Sample Memorial (Petitioner)
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This is a sample memorial on behalf of Petitioners, only for your reference. It has no link with actual memorial you will prepare.
4th INTRA MOOT COURT COMPETITION
___________________________________________________
BEFORE THE
HON’BLE SUPREME COURT OF ARYA LAND
Writ Jurisdiction
Under Article 32 of Constitution of Arya Land
IN THE MATTER OF
Association of Aryans (AOA) …………………………….… Petitioner
Versus
Government of Arya land ……………………………… Respondents
_________________________________________________
UPON SUBMISSION TO THE HONOURABLE CHIEF JUSTICE AND HIS
COMPANION JUSTICES OF HONOURABLE SUPREME COURT OF ARYA LAND
_______________________________________________
MEMORIAL FILED ON BEHALF OF THE PETITIONER
TABLE OF CONTENTS
ABBREVIATIONS………………………………………………………………
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III
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INDEX OF AUTHORITIES …………………………………………………….
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IV
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STATEMENT OF JURISDICTION…………………………………………….
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VI
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STATEMENT OF FACTS…………………………………………………….....
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VII
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ISSUES RAISED…………………………………………………………………
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IX
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SUMMARY OF ARHUMENTS ………………………………………………...
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X
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ARGUMENTS ADVANCED…………………………………...………………..
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XI
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Whether the public interest litigation is maintainable or not
Whether the Notification issued on 8th november violates the fundamental rights guaranteed by the constitution
PRAYER ...................................................................................... XV
ABBREVIATIONS USED
Sec. : Section
AIR : All India Report
Art. : Article
Hon’ble : Honorable
Ltd. : Limited
SC : Supreme Court
SCC : Supreme Court Cases
Cr.P.C. : Criminal Procedure Code
C.P.C. : Civil Procedure Code
BCI : Bar Council of India
u/s : under section
r/w : read with
Yrs. : Years
v. / vs. : Versus
Cr.L.J. : Criminal Law Journal
& : and
Pg. : Page
Ors. : Others
Anr. : Another
Edn. : Edition
INDEX OF AUTHORITIES
Statues:
· The Constitution of India
· The Reserve Bank Of India Act, 1934
· Employees’ Compensation Act, 1923
Cases:
1. Bodhisattwa Gautam v. Subbra Chakraborty AIR 1996 SC 722
2. A.B.S.K Sangh (Rly.) v. union of India AIR 1981 SC 298
3. Sukhdev and Ors v. Bhagat Ram and Ors. AIR 1975 SC 1331, 95.
4. R. Gandhi V.Union of India, 1999, 8 SCC 106(Para 13)
5. Judges Transfer Case S.P. Gupta vs President Of India And Ors. on 30 December, 1981
6. M.C. Mehta and Anr. v. Union of India and Ors. AIR 1987 SC 1086
7. Indra Sawhney v. Union Of India AIR 1993 SC 477
8. Shri Sita Ram Sugar Co. Ltd V. Union Of India, AIR 1990 SC 1277,1297
9. Pathak vs. Union of India(1978) 2 SCC 50
10. State of Punjab v. M.S. Chawla
11. Consumer Education and Research Centre v. Union of India
12. D.C.WADHWA V. STATE OF BIHAR AIR 1987 SC 579
13. Daryo v. state of U.P. AIR 1961 SC 1457
14. Lucknow development Authority v. M.K. Gupta (1994) 1 SCC 243
15. N.Nagendra Rao v. State of A.P. AIR 1994 SC 2663
16. State of Rajasthan v. Vidyawati AIR 1962 SC 933
17. Vincent v Union of India 1987 AIR 990 : 1987 SCR (2) 468
Books:
· Dr.Jai Jai Ram Upadhyay, The Constitution of India, Central Law Agency, 2015
· The Reserve Bank of India Act, 1934 , Universal Law Publishing Co.Pvt.Ltd.
· Employees’ Compensation Act, 1923, Eastern Book Company, 33rd Edt.2014.
· Dr. J.N. Pandey,Constitutional Law Of India,52nd Edition ,Central Law Agency,2015
Websites referred :
Statement of Jurisdiction
The Petitioner , association of aryans have filed a Petition through the Public Interest Litigation under article 32 of constitution of arya land before Hon’ble Supreme court against The Notification Of the DEPARTMENT OF ECONOMIC AFFAIRS ( DEA ) OF FINANCE MINISTRY OF ARYA LAND Issued on 8TH NOVEMBER 2016.
The present memorandum sets forth the facts, contentions and the arguments.
STATEMENT OF FACTS
· In order to contain the rising incidence of fake notes and black money, the scheme to withdraw has been introduced on November 8, 2016. Prime Minister of Arya land announced in a broadcast to the nation that “The legal tender character of the existing bank notes in denominations of Rs 500 and Rs 1000 issued by the Aryan Reserve bank till November 8, 2016 stands withdrawn and that Rs 500 and Rs 1,000 currency notes would no longer be recognized legally as currency’’. He noted that the move complements the country’sSwachh Arya Abhiyan (Clean Aryan campaign). The aim behind the government’s action was to combat tax cheating, counterfeiting and corruption. The PM said that eliminating large denominations makes it harder to hide large amounts of cash.
· In consequence thereof these Bank Notes cannot be used for transacting business and/or store of value for future usage. The Specified Bank Notes could be exchanged for value at any of the 19 offices of the Aryan Reserve bank or at any of the bank branches of commercial banks/ Regional Rural Banks/ Co-operative banks or at any Head Post Office or Sub-Post Office.
Initially, the move received support from people, several bankers as well as from some international commentators but gradually as the cash shortages grew in the weeks following the move, large serpentine queues outside banks started appearing .
· To counter that, the government, announced that customers who exchange their old notes for new ones at banks, will be inked, to ensure persons don't exchange money more than once a day. But the menace did not end here and so the government again came up
· With a more surprising but rather a shocking move to issue the bank notes of Rs Twenty thousand denomination which was a complete U turn to the PM’s address to the nation where he said that eliminating large denominations makes it harder to hide large amounts of cash.
The sudden nature of the announcement and the prolonged cash shortages in the weeks that followed created significant disruption throughout the economy, threatening economic output. The move was heavily criticized as poorly planned and unfair, and was met with protests, litigation, and strikes.
· The move was heavily criticised by prominent economists and by world media leading to debates in both houses of Parliament and triggering organised protests against the government in several places across India. The move is considered to have reduced the country's GDP and industrial production.
· In the days following the demonetisation, the country faced severe cash shortages with severe detrimental effects across the economy. People seeking to exchange their bank notes had to stand in lengthy queues, and several deaths were linked to the inconveniences caused due to the rush to exchange cash.
· Aggrieved by the decision of the government and calling it a ‘Tughlaki Farman’, an Association of Aryans (AOA) filed the PIL before the Apex court of Arya land to quash the November 8 notification of the Department of Economic Affairs (DEA) of Finance Ministry of Arya land .
ISSUES RAISED
1) Whether the public interest litigation is maintainable or not
2) Whether the Notification issued on 8th november violates the fundamental rights guaranteed by the constitution
SUMMARY OF ARGUMENTS
1) Whether the public interest litigation is maintainable or not
It is most humbly submitted before the Hon’ble Court that present PIL is maintainable against government of Arya since AOA (association of Aryan) has filed a PIL u/a 32 of the Constitution. It is further submitted that since there has been gross violation of Article 19(1)(g) and 21 of the Constitution, the PIL is maintainable, and on account of the same relief is sought.
In the instant case, the grounds stated by the petitioner stating casualties and the number of deaths resulted due to standing in long queues to exchange their bank notes is an infringement on citizens right to life and personal liberty, thus violative of article 21 of the Constitution of Arya Land. Furthermore the denial of transaction to the petitioner in exchanging currency results in the violation of Article 19(1)(g).
Thus it is humbly submitted that the Public Interest Litigation filed by AOA is maintainable
2 Whether the Notification issued on 8th november violates the fundamental rights guaranteed by the constitution
It is most humbly submitted that the notification issued on 8th November infringes the fundamental rights guaranteed by the Constitution as it violates Article 19(1)(g) and 21.
In the instant case, the grounds stated by the petitioner stating casualties and the number of deaths resulted due to standing in long queues to exchange their bank notes is an infringement on citizens right to life and personal liberty, thus violative of article 21 of the Constitution of Arya Land. Furthermore the denial of transaction which has resulted to the petitioner in exchanging currency results in the violation of Article 19(1)(g).
ARGUMENTS ADVANCED
I. Whether the public interest litigation is maintainable or not
[1.1] AOA has filed a PIL u/a 32 of the constitution
It is most humbly submitted before the Hon’ble Court that present PIL is maintainable against government of Arya since AOA (association of Aryan) has filed a PIL u/a 32 of the Constitution. It is further submitted that since there has been gross violation of Article 19(1)(g) and 21 of the Constitution, the PIL is maintainable, and on account of the same relief is sought.
Public Interest is something in which the public, the community at large has something pecuniary interest, or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interest of the particular localities, which may be affected by the matters in question. Interest shared by the citizens generally in affair of local, State or national government...”
It is to be noted that the locus standi of petition filed u/a 32 writ of Habeas Corpus necessarily be proved, whereas the locus standi of the PIL does not necessarily be proved.
The Supreme Court has entertained a number of petitions under Art. 32 complaining of infractions of Fundamental Rights of individuals, or of weak or oppressed groups who are unable themselves to take the initiative to vindicate their own rights. The Supreme Court has ruled that to exercise its jurisdiction under Art. 32, it is not necessary that the affected personally approach the court.
The Court can itself take cognisance of the matter and proceed suo moto or on a petition of any public spirited of any public spirited individual or body1
In the present case, AOA is a public spirited body and the present petition brought by AOA, is maintainable because this act of the government of Arya is in violation of the Fundamental Rights of the people
1. Bodhisattwa Gautam v. Subbra ChakrabortyAIR 1996 SC 722.
Lord J. Iyer declared has declared that “even an unregistered association can maintain a writ petition u/a 32 for the redressal of a common grievance”. Here AOA is a reputed as well as a registered organisation.2
In reference to Art. 13(2) of the Constitution “Any act of the executive or the legislature which takes away or abridges any of these rights shall be void & the court is empowered to declare it as void”.The Hon’ble Supreme Court strikes at the arbitrary action of the State 3
In the case of Vivek Narayan Sharma V Union of India4, the writ petition filed under Art.32 of the Constitution was held admissible by the hon’ble SC for the same issue of demonitization
In the Judges Transfer Case5, a 7-member bench of Supreme court has firmly established the rule regarding the public interest litigation. The court held that any member of the public having sufficient interest can approach the court for enforcing constitutional or legal rights of other persons and redressal of a common grievance.
The court asserted that, in realization of this constitutional obligation, "it has all incidental and ancillary powers including the power to forge new remedies and fashion new strategies designed to enforce the fundamental rights". The Court realized that because of extreme poverty, a large number of sections of society cannot approach the court.6
[1.2] Gross violation of the fundamental rights
In the instant case, the grounds stated by the petitioner stating casualties and the number of deaths resulted due to standing in long queues to exchange their bank notes is an infringement on citizens right to life and personal liberty, thus violative of article 21 of the Constitution of Arya Land. Furthermore the denial of transaction to the petitioner in exchanging currency results in the violation of Article 19(1)(g).
Thus it is humbly submitted that the Public Interest Litigation filed by AOA is maintainable
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2. A.B.S.K Sangh (Rly.) v. union of India AIR 1981 SC 298
3. R. Gandhi V.Union of India, 1999, 8 SCC 106 (Para 13)
4. Civil appeal No. 906/201
5. S.P. Gupta vs President Of India And Ors. on 30 December, 1981
6. M.C. Mehta and Anr. v. Union of India and: AIR 1987 SC 1086
II. Whether the Notification issued on 8th november violates the fundamental rights guaranteed by the constitution
A question arises whether the notification issued on 8th November actually violates the fundamental rights guaranteed by the Constitution.
It is most humbly submitted that the notification issued on 8th November infringes the fundamental rights guaranteed by the Constitution as it violates Article 19(1)(g) and 21.
[2] Gross violation of the fundamental rights
In the instant case, the grounds stated by the petitioner stating casualties and the number of deaths resulted due to standing in long queues to exchange their bank notes is an infringement on citizens right to life and personal liberty, thus violative of article 21 of the Constitution of Arya Land. Furthermore the denial of transaction which has resulted to the petitioner in exchanging currency results in the violation of Article 19(1)(g).
· [2.1.1] VIOLATION OF ARTICLE 19 OF THE CONSTITUTION
Article 19(1)(g) guarantees. Protection of certain rights
The right to carry on a business includes the right not to start any business or if he chooses, he has the right to close it down at any time he likes. Thus the state cannot compel a citizen to carry on business against his will. However like rights, the right to close down a business is not an absolute right and can be restricted, regulated, controlled by the state in the interests of general public.
In the case at hand, reasonable restrictions have been imposed on the fundamental rights guaranteed under Part III of the Constitution. The AOA aggrieved by the notification on 8th November filed PIL in the Apex Court of Arya stating the problems faced by all the citizens of Arya.
In view of Pathak vs. Union of India7 wherein it has been held that property within the
7. (1978) 2 SCC 50
meaning of Article 19 (1) (f) and clause (2) of Article 31 comprises every form of property,tangible or intangible, including debts and chooses in action and that extinguishment of a public debt due and owing from the State amounts to compulsory acquisition of such debt.
In the present case, the property which has been compulsory acquisitioned is in the form of cash on the account of the notification of cash ban which has resulted in the cash crunch in the country resulting in the disturbance of financial economy of the country.
[2.1.3] VOILATION OF ARTICLE 21 OF THE CONSTITUTION
Article 21 reads as:
“No person shall be deprived of his life or personal liberty except according to a procedure established by law.”
The right to life is undoubtedly the most fundamental of all rights. All other rights add quality to the life in question and depend on the pre-existence of life itself for their operation. As human rights can only attach to living beings, one might expect the right to life itself to be in some sense primary, since none of the other rights would have any value or utility without it. There would have been no Fundamental Rights worth mentioning if Article 21 had been interpreted in its original sense. This Section will examine the right to life as interpreted and applied by the Supreme Court of India.
In State of Punjab v. M.S. Chawla8, it has been held that the right to life guaranteed under Article 21 includes within its ambit the right to health and medical care.
In Consumer Education and Research Centre v. Union of India9, The Supreme Court laid down that: “Social justice which is device to ensure life to be meaningful and liveable with human dignity requires the State to provide to workmen facilities and opportunities to reach at least minimum standard of health, economic security and civilized living. The health and strength of worker, the court said, was an important facet of right to life. Denial thereof denudes the workmen the finer facets of life violating Art. 21.”
8. AIR (1997) SC 1225
9. AIR (1995) 922, (1995) SCC (3) 42
PRAYER
Wherefore, in the light of the facts, issues raised, arguments advanced and the authorities cited, it is most humbly and respectfully prayed that this Hon’ble court may be pleased to adjudge and declare that:
1. The writ petition filed by petitioner is maintainable before this Hon’ble court.
2. The Notification issued by Department of Economic Affairs (DEA) of Finance Ministry of Arya land be quashed and set aside .
According to what is just and good, it is an appeal of the counsel to Hon’ble Court to adjudge the above prayers, or grant any other relief which this Hon’ble Court may be pleased to grant and is deemed fit in the interest of Justice, Equity and Good Conscience.
All of which respectfully submitted
For the act of Kindness, the Petitioner shall Duty Bound Forever
All of which is most humbly prayed
Counsels for the Petitioner
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