Money Bill

VI JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION
TEAM CODE- TC08
VI JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION,

2019
IN THE HON’BLE SUPREME COURT OF INDIANA
W.P.(CIVIL) NO. ………………./2019

(PUBLIC INTEREST LITIGATION)
Action for Democratic Reforms (ADR) …………. PETITIONER
Versus
UNION OF INDIANA ……………RESPONDENT

(UNDER ARTICLE .32 OF THE CONSTITUTION OF INDIANA
WRITTEN SUBMISSION ON BEHALF OF PETITIONER

MOST RESPECTFULLY SUBMITTED TO THR HON’BLE SUPREME COURT OF INDIANA
AS SUBMITTED TO THE CHIEF JUSTICE AND OTHER COMPANION JUDGES OF

HON’BLE SUPREME COURT OF INDIANA
MEMORIAL ON BEHALF OF PETIONER Page 1

TABLE CONTENT
Index of Authorities............................................................................................................ 2-4
List of Abbreviations............................................................................................................ 5
Statement of Jurisdiction....................................................................................................... 6.
Summary of Facts................................................................................................................ 7-8.
Statement of Issues................................................................................................................. 9.
Summary of Arguments................................................................................................... 10-11.
Arguments Advanced....................................................................................................... 12-34.

1. Whether the amendment to:-
A. Section 29c of Representation of people act 1951 through part 4 section 137 of Finance
act 2017?
B. Section 13A of Income tax act 1961 through chapter 3 section 11 of Finance act 2017
have affected transparency in political funding and violates the citizens “RightTo Know”
under 19(1)(a)
2 . Whether the sections 182, 183, 184 and 185 of the Finance Act affects the stature, efficacy
and independence of the Tribunals and dilute the independence of the judiciary?
3. Whether the passing of Financial Bill as a Money bill was unConstitutional?
4. Whether the amendment to the definition of 'foreign source ' provided in sec.2 foreign
contribution regulation act,2010 through sec.236 of Finance act,2016 & section 154 of the
Finance act,2017 amended the sec.182 of companies act,2013 is unConstitutional?
PRAYER FOR RELIEF ……………………………………………………………..35.

Index of Authorities
Tables of Cases
1. A.S Krishna v. State of Madras 1957 AIR 297

2. Association for Democratic reforms &anr v. Union of India&ORS,2014 SCC Del 1321
3. Bennett Coleman & Co. v. Union of India, AIR 1973 SC 106
4.C.Narayanswamy v. C.k.zaffer Sharif (1994)(3) SCC 170
5. Common Cause v. Union of IndiaAIR 1996 SC 3081
6.Devi Das Gopal Krishnan v. State of Punjab, AIR 1957 SCR 557.
7. Dinesh Trivedi, M.P and others v. Union of India and others (1997) 4 SCC 306
8.Government of India and others v. Cricket Association of Bengal and others, (1995)
2 SCC 161
9.Kanwar Lal Gupta v.Amarnath Chawla (1975) 3 SCC 646
10. I. R. Coelho vs. State of Tamil Nadu
11. Kihoto Hollohon v Zachillhu& Others, AIR 1992 Supp 2 SCC.
12.L.Chandrakumar v. Union of India & Ors, AIR 1997 SCC 261
13.Madras bar association v. union of India, AIR 2015 SCC 583.
14.Maneka Gandhi v. Union of India, 1978, AIR 597
15.M. Nagaraj v. Union of India,(2006) 8. SCC 212
16.Mohd. Saeed Siddiqui v. State of U.P & others,2016 (3) SCC 183
17.P.NellaThampyterah(dr.) v. union of india, 1985 Supp SCC 189
18.Raja Ram Pal vs The Hon'Ble Speaker, Lok Sabha &.., 2007 (3) SCC 184
19. Ramdas Athwale v. Union of India, 2010 (4) SCC 1
20. RomeshThappar v. State of Madras, [1950]SCR. 594
21.Sakal Papers (P) Ltd. & Ors. v. Union of India,[1962] 3 S.C.R. 842at 866
22. Shamnad Basheer v. Union of India & Others, AIR 2015 SCC 299
23. S.P. Gupta v. Union of India, AIR 1982 SC 149
24.S.P. Sampath Kumar v. Union of India & Others, AIR 1987 SCC 12.
25. State of Uttar Pradesh v. Raj Narain and Others (1975) 4 SCC 428
26.Union of India v. Madras Bar Assn., AIR 2010 SCC 1

27. Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183
Books
1. D. D. Basu Commentary on The Constitution of India, (8th edn., Lexis Nexis Butterworth
Wadhwa Publications, Nagpur, 2008)
2.H.M. Seervai, Constitutional Law of India, (4th ed., Universal Law Publishing, New Delhi,
2010
3.M P Jain, Indian Constitutional Law, (8th ed., Lexis-Nexis Butterworth Wadhwa
Publications, Nagpur,2018)
Articles
1.Surabhi, Reforms in political funding will ensure a transparent economy, January 12, 2018.(Last
viewed on August 12 at 2:10pm)
2.Editor,SC issues notices to centre,EC on PIL challenging amendment to political funding laws, 5
October 2017 (Last viewed on August 14 at 8:30pm)
3.The editor,,Lok Sabha passes Bill to exempt political parties from scrutiny on foreign funds,
without debate,18 March 2018 (Last viewed on 13 August at 3:10pm)
4. GautamBhatia, Constitutionality of electoral bonds in India, Hindustan Times, , 18march, 2019
(Last viewed on August 11 at 8:10pm)
Report&Statutes
1. Finance Act 2017
2. Representation of People’s Act 2017
3. Income Tax Act 1961
4. Companies Act
5. Foreign Contribution and Regulation Act 1.255th Report on Electoral Reforms of 20th Law
Commission of India , (2014)
6.Reports of Arrears committee headed by (Retd.) Justice V.S. Malimath, (1989-90)
7.74th Standing Committee Report (2002)
8.National Commission to review the working of Constitution (2002)

List of abbreviation
¶ : Paragraph
AIR : All India Report
All : Allahabad
AP : Andhra Pradesh
Art. : Article
Bom : Bombay
Cal : Calcutta
Del : Delhi
HC : High Court
WP : Writ Petition
Kar : Karnataka
PIL : Public Interest Litigation
Hon’ble : Honourable
SC : Supreme Court
SCC : Supreme Court Cases
u/s : Under Section
UOI : Union of India

STATEMENT OF JURISDICTION
The Petitioner has approached this Hon'ble court under Article 32 of the Constitution of Indiana at
Supreme Court.
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

SUMMARY OF FACTS
The Union Finance Minister on 2nd of January 2018, elaborated the facets of electoral bonds
scheme. An electoral bond is a financial instrument similar to a Promissory Note. In effect, it is like
a bank note that is payable to the bearer on demand, and being free of interest it can be purchased
by any citizen of Indiana, body incorporated in Indiana, foreign companies and a firm registered in
Indiana including all private companies & one person companies. Electoral bonds will not bear the
name of the donor or the name of the political party to which the donation is made. But all the
details regarding donor and political parties receiving the electoral bonds will be available with
bank. For en-cashing an electoral bond, party must be registered under a section 29A of the
Representation of the People Act, 1951 (43 of 1951) and must have secured at least 1% of the votes
polled in the most recent Lok Sabha or State election. The new scheme has reduced the limit for
disclosing of information regarding donation from 20,000 to 2,000.
Section 236 of the Finance Act, 2016 amended the definition of ‘foreign source’ provided in
Foreign Contribution (Regulation) Act, 2010 allowing companies with nominal value of share
capital under FEMA not to be considered as ‘foreign source’. Thereby allowing foreign
corporations to donate not only uncapped but also anonymous donations to political parties in
Indiana. The Finance bill was passed as a ‘money bill’ as the Constitution of Indiana provides that
money bill need not to be introduced in Rajya Sabha. That the Finance Act, 2017 amended the
provisions of the Companies Act, 2013, which removed the cap for companies to make political
donations. Earlier the cap was 7.5% of net profits of the last three years for the company. The
companies are no longer required to disclose name or even break up contributions made to the
political parties.
ADR is an Indiana’s non-partisan, nongovernmental organization has challenged the electoral
bond scheme in the Supreme Court of Indiana. The petitioner contends that amendments made via
Finance Act, 2017 are not only unconstitutionalbut also violate citizen’s fundamental right to
information under article 19(1)(a) of the Constitution of Indiana. That the amendments also
compromise transparency in political funding as under this scheme there would be no disclosure of
donor’s name and source of funding. Amendment to the companies act has led to creation of of
shell companies, rampant corruption; the rise of benami transactions and use of black money

during the electoral process.

That the amendments to the Reserve Bank of Indiana Act, 1934, Representation of the People Act,
1951 and Income Tax Act, 1961 have affected transparency in political funding as now the political
parties are not bound to disclose donations received through electoral bonds and Election
Commission of Indiana will no longer be able to make a report on political funding that till now
were made available for citizens to examine and take informed decisions.
The petitioner challenged the amendments introduced by the Finance Act, 2017 as well as section
182,183,184 and 185 of the said act. The bill made by the Finance Act 2017 are as follows:
Section 31, the Reserve Bank of Indiana Act, 1934 through Part III, Section 135 of the Finance
Act, 2017,
ii. Section 29C, the Representation of the People Act, 1951 through Part IV, Section 137 of the
Finance Act, 2017
Section 13A, the Income Tax Act, 1961 through Chapter III, Section 11 of the Finance Act, 2017
iv. Section 182 of the Companies Act, 2013 through Part XII, Section 154 of the Finance Act, 2017
Finance Act, 2017

Statement of Issues
1.Whether the amendment to :-

a) Section 29c of Representation of people act 1951 through part 4 section 137 of Finance
act 2017?
b)Section 13A of Income tax act 1961 through chapter 3 section 11 of Finance act 2017
have affected transparency in political funding and violates the citizens “Right To Know” under
19(1)(a)?
2. Whether the sections 182, 183, 184 and 185 of the Finance Act affect the stature, efficacy and
independence of the Tribunals and dilute the independence of the judiciary?
3. Whether the introduction of the the Finance bill as a money bill was unconstitutional?
4. Whether the amendment to the definition of 'foreign source ' provided in sec.2 foreign
contribution regulation act,2010 through sec.236 of Finance act,2016 & section 154 of the Finance
act,2017 amended the sec.182 of companies act,2013 is unConstitutional?

SUMMARY OF ARGUMENTS
Whether the amendment to :-

Section 29c of Representation of people act 1951 through part 4 section 137 of Finance act
2017?
Section 13A of Income tax act 1961 through chapter 3 section 11 of Finance act 2017
have affected transparency in political funding and violates the citizens “Right To Know”
under 19(1)(a)?
It is most humbly submitted before this Hon’ble court that the said amendment have have affected
transparency in political funding and violates the citizens “Right To Know” under 19(1)(a). As
because of the said amendments donations by way of electoral bonds shall be excluded from the
scope of sub section (3) of Section29C of the Representation of People Act 1951. Right to know
and right to access information is implicit in the right of free speech and expression
guaranteed under Article 19(1) (a) as has been held by this Hon’ble courts in catena of
judgments. Disclosure is at heart of public supervision and citizen’s have full right to
know every public act done in a public way by public functionaries.that he political
parties come under section 2(h) of RTI act which defines public authorities and hence
are bound to disclose information.
2.Whether the sections 182, 183, 184 and 185 of the Finance Act affects the stature, efficacy
It is most humbly submitted before this Hon’ble court that the sections 182, 183, 184 and
185 of the Finance Act affects the stature, efficacy and independence of the Tribunals and dilute
the independence of the judiciary. Section 184 of the Finance Act in particular authorizes the
Central Government to notify rules governing persons appointed to Tribunals taking primacy over
all appointments to tribunals.Appointments of members id done by central government on
recommendation of selection committee in accordance with RULE 4 read with Column(4)
However the composition of such Committees, and appointments to such committees, is
manifestly arbitrary and violative of basic structure of the Constitution. Also Rule 7 and 8 which

provide for removal, Rule 11,12,13,15,18 which provide for salary and allowance, RULE14 has
conferred the responsibility on the Central Government to act the Leave Sanctioning Authority are
all entirely illegal . Section 182 of the Finance Act, 2017 inserted Section 10 A of the NGT Act,
2010.
3.Whether the introduction of the the Finance bill as a money bill was unConstitutional?
It is most humbly submitted before this Hon’ble court that the introduction of the Finance Act 2017
as bill no 12 of 2017 on 1 February 2017 as a money bill is incorrect and unconstitutionalin nature.
It does not comes under the Article 109 of the Constitution which laid down the special procedure
in respect of money bill and under Article 110 definition of money bill. In the Constitution bench
of the judgment kihoto hollohan v. Zachillhu& Others, hold that finality of the decision of the
speaker is not immune from judicial review. ”- when a bill does not fulfil the essential
Constitutional conditions under Art 110(1),the said requirement cannot evaporate only on
certification by speaker- thus , the decision of speaker certifying the bill as money bill is not only a
matter of procedure and if any illegality has occurred in the decision and the decision is clearly in
the breach of the Constitutional provisions , the decision is subject to judicial review.
4. The amendment to the definition of 'foreign source ' provided in foreign contribution
regulation act,2010 through sec.236 of Finance act,2016sec.182 of companies act,2013
through section 154 of the Finance act,2017 was unConstitutional?
The amendments made in sec.2 of FCRA ACT,2010 &sec.182 of companies act,2013 should be
struck down because the concerned amendments fails the test of rationality &non arbitrariness
providing new channel’s of private funding to political parties, creation of shell companies,troubled
companies which can donate a lot of amount to the political parties. as by the virtue of
amendment to the companies act,2013 as it removed the cap for companies to make political
donations earlier it was 7.5% of net profits of the last three years for the company,they doesn’t
require to disclose the name or breakup of contributors and also not bound to disclose their profit
and loss statements.Same is with the amendment to the definition of foreign.

ADVANCED ARGUMENT
1. 1. Whether the amendment to :-

A. i. Section 29c of Representation of people act 1951 through part 4 section 137 of Finance act
2017?
Section 13A of Income tax act 1961 through chapter 3 section 11 of Finance act 2017
have affected transparency in political funding and violates the citizens “RightTo know”
under article 19(1)(a).
1. 1.It is most humbly submitted before this Hon’ble court That the said That “Amendments to the
Representation of the People Act, 1951” of the Finance act 20171 has amended Section29C of the
Representation of the People Act, 1951 relating to declaration of donation received by the political
parties. Sub-Section (3) of Section 29C of the Representation of the People Act, 1951, inter alia,
provides that every political party shall furnish a report to the Election Commission with regard to
the details of contributions received by it in excess of twenty thousand rupees from any person in
order to avail the Income-tax relief as per the provisions of Income-tax Act, 1961. Now the
contributions received by way of "electoral bond" shall be excluded from the scope of sub Section
(3) of Section29C of theRepressentation of People Act. The consequence of these amendments is
that now the annual contribution reports of political parties need not disclose the names and
addresses of those contributing by way of electoral bonds. This will have a major implication on
transparencyin political funding as now the political parties are free not to disclose contribution
received through electoral bonds.
2. It is submitted that the amendments to section 29C Representation of people act through clauses
135 nd 136 , Chapter VI , Part IV of the Finance Act 2017 and amendments to section 13A of
Income tax act 1961 through Chapter III, Section 11 of the Finance Act, 2017 violates the “Right
To Know” under article 19(1)(a).2
3.That a plain reading of section 13A of the Income Tax Act makes it clear that in a case of
1
Hereinafter referred as the act.
2
INDIAN CONST. art 19(1) cl 1

contributions made via electoral bonds of amounts greater than ten thousand rupees, political
parties are under compulsion to maintain records of receipt of such contributions for the purpose of
availing the benefit of exemption under section 13A
4.A report of the Press Conference of the Finance Minister in the newspaper Business Line dated
1st February 2017 reported the details of the Press conference in following words:3
“The use of Electoral Bonds will ensure that the identities of donors making large donations are
not revealed. … These bonds will be bearer in character because if the names are disclosed and
identities are revealed then it is the same as payment through cheques or the present status quo.
Because of the present status quo, donors have preferred cash payment rather than disclosure of
their names and identities,” Jaitley said at a press conference after the Budget.”
5. The greater the contribution the greater the risk of dependence, corruption and lack of
probity in public life. The demand for transparency must be conceived as a democratic
value in itself, a tool designed to avoid any wrongful influences of money in politics. If
laws are intended to be effective with regard to transparencythey should be general in
nature and enforced with respect to everyone, and not just political parties or
candidates, but also to the donors as well. 4
I. Violation of “Right To Know” under article 19(1)(a) and transperancy being essential in
public life
1It is submitted that the people of this country have a right to know every public act, everything
that is done in a public way by the public functionaries.5 That there are plethora of judgments of
this Hon’ble Court have emphasised on the importance of freedom of speech and expression in a
democratic form of government and also held that free flow of information is necessary for an
informed citizenry. That "the Right to Know which is derived from the concept of freedom of
speech, though not absolute, is a factor which should make one wary, when secrecy is claimed for
transactions which can, at any rate, have no repercussion on public security"6
3
Surabhi, Reforms in political funding will ensure a transparent economy, (January 12, 2018, 7:05pm)
https://www.thehindubusinessline.com/news/national/reforms-in-political-funding-will-ensure-a-transparent-
economy-arun-jaitley/article9515451.ece
4
National Commission to Review the Working of the Constitution, Justice M.N. Venkatachaliah,
March 2002
5
Sakal Papers (P) Ltd. & Ors. v. Union of India,[1962] 3 S.C.R. 842at 866.
6
State of Uttar Pradesh v. Raj Narain and Others (1975) 4 SCC 428.

2. That freedom of speech lay at the foundation of all democratic organizations.7That the freedom
of speech and expression includes right to acquire information and to disseminate it.8That in
Secretary, Ministry of Information and Broadcasting, Government of India and Others v. Cricket
Association of Bengal and others9, this Hon’ble Court considered the issue and thereafter
summarized the law on the freedom of speech and expression. That this Hon’ble Court observed
that a successful democracy posits an `aware’ citizenry” and held in Para 82.
"82. True democracy cannot exist unless all citizens have a right to participate in the affairs of the
polity of the country. The right to participate in the affairs of the country is meaning less unless the
citizens are well informed on all sides of the issues, in respect of which they are called upon to
express their views. One-sided information, disinformation, misinformation and non- information
all equally create an uninformed citizenry which makes democracy a farce when medium of
information is monopolised either by a partisan central authority or by private individuals or
oligarchic organization
3.That in the “ in modern Constitutional democracies it is axiomatic that citizens have a right to
know about the affairs of the government which, having been elected by them, seek to formulate
sound policies and governance aimed at their welfare.”10Thatit is essential for the people to
have as much information about governmental operations as possible. Participation in
government by the people is regarded, as an important aspect of democracy and people
cannot participate unless they have information as to what is going on in the country. 11
4.That it is indisputable that by freedom of the press under article 19(1)(a) me ant the
right of all citizens to speak, publish, and express their views……Freedom of speech
and expression includes within its compass the right of all citizens to read and be
informed. 12 In M. Nagaraj v. Union of India 13It was held that right to know and right to
access information is implicit in the right of free speech and expression guaranteed
under Article 19(1) (a). The right to information has both intrinsic and instrumental
7
RomeshThappar v. State of Madras, [1950]SCR. 594
8
Id
9
(1995) 2 SCC 161
10
Dinesh Trivedi, M.P. and others v. Union of India and others (1997) 4 SCC 306
11
S.PGupta v. union of India AIR 1982 SC149
12
Bennett Coleman & Co. v Union of India, AIR 1973 SC 106
13
(2006) 8. SCC 212

value. Its intrinsic value comes from the fact that citizens have a right to know. It is a
crucial step towards a deeper, more meaningful democracy. More tangibly, in a country
like India it can promote action for development and therefore has considerable
instrumental value. Information enables people to make enlightened choices, and keep
tabs on elected representatives and officials who claim to act on their collective behalf.
Thus, accountability and transparency are both enhanced radically.
5. In Association for Democratic Reforms v Union of India 14 The Delhi High Court has
emphasized that the right to information acquires great significance in the context of
elections.. In this case the Delhi High Court has sought to cleanse and decriminalize the
electoral process through the mechanism of the right to know of the people and laid
down certain conditions which the apex court also agreed on appeal. The apex court
went on to say that one-sided information, disinformation, mis-information and non-
information will equally create an uninformed citizenr y which makes democracy a farce.
Freedom of speech and expression includes right to impart and receive information
which includes freedom to hold opinions.
6. In Common Cause (A Registered Society) Vs. Union of India 15 ,Supreme Court dealt
with the issue of election expenses, while holding that the purity of election was
fundamental to democracy and the Election Commission could ask the candidates about
the expenditure incurred by the candidates and by a political party. It is submitted that
the Income tax retunrns of political parties are available for public scrutiny under Right
to Information Act. 16
8. It is submitted that National Commission to Review the Working of the Constitution
in its report submitted in March 2002
“. Regulating political contributions: There is a need for onecomprehensive legislation
regarding the regulation of political contributions to political parties and towards
election expenses. The various existing provisions in different Acts need to be
consolidated into a single law regulating the flow of funds to political parties both from
the internal as well as external sources.Legislation should provide for compulsory
14
(2002) 5 SCC 294
15
AIR 1996 SC 3081,
16
CIC/AT/A/2007/01029 & 1263-1270;

auditing of the accounts of all political parties registered with the Election Commission
by an independent authority specified under the new law regulating the functioning of
political parties, publishing of audited party account, and immediate de -recognition and
enforcement of penalties for filing false or incorrect election returns. Accounts should
be made available for public inspection.” 17
9. Disclosure is at the heart of public supervision of political Finance and requires strict
implementation of the provisions of the RPA, the IT Act, the Company Act, and the ECI
transparency guidelines, effective from 1st October 2014, bearing No.
76/PPEMS/Transparency/2013 dated 29th August, 2014 and 19th November 2014, which
need to be given statutory backing. 18
10. It is humbly submitted that the said amendments are question on the autonomy of
election commission. It has been held by this Hon’ble court in the case of
P.NellaThampyterah(dr.) v. union of india19
“Superintendence and control over conduct of election by election commission under article 324 of
Constitution of Indiana includes the scrutiny of all expenses incurred by or political party, a
candidate or any other association or body of person or by any individual in course of election.”
11. InManeka Gandhi vs. Union of India 20, Justice V. Krishna Iyar opinedthat “A
government which functions secretly not only act against the democratic decency, but
buried itself with its own burial.
II. Political Parties bound to disclose information and are not protected under Article19(2).
1.It is most humbly submitted before this Hon’ble court that Section 2(h) of the RTI Act is
applicable for political parties as political parties are substantially Financed by the government.
The section, which defines public authorities, reads as follows:-
"public authority" means any authority or body or institution of self-government established or
constituted—
(a) by or under the Constitution;(b) by any other law made by Parliament; (c) by any other law
17
National Commission to Review the Working of the Constitution, Justice M.N. Venkatachaliah,
March 2002
18
255th Report of the Law Commission of India, ELECTORAL REFORMS, (2015).
19
1985 Supp SCC 189
20
{1973} 3 SCR 530

made by State Legislature;(d) by notification issued or order made by the appropriate Government,
and includes any— (i) body owned, controlled or substantially Financed;(ii) non-Government
organisation substantially Financed, directly or indirectly by funds provided by the appropriate
Government;”21
2.As per section 13A of the Income Tax Act large amount of money is exempted under tax
exemption on the Income of political parties. Hence Political parties are substantially funded by
the tax payer’s money and are public authorities and bound to disclose Information. That
Political parties are also provided free airtime on state owned television, Doordarshan, and radio,
22
Akashwani which is also a financing by the governments. Two copies of the Electoral roll, one
printed copy and another in CD is supplied to recognized political parties, free of cost, after draft
and final publications.23Political parties are also provided facilities for residential and
official use by the Directorate of Estates. They are charged a token amount of money as
rent or dues for these properties. State funding per year on rent of government/public
offices for political parties Various facilities have been provided to political party’s
24
office bearers for official and residential purposes.
2. In Punjab Cricket Association, SAS Nagar (Mohali) v. State Information Commission, Punjab and
another25. The Punjab and Haryana High Court held as follows: “ Now adverting to the case of
petitioner-PCA (at Sr.No.12), it is admitted position that it is enjoying tax exemption from
entertainment tax, which is an direct financial aid by the State to it, which naturally is an incidence
of financial aid by the Government.
3. It is submitted that the Central Information commission in case Mr. Anil Bairwal v. Parliament of
India26 has clearly observed that :-
“In view of the above discussion, we hold that INC, BJP, CPI(M), CPIO, NCP and BSP
have been substantially Financed by the Central Government under section 2(h)(ii) of
the RTI Act. The criticality of the role being played by these Political Parties in our
democratic set up and the nature of duties performed by them also point towards their
21
RTI Act 2005 $ 2(h)
22
Order no. 437/TVs/2009/M&TS of Election Commission of India.
23
rules 11 and 12 of the Registration of Electors Rules, 1960
24
Political Parties under RTI: Myths Busted, https://adrindia.org/sites/default/files/FAQ-
%20RTI%20&%20Political%20Parties%20(2).pdf accessed on 30th May 2019.
25
2013 SCC 532
26
2013 SCC 234

public character, bringing them in the ambit of section 2(h)”

5.It is most humbly submitted before this Hon’ble court that the impugned amendments
does not fall under any ground in Article 19(2) o f the Constitution of Indiana,
“ Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent
the State from making any law, in so far as such law imposes reasonable restrictions on the
exercise of the right conferred by the said sub clause in the interests of the sovereignty and
integrity of India, the security of the State, friendly relations with foreign States, public order,
decency or morality or in relation to contempt of court, defamation or incitement to an offence.”
Which are only permissible ground for restriction of right to freedom of information under Article
19(1)(a) of Part 3 of Constitution of indiana guaranteed to every citizen of India. It is submitted
that the amendments directly violate Right To Know which is an essential right of a citizen in
functioning democracy emerging out of the right to freedom of speech and dissemination of
information and are not protected by article 19(2).
2. Whether the sections 182, 183, 184 and 185 of the Finance Act affects the stature, efficacy
1. It is most hubly submitted before this Hon’ble court that under Part XIV of the Finance Act,
2017 certain amendments were carried out to merge together the provisions regarding the structure
and organization, as well as the conditions of service of Tribunalsseriously affects the stature,
efficacy and independence of the Tribunals.. Section 184 of the Finance Act in particular authorizes
the Central Government to notify rules governing persons appointed to Tribunals on the following
matters: qualification, appointment, terms of office, salaries and allowances, resignation, removal,
and other terms and conditions of service. Therefore, the Government has primacy over all
appointments to tribunals..
A replica of part of section 184 of Finance act is produced here;-
(1) The Central Government may, by notification, make rules to provide for qualifications,
appointment, term of office, salaries and allowances, resignation, removal and the other terms and
conditions of service of the Chairperson, Vice-Chairperson, Chairman, Vice-Chairman, President,
Vice-President, Presiding Officer or Member of the Tribunal, Appellate Tribunal or, as the case
may be, other Authorities as specified in column (2) of the Eighth Schedule.
2. It is submitted that Part XIV of the Act violates certain basic features of the Constitution, namely
separation of power and impinges upon the judiciary's independence. In a similar manner, by way

of a writ petition instituted by the Madras Bar Association, the merger of tribunals has been
challenged before the Madras High Court in Madras Bar Association v. Union of India 27One of the
contentions of the petitioner is there that §184 of the Finance Act and the relevant Rules are
unconstitutionalas they violate the basic structure doctrines of separation of powers and the
independence of judiciary. According to the petitioner, by empowering the Government to make
rules related to the appointment, qualification, removal, and other conditions of services of tribunal
members, an excessive delegation of judicial functions takes place without there being any
guidelines for the same. Therefore, the same would violate Article 50 of the Constitution, as the
executive gets wide powers in respect of bodies that essentially perform judicial functions. In an
interim order passed on June 28, 2017, the Court has held the Rules to be prima facie violative of
the directives issued by the SC in Union of India v. R. Gandhi, President, Madras Bar Association,
(‘R. Gandhi’) followed by itself in Shamnad Basheer v. Union of India28 (‘Shamnad Basheer’).29
The Court also held that the appointments made by the Government under the Rules would be
subject to its final decision.
I. TRIBUNALS SUBSTITUTE OF COURT
3. Where there is a lis — an affirmation by one party and denial by another — and the dispute
necessarily involves a decision on the rights and obligations of the parties to it and the authority is
called upon to decide it, there is an exercise of judicial power. That authority is called a Tribunal, if
it does not have all the trappings of a Court.”30“Tribunal should be a real substitute for the High
Court – not only in form and de jure but in content and de facto.31
“Test for including High Court’s Jurisdiction:
A Tribunal which substitutes the High Court as an alternative institutional mechanism for judicial
review must be no less effective than the High Court. Such a tribunal must inspire confidence and
public esteem that it is a highly competent and expert mechanism with judicial approach and
objectivity. What is needed in a tribunal, which is intended to supplant the High Court, is legal
training and experience, and judicial acumen, equipment and approach.”32
27
Madras bar association v. Union of India, AIR 2015 SCC 583
28
Shamnad Basheer v. Union of India & others, 2015 SCC 299
29
Id
30
KihotoHollohon v Zachillhu & Others,1992 Supp 2 SCC.
31
S.P. Sampath Kumar v. Union of India & Others, 987 SCC 124.
32
Report of Arrears Committee (1989-90) headed by (Retd.) Justice v. S. Malimath

4.It is submitted that this Hon’ble court in Sampath Kumar v. Union of India33 “It can no longer be
disputed that total insulation of the judiciary from all forms of interference from the co-ordinate
branches of the Government is a basic essential feature of the Constitution, the same independence
from possibility of Executive pressure or influence must also be ensured to the Chairman, vice
Chairman and Members of the Administrative Tribunals... The Constitution makers have made
anxious provision to secure total independence of the judiciary from executive pressure or
influence.”
5. .That this Hon’ble Court in Sampath Kumar v. Union of India (supra) 34– in connection with the
appointment of members to the Central Administrative Tribunal (‘CAT’) – stated that the position
of Chairperson of a Tribunal must be equivalent to that of Chief Justice of the High Court and the
Vice-Chairperson and other Administrative Members as being equivalent to Judges of the High
Court3574thReport, the Committee emphasized the need to have tenured appointments and uniform
service conditions for independent and impartial adjudication..36
II. Selection process
RULE 4 read with Column (4) of the Schedule provide for appointment of members of the
Scheduled Tribunals by the Central Government based on the recommendations of the Search-cum-
Selection Committee setup for each Tribunal. However, the composition of such Committees,and
appointments to such committees, is manifestly arbitrary and violative of basic structure of the
Constitution. This Hon’ble Court has categorically stated that (a) composition of Selection
Committee must give primacy to Judiciary, (b) must be headed by the Chief Justice or his nominee;
and (c) the Chief Justice or his nominee should have a casting vote. However, the Selection
Committees prescribed by the Central Government falls short of the said stipulation on.
In these cases relied on by the Court, the courts unequivocally held that appointments to tribunals
must be made by committees that predominantly consist of members of the judiciary. The rationale
behind this is that tribunals are considered to be almost on par with high courts in terms of the
powers and functions, and tribunal appointments by the judiciary would secure the independence of
tribunals and protect them from government interference.This principle of non-intervention by the
33
S.P. Sampath Kumar v. Union of India & Others, AIR 1987 SCC 124.
34
S.P. Sampath Kumar v. Union of India & Others, 1987Supp. SCC 734.
35
Id
36
74thReport, standing committee (2002)

executive was also upheld by the SC in the recent case of Madras Bar Association v. Union of
India.37”that only a ‘High Powered Committee’ headed by sitting Judge of this Hon’ble Court
(nominated by the Hon’ble Chief Justice of India) should be entrusted with selection and
appointment of Chairperson and other Members of the Tribunal. That the members of the tribunal
should have theindependence and security of tenure associated with judicial tribunals..” 38it was
held that the stature of the Members who would constitute the tribunal, would depend on the
jurisdiction which was being transferred to the tribunal39.
In ShamnadBasheer v.Union of India & Others40, this Hon’ble court down various provisions of the
Trade Marks Act, 1999 pertaining to qualifications of the Vice-Chairman, Judicial Members and
Technical Members of the Intellectual Property Appellate Board (‘IPAB’). Pertinently, the
composition of the Search- cum-Selection Committee comprising of members of the Executive was
struck down as being an affront to the basic structure of the Constitution. It was held that:-
A “technical member” presupposes an experience in the field to which the Tribunal relates. A
member of the Indian Company Law Service who has worked with Accounts Branch or officers in
other departments who might have incidentally dealt with some aspect of company law cannot be
considered as “experts” qualified to be appointed as technical members.41
That this Hon’ble court in L. Chandra kumar v union of India held that:-
“Herein the acknowledged position is that NTT has been constituted as a replacement of High
Courts. NTT is, therefore, in the real sense a tribunal substituting the High Courts. The manner of
appointment of Chairperson/Members to NTT will have to be by the same procedure (or by a
similar procedure) to that which is prevalent for appointment of the Judges of High Courts.”The
stature of the Members who would constitute the tribunal, would depend on the jurisdiction which
was being transferred to the tribunal. Accordingly, if the jurisdiction of the High Courts is being
transferred to NTT, the stature of the Members of the tribunal had to be akin to that of the Judges
of High Courts. So also the conditions of service of its Chairperson/Members, and the manner of
their appointment and removal, including transfers. Including, the tenure of their appointments. 42
37
Madras Bar Association v. Union of India, AIR 2015 SCC 583
38
Union of India v. R.Gandhi, AIR 2010 SCC 1
39
Union of India v. Madras Bar Assn., AIR 2010 SCC 1
40
Shamnad Basheer v. Union of India & Others, AIR 2015 SCC 299
41
Union of India v. R.Gandhi, AIR 2010 SCC 1
42
Madras bar association v. union of India, AIR 2015 SCC 583.

This Hon’ble Court in L. Chandra Kumar v. Union of India43 (1997) 3 SCC 261noted that “The
administrative support for all Tribunals should be from the Ministry of Law & Justice. Neither the
Tribunals nor its members shall seek or be provided with facilities from the respective
sponsoring or parent Ministries or concerned Department.” In more than two decades, no steps
have been initiated by the Ministry of Law & Justice to take over the functioning of the tribunals.
On the contrary, the Tribunal Rules are ex-facie contemptuous and blatantly disregard the mandate
of this Hon’ble Court to unify administration of TribunalsThe administrative support for all
Tribunals should be from the Ministry of Law and Justice. Neither theTribunals nor their members
shall seek or be provided with facilities from the respective sponsoring or parent
III. REMOVAL
RULES 7 and 8 which provide for the procedure for removal of members of the Tribunals is
entirely illegal and undermines independence of Tribunals. The Rules allows the Central
Government to initiate an enquiry merely on written complaint without the requirement for
consultation or concurrence from the Chief Justice or his nominee. The composition of the
Committee entrusted to conduct an enquiry has not been specified, and once again leaving wide
and unguided discretion to the Central Government. Furthermore, the Central Government can
remove the Member of the Tribunal based on the recommendation of the Committee, and without
any necessity to consult or receive concurrence from the Chief Justice (with the exception to
NCLAT). It is submitted the removal process creates a master-servant relationship between the
Central Government and Members of the Tribunals, and casts a huge shadow on impartiality and
fairness in their adjudication process.
It is submitted that suspension of the President/Chairman or member of a Tribunal can be only with
the concurrence of the Chief Justice of India.44
IV.SALARIES AND ALLOWANCES
RULES 11, 12, 13, 15, 16 and 18 provides for service conditions, such as salaries, leave pay, travel
allowance (‘TA’), house rent allowance (‘HRA’) and other benefits admitted to Members of the
Scheduled Tribunals. As it is evident, the emoluments and allowances conferred on the Members is
equal to Group ‘A’ officers of the Government of India of a corresponding status. However, this
Hon’ble Court has repeatedly stated that the service conditions admitted to Members of such
43
L. Chandra Kumar v. Union of India, AIR 1997 SCC 261
44
Devi Das Gopal Krishnan v. State of Punjab, AIR 1967 SCR 557

Tribunals should be equivalent or comparable to that of High Court Judges.

9.LEAVE SANCTIONING AUTHORITY
RULE14has conferred the responsibility on the Central Government to act the Leave Sanctioning
Authority of various members of the Tribunals. In view of Business Allocation Rules, the
concerned in-charge/parent Ministry or Department would act as the Leave Sanctioning Authority.
This creates a master-servant relationship between the concerned Ministry/Department and the
Tribunal. It is instructive to note that the similar provision was included in the draft Tribunals Bill,
and the Standing Committee several criticized the provision in the following words: “… The
Committee is not in agreement with the Clause 20 of Bill mainly for two reasons. Firstly, if leave
sanctioning authority remains with the ministry-in-charge it would affect the independence of the
Tribunals as the concerned Ministry is one of the parties to the disputes that come for adjudication
before the Tribunal and secondly, it affects the status of Tribunals.”
unambiguous terms held that the Courts must strike down delegation of essential legislative
functions, and it is unnecessary to offer any liberal construction to identify any dormant or latent
legislative policy to sustain the arbitrariness. 45
V. AMENDMENTS TO NGT ACT 2010
At this juncture, it is pointed out that the specific amendment of NGT Act, 2010 acquires great
significance. NGT Act, 2010 mandates that the Chairperson should be either a judge of the
Supreme Court or has been one; is or has been a Chief Justice of a High Court. The new rules, on
the contrary requires that, a person shall not be qualified for appointment as Chairperson, unless he,
(a) is, or has been, or is qualified to be, a Judge of Supreme Court; or
(b) is, or has been, Chief Justice of a High Court; or
(c) has, for a period of not less than three years, held office as Judicial Member or Expert Member;
or
(d) is a person of ability, integrity and standing, and having special knowledge of, and professional
experience of not less than twenty- five years in law including five years' practical experience in
the field of environment and forests.
It is submitted that the Tribunals are the ―courts of first instance in respect of law for which they
have been constituted .Hence, the composition of the Tribunals cannot be replaced by a bunch of
personnel, handpicked by the Central Government and are inferior in status and casual in
45
Devi Das Gopal Krishnan v. State of Punjab, AIR 1957 SCR 557.

working.46
Experts and legal fraternity are concerned that the above amendment will lead Tribunals being
headed by someone who has no legal background and training. If civil servants become
Chairpersons of NGT, they may not become impartial adjudicators because training and the ability
to write reasoned judgments are key attributes of such objectivity. This may even lead to a situation
that ― All power corrupts- and the fear of loosing power corrupts absolutely.47
It is noteworthy that Section 182 of the Finance Act, 2017 inserted Section 10 A of the NGT Act,
2010 enabling the executive , rather than the Parliament to decide the qualification, appointment,
terms of office, salaries and allowances, resignation and removal of its chairperson, judicial
member and expert member. This is notwithstanding what other provisions of NGT Act may say. It
may be noted that the aforesaid provisions of Finance Act, 2017, which dilutes the independence of
Tribunals comes as a reaction of the National Green Tribunal‘s (NGT)earnest efforts in
safeguarding the environment. It is more pertinent that this move also comes in the wake of the
NGT‘s drive against incompetent persons holding the posts of Chairperson‘s of State Pollution
Control Boards ( SPCBs) following its own order in the case of Rajendra Singh Bhandari v State of
Uttarakhand (OA 318 of 2013). Hence the impugned amendments are an attempt by the executive
to take the harness of an un-amenable quasi-judicial horse in its control.
Rule of law is a basic feature of our Constitution. ―No Parliament, even if unanimous, no party in
power even if it commands National consensus, can alter these basic features or structure. So
viewed, the rule of law prevails vis-à-vis the House and even the Court. What is arbitrary is
violativeof rule of law, as the Supreme Court has laid down48
3. Whether the introduction of the the Finance bill as a money bill was unConstitutional?
It is submitted before the Hon’ble court that the introducing the amendments in the Finance Act
2019 as a money bill is incorrect and unconstitutionalin nature.It does not comes under the Article
109 of the Constitution which laid down the special procedure in respect of money bill and Article
110; definition of money bill . In matter of Mr. Jairamramesh v. UOI and org49 Money Bill is
deemed to be such if it contains only provisions dealing with all or any of the matters under (a) to
(g) of Article 110(1). In other words, a Money Bill is restricted only to the specified matters and
46
L.Chandrakumar v. Union of India & Ors, AIR 1997 SCC 261
47
Fali S Nariman,Before Memory Fades384,({1st edition} Hay House India, 2010)
48
(Justice (late) V.R. Krishna Iyer), From theBench to the Bar II 90, ({1st edition} Universal, 2013).
49
2017

cannot include within its ambit any other matter. In support of his submission, he had drawn our
attention to towardsinformation given to the applicant, who sought information under Right
to Information Act.
(A). The introduction of the amendment in Finance act 2019 as a money bill is
unconstitutionaland subject to judicial review.
i). It is most humbly submitted before this hon’ble court that the introduction of the Finance Act
2017 as bill no 12 of 2017 on 1 February 2017 as a money bill under article 110(1) of the
Constitution of Indiana is unconstitutionalas under article 110(1) only those bills can be introduced
as money bill which deal with taxation, financial obligations of the government, custody and
appropriation of money from the Consolidated Fund of India, declaration of an expenditure to be
charged under the Consolidated Fund of India, receipt of money on account of Consolidated Fund
of India or the public account of India or such matters which are incidental50, but in an instance
case the presentation of Finance act as a money bill does not cover any such provision which
mention under Article 109 and 110 of the Indiana Constitution. Its mere a colourable exercise of
powers to bypass the Upper House, is impressible and constitutes fraud on the Constitution.
ii) The situation is akinto abuse of ordinance making power, which has been deprecatedby this
Hon’ble Court inmatter Krishna Kumar Singh v. State of Bihar51as a fraud on the Constitution.
Likewise, the deliberate use of special procedure under Article 109 readwith 110, either to
circumvent the approval of Upper House orotherwise, is a fraud on the Constitution and an affront
tosupremacy of the Constitution.In view of Article 117(1), a Bill which makes provisions for any
of the above-mentioned matters, and additionally with any other matter is called a Financial Bill.
Therefore, the Finance Bill, 2017 may be a Money Bill if it deals only with the matters specified
above, and not with any other extraneous matter as otherwise it would be categorized as a Financial
Bill.
(B). The introduction of amendment bill in Finance act 2019 as a money bill is “Irregularity
of Procedure” and “Substantive illegality” and Subject to judicial review.
i).“Irregularity of Procedure” and “Substantive illegality”.
50
INDIAN CONST. art 110
51
3 SCC (2017) 1.

It is most humbly submitted before this hon’ble court that the introduction of the Finance Act as a
money bill is irregularity of procedure and substantive illegality. In matter of S.R Bomani 52, Raja
Ramapal53, Ram das Athawale54 and Kithtohollohan55 as Hon’ble Justice chandrachud and Justice
Bhushan; said, there is a clear difference between the subject “irregularity of procedure”and
“substantive illegality”- when a bill does not fulfill the essential Constitutional conditions under
Art 110(1),the said requirement can not evaporate only on certification by speaker- thus , the
decision of speaker certifying the bill as money bill is not only a matter of procedure and if any
illegality has occurred in the decision and the decision is clearly in the breach of the Constitutional
provisions , the decision is subject to judicial review. In the instance case, here the presentation of
Finance act 2019 as a money is irregularity of procedure and substantive illegality at the moment
when it was presented as a money bill merely to bypass the upper house of the parliament and the
certification by speaker of the house of people as a money bill is the breach of Constitutional
provision, thus it is subject to judicial review.
ii).Subject to judicial review of the Constitution.
a).In the Constitution bench of the judgment Kihoto Hollohan v. Zachillhu& Others,56 hold that
finality of the decision of the speaker is not immune from judicial review. All bills are required to
be passed by both the house of parliament. Exception is given in case of money bills and in the case
of joint sitting of both houses. In the event, the submission that certification by speaker is only a
matter of procedure and cannot be questioned by virtue of Article 122(1) is accepted, but any bill
which does not fulfill the essential Constitutional condition under Article 110 of the Indiana
Constitution can be certified as a money bill bypassing the upper house. There is a clear difference
between the subject “irregularity of procedure” and “substantive illegality”. When a bill does not
fulfil the essential Constitutional condition under Article 110(1), the said requirement cannot be
said to be evaporated only on certification by speaker. In the status quo matter the introduction of
Finance Act as a money bill is void ab initio as per Article 109 special procedure in respect of
money bill and Article 110 “Definition of money bill”.
b).Accepting the submission that certification immune the challenge on the ground of not fulfilling
52
S.R. Bomani v. Union of India, 1994 (3) SCC 1
53
Raja Ram Pal v. The Hon'Ble Speaker, Lok Sabha &.., 2007 (3) SCC 184
54
Ramdas Athwale v. Union of India, 2010 (4) SCC 1
55
Kihoto Hollohon v. Zachillhu& Others, AIR 1992 Supp 2 SCC.
56
1992 SCC Supl.(2) 651

the Constitutional condition, the court will be permitting the Constitutional provision to be ignored
and bypassed. Thus, the decision of the speaker certifying the bill as money bill is not only a matter
of procedure and in the event, any illegality has occurred in the decision and the decision is clearly
in breach of Constitutional provision, the decision is subject to judicial review. Hence, the three-
judge bench judgment of the Supreme Court in Mohd. Saeed Siddiqui v. State of U.P & others57,
and Two-judge bench judgment of the supreme court in Yogendra Kumar Jaiswal58, do not laid the
correct law. It is thus concluded that the decision of the speaker certifying the aadhaar bill as
money bill is not immune from judicial review.
iii).Threat to Bicameralism Structure of the government.
a).Bearing judicial review of the lok sabha speaker’s decision would render a certification of a bill
as a money bill immune from scrutiny, even where the bill does not, objectively speaking, deal
only with the provision set out in the Article 110(1) but the decision of the speaker of the Lok
Sabha weather a bill is a money bill impacts directly upon the Constitutional role which will be
discharged by the Rajya Sabha in relation to it. The lok sabha alone does not represent parliament.
The Indiana parliament is bicameral. The Constitution envisages a special role for the rajya sabha.
When there is no single party rule in parliament government that lack upper house majority
support find it difficult to pass bills. The institution of a second chamber generates legislative
advantage only “if the chambers differ significantly from one another.” Here in the instance case
respondent presented the Finance act as a money is threat to the bicameral structure of the
government and here intent of the respondent to bypass the upper house of the parliament which is
equal to fraud in the Constitution.
b).Bicameralism, when entrenched as a principle in a Constitutional democracy, acts as a check
against the abuse of power by Constitutional means or its use in an oppressive manner. As a subset
of the Constitutional principle of division of power, bicameralism is mainly a safeguard against the
abuse of the Constitutional and political process a bicameral national parliament can hold the
government accountable and can check or restrain the misuse of government power. Among its
other role is that of representing local state units, acting as a body of expert review, and providing
Representation for diverse socio-economic interest or ethno-cultural minorities.
(C). The introduction of amendment bill in Finance act 2019 as a money bill it’s violate the
57
2016 (3) SCC 183
58
Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183

basic structure of the Constitution.

Under Article 110 of the Constitution are clear and its normal form and hence, vests no
uncontrolled discretion in the Speaker. The provision requires that a bill conform to the criteria
prescribed in it for it to be classified as a money bill. Where a bill intends to legislate on matters
beyond the features delineated in Article 110, it must be treated as an ordinary draft statute. Any
violation of this mandate needs to be checked, therefore, as a substantive Constitutional error.
Where a Speaker’s choice is grossly illegal, or disregards basic Constitutional mandates, or, worse
still, where the Speaker’s decision is riddled with perversities, this Hon’ble Court has the power to
review such parliamentary pronouncements.
i). It defeats the supremacy of the Constitution.
In matter of I. R. Coelho vs. State of Tamil Nadu59,the Nine-Judge bench headed by Y.K.
Sabharwal, C.J.I. held that the authority to enact law and decide the legality of ithe limitations
cannot vest in one organ. The supremacy of the Constitution mandates all Constitutional bodies to
comply with the provisions of the Constitution. It also mandates a mechanism for testing the
validity of legislative acts through an independent organ, viz. the judiciary. The responsibility to
judge the Constitutionality of all laws is that of judiciary. The absence of guidelines for exercise of
such power means the absence of Constitutional control which results in destruction of
Constitutional supremacy and creation of parliamentary hegemony and absence of full power of
judicial review to determine the Constitutional validity of such exercise.”
ii). It violates the doctrine of federalism and separation of power.
The subject amendments by way of Money Bills exclude Rajya Sabha – the Upper House- from the
legislative process and this causes a serious dearth into the concept of Federalism which again is a
basic feature of our Constitution.
A.S Krishna v. State of Madras60 ,Union of india v. Shah Goverdhan L. kabra teachers’ college61,
State of Maharastra v. Bharti Shanti Lal Shah62, introducing the Aadhaar act as a money bill bypass
the Constitutional authority of trajya sabha. The passage of the Aadhaar act as a money bill is an
abuse of Constitutional process. It deprived the rajya sabha from altering the provisions of the bill
59
(2007) 2 SCC 1
60
1957 AIR 297
61
(2002) 8 SC 269
62
2008 (13) SCC 5

by carrying out amendments. On the touchstone of the provision of Article 110, the bill could not
have been certified as a money bill.
The Act thus fails to qualify as a money bill under article 110 of the Constitution. Since the act was
passed as a money bill, even though it does not qualify to be so, the passage of the act is an
illegality. The Aadhaar act is in violation of Article 110 and therefore is liable to be declared
unConstitutional.
Violates the individual freedom and threat to Unity and sovereignty of Indiana.
It is submitted that the stated objective of keeping the identities of the donors making large
donations itself is against public policy. Further, the amendments to the Companies Act,
Representation of Peoples Act, and the Income Tax Act read together clearly bring out that in the
entire cycle of purchase and donations of Electoral Bonds by the donors, and their receipt and use
by the Political Parties is designed to keep the identity of donors secret from company auditors, the
Income Tax authorities, the Election Commission, and finally from the Public at large who are the
voters, these all procedure are threat to unity and integrity of the nation because of any public or
private identity funded without any limit which exist earlier a limit, and people of the nation who
are actually voters are unable to know the source of funding, so they also threat to the sovereignty
of the nation and violate the freedom of an individual such as “Right to know” under article 19(g)
of the Indiana Constitution.
4. The amendment to the definition of 'foreign source ' provided in foreign contribution
regulation act,2010 through sec.236 of Finance act,2016. Sec.182 of companies act,2013
through section 154 of the Finance act,2017 was unConstitutional?
1. It’s most humbly submitted before the Hon’ble Supreme Courtof Indiana that the said
“amendments to the definition of 'foreign source' provided in foreign contribution (regulation) act,
2010 through section 236 of Finance act,2016 and the section 182 of companies act,2013 which is
amended through section 154 of Finance act,2017 is Unconstitutionalas the following amendment
has been tremendously led to the opaqueness in the financial aspects of the election process.
As the Section 236 of the Finance Act, 2016 amended the definition of ‘foreign source’ provided in
Foreign Contribution (Regulation) Act, 2010.63 This amendment allowed a company, having a
nominal value of share capital within the limits specified for foreign investment under the Foreign
Exchange Management Act (FEMA), 1999, not to be considered as a foreign source. One of the
63
Hereinafter referred as”FCRA ACT,2010 “

major implications of this modification is that the change in the definition allows foreign
corporations to donate not only uncapped but also anonymous donations to political parties in
Indiana.64The Foreign contribution( regulation)act, 1976 was enacted by Parliament to serve as a
shield in our legislative armory in conjunction with other laws, and insulate the sensitive areas of
national Lifelike:- judiciary, politics and journalism from the influences stemming from beyond
our borders.
Amendment in FCRA ACT,2010 is against the spirit of Democracy.
2. But the picture is now turned from transparency to opaque ness by the virtue of these
amendments as by making a modification like this shows that there is no transparency and
accountability for the citizens of Indiana on the part of government of Indiana. This will have a
implication on transparency in political funding as now the political parties are free not to disclose
the identities of donors received through electoral bonds this anonymity creates a bad sense among
the people for political funding of the parties.
The Finance act,2016 has amended the FCRA ACT,2010 to allow foreign companies with
subsidies in India to fund a political parties in India , effectively, exposing the Indian politics and
democracy to international lobbyists who may want to further their agenda.these amendments pose
a serious danger to the autonomy of the country and are bound to adversely affect electoral
transparency encourage corrupt practices in politics and have made the unholy Nexus between
politics and corporate houses more opaque and treacherous and deemed to be misused by the
special interest groups and Corporate lobbyists.65
3.This amendment in FCRA ACT 2010 is also contrary to the SP Gupta v. Union of India66 in this
case decided by Justin Bhagwati, the supreme Court of India rejected the government claims for
protection against disclosure and directed the Union of India to disclose the documents containing
the correspondence, an open & effective participatory democracy requires accountability& Access
to information by the public about the functioning of the governmentExposure to the public gaze in
an open government will ensure a clean and healthy administration and is a powerful check against
64
The moot proposition of 6th Justice Murtaza Hussain national moot court competition, 2019
65
Editor,SC issues notices to centre,EC on PIL challenging amendment to political funding laws,
https://taxguru.in/Income-tax/sc-issues-notices-to-centre-ec-on-pil-challenging-amendment-to-political-funding-
laws.html ,5 October 2017 (Last viewed on August 14 at 8:30pm)
66
SP Gupta v. Union of India AIR 1982 SC 149

oppression, corruption, and misuse or abuse of authority. The concept of an open government is the
direct emanation from the right to know, which is implicit in the right to freedom of speech and
expression guaranteed under Article 19(1)(a) of the Indian Constitution.
4. Also in the case of State of UP vs Raj Narain 67 which also includes access to Public information,
political expression, privacy and Data protection here allahabad high court found then prime
Minister of India Indira Gandhi guilty of electoral malpractices which is also the essence of the
following amendments in FCRA ACT,2010 & companies act,2013.
but it’s evident that government of indiana are trying to become unaccountable after making
suchamendments which is unconstitutionalin Nature as this will allows foreign corporations to
donate not only uncapped but also anonymous donations to political parties in Indiana which
ultimately results in ill practices during electoral process therefore, the elections can’t be proceed in
a free and fair mannerthough this is present in the basic structure of the Constitution of Indiana
which is a federal country with a multiparty system consisting of 29 states. Free and fair election is
held to be the ‘basic structure of the Indiana Constitution’ by the Indiana Supreme Court, rendering
it incapable of being amended. The Constitution of Indiana is based on the principles of equality,
liberty, fraternity, transparency and accountability of the state and freedom of religion as its core
values. Republic of Indiana has its independent and autonomous Election Commission; Judiciary of
Indiana is completely independent.68
The demand for transparency must be conceived as a democratic value in itself a tool designed to
avoid any wrongful influences of money in politics if laws are intended to be effective with regard
to transparency they should be general in nature& enforced with respect to everyone and not just
political parties or candidates, but also the donor’s as well. on keeping secrecy it’s essential not to
cross a line of decency as in the case of Maneka Gandhi vs. Union of India 69, Justice V.
Krishna Iyar opined that“A government which functions secretly not only act against the
democratic decency, but buried itself with its own burial.
Violation of scope for scrutiny of funding of political parties by virtue of amendmen t
6. The amendment to the FCRA ACT,2010 that bans overseas corporations from funding political
67
State of uttar Pradesh v. Raj Narain AIR 1975 SCR(3)333
68
69
Maneka Gandhi v. Union of India, 1978, AIR 597

parties. This amendment made by the government not only makes it easier for parties to accept
foreign fund’s though ironically it do away with the scope for scrutiny of a political parties funding
since 1976.70
In the Finance act, 2016 in section 236,the opening paragraph, for the words, figures& letters ‘the
26thSeptember,2010’ the words, figures& letters 'the 5th August 1976’ shall be Substituted.
Therefore it’s Very evident that the change in definition of foreign source provided in the FCRA
ACT,2010 through section 236 of Finance act is unConstitutional.
In this regard it may be profitable to take a note of the observations inV.K.R.V.Rao and
DharmNarain‟s Foreign Aid and India‟s Economic Development, wherein it has been pertinently
observed on page 72:-71“India’s policy of non-alignment with power blocs enabled it to receive
foreign contributions from both the blocs. Eventually, with too much money coming in, with no
self-discipline, regulation, transparency accountability, and with some groups building empires in
the name of contribution.”In the case of Association for Democratic Reforms v Union of
India 72,the hon'ble Delhi HC found the 2 National political parties of India namely INC & BJP
doing violation of the FCRA ACT. High Court directed the Home Ministry and the EC to “relook
and reappraise the receipts of the political parties” to identify foreign donations and take action
within six months.
The order of the bench came in response to a PIL filed by the Association for Democratic Reforms
through advocate Prashant Bhushan claiming the Britain-based Vedanta Resources and its
subsidiary companies in India — including Sterlite Industries, Sesa Goa and Malco of allegedly
donating several crores of rupees to major political parties like the Congress and the BJP.The High
Court came to the conclusion that “Vedanta is a ‘foreign company’ within the meaning of the
Companies Act, 1956 and therefore, Vedanta and its subsidiaries — Sterlite and Sesa — are a
‘foreign source’ as contemplated under the Foreign Contribution (Regulation) Act, 1976.”“Prima
facie the acts of the respondents (Congress and BJP) inter se, clearly fall foul of the ban imposed
under the Foreign Contribution (Regulation) Act as the donations accepted by the political parties
70
The editor,,Lok Sabha passes Bill to exempt political parties from scrutiny on foreign funds, without debate,
https://www.thehindu.com/news/national/lok-sabha-passes-bill-to-exempt-political-parties-from-scrutiny-on-
foreign-funds-without-debate/article23285764.ece , 18 March 2018 (Last viewed on 13 August at 3:10pm)
71
Association for Democratic reforms &ANR v. Union of India&ORS,2014 SCC Del 1321
72
id

from Sterlite and Sesa accrue from ‘foreign sources’ within the meaning of law,” the bench
said.The two parties breached the Representation of the People Act (RPA), 1951, and the FCRA,
the PIL alleged. The RPA prohibits political parties from taking donations from government
companies and from foreign sources, the PIL has said. The DELHI HC also consulted Black’s Law
dictionary for the interpretation of word 'corporation , 'State of Orissa Vs.Titaghur Paper Mills Co.
Ltd. 1985 73
“ that the court may take aid of dictionaries to ascertain the meaning of a word in
common parlance where it’s not judicially interpreted.”Although the retrospective amendmentmade
will help theBJP, Congress to culminate with Delhi HC order of 2014 by super seeding the
judiciary by virtue of parliamentary Powers it’s clear that mala fide intention was there on account
of the political parties.
Amendment in Companies act,2013 leads to creation of shell companies and uncapped donations
7. Now same malafide attempt with a tinge of secrecy has given to section 182 of companies
act,2013 which is amended through section 154 of Finance act,2017.That the Finance Act, 2017
amended the provisions of the Companies act, 2013 which removed the cap for companies to make
political donations. Earlier the cap was 7.5% of net profits of the last three years for the company. 74
The companies are no longer required to disclose name or even break up contributions made to the
political parties. The Companies act,2013: certain amendments have been proposed in section 182
of the companies act,where the first proviso has been omitted and consequently the limit of seven
and a half percent (7.5%) of the average net profits in the preceding three financial year’s on
contributors by companies has been removed from the statute. This opens up the possibility of shell
companies being set up for the sole purpose of making donations to the political parties, with no
other business of consequence having disbursable profits.75.The second amendment, in section
182(3), abolishes provision that firms/companies must declare their political contribution in their
profit and loss statements,as now this amount is now reduced to only showing total amount under
this head which again lack transparency as donations remains anonymous not provided in profit
and loss statements of account , aggregate amount is a measure to hinder the Democratic values of
Nation as it’s provided in basic structure of the Constitution of Indiana “free&fair election process”
73
State of Orissa v. Titaghur Paper Mills Co. Ltd. 1985 SCC 280
74
75
Electoral bonds scheme ,Supreme court of India , www.SCI.in/electoral-bonds-scheme,12 April,2019

but it’s doesn’t seems to protect the basic fundamental values of country therefore the amendment
in section 182 companies Act,2013 is Unconstitutionalin nature.
9.The danger of such overextension of influence are escalated by the anonymity afforded to
corporate donor’s and political recipients when political parties cannot be made to reveal the source
of their funding-in direct violation of the supreme Court judgment in C.narayanswamy Vsc.k.zaffer
Sharif 76, corporation cannot be made to reveal the recipients of their donations, the right of citizens
to know essential information about the political scenario of the country is violative in terms of SC
decision.On concluding note it is the undeniable fact that financial superiority gives rise to
violation of Free &fair electiontranslatesintoelectoraladvantage,and so richer candidates and parties
have a greater chance of winning elections. This is best articulated by the Supreme Court in
KanwarLal Gupta v Amar Nath Chawla (hereinafter “KanwarLal Gupta”),77 when it explained the
influence of money as follows: “money is bound to play an important part in the successful
prosecution of an election campaign translates into an electoral advantage.78
The electoral bond scheme is a threat for Democracy as it fails the test of rationality and non-
arbitrariness.
10. The electoral Bonds scheme is a threat to democracy from a Constitutional point of view, the
scheme fails the tests of rationality and non-arbitrariness these amendmentsprovide new Channel of
private funding to political parties.There are a number of features of the electoral bond scheme that
merit Constitutional scrutiny. The first and most importantly, the anonymity because nether the
donor, not the political partyis obliged to reveal whom the donation comes from. 2nd one is the
elimination of a former cap of 7.5%, therefore, the result is that troubled companies, dying
companies, shell companies can now donate to an unlimited amount.79From a Constitutional point
of view, not only does it impact the freedom to vote in a free and fair election, as well as the
Constitutional right to vote per se, but — by accomplishing the exact opposite of what the
government claims it wants to achieve — it fails the tests of rationality and non-arbitrariness. The
76
C.narayanswamy v. C.k.zaffer Sharif (1994)(3) SCC 170
77
KanwarLal Gupta v. Amar Nath Chawla(1975) 3 SCC 646
78
255th Report of the Law Commission of India, ELECTORAL REFORMS, (2015).
79
GautamBhatia, Constitutionality of electoral bonds in India, Hindustan Times,
https://www.hindustantimes.com/analysis/the-electoral-bonds-scheme-is-a-threat-to-democracy/story-
PpSiDdUjIw5WNBUzDsSzxI.htmls, 18march, 2019 (Last viewed on August 11 at 8:10pm)

above amendments made in FCRAact, 2010 & companies act, 2013 are unconstitutional.
PRAYER FOR RELIEF
Wherefore, in the light of the legal precedents and principles cited and in light of the provisions of
the Constitution applied and arguments advanced; it is most humbly pleaded before the Hon’ble
Court that this Court adjudges and declare that:-
1. HOLD That the amendment to :-
a) Section 29c of Representation of people act 1951 through part 4 section 137 of Finance
act 2017?
b)Section 13A of Income tax act 1961 through chapter 3 section 11 of Finance act 2017
have affected transparency in political funding and violates the citizens “Right To Know”
under 19(1)(a)?
2. HOLD That the sections 182, 183, 184 and 185 of the Finance Act affect the stature, efficacy
3. HOLD That the introduction of the the Finance bill as a money bill was unconstitutional?
4. HOLD That the amendment to the definition of 'foreign source ' provided in sec.2 foreign
contribution regulation act,2010 through sec.236 of Finance act,2016 & section 154 of the Finance
act,2017 amended the sec.182 of companies act,2013 is unconstitutional
And pass any other order, direction, or relief that it may deem fit in the best interests of justice,
fairness, equity and good conscience

ALL OF WHICH IS MOST RESPECTFULLY SUBMITTED.
COUNSEL FOR THE RESPONDENT

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VI JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION

TEAM CODE- TC08

VI JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT COMPETITION,

IN THE HON’BLE SUPREME COURT OF INDIANA

W.P.(CIVIL) NO. ………………./2019

Action for Democratic Reforms (ADR) …………. PETITIONER

UNION OF INDIANA ……………RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF PETITIONER

AS SUBMITTED TO THE CHIEF JUSTICE AND OTHER COMPANION JUDGES OF

MEMORIAL ON BEHALF OF PETIONER Page 1

Index of Authorities............................................................................................................ 2-4

Summary of Facts................................................................................................................ 7-8.

Summary of Arguments................................................................................................... 10-11.

Arguments Advanced....................................................................................................... 12-34.

MEMORIAL ON BEHALF OF PETIONER Page 2

1. A.S Krishna v. State of Madras 1957 AIR 297

MEMORIAL ON BEHALF OF PETIONER Page 3

27. Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183

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AIR : All India Report

PIL : Public Interest Litigation

SCC : Supreme Court Cases

u/s : Under Section

UOI : Union of India

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Remedies for enforcement of rights conferred by this Part

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during the electoral process.

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1.Whether the amendment to :-

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Whether the amendment to :-

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1. 1. Whether the amendment to :-

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public character, bringing them in the ambit of section 2(h)”

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Tribunals should be equivalent or comparable to that of High Court Judges.

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basic structure of the Constitution.

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