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Moot memorial on the death of students in the basement library of a coaching institute
Typology: Schemes and Mind Maps
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v. REPUBLIC OF ARYAVARTA AND ORS.…………………………………. RESPONDENT WRITTEN SUBMISSION ON BEHALF OF THE APPELLANT
● The Constitution of India, 1950 ● Civil Procedure Code, 1908 BOOKS REFERRED ● ARVIND P. DATAR, COMMENTARY ON THE CONSTITUTION OF INDIA (2ND edn., 2010). ● DURGA DAS BASYU, COMMENTARY ON THE CONSTITUTION OF INDIA (8TH edn 2007) ● M.P. JAIN, INDIAN CONSTITUTIONAL LAW (7TH^ edn, 2016) LIST OF CASES
sought to have these regulations declared unconstitutional, requesting their withdrawal on the grounds of infringement of their rights.
educational institutions from excessive governmental restrictions. Moreover, it was contended that since secularism and equality were part of the basic structure of the Constitution the provisions of the Constitution should be interpreted so that the right of the private non-minority unaided institutions were the same as that of the minority institutions. It was submitted that while reasonable restrictions could be imposed under Article 19(6), such private institutions should have the same freedom of administration of an unaided institution as was sought by the minority unaided institutions Likewise, with the introduction of The Coaching (Establishment, Administration and Management) Regulations, 2024, the government seeks to impose conditions for the establishment and operation of coaching institutions, thereby undermining their autonomy to operate freely, a right which falls under Article 19(1)(g). The reasonableness of a restriction has to be tested both from procedural as well as substantive aspects of the law. To determine the reasonableness of the restrictions, regard must be given to the nature of the business and the conditions prevailing in the trade. These factors differ from trade to trade and no hard and fast rules concerning all trades can be laid down^4. Further, a restriction on a trade or business is unreasonable if is arbitrary or drastic and has no relation to, or goes much in excess of, the objective of the law which seeks to impose it. In Chintaman Rao^5 , the Supreme Court laid down the test for "reasonable restriction" as follows: "The phrase reasonable restriction connot that the limitation imposed on a person in the enjoyment of the right should not be arbitrary or of an excessive nature beyond what is required in the interest of the public. The word reasonable implies intelligent care and deliberation, that is, the choice of a course which reason dictates. Legislation that arbitrarily or excessively invades the right cannot be said to contain the quality of reasonableness unless it strikes a proper balance between the freedom guaranteed in Article 19(1)(g) and the social control permitted by clause (6) of Article 19, it must be held to be wanting in that quality.” The Court has further explained the concept of "reasonableness" as envisaged in Art. 19/6) in Krishnan^6 "The reasonableness of restriction is to be determined in an objective manner and from the standpoint of the interests of the general public and not from the standpoint of the interests of the persons upon whom the restrictions are imposed or upon abstract consideration. A restriction cannot be said to be unreasonable merely because in a given case, it operates harshly in determining the infringement of the right guaranteed under Art. 19(1)(g), the nature of the right alleged to have been infringed, the underlying purpose of the restriction imposed t and the urgency of the evil sought to be remedied thereby, the prevailing conditions at the time, enter into judicial (^4) Sreenivasa General Traders & Ors. Etc v. State Of Andhra Pradesh, AIR 1983 SC 1246 (^5) Chintaman Rao & Another v. State Of Madhya Pradesh, AIR 1951 SC 118 (^6) Krishnan Kakkanth v. Govt. of Kerela, AIR 1997 SC 128
verdict.” Thus, restrictions to be reasonable must not be arbitrary or excessive in nature so as to go beyond the interest of the general public. This formulation involves a balancing of private interest vis-a-vis public interest. For a restriction to be considered reasonable, it should not be arbitrary or extreme. However, in the case of the guidelines, the restrictions are unreasonable because such restrictions can only be imposed through laws enacted by the legislature.
functions is unconstitutional. Establishing the coaching tribunal through executive regulation, without the necessary legislative support, violates this well-established legal doctrine. Such actions compromise the delicate balance of power among the branches of government and underscore the importance of adhering to constitutional principles. 1.4 THE IMPUGNED REGULATIONS VIOLATE ARTICLE 323B It is humbly submitted that Article 323B of the Constitution of Aryavarta stipulates that the appropriate legislature may, by law, provide for the adjudication or trial by tribunals of any disputes, complaints, or offenses with respect to any of the matters specified in clause (2), within the legislative competence. Article 323B clearly states that only the legislature has the authority to constitute tribunals on specific matters, such as taxation, labor disputes, and administrative matters. The establishment of coaching tribunals by an executive order is unconstitutional as it bypasses the requirement that tribunals must be created by law, not by regulation. In the case of State of Karnataka v. Vishwabharti House Building Co-op Society^12 (2003), the Supreme Court held that tribunals created under Article 323B must be backed by valid legislation passed by the legislature. Article 323B explicitly specifies that tribunals can only be created by the legislature. However, in this instance, they have been established by the executive. Even if we consider that these tribunals were created through delegated legislation, they still lack constitutionality as they lack a parent act that grants the executive the authority to establish a tribunal. Delegated legislation (rules, regulations, and notifications issued by the executive) must have an enabling act passed by the legislature that authorizes such delegation. Delegated legislation cannot create substantive rights and obligations unless permitted by a parent act. In the case of State of West Bengal v. Anwar Ali Sarkar^13 , the Supreme Court ruled that executive action must be backed by proper legislative sanction to avoid arbitrariness. Here, the Coaching Regulation, 2024, does not originate from any legislative enactment, making it ultra vires (beyond the power) of the executive. 2) That the regulations in question are in violation of the principle of separation of power and basic structure doctrine: It is humbly submitted before the Hon’ble Court that the regulations in question are violative of the principle of separation of power as enshrined under article 50[1.1] as these regulations violate (^12) State of Karnataka v. Vishwabharti House Building Co-op Society, AIR 2003 SC 1043 (^13) The State Of West Bengal v. Anwar Ali Sarkar habib, 1952 SCR 284.
article 323-B [1.2] which clearly states the tribunals can only be made by the legislature, they violate section 9 of CPC[1.3] and are against the principle of delegated legislation[1.4]. 2.1 THAT THE IMPUGNED REGULATIONS INFRINGE ARTICLE 50 It is humbly submitted that article 50 of the constitution of Aryavarta states that, the state shall take steps to separate the judiciary from the executive in the public service of the state. The constitution of Aryavarta is based on the doctrine of separation of power which ensures that the legislature, the executive, and the judicial branches function independently without encroaching upon each other’s domain. The Supreme Court of Aryavarta in various judgments has held that separation of powers is a part of the basic structure doctrine. This means that even the legislature cannot abolish or fundamentally alter the division of powers among the three organs of the state. Separation of power is a basic structure of the Constitution and cannot be violated, even by a constitutional amendment.^14 Tribunals performing judicial functions must have independence equivalent to civil court and cannot be controlled by the executive.^15 The court emphasized the executive cannot assume judicial functions and that tribunals created by the executive must have proper safeguards to ensure judicial independence.^16 As a result, the Supreme Court struck down the law that gave the executive the power to override a decision of the Administrative Tribunal, ruling that this violated the separation of power.^17 In the case of Madras Bar Association v. Union of India, the Supreme Court struck down the provision of the Tribunal Reform Act 2021 which allows the executive to control the tenure and appointment of tribunal members.^18 Similarly, in the case of Coaching (Establishment, Administration, and Management) Regulations 2024, the regulations have breached the principle of separation of power, as the executive (^14) Keshavnanda Bharti v. State of Kerala 1973 AIR 1416 (^15) Union of India v. R. Gandhi (2010) 11 SCC 1 (^16) State of Bihar v. Bal Mukund shah(2000) 4 SCC 640 (^17) P. Sambamurthy v. State od Andhra Pradesh 1987 AIR 663 (^18) Madras Bar Association v. Union of India 2021 SCC OnLine SC
Similarly, in the case of Coaching (Establishment, Administration, and Management) Regulations 2024, the regulations have breached Article 323-B as it is clearly stated that only the legislature has the power to establish tribunals, the coaching tribunal is constitutional. Only a valid law under Article 323-B can establish tribunals with exclusive jurisdiction. Since no such law exists in Aryavarta for the Coaching Tribunal, its formation is unconstitutional. 2.3 THAT THE IMPUGNED REGULATIONS INFRINGE SECTION 9 OF THE CIVIL PROCEDURE CODE(CPC) It is humbly submitted that section 9 of the civil procedure code states that the civil court shall have the jurisdiction to try all the suits unless expressly or impliedly barred by a valid law. This provision established a presumption in favor of civil court jurisdiction meaning that the civil court have the authority to hear all disputes unless there is a clear legal provision barring their jurisdiction. The executive regulation (Regulation 5.2) barring civil court jurisdiction lacks statutory backing and therefore not a valid law. The Supreme Court held that the exclusion of civil court jurisdiction must be explicitly stated in a valid law and must provide an alternative mechanism that meets the standards of judicial independence^21. Government with their own discretion removes the power of one court which is unconstitutional. The coaching tribunal lacks independent judges, proper procedural rules, and an appeal mechanism comparable to civil courts. Thus exclusion of civil court violates the principle of effective adjudication. The Supreme Court ruled that the exclusion of civil court jurisdiction is only valid if there is an alternative remedy that is adequate and just.^22 The Supreme Court of India in the case A.K Gopalan v. state of Madras ruled that executive actions restricting personal liberty must be backed by law. This set a precedent that regulations affecting fundamental rights cannot exist without statutory authority.^23 (^21) Dhalabhai v. State of Madhya Pradesh 1969 AIR 78 (^22) Mafatlal Industries v. Union of India 19970 5 SCC 536 (^23) A.K.Gopalan v.State of Madras AIR 1950 SCC 228
Section 9 of CPC is a statutory provision enacted by the legislature where the coaching tribunals were created through executive regulations. A subordinate regulation cannot override or amend a statutory provision like section 9 of CPC. The Supreme Court in the case A.V Nachane v. Union of India held that a statutory right conferred by legislature cannot be taken away by executive action.^24 Similarly, in the case of Coaching (Establishment, Administration, and Management) Regulations 2024, the regulations have breached section 9 of CPC. The jurisdiction of the civil court cannot be barred by the action of the executive hence it is unconstitutional. 2.4 THAT THE IMPUGNED REGULATIONS INFRINGE THE PRINCIPLE OF DELEGATED LEGISLATION It is humbly submitted before the Hon’ble Court that the delegated legislation is defined under Article 312 of the constitution of Aryavarta. Delegated legislation refers to rules, regulations, or by-laws made by an authority (usually the executive or an administrative body) under the power conferred by a primary legislation. It is also known as subordinate legislation because it derives its legitimacy from the parent act which is enacted by the legislature. A parent act is a legislative enactment that expressly delegates rule-making power to the executive. Any rules, regulations, or orders made without an enabling parent act are unconstitutional. Delegated legislation(rules, regulations, and notifications issued by the executive) must have an enabling act passed by the legislature that authorizes such delegation. In the State of West Bengal v. Anwar Ali Sarkar 1952 AIR 75, the Supreme Court ruled that executive action must be backed by proper legislative sanction to avoid arbitrariness.^25 Here the coaching regulation, 2024 does not originate from any legislative enactment making them ultra vires( beyond the power) of the executive. (^24) A.V Nachane v. Union of India 1982 AIR 1126 (^25) State of West Bengal v. Anwar Ali Sarkar 1952 AIR 75
