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Memorial for moot on constitutional law. XIX ALL INDIA MOOT COURT COMPETITION, 2015 MEMORANDUM ON BEHALF OF THE RESPONDENTS -DRAWN AND FILED BY THE COUNSEL FOR THE RESPONDENTS
Typology: Assignments
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1. Whether the petitioner has a locus standi?.............................................................................. 1.1. That there was neither any infringement of fundamental right nor were such infringements imminent................................................................................................................................. 1.2. That there is abuse of process by the petitioner..................................................................... 1.3. Conclusion for the First Issue................................................................................................ 2. Whether the instant writ petition is premature?...................................................................... 2.1. That, the cause has not yet become mature............................................................................ 2.2. That, No order has yet been issued to the prejudice of the petitioner .................................... 2.3. Conclusion for the Second Issue............................................................................................. 3. Whether there was any violation of fundamental rights by the actions of respondents under the DTAA?................................................................................................................................. 3.1. That, merely the absence of the “opportunity of being heard” before sharing the information is not violative of any fundamental rights guaranteed under the constitution.... 3.2. In Arguendo, the information shared by the Britussia under the DTAA does not interfere with the Right to Privacy of any individual.......................................................................... 3.3. Conclusion for the Third Issue............................................................................................. 4. Whether Article 26 of DTAA was liable to be struck down as it was beyond the power the Government under Section 90 of the Income Tax Act of Britussia?................................. 4.1. That, Article 26 of DTAA is in accordance with the provisions of Section 90 of the Income Tax Act, 1961........................................................................................................................ 4.2. Assuming Arguendo, even in case of inconsistency between Art. 26 of DTAA and S. 90 of IT Act, former will prevail over the latter.............................................................................
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LIST OF ABBREVIATIONS AND ACRONYMS
AIR All India Reporter A. P. Andhra Pradesh Art. Article & And Anr. Another Bom. Bombay Del. Delhi DTAA Double Taxation Avoidance Agreement Ed. Edition Govt. Government HLR Harward Law Review. Kan. Karnataka Ltd. Limited Mad. Madras Ors. Others ¶ Paragraph Sec. Section SC Supreme Court SCC Supreme Court Cases
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i.e. that is v. versus vol. Volume
BOOKS AND COMMENTARIES
DICTIONARIES
ELECTRONIC MEDIUM
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Amersia and Britussia are two neighboring developing countries. Both the countries were, however, plagued with the problem of high taxes, leakages in tax collections and in generation of unaccounted monies by a few, leading to low standard of living of majority of its citizens.
The Government of Britussia negotiated and entered into Tax Avoidance Conventions/Agreements (popularly referred to double taxation avoidance agreements) containing, inter alia, specific clauses for Exchange of information with many Countries including Amersia. The Amersia- Britussia Double Taxation Avoidance Agreement (DTAA in short) was also notified in January 2014.
The Government of Amersia, received many Dossiers containing information under the DTAA from the Government of Britussia. It started selectively leaking information of bank accounts held by its citizens/PAOs and their business entities in Britussia to the Press. Some ministers in the Government of Amersia publicly announced the names of their political and personal opponents whose names were listed in the Dossier. No investigation or other proceedings have been initiated against such persons till date.
Television Channels in Amersia ran continuous media trials of the persons whose names were selectively or vindictively disclosed and created negative publicity for such individuals and their businesses. PROCEDURURAL BACKGROUND:
The members of Amersia Association (Association in Short), an association formed for protecting the social, cultural, financial and other interests of Citizens of Amersia and PAOs in Britussia were alarmed by the turn of events in respect of the two non-members. With respect to the issue the association reached the Prime Minister of Britussia,who refused to help them for the reason that any such move will result in it losing information sources in its mission to recover unaccounted money. Following the Amersia Association filed a Public Interest Litigation under Article 32 of the Constitution before the Supreme Court of Britussia seeking various reliefs.
The Union of Britusia is approaching the Supreme Court of Britussia in reply of the Public Interest Litigation filed by the Association.
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Article 26 of DTAA is in accordance with the provisions of Section 90 of the Income Tax Act, 1961 as the former is set out in accordance to the provisions of the later i.e., for the exchange of information for the prevention of evasion or avoidance of income-tax and the terms used under Article 26 “prevention of fraud or fiscal evasion” must be construed according to the doctrine of “Noscitur a sociis” for the interpretation of statues. Assuming Arguendo, even in case of inconsistency between Art. 26 of DTAA and S. 90 of IT Act, former will prevail over the latter. Hence, Article 26 of the DTAA should not be struck down.
FIFTH ISSUE: WHETHER TREATY MAKING AND TREATY COMPLYING POWERS OF THE EXECUTIVE CAN BE JUDICIALLY REVIEWED?
In the light of aforementioned contentions it is firmly established that, it was beyond the realms of the judiciary to sit in judgment over the executive's decision to enter into an international treaty. A treaty really concerns the political rather than the judicial wing of the State. Moreover, it is not apt for this Court to go into the wisdom of the economic policies enunciated by the Government, as, in complex economic matters every decision is necessarily empiric and Courts should not interfere with economic policy which is the function of experts. Hence, in the instance case, treaty making and treaty complying powers which are within exclusive domain of the executive cannot be judicially reviewed.
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1.1.1. It is humbly submitted that, a person acting bona fide and having sufficient interest in the proceedings of the Public Interest Litigation will alone have a locus standi and can approach the court under Article 32 to wipe out the violation of Fundamental Rights and genuine infraction of statutory provisions, but not for personal gains or private profits or political motives or any oblique consideration. When a person acquires a locus standi, he has to have a personal or individual right which was violated or threatened to be violated.^2 In the present case there was no violation of right to life and personal liberty^3 by the actions of the respondents. Britussia was upright in the dealings of the treaty and was abiding by the secrecy clause of the DTAA entered into between Bitussia and Amersia. Also the attacks that were carried out against one Mr. Ashra Banbani 4 and Mr. Saber Bechrival took place in Amersia. 5 Assuming Arguendo, even if there was any violation of right to life and personal liberty, such violations were not committed by the actions of the respondents or within territory of Britussia.
1.1.2. It is further submitted that, there was no violation of Fundamental Right regarding the loss of business as no actions of the respondents could be traced to have resulted in the loss of business of the resident of Amersia or PAO s. As mere running of negative propaganda regarding import business of an individual cannot be traced to have caused the loss of business, as the same was due to the violent action of certain fringe elements of the society in Amersia.
(^2) Calcutta Gas Co. Ltd. V. State of West Bengal , AIR 1962 SC 1044. (^3) Article 21 of the Constitution of India. (^4) Compromis ¶ 11. (^5) Compromis ¶ 12.
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foreign accounts by stopping further exchange of information to their Government of Amersia.
1.2.3. Public interest litigation should not be "publicity interest litigation" or "private interest litigation" or "politics interest litigation"; if not properly regulated and abuse averted it becomes a tool in unscrupulous hands to release vendetta and wreck vengeance, as well^10. In the instant case, petition does not seek to advance any public right, rather, invocation of the jurisdiction of the Supreme Court as public interest litigation is made keeping in background the political eneminty, hence, the allegations made in the petition and in the context of the case was wholly unjustified. Public interest litigation does not mean settling disputes between the private parties.^11 Here there is much more than what meets the eye. Hence, it is humbly pleaded that, the petitioner has no locus standi to file the petition and thus such petition filed before court on ground of political enemity is liable to be rejected by court and is not maintainable.^12
1.2.4. It is further submitted by that, this weapon (public interest litigation) as a safeguard must be utilised and invoked by the court with a great deal of circumspection and caution. Where it appears that it is only a cloak to feed any ancient enmity or grudge, this must not only be refused but also be discouraged. While it is the duty of the Supreme Court to enforce fundamental rights, it is also a duty to ensure that this weapon under Article 32 must not be misused or permitted to misused by creating a bottleneck in the Superior Court preventing other genuine violation of Fundamental Rights being considered by the court. That would be an act or a conduct that would defeat the purpose of the preservation of the Fundamental Rights.^13
1.2.5. It is therefore, the duty of the Supreme Court to discourage such petitions and to ensure that the course of justice is not obstructed or polluted by unscrupulous litigants by invoking extraordinary jurisdiction of the Supreme Court for personal
(^10) Ashok Kumar Pandey v. The State of West Bengal, AIR 2004 SC 280. (^11) Ramsharan Autyanuprasi v. Union of India , 1989 Supp (1) SCC 251: AIR 1989 SC 549: JT 1988 (4) SC
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matters in the garb of the public interest litigation.^14 Thus, a person acting for personal gain or private profit or political motive or any oblique consideration has no locus standi.^15
1.3. CONCLUSION FOR THE FIRST ISSUE:
In the light of aforementioned contentions it is firmly established that, there is no infringement of fundamental right nor were such violations imminent. Also, the instant Public Interest Litigation has been filed with a view to abuse the process in order to protect the subvert interest of the members of the association. Hence, the petitioner does not have a locus standi, as, this petition is just a misuse of the provisions of a public interest litigation which is aimed at the disruption of transfer of information, so that, the members of the association who are suspected of violations are not brought under the purview of the investigation when the same would be initiated.
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2.1.1. It is pertinent here to take into account the case of R. G. High Court of Madras v. R. Gandhi & Ors.,^16 where the Hon’ble Supreme Court observed that: “Thus, it is apparent that judicial review is permissible only on assessment of eligibility and not on suitability. It is not a case where the writ petitioners could not wait till the maturity of the cause i.e. decision of the collegium of this Court. They took a premature step by filing writ petitions seeking a direction to Union of India to return the list sent by the collegium of the Madras High Court without further waiting its consideration by the Supreme Court collegium.”
(^14) Subhash Kumar v. State of Bihar , (1991) 1 SCC 598: AIR 1991 SC 420: (1991) 1 SCR 5. (^15) See Supra 11. (^16) LNIND 2014 SC 818 : Special Leave to Appeal (Civil) No(s).892-893/2014.
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pecuniary or otherwise, or causes him some prejudice in one form or other. As observed by Lord Denning, in
General of the Gambia v. N' Jie^19 :
"A person can be said to be aggrieved who has a genuine grievance because an order has been made which prejudicially affects his interest."
2.2.2. It is further submitted before this Hon’ble Court that, in case of Chanan Singh v. Co- op. Societies, Punjab and Ors^20 ., the Hon’ble Apex Court observed that:
“The writ petition against a show cause notice should be dismissed as premature as no punitive action has yet been taken and there is no present grievance which can be ventilated in Court.”
Similarly, in the case of Mrs. Kunda S. Kadam and Ors. v. Dr. K. K. Soman and Ors.^21 , a writ petition had been filed against the recommendation of a certain candidate by the Public Service Commission. The Supreme Court held that the writ petition was premature as no final orders of appointment had been passed. Again, in Dr. G. Sarana v. University of Lucknow and Ors.^22 , the petitioner had approached the High Court by filing a writ petition under Article 226 of the Constitution against the recommendation made by the Selection Committee. It was held that the petition against such recommendation was premature. Thus, if a writ petition is filed before any adverse order is passed against a party or before any adverse action is taken against a person, that writ petition should be dismissed as premature. Similar view has been taken by the Supreme Court in plethora of cases.^23
(^19) (1961) AC 617 (634). (^20) 1976 AIR SC 1821 : 1976 SCR (3) 685 : 1976 SCC (3) 36. (^21) AIR 1980 SC 881 : (1980) 2 SCC 355. (^22) 1976 AIR SC 2428, 1977 SCR (1) 64. (^23) See also, Executive Engineer, Bihar State Housing Board v. Ramesh Kumar Singh and Ors., 1996 AIR SC 691 : 1996 SCC (1) 327; Special Director and Anr. v. Mohd. Ghulam Ghouse and Anr., AIR 2004 SC 1467; State of Haryana and Ors. v. Ch.Bhajan Lal and Ors. , 1992 AIR SC 604 : 1990 SCR Supl. (3) 259 ; Union of India and Ors. v. A.N.Saxena^23 1992 AIR SC 1233 : 1992 SCR (2) 364; Chandra Sekhar Singh Bhoi etc. v. The State of Orissa etc 1970 AIR SC 398 : 1970 SCR (1) 593 .; Balmadies Plantations Ltd. and Anr. v. The State of Tamil Nadu ,1972 AIR SC 2240 : 1973 SCR (1) 258; Bokaro and Ramgur Ltd. v. The State of Bihar and Anr. 1963 AIR SC 516 : 1962 SCR Supl. (3) 831; Prag Ice and Oil Mills and Anr. Union of India, 1963
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2.2.3. Hence, it is humbly submitted that, the instant writ petition is clearly premature, as, no final orders have been passed yet against the petitioner nor any other adverse action has been taken against the members of association or the suspected individuals. Hence, it seems that the whole plot of the petitioner was to hinder the passing of final orders and to prevent the initiation of investigation proceedings for the suspected charges of tax violation and thus, the petitioner is trying to stall such proceedings by filing pre – mature writ petition. It is submitted that the whole object of the petitioner is malafide and mischievous.
In the light of aforementioned contentions it is firmly established that, the cause has not yet matured as investigation proceedings are still pending. Moreover, no final order has yet been issued to the prejudice of the petitioner nor any other adverse action has been taken against the members of association or the suspected individuals. Therefore, the instant writ petition stands immature and is liable to be dismissed on this short ground.
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INFORMATION IS NOT VIOLATIVE OF ANY FUNDAMENTAL RIGHTS GUARANTEED UNDER THE CONSTITUTION.
3.1.1. It humbly submitted that, the right of audi alteram partem is a valuable right recognized under the constitution of India, wherein it is held that, the principle of the maxim which mandates that no one should be condemned unheard, is a part of
AIR SC 516, 1962 SCR Supl. (3) 831; Laxmi Khandsari etc. v. State of U.P. and Ors., 1981 AIR SC 873, 1981 SCR (3) 92; State of U.P. v. Sh. Brahm Datt Sharma and Anr., AIR 1987 SC 944.