prohibition Order is to tackle the menace, achieve an improvement in public health, standard
of living43 and to legitimize public opinion on the menace.44
A contested legislation will be valid if it is made in relation to or with respect to and
will be invalid if it is made in respect of or it relates to a subject matter in legislative
fields.45 The framing of the Prohibition Order as a complete prohibition on the sale,
distribution, consumption and marketing46 of hard liquors and the limit of 5% alcohol content
for potable alcohol is clearly in relation to and with respect to the legislative fields in
Entry 52 of List I read with Entry 33 of List III of the Schedule VII.
The doctrine of pith and substance also ascertains whether an impugned legislation
substantially encroaches upon the legislative power or is only an incidental encroachment not
affecting the material distribution of powers.47 The nature of the subject matter of the
legislation thus becomes an important test to find out whether the alleged encroachment is
incidental or not.48 This Honble Court has consistently held that when the substance of the
enactment falls within the Union List, then the incidental encroachment by the enactment on
the State List would not make it invalid.49

42 Union Colliery Co. v. Bryden, [1899] AC 580.

43 The Constitution, supra note 1, Article 47.

44 Moot Proposition, 3.

45 Ontario Home Builders v. York Region Board of Education, [1996] 2 SCR 929.

46 Moot Proposition, 7.

47 Kabra, supra note 39.

48 Prafulla v. Bank of Commerce, AIR 1947 PC 60; State of Maharashtra v. Bharat Shantilal
Shah, (2008) 13 SCC 5; South India Film Chamber of Commerce v. Entertaining Enterprises,
(1995) 2 SCC 462.

12

MEMORANDUM ON BEHALF OF THE RESPONDENT

In the present case, the nature of subject matter of legislation is prohibitory by way of
reasonable restrictions on heavy alcohol consumption and proliferation for a concrete
solution to the long standing menace in Dilli Pradesh. By embodying the DPSP, the
Prohibition Order seeks to achieve social and economic welfare of the citizens of Dilli
Pradesh. Therefore, it is respectfully submitted that even if the Prohibition Order encroaches
on the States legislative power on legislative fields of entry 8, it is merely incidental and not
substantial.
iv. That the Republic of Indus fulfilled its duties as a welfare state.
The DPSP lay down the lines on which the Republic of Indus is required to work under
this constitution. The object of DPSP is to embody the concept of welfare state 50 and signify
obligations of the state towards fulfilment of which, every State action must be directed and
interpreted.51 It is submitted that the Prohibition Order is, in essence, directed and interpreted
towards the concept of welfare state.
In the present case, the Respondent issued the Prohibition Order in view of the
circumstances persisting in Dilli Pradesh. The NCT of Dilli Pradesh was incapable of
containing the menace of alcohol proliferation for about a year. Owing to such incapacity, the
Respondent decided to intrude with an Executive step, by way of the Prohibition Order, and
regulate the mayhem. The Respondent decided to give away the excise duty chargeable on
the manufacture of alcohol beverages, which eventually constitutes a major portion of the
public ex-chequer.52 The measures taken by the Respondent is a testament to the fact that it
49 Zameer Ahmed Latifur Rehman Sheikh v. State of Maharashtra, (2010) 5 SCC 246;
Hindustan Unilever Ltd. v. State of Maharashtra, AIR 2004 SC 326; E.V. Chinnaiah v. State
of Andhra Pradesh, AIR 2005 SC 162; State of West Bengal v. Kesoram Industries, AIR 2005
SC 1646; Bharat Hydro Power Corpn. Ltd. v. State of Assam, AIR 2004 SC 3173.

50 Kesavananda Bharati v. State of Kerala, AIR 1973 SC 1461.

51 D.S. Nakara v. Union of India, (1983) 1 SCC 305.

52 Moot Proposition, 1.

13

MEMORANDUM ON BEHALF OF THE RESPONDENT

advocates the principle of a welfare state, as provided under the DPSP. The only systematic
study from India on Expenditure related to alcohol estimated that while the Government
spent more every year to manage direct and indirect consequences of alcohol use, than it
gained in terms of taxes from sale of alcohol. Revenue from alcohol appears to help only
short term social and economic development and results in massive costs for the long term.53
Therefore, it is most respectfully submitted before this Honble Court that Prohibition
Order issued by the Respondent is sound in law.
III.

THAT

THE

DILLI

PRADESH

CONSONANCE WITH THE

PROHIBITION

PART III

OF

ORDER,

2016

IS

IN

THE CONSTITUTION.

The NCT of Dilli Pradesh was plagued with the impending menace of high proliferation
of alcohol. The citizens voiced their concerns against this pressing issue and urged the
Petitioner No. 2 to contain it. Upon incapacity of the Petitioner No. 2, the Respondent took
charge of the subject and issued the Prohibition Order for regulating the consumption of
alcohol in Dilli Pradesh. This notification was issued to address the issues and cater to the
needs of the citizens of Dilli Pradesh. It is submitted that the Prohibition Order has been
issued in public interest and does not derogate the fundamental rights of any person.
However, for the sake of holistic understanding, it is important to revisit the relevant
provisions of fundamental rights.
A That the Prohibition Order is not in violation of Article 14.
Article 14 of the Constitution provides for equality before law or the equal protection
of the laws within the territory of Indus. For a state action to be against Article 14, it needs to
pass the test of reasonable classification. The test lays down that if a classification is based on
an intelligible differentia and has a rational nexus to the object aimed to be achieved by the
legislation, it is not in violation of Article 14. The test of reasonable classification 54 has been
widely accepted as the parameter for gauging the validity of a legislative or executive action.
It is submitted that both the conditions have been satisfied in the present case. The
classification between the kinds of alcohol is made on the basis of the potential harm that its
consumption would cause when consumed by human beings. In the NCT of Dilli Pradesh, the
kinds of alcohol expressly prohibited by the Prohibition Order are considered to be more
53 K.S. Jacob, Alcohol and Public Health policies in India, 23(4) National Medical Journal
of India 24 (2010).

14

MEMORANDUM ON BEHALF OF THE RESPONDENT

harmful than Beer and any other alcoholic beverage having less than 5% alcohol content. The
separating criterion of alcohol content is to be juxtaposed with the effect it has on the human
body. Alcoholic beverages having less than 5% alcohol content are considered to have lighter
effect on the human body. This indicates that the classification has been made on reasoned
grounds and upon considering the anatomical functioning upon consumption of alcohol.
Further, it is also submitted that the Prohibition Order has been issued by upholding the
principles laid down under Part IV of the Constitution which are fundamental to the
governance of the country and it shall be the duty of the State to apply these principles, 55
more particularly provided under Article 47 of the Constitution, which reads as follows,
47. The State shall regard the raising of the level of nutrition and the standard of
living of its people and the improvement of public health as among its primary
duties and, in particular, the State shall endeavor to bring about prohibition of the
consumption except for medicinal purposes of intoxicating drinks and of drugs
which are injurious to health.
Upholding the spirit of this provision, it is submitted that the Respondent aims to
completely prohibit the consumption of all intoxicating drinks. The Respondent stands by its
key manifesto agenda of imposing a complete ban on the menace of alcohol in Dilli Pradesh.
The Prohibition Order is an attempt of the Respondent to achieve this goal and completely
eradicate the adversities caused by alcohol consumption in a systematic and phased manner.
Therefore, it is humbly submitted that the Prohibition Order is not in violation of Article 14.
E. That the Prohibition Order is not in violation of Article 19(1)(g).
i

That Petitioner No. 1 is not a citizen under Article 19(1)(g).

Fundamental right to equality under Article 19 is guaranteed to all citizens of the

Republic of Indus. Petitioner No. 1 has filed a writ petition, inter alia, claiming protection
54 National Council for Teacher Education v. Shri Shyam Shiksha Prashikshan Sansthan,
(2011) 2 SCR 291; K.R. Lakshman and Ors. v. Karnataka Electricity Board and Ors., (2001)
1 SCC 442; Pathumma v. State of Kerala, (1978) 2 SCC 1; Chiranjit Lal Chowdhuri v Union
of India and Ors., (1950) 1 SCR 869 [hereinafter Chiranjit]; State of Uttar Pradesh v.
Kaushailiya and Ors., AIR 1964 SC 416 [hereinafter Kaushailiya].

55 The Constitution, supra note 1, Article 37.

15

MEMORANDUM ON BEHALF OF THE RESPONDENT

under Article 19. Hence, it is pertinent to ascertain whether a company falls within the ambit
of a citizen under Article 19.
This Honble Court has been instrumental in penning down enough literature on this
contention, each one exploring a different dimension. This Honble Court, in State Trading
Corporation of India v. The Commercial Tax Officer, Visakhapatnam,56 observed that the term
citizen must be literally construed in the context of citizenship. In light of this, the Court held
that a corporation is not a citizen under the Citizenship Act, 1955. Nationality and citizenship
are not identical; and it has been rightly said that while every citizen will be a national,
national is not necessarily a citizen.
Furthermore, in Tata Engineering and Locomotive Company Limited v. State of Bihar and
Ors.,57 it was observed that the corporations and companies are not citizens, which means that
the constitution intended that they should not get the benefit of Article 19. The court observed
that the intention of the Parliament is clear through the provisions and one need not read into
it and draw inferences. In light of this observation, the preliminary objection was upheld and
the writ petitions were dismissed as being incompetent under Article 32 of the Constitution.
In certain judgments58 delivered by this Honble Court, it was noted that the writ petition
of a corporation was maintainable, provided the shareholders, directors, depositors or editors
were be also implicated as co-petitioners. It was held that the shareholders of a company were
competent to challenge the invalid provisions, provided the infringing fundamental rights also
caused direct injury.
In light of such distorted jurisprudence, the prevailing law is in a nebulous state.
However, Petitioner No. 1 does not satisfy either of the conditions in the abovementioned
judgements. Hence, without drawing any inferences and abiding by the clear provisions of
the Constitution of Indus, it is humbly submitted that Petitioner No. 1 is not a citizen under
Article 19(1)(g).

56 State, supra note 4.

57 Tata, supra note 5.

58 Chiranjit, supra note 54; R.C. Cooper v. Union of India, (1970) 3 SCR 530; Bennett
Coleman and Company v. Union of India, AIR 1973 SC 106.

16

MEMORANDUM ON BEHALF OF THE RESPONDENT

v. That dealing in liquor does not deserve Fundamental Right protection.
Trades which have reprehensible, moral and social effects are categorized as res extra
commercium and do not fall under the clause trade or business as contemplated under
Article 19(1)(g).59 In State of Bombay v. RMD Chamerbaughwala,60 this Honble Court held
that protection offered by Article 301, dealing with Freedom of Trade, Commerce and
Intercourse is confined to a lawful trading activity and does not extend to activities which are
res extra commericum.
Hence, the Doctrine of res extra commercium is to be applied in the present case to
determine whether dealing in liquor is res extra commercium. It is submitted that the
fundamental right guaranteed under Article 19(1)(g) is not sufficiently broad to encompass
activities which are inherently pernicious or dangerous to the society.61 Furthermore, the trade
in liquor and other intoxicants has been historically recognized as res extra commercium.62
Therefore, the majority view is that dealing in liquor is only a permissive privilege and
not a right at all. Hence, Articles 301 to Article 304 of the Constitution are rendered
inapplicable at the threshold to the activity in question. Freedom guaranteed by Article 301 of
the Constitution of Indus is not available to liquor as it is a noxious substance injurious to
public health, order and morality.63
59 Balsara, supra note 6.

60 RMD, supra note 6.

61 D.D. BASU, COMMENTARY

ON THE

CONSTITUTION

OF INDIA

108 (8th ed. LexisNexis

2012).

62 Kaushal v. Union of India, AIR 1978 SC 1457; Har Shankar v. Dy. Excise Commr., AIR
1975 SC 1121; Nashirwar v. State of Madhya Pradesh, AIR 1975 SC 360; Hoke v. U.S.,
(1913) 227 US 308.

63 Chemicals, supra note 39; V.K.Ashokan v. CCE, (2009) 145 SCC 95; Muralidhar v. State
of Rajasthan, AIR 2000 Raj 170.

17

MEMORANDUM ON BEHALF OF THE RESPONDENT

Owing to the pernicious nature of the res, dealing in liquor is not covered under the terms
trade or business of Article 19(1)(g). Since Petitioner No. 1 has no right to trade or business
in liquor, its claim of fundamental right violation under Article 19(1)(g) turns futile in nature.
Thus, where a business or trade in inherently dangerous, total prohibition thereof is deemed
to be reasonable.64
vi. That the Prohibition Order imposes reasonable restrictions on dealing in liquor.
Assuming, in arguendo, that trade or business in liquor is not res extra commercium, it is
submitted that the Respondent stands justified in issuing the Prohibition Order.
Article 19 guarantees fundamental right to practice any profession, or carry on any
occupation, trade and business to all the citizens of Indus. Further, Article 19(6) provides
that nothing in 19(1)(g) shall affect the operation of any existing law, insofar as it imposes
restrictions which are reasonable and in the interests of the general public. The term
reasonable restriction as used in 19(6) is a highly flexible and relative term which draws its
color from the context. One of the sources to understand it is natural law and in the sense of
ideal, fair, moral or conscionable to the facts and circumstances brought before the court. 65
The right to carry on trade under 19(1)(g) is subject to directives contained in Parts III and IV,
Preamble of Constitution, Universal Declaration of Human Rights, European Convention on
Social, Economic and Cultural rights and Convention on Right to Development for SocioEconomic justice.66
In M.R.F. Ltd. v. Inspector, Kerala Govt,67 this Honble Court has laid down certain tests
on the basis of which reasonableness of the restriction imposed under Article 19(6) can be
tested,

64 Khoday Distilleries v. State of Karnataka (1995) 1 SCC 574; Cooverjee v. Excise Commr.
(1954) SCR 873.

65 Om Prakash v. State of Uttar Pradesh, AIR 2004 SC 1896.

66 LIC of India v. Consumer Education and Research Centre, AIR 1995 SC 1811.

67 M.R.F. Ltd. v. Inspector, Kerala Govt., AIR 1999 SC 188.

18

MEMORANDUM ON BEHALF OF THE RESPONDENT

a

While considering the reasonableness, the Court must keep in mind the Directive

Principles of State Policy.

Restrictions must not be arbitrary or of an excessive nature going beyond the interest of

the general public.

In order to judge reasonableness of restrictions, no abstract or general pattern or fixed

principle can be laid down as it will vary from case to case.

A just balance has to be struck between the restrictions imposed and social control

envisaged in 19(6).
Prevailing social values and social needs intended to be satisfied by the restrictions have
to be borne in mind.68
Applying these tests to discern the reasonableness of the Dilli Pradesh Prohibition Order,

2016, it is submitted that a complete prohibition on the sale, distribution, consumption and
marketing of potable alcohol was facilitated to complete the states endeavour of prohibiting
the consumption of intoxicating liquors in a methodical and phased manner. This was also
aimed improving the public health and standard of living. 69 The Prohibition Order by
embodying the DPSP was issued in the interests of public health and morals, which signifies
it to be in interests of the general public at large. 70 Furthermore, the prohibition order
expressly excluded beer and alcoholic beverages (with alcohol content less than 5%). This
strikes a just balance between the restrictions imposed and social control envisaged in Article
19(6) of the Constitution. Finally, the Dilli Pradesh Prohibition Order, 2016 has been
pragmatically issued considering the fervent social need to tackle the widespread menace
caused by heavy usage and proliferation of alcohol in Dilli Pradesh.
Therefore, it is respectfully submitted that the Prohibition Order imposes reasonable
restrictions in the interests of general public and is not in derogation with Article 19(1)(g) of
the Constitution.

68 Kaushailiya, supra note 54.

69 The Constitution, supra note 1, Article 47.

70 State of Maharashtra v. Himmatbhai AIR 1970 SC 1157; State of Assam v. Sristikar, AIR
1957 SC 414.

19

MEMORANDUM ON BEHALF OF THE RESPONDENT

F. That the Prohibition Order is not in violation of Article 21.
Article 21 provides for the most organic and dynamic fundamental right in a democratic
society. It states that no person shall be deprived of right to life or personal liberty except by
procedure established by law. Apart from the apparent meaning, the Constitutional Courts in
the Republic of Indus have extended the purport of this entitlement and read various other
rights into it. This Honble Court, in Olga Tellis and Anr. v. Bombay Municipal Corporation
and Ors.,71 stretched the application of Right to life and personal liberty under Article 21 to
include Right to livelihood.
Originally, the purport of this right was to safeguard the interests of the workers and
ensure that they exercise their right to earn their livelihood by way of daily wages. Thus, the
application of this right cannot be stretched too far to lose its purpose. In the present case,
Petitioner No. 1 is a mainstream manufacturer of premium whiskies and vodkas. Dealing in
products which are inherently harmful and noxious is recognized as res extra commercium.
This Honble Court, in M.J. Sivani v. State of Karnataka,72 has explicitly held that the right
to livelihood cannot be extended to carrying on trade or business which is injurious to public
interest or has insidious effect on public morale and public order.
In view of these findings, it is humbly submitted Petitioner No. 1 cannot seek protection
under Article 21 which, consequently, makes the Prohibition Order is not in violation of
Article 21.

71 Olga Tellis and Anr. v. Bombay Municipal Corporation and Ors., (1985) 3 SCC 545.

72 M.J. Sivani v. State of Karnataka, (1995) 6 SCC 289.

20

MEMORANDUM ON BEHALF OF THE RESPONDENT

PRAYER
Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly and respectfully prayed before this Honorable Court that it may be
pleased to dismiss the present Petitions.
And
Pass any other order or grant any other relief in favour of the Respondent, which this
Honorable Court may deem fit in the ends of equity, justice and good conscience.

Date: day of September 2016

Place: Dilli Pradesh

Sd/Counsel(s) for Respondent

14