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16 TH^ NALSAR-JUSTICE B.R SAWHNY MEMORIAL MOOT COURT COMPETITION MEMORIAL FOR PETITIONERS ,TABLE OF CONTENTS PAGE | I

UNIVERSITY OF LUCKNOW 4 TH^ NATIONAL MOOT COURT

COMPETITION 2023

IN THE HON’BLE SUPREME COURT INDIANA

IN CIVIL PLAINT / WRIT PETITION (CIVIL) NO.(XX) OF 2023

(CIVIL ORIGINAL JURISDICTION)

UNDER ARTICLE 131 R/W ORDER XXVI S.C.R, 2013 R/W ART. 32 OF

INDIANA CONSTITUTION

GOVT OF NCT OF SUPLEX CITY … PETITIONERS

VERSUS

UNION OF INDIANA …RESPONDENT

WITH REVIEW PETITION NO.(XX) OF 2023

UNDER ARTICLE 137 OF INDIANA CONSTITUTION R/W ORDER XLVII OF S.C.R,

UNION OF INDIANA … PETITIONERS

VERSUS

GOVT OF NCT OF SUPLEX CITY …RESPONDENT

TO, THE HON’BLE JUDGES OF SUPREME COURT OF INDIANA

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS

TC-XX

TABLE OF CONTENTS PAGE | II

TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................. II

LIST OF ABBREVIATIONS .......................................................................................................... IV

INDEX OF AUTHORITIES ............................................................................................................ VI

STATEMENT OF JURISDICTION ................................................................................................ VIII

STATEMENT OF FACTS .............................................................................................................. IX

ISSUE RAISED ............................................................................................................................. X

ARGUMENTS ADVANCED ........................................................................................................ - 1 -

I. WHETHER THE HON’BLE COURT ENTERTAIN A WRIT PETITION AGAINST AN

ORDINANCE ................................................................................................................. - 1 -

1. That the Ordinance is a law under Article 13 ..................................................... - 1 - II. WHETHER THERE ARE LIMITATIONS ON ORDINANCE MAKING POWER OF UNION GOVT AND WHETHER THE COURT CAN NULLIFY THE ABOVE ORDINANCE ................... - 3 - 1. That the ordinance is manifestly arbitrary ........................................................ - 3 -

(A) Ordinance suffers from Manifest Arbitrariness .................................. - 3 -

(B) Sections 41, 45E, 45H ......................................................................... - 4 -

(C) Sections 45K ........................................................................................ - 4 -

(D) Sections 45D ....................................................................................... - 5 -

2. Ordinance does not fulfill the requirements of Article 123 ............................... - 5 - 3. Ordinance overrules the judgement .................................................................... - 6 -

TABLE OF CONTENTS PAGE | III

III. WHETHER THE GOVERNMENT OF THE SUPLEX CITY CAN CONTROL THE

ADMINISTRATIVE CONTROL OF THE STATE?............................................................... - 7 -

1. Power of Lt. Governor Circumscribed by Article 239AA ................................. - 7 - 2. Lt. Governor is Bound by the Aid and Advise Of Council of Ministers. ........... - 7 -

(A) Cabinet form of Government in State of Suplex City .......................... - 7 -

(B) Aid and Advice by Council of Ministers.............................................. - 8 -

(C) Subject matters in which Aid and Advise is required.......................... - 8 -

(D) In case of Difference between Lt. Governor and Council of Ministers.- 9

-

3. Executive Power Flows from Legislative Power ............................................... - 9 -

(A) Inclusive interpretation of “in so far as any such matter is applicable to

Union Territories” ............................................................................................. - 9 -

(B) Limitation of power of Central Government ..................................... - 10 -

(C) Accountability of civil service officers in a Federal polity ............... - 11 -

4. Part Xiv Of The Constitution of Indiana is applicable to Union Territories .... - 11 -

(A) Exercise of power by NCTD on Entry 41 .......................................... - 11 -

PRAYER ................................................................................................................................. - 13 -

INDEX OF AUTHORITIES PAGE | IV

LIST OF ABBREVIATIONS

ABBREVIATION EXPANSION

& And ¶ Paragraph % Per cent § Section Sec. Section AIR All India Reporter Art. Article Anr. Another b/w Between Can’t Cannot Ch. Chapter Const. Constitution of Indiana Govt. Government HC High Court

INDEX OF AUTHORITIES PAGE | V Hon'ble Honourable i.e. That is IPC Indian Penal Code J. Justice Ors. Others r/w Read with SC Supreme Court of India SCC Supreme Court Cases UOI Union of India U/S Under Section v. Versus

INDEX OF AUTHORITIES PAGE | VI

INDEX OF AUTHORITIES

— INDIAN CASES —

1. A.K. Roy v. Union of India, AIR 1982 SC 710 .................................................... - 1 -
2. Advance Insurance Corporation Limited v. Gurudasmal, (1970) 1SCC 633. .... - 11 -
3. B.P. Singhal v. Union Of India & Anr., Writ Petition 296 of 2004 ...................... - 7 -
4. D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579 .............................................. - 1 -
5. Govt. of NCT of Delhi v. Union of India, Writ Petition No. 5888/2015. p. 23 .... - 8 -
6. IK Saksena v. State of Madhya Pradesh, (1976) 4 SCC 750. ............................. - 12 -
7. Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1 ..................................... - 5 -
8. Madan Mohan Pathak vs. Union of India, AIR 1978 SC 803. ............................. - 6 -
9. Madras Bar Association v. Union of India, (2021) 7 SCC 369. ........................... - 6 -
10. Manoj Narula v. Union of India, Writ Peition (Civil) No. 289 of 2005 ............... - 7 -
11. Nagaraj v State of Andhra Pradesh AIR 1985 SC 551. ........................................ - 2 -
12. P.V. Narsimha Rao v. State, (1998) 4 SCC 626 ................................................... - 7 -
13. R.K. Garg v. Union of India, AIR 1981 SC 2138 ................................................. - 1 -
14. Ravi Yashwant Bhoir v. District Collector, Raigad, (2012) 4 SCC 407............... - 7 -
15. Shayara Bano v. Union of India, (2017) 9 SCC 1................................................. - 3 -
16. State (NCT of Delhi) v. Union of India, 2023 SCC OnLine SC 606. .................. - 4 -
17. State of Kerala vs State of Tamil Nadu, AIR 2014 SC 2407 ................................ - 6 -
18. State of U.P. v. Singhara Singh & Ors. (1964) 4 SCR 485................................... - 9 -
19. U.N.R. Rao Gandhi v. Indra Gandhi, (1971) 2 SCC 63........................................ - 8 -
20. Union of India v. Prem Kumar Jain (1976) 3 SCC 473. ..................................... - 11 -

INDEX OF AUTHORITIES PAGE | VII

STATUTES

1). Constitution of India, 1950 BOOKS AND JOURNAL

1. Arvind P Datar, Commentary of the Constitution of India (2nd Ed. 2010)
2. Durga Das Basu, Introduction to the Constitution of India (22nd Ed.,2015)
3. Justice G. P. Singh, Principles of Statutory Interpretation , (8th Ed., 2001).
4. M.P. Jain , Indian Constitutional Law (7th Ed., 2016) WEBSITES
5. Hein online, https://www.heinonline.com
6. Law Finder, https://www.lawfinderlive.com
7. Lexis Nexis, https://www.lexisnexis.com
8. Live Law , https://www.livelaw.in
9. Manupatra, http://www.manupatra.co.in
10. SCC Online, http://www.scconline.com
11. The Judgment Information System, http://164.100.79.153/judis/ OTHER AUTHORITIES A. Black’s Law Dictionary (10th Ed, 2014). B. Oxford Dictionary, (3rd Ed., 2015).

STATEMENT OF JURISDICTION PAGE | VIII

STATEMENT OF JURISDICTION

IN THE CIVIL ORIGINAL PLAINT/ WRIT PETITION (CIVIL) NO. (XX) OF 2023

The Counsel for Petitioners i.e. Govt of NCT of Suplex City has approached the Hon’ble Supreme Court of Indiana in the case of ‘Government of NCT of Suplex City v. Union of Indiana’ Under Art. 131^1 r/w Order XXVI Supreme Court Rules, 2013 r/w Art. 32^2 of Indiana Constitution. IN REVIEW PETITION NO.(XX) OF 2023 In the matter of ‘ Union of Indiana v. Government of NCT of Suplex City’ The jurisdiction of this Hon’ble Court has been invoked by Union of Indiana Under Art. 1373 of the Constitution of Indiana r/w (^1) 131. Original jurisdiction of the Supreme - Court Subject to the provisions of this Constitution, the Supreme Court shall, to the exclusion of any other court, have original jurisdiction in any dispute (a) between the Government of India and one or more States; or (b) between the Government of India and any State or States on one side and one or more other States on the other; or (c) between two or more States, if and in so far as the dispute involves any question (whether of law or fact) on which the existence or extent of a legal right depends: Provided that the said jurisdiction shall not extend to a dispute arising out of any treaty, agreement, covenant, engagements, and or other similar instrument which, having been entered into or executed before the commencement of this Constitution, continues in operation after such commencement, or which provides that the said jurisdiction shall not extend to such a dispute. (^2) 32. Remedies for enforcement of rights conferred by this part “(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme Court by clauses (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.” (^3) 137. Review of judgments or orders by the Supreme Court. Subject to the provisions of any law made by Parliament or any rules made under article 145, the Supreme Court shall have power to review any judgment pronounced or order made by it.

STATEMENT OF FACTS PAGE | IX

STATEMENT OF FACTS

— BACKDROP —

Indiana is the most populous country in the world and seventh largest in terms of area. The country manifests the principles of ‘Unity in Diversity’ and ‘Cooperative Federalism’. The constitution of Indiana enacted in the year 1950 has established a democratic and federal government in Indiana where powers are divided between the Central and State governments. — THE UNIQUE SITUATION OF SUPLEX CITY — Suplex City, the capital of Indiana is a Union Territory. It has been accorded special status and limited statehood under Article 239AA, but at the same time, the subject matters of public order, police and land were left under the direct control of Union Government to maintain the integrity of the National Government. This step led to severe tussles between Suplex City and Union Government. — THE CONFLICT — In the late 1990s, the constitutional validity of Article 239AA was challenged before the Apex Court and it was declared constitutionally valid relying on the principles of National Interest, Integrity and Law and order. The most significant issues of conflict between the two govt.’s is the administrative control over the terms and conditions of the services of bureaucracy and another is the role, positioning and functioning of the Lieutenant Governor. Based on these two issued, the Suplex City Govt. approached the Apex Court which referred these issues to the Constitutional Bench. The Court decided these issues in the favour of Suplex City Government — THE ORDINANCE — Aggrieved by the decision of the Apex Court, the Union government sought an immediate review of the decision which was listed in October 2023. Annoyed by the delay in hearing of review petition, the Union Government brought an ordinance nullifying the order of the Apex Court and placed all administrative control under the Union Government and Lieutenant governor who is not bound by the aid and advice of the Council of minister of the Government of Suplex City. Annoyed with this ordinance, the Suplex City filed a writ petition before the Hon’ble Apex Court of Indiana pleading to set aside the above ordinance. The court has admitted the petition and listed it with the review petition in Oct, 2023.

ISSUE RAISED PAGE | X

ISSUE RAISED

- Issue I - WHETHER THE APEX COURT CAN ENTERTAIN A WRIT PETITION AGAINST AN ORDINANCE? - Issue II– WHETHER THERE ARE LIMITATIONS ON ORDINANCE MAKING POWER OF THE UNION GOVT. AND WHETHER THE APEX COURT CAN NULLIFY THE ABOVE ORDINANCE? - Issue IV– WHETHER THE GOVT OF SUPLEX CITY CAN CONTROL THE ADMINISTRATION OF SUPLEX CITY?

ARGUMENTS ADVANCED PAGE |- 1 -

ARGUMENTS ADVANCED

I. WHETHER THE HON’BLE COURT ENTERTAIN A WRIT PETITION AGAINST AN

ORDINANCE (¶1.) It is humbly submitted that the Supreme Court of Indiana can entertain a writ petition against an ordinance. In the landmark case of D.C. Wadhwa v. State of Bihar^4 , the court held that, “ordinances are subject to judicial review, and the court has the authority to examine their validity, especially if they violate the Constitution's provisions.” Thus, the Apex Court can entertain a writ petition against an ordinance as (1) Ordinance is a law within the meaning of Article 13.

1. That the Ordinance is a law under Article 13 (¶2.) It is humbly submitted that art.13(3)(a) state that “the word law includes any Ordinance, order, bye-law, rule, regulation, notification, custom or usage having in the territory of India the force of law.” (¶3.) In the case of A.K. Roy^5 , the Apex Court held that the ordinances by the president are made in the exercise of legislative power and stated that stated that ordinances must be treated as laws because they would otherwise be exempt from the requirements placed by Article 13(2) of the constitution. (¶4.) The court is empowered under Article 13 to strike down any law which is inconsistent with the Fundamental Rights contained under Part III of the Constitution. Thus, the Court possesses the power of Judicial review to adjudicate under its writ jurisdiction any matter involving a substantial question of law. (¶5.) In the case of R.K. Garg v. Union of India^6 , C.J. Chandrachud clarified that Article 123 confers “legislative power ... on the President.” The power to promulgate ordinance is a power to enact primary legislation, and Articles 13 and 367 in their definitions of law clarify this “legislative” label^7. (^4) D.C. Wadhwa v. State of Bihar, AIR 1987 SC 579. (^5) A.K. Roy v. Union of India, AIR 1982 SC 710. (^6) R.K. Garg v. Union of India, AIR 1981 SC 2138. (^7) Supra, note 4.

ARGUMENTS ADVANCED PAGE |- 2 - (¶6.) He, therefore, concluded that “the Constitution makes no distinction in principle between a law made by the legislature (i.e. an Act of Parliament) and an ordinance issued by the President^8 .” They are products of legislative power and are subject to similar constitutional limitations. Therefore, the reviewability of presidential satisfaction in Article 123 depends on the principles of judicial review applicable in the context of legislative power. IN LIGHT OF THE ABOVEMENTIONED REASONS AND ARGUMENTS, IT IS HUMBLY SUBMITTED THAT THE HON’BLE COURT CAN ENTERTAIN THE ABOVE WRIT PETITION (^8) Nagaraj v State of Andhra Pradesh AIR 1985 SC 551.

ARGUMENTS ADVANCED PAGE |- 3 -

II. WHETHER THERE ARE LIMITATIONS ON ORDINANCE MAKING POWER OF UNION GOVT

AND WHETHER THE COURT CAN NULLIFY THE ABOVE ORDINANCE It is humbly submitted that as ordinance is covered under the meaning of law under Art.13 so the limitations on making law would apply to promulgation of ordinance and the above court has full authority to nullify the above ordinance(1) Ordinance is manifestly arbitrary (2) Ordinance has not fulfilled the requirements of Article 123 (3) Ordinance overrules the Judgement

1. That the ordinance is manifestly arbitrary (¶7.) It is humbly submitted that the The Impugned Ordinance is manifestly arbitrary in violation of Article 14. Since this Hon’ble Court’s decision in Shayara Bano v. Union of India^9 , it is settled law that even legislations may be held to be unconstitutional on the anvil of manifest arbitrariness. (¶8.) The ordinance violates and undermines core principles of democracy, representative governance, and a responsive administration. It is a universal truth that any functioning modern polity requires the performance of a vast range of daily administrative functions, which must be coordinated at multiple levels. This task is performed by the body known as ‘The Services’. (¶9.) Whatever policy or vision that elected legislators may formulate, what is actually implemented depends on who the services report to. For this reason, the default position has always been that it is the directly elected government that should have control over services. This ensures that the representatives whom the people elect upon a certain manifesto, actually have the ability to implement the policies and promises on the basis of which they have been elected.

(A) Ordinance suffers from Manifest Arbitrariness

(¶10.) It is a settled law that a legislation may be held to be unconstitutional under Article 14 if found to be “ done capriciously, irrationally and/or without adequate determining principle...when something is done which is excessive and disproportionate...” or if found to (^9) Shayara Bano v. Union of India, (2017) 9 SCC 1

ARGUMENTS ADVANCED PAGE |- 4 - be “not fair, not reasonable, discriminatory, not transparent, capricious, biased... and not in pursuit...equitable treatment. ..”^10 (¶1 1 .) It is humbly submitted before this hon’ble court that the Impugned Ordinance, particularly Sections 41, 45D, 45E, 45K, and 45H suffer from manifest arbitrariness.

(B) Sections 41, 45E, 45H

(¶1 2 .) This Hon’ble Court has noted that the civil service is the “soul” of any administration without which governance itself is impossible, democratic or otherwise.^11 By removing the civil service’s accountability to the government whose policies it is tasked with implementing, the Impugned Ordinance denudes the structure that holds up governance itself. By breaking the link that keeps the civil service accountable for its key role in governance, i.e. the efficient, unbiased, and timely administration of the government’s policies, the Impugned Ordinance erodes the civil service’s incentives for due and fair performance of their role. (¶1 3 .) Thus, in so far as the Impugned Ordinance, vide Sections 41, 45E and 45H, seeks to divorce control of the Government of the National Capital Territory of Suplex City from the civil service posted in its domain, it is evidently capricious and without determining principle

• it suffers from a lack of any plausible and legitimate objective.

(C) Sections 45K

(¶1 4 .) It is humbly submitted before this hon’ble court that Section 45K by allowing bureaucrats and LG to override decisions of the Council of Ministers and Ministers-in- charge, and empowering bureaucrats to block Cabinet notes is manifestly arbitrary. (¶1 5 .) Section 45K confers on civil servants within the Government of the National Capital Territory of Suplex City wide-ranging discretion to stall, disobey, and contradict the decisions taken by the Council of Ministers and Ministers-in- charge of Government of the National Capital Territory of Suplex City. By vesting control over civil servants in the hands of the Union, and then conferring wide discretionary powers on civil servants to override the Government of the National Capital Territory of Suplex City, the Impugned Ordinance in effect and design allows the Union to take over the governance of Suplex City. (^10) Ibid, para 95. (^11) State (NCT of Delhi) v. Union of India, 2023 SCC OnLine SC 606.

ARGUMENTS ADVANCED PAGE |- 5 - (¶1 6 .) By allowing bureaucrats and the LG to adjudicate the legality of the elected Government’s decisions and take executive actions on that basis, the Impugned Ordinance completely collapses the scheme of separation of powers and of governance under Article 239AA. Since the decisions are vetted by legal experts within each department/ ministry where needed, the impugned provision only serves to further stall governance on the say-so of the Union of India, through the LG/bureaucrats, and is manifestly arbitrary.

(D) Sections 45D

(¶1 7 .) It is humbly submitted before this hon’ble court that Section 45D which is regarding control over independent bodies, commissions, etc.) is manifestly arbitrary. (¶1 8 .) Section 45D of the ordinance, in stipulating that all statutory bodies, commissions, boards, and authorities in the NCT of Suplex City be constituted by and their members appointed by the President, suffers from the same infirmity and completes the deliberate design of the Impugned Ordinance to allow the Union of India to take over governance in Suplex City. (¶1 9 .) Section 45D fails to in any way fulfill the Impugned Ordinance’s stated objective, i.e. to balance the interests of the people of NCT of Suplex City with national interests. Indeed, by separating the government which is answerable from the government which is in control, Section 45D does not only violate the federal, democratic scheme of Article 239AA. It also violates Article 14 on account of being manifestly arbitrary, lacking any discernible principle or any application of mind beyond a naked usurpation of power.

2. Ordinance does not fulfill the requirements of Article 123 (¶ 22 .) A 7 - judge Bench of this Hon’ble Supreme Court in Krishna Kumar Singh v. State of Bihar^12 , has held that ordinance-making power under the Constitution of India may only be exercised upon the objective satisfaction that circumstances exist that render immediate action necessary. (¶ 23 .) In the present instance, it is evident that there was no urgency or necessity to promulgate the Impugned Ordinance, given that the status quo it seeks to reverse was declared by this Hon’ble Court after extensively deliberating over not only the requirements of democratic governance under Article 239AA, but also the Respondents’ (^12) Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1

ARGUMENTS ADVANCED PAGE |- 6 - interests in the national capital territory. In such an event, there can be no ‘urgency’ or ‘necessity’ in overturning it. (¶ 24 .) Also, the promulgation of the present Ordinance is an apparent attempt to circumvent democratic and judicial deliberations. The unseemly hurry in reversing a ruling of this Hon’ble Court via Ordinance, and the timing of its promulgation, reveals a conscious intent to avoid democratic as well judicial deliberations that could safeguard the interests of the people of Suplex City.

3. Ordinance overrules the judgement (¶2 3 .) It is a well settled law that the legislature cannot override the effect of a judgment without altering the legal basis of the judgment.^13 (¶2 4 .) In State of Kerala vs State of Tamil Nadu^14 , a Constitution Bench of the Supreme Court held that a law enacted by the legislature can be invalidated if it is an attempt to interfere with judicial process by breaching the doctrine of separation of powers. (¶2 5 .) In the 2021 Madras Bar Association case^15 , the Supreme Court struck down the provisions of Tribunal Reforms Ordinance 2021 on the ground that they were contrary to an earlier judgment of the Court. In this case, the court observed that, “It is open to the legislature within certain limits to amend the provisions of an Act retrospectively and to declare what the law shall be deemed to have been, but it is not open to the legislature to say that a judgment of a Court properly constituted and rendered in exercise of its powers in a matter brought before it shall be deemed to be ineffective and the interpretation of the law shall be otherwise than as declared by the Court”^16 (¶ 26 .) In the impugned case, the ordinance is merely declaring that the judgment is ineffective, without disturbing its legal basis, which is an impermissible exercise. By doing so, the Ordinance is breaching the doctrine of separation of powers and is liable to be struck down as per the judgments in State of Kerala v. State of Tamil Nadu and Madras Bar Association cases^17. (^13) Madan Mohan Pathak vs. Union of India, AIR 1978 SC 803. (^14) State of Kerala vs State of Tamil Nadu, AIR 2014 SC 2407. (^15) Madras Bar Association v. Union of India, (2021) 7 SCC 369. (^16) Ibid (^17) Supra note 13, note 14

ARGUMENTS ADVANCED PAGE |- 7 -

III. WHETHER THE GOVERNMENT OF THE SUPLEX CITY CAN CONTROL THE

ADMINISTRATIVE CONTROL OF THE STATE?

(¶2 7 .) It is very humbly submitted that the keeping in mind the principles of federalism the Suplex city is entitled to control the administration of state.

1. Power of Lt. Governor Circumscribed by Article 239AA (¶2 8 .) The Counsel of Petitioner humbly submits that the power of Lt. Governor has been defined under Article 239AA. It can be observed that the under Article 239AA, there will be a council of ministers with chief minister at its head to Aid and Advise Lt. Governor in matters in which the Legislative Assembly has power to make law^18. It explains in the matters where the Legislative Assembly does not have competency to make law, only in those matter Lt. Governor has been given discretion^19. 2. Lt. Governor is Bound by the Aid and Advise Of Council of Ministers. (¶2 9 .) In further of the contention above, the Counsel of Petitioner wants to elaborate how the Lt. Governor in the present case is bound by the Aid and Advise of the Council of Ministers. This contention has been further submitted in twofold manner:

(A) Cabinet form of Government in State of Suplex City

(¶ 30 .) It is the contention that, in India we have Cabinet form of Government, wherein the real power has been entrusted with the Council of Ministers to represent the public by whom they have been elected^20. Cabinet form of Government is the heart and soul of our Constitution and the government is accountable through its elected representative^21. “The President has thus been made a formal or constitutional head of the executive and the real executive powers are vested in the Ministers or the Cabinet.” Further “The paramount convention is that the Sovereign must act on the advice tendered to her by her ministers, in particular the Prime Minister. She must appoint as Prime Minister that member of the House (^18) Constitution of India, 1950, Article 239AA (4) (^19) Government of National Capital Territory of Delhi Act, 1991, Sec. 41(1) (i) (^20) B.P. Singhal v. Union Of India & Anr., Writ Petition 296 of 2004; Manoj Narula v. Union of India, Writ Peition (Civil) No. 289 of 2005 (^21) P.V. Narsimha Rao v. State, (1998) 4 SCC 626; Ravi Yashwant Bhoir v. District Collector, Raigad, (2012) 4 SCC 407.

ARGUMENTS ADVANCED PAGE |- 8 - of Commons who can acquire the confidence of the House, and must appoint such persons to be members of the ministry and Cabinet as he recommends^22 ” Since the State of Suplex City is governed by Article 239AA^23 of the Constitution, it is very evident that it had Cabinet form of Government, where Council of Ministers will provide Aid and Advise to Lt. Governor^24. (¶ 31 .) The counsel humbly submits since there was a cabinet form of Government in State of , Lt. Governor is only a figure head and works on the Aid and Advise of Council of Ministers. This Aid and Advise will be provided by council of Ministers in the matters in which the Legislative Assembly have competency to make law^25.

(B) Aid and Advice by Council of Ministers.

(¶ 32 .) The Counsel of Petitioner contends that there are certain subject matters and situations wherein the Lt. Governor as an Administrator can act on his own discretion without Aid and Advise of Council of Ministers. This view can be further understood in twofold manner:

(C) Subject matters in which Aid and Advise is required

(¶ 33 .) The Counsel of Petitioner humbly submits that State of Suplex City has been provided with a Legislative Assembly under the Constitution^26. This legislative assembly has been given competency to enact law with all matters in State List except Item 1, 2, and 18^27. Now further counsel wants to contend that the council of Ministers in State of Suplex City have been given power to Aid and Advise Lt. Governor on the matters in which the Legislative assembly has competency to make law^28. This entails that Council of Minister with Chief Minister at its head are conferred with certain executive power which are coextensive with Legislative powers^29. Matters in which Lt. Governor can act without such Aid and Advise has are the ones which falls outside the purview of Legislative Competency of Legislative Assembly of Suplex City^30 .Certain rules have been given by the President for smooth functioning of Delhi known as Transaction of Business Rules. Lt. Governor in the matters of Public Order, Police and Land, (^22) U.N.R. Rao Gandhi v. Indra Gandhi, (1971) 2 SCC 63. (^23) Halsbury's Laws of England Para. 819 (4th Edn. 1980); S.R. Chaudhari v. State of Punjab, (2001) 7 SCC 126 (^24) Moot Proposition ¶ (^25) Constitution of India, 1950. Article 239A(4) (^26) Moot Proposition, Para. 2 (^27) Constitution of India, 1950, Article 239AA(3)(a) (^28) Constitution of India, 1950, Article 239AA(4) ; Union Territories Act, 1963, Sec. 44(1) (^29) Govt. of NCT of Delhi v. Union of India, Writ Petition No. 5888/2015. p. 23 (^30) Government of National Capital Territory of Delhi Act, 1991, Sec. 41(1)(i)

ARGUMENTS ADVANCED PAGE |- 9 - i.e. item 1, 2 and 18 which are out of competency of legislative assembly may act in his own discretion only after consultation with Chief Minister^31.

(D) In case of Difference between Lt. Governor and Council of Ministers.

(¶ 34 .) Counsel of Petitioner further intends that, even in case of difference of opinion between Lt. Governor and his ministers, he can refer the matter to the President for decision and act according to the decision given by the President^32. The Counsel humbly contends that it has been further explained in Transaction of Business Rules, in case of difference of opinion, Lt. Governor can refer the matter to President and act according to the decision of thereof^33. Hence the matter could not be referred to President for his decision. “ The power conferred by the proviso to Article 239AA(4) shall be exercised in accordance with the procedure prescribed by Rules 49 to 51 of the Transaction of Business Rules or not at all^34 ”

3. Executive Power Flows from Legislative Power (¶ 35 .) Article 239AA establishes a Legislative Assembly for NCTD. The seats in the Assembly are filled by a direct election from the constituencies of NCTD. The Legislative Assembly of NCTD embodies the constitutional principle of representative democracy similar to the Legislative Assembly of the State. The members of the Legislative Assembly of NCTD are selected by the electorate of Delhi to represent their interests.

(A) Inclusive interpretation of “in so far as any such matter is applicable to Union

Territories” (¶ 36 .) Article 239AA must be interpreted to further the principle of representative democracy.16 To interpret the phrase “insofar as any such matter is applicable to Union territories” in a restrictive manner would limit the legislative power of the elected members of the assembly. The members of the Legislative Assembly have been chosen by the electorate to act in their stead. Thus, the legislative competence of NCTD must be interpreted to give full impetus to the will of the electorate. Article 239AA also stipulates that the legislative power of NCTD is excluded with respect to entries 64, 65, and 66 of List II insofar as they relate to entries 1, 2, and 18. Entry 1 deals with (^31) Transaction of Business Rules, 1991, Proviso Rule 45 (^32) Constitution of India, 1950, Article 239AA(4) Proviso. (^33) Transaction of Business of the Government of National Capital Territory of Delhi Rules, 1993, Rule 50 (^34) State of U.P. v. Singhara Singh & Ors. (1964) 4 SCR 485.

ARGUMENTS ADVANCED PAGE |- 10 - public order , Entry 2 deals with police , and Entry 18 deals with Land. Entry 64 deals with “ offences against laws with respect to any of the matters in this List ”, Entry 65 states “ jurisdiction and powers of all courts, except the Supreme Court, with respect to any of the matters in this List ”, and Entry 66 states “ fees in respect of any of the matters in this List, but not including fees taken in any court”. (¶ 37 .) The exclusion of entries 64,65, and 66 to the extent that it relates to entries 1,2, and 18 from the legislative competence of NCTD indicates that the governance structure envisaged in Article 239AA for NCTD was only to exclude the specific entries 1, 2, and 18 from its legislative competence. To read the phrase “ insofar as such matter is applicable to the Union Territories ” as introducing an implied exclusion of the legislative powers of NCTD with respect to certain other entries would be contrary to the plain meaning of the provision. We find that the phrase ‘insofar as any such matter is applicable to Union Territories’ in Article 239AA(3) cannot be read to further exclude the legislative power of NCTD over entries in the State List or Concurrent List, over and above those subjects which have been expressly excluded by the provision.

(B) Limitation of power of Central Government

(¶ 38 .) A combined reading of Articles 73 and 162 indicates that the Union has exclusive executive power over entries in List I. The States have exclusive executive power over entries in List II. With respect to List III, that is, the concurrent list, the Union shall have executive power only if provided by the Constitution or by a law of Parliament. The States shall have executive power over the entries in List III. (¶ 39 .) However, if a Central legislation or a provision of the Constitution confers executive power to the Union with respect to a List III subject, then the executive power of the State shall be subject to such law or provision. The executive power of the Union “in a State” over matters on which both States and the Union of India can legislate (that is, the concurrent list) is limited to ensure that the governance of States is not taken over by the Union. (¶ 40 .) It is with this objective in mind that the members of the Constituent Assembly thought it fit to limit the executive power of the Union in a State over matters on which the State also has legislative competence.

ARGUMENTS ADVANCED PAGE |- 11 - The principle in Articles 73 and 162 would equally apply to the scope of executive power over matters which are within the legislative competence of both the Union and the GNCTD. This is because the objective of the provisions is to limit the executive power of the Union in the territorial limits where there is an elected government of a federal unit.

(C) Accountability of civil service officers in a Federal polity

(¶ 41 .) In a federal polity, a fundamental question which arises is which would be the more appropriate authority to whom the civil service officers would be accountable. As discussed before, a paramount feature of a federal Constitution is the distribution of legislative and executive powers between the Union and the regional units. The essential character of Indian federalism is to place the nation as a whole under the control of a Union Government, while the regional or federal units are allowed to exercise their exclusive power within their legislative and co-extensive executive and administrative spheres.^35 In a democratic form of Government, the real power of administration must reside in the elected arm of the State, subject to the confines of the Constitution. A constitutionally entrenched and democratically elected government needs to have control over its administration.

4. Part XIV Of The Constitution of Indiana is applicable to Union Territories (¶ 42 .) In Union of India v. Prem Kumar Jain^36 , this Court did not find anything repugnant to the subject or context of Part XIV of the Constitution or Article 312 specifically to make the definition of ‘State’ in terms of amended Section 3(58)(b) of the General Clauses Act inapplicable. Hence, the expression ‘State’ as occurring in Part XIV was held to include Union Territories. In the preceding section of this judgment, we have approved the decision in Advance Insurance Corporation Limited v. Gurudasmal^37 and held that the definition of “State” in Section 3(58) of the General Clauses Act as amended by Adaptation of Laws (No.

1. Order, 1956 must be applied for the interpretation of the Constitution unless the context otherwise requires.

(A) Exercise of power by NCTD on Entry 41

(¶ 43 .) In IK Saksena v. State of Madhya Pradesh^38 , a four judge Bench of this Court held that the entries in Schedule VII have to be read in their widest possible amplitude. The Bench held (^35) SR Bommai v. Union of India,(1994) 3SCC 1. (^36) Union of India v. Prem Kumar Jain (1976) 3 SCC 473. (^37) Advance Insurance Corporation Limited v. Gurudasmal, (1970) 1SCC 633. (^38) IK Saksena v. State of Madhya Pradesh, (1976) 4 SCC 750.

ARGUMENTS ADVANCED PAGE |- 12 - that the area of legislative competence defined by Entry 41 is far more comprehensive than that covered by Article 309 (¶ 44 .) However, legislative and executive power over services such as Indian Administrative Services, or Joint Cadre services, which are relevant for the implementation of policies and vision of NCTD in terms of day-to-day administration of the region shall lie with NCTD. Officers thereunder may be serving in NCTD, even if they were not recruited by NCTD. In such a scenario, it would be relevant to refer, as an example, to some of the Rules, which clearly demarcate the control of All India or Joint-Cadre services between the Union and the States. NCTD, similar to other States, also represents the representative form of government. The involvement of the Union of India in the administration of NCTD is limited by constitutional provisions, and any further expansion would be contrary to the constitutional scheme of governance. (¶ 45 .) It is humbly submit that in light of Article 239AA and the 2018 Constitution Bench judgment, the Lieutenant Governor is bound by the aid and advice of the Council of Ministers of NCTD in relation to matters within the legislative scope of NCTD. As we have held that NCTD has legislative power over “services” (excluding ‘public order’, ‘police’, and ‘land’) under Entry 41 in List II, the Lieutenant Governor shall be bound by the decisions of GNCTD on services, as explained above. To clarify, any reference to “Lieutenant Governor” over services (excluding services related to ‘public order’, ‘police’ and ‘land’) in relevant Rules shall mean Lieutenant Governor acting on behalf of GNCTD. IN LIGHT OF THE ABOVEMENTIONED REASONS AND ARGUMENTS, IT IS HUMBLY SUBMITTED THAT THE GOVT OF SUPLEX CITY CAN CONTROL THE ADMINISTRATION OF SUPLEX. .

PRAYER PAGE |- 13 -

PRAYER

IN LIGHT OF THE FACTS OF THE INSTANT CASE, ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, THE COUNSEL FOR PETITIONERS HUMBLY PRAYS BEFORE THIS HON’BLE

COURT TO KINDLY ADJUDGE THAT-

I. That the Apex Court can entertain a writ petition against an ordinance. II. That there are limitations on ordinance making powers of the Union government and that the Apex Court can nullify the impugned ordinance. III. That the Govt. of Suplex city in entitled to handle the administration of suplex city. Or ANY OTHER RELIEF THAT THE HON’BLE COURT MAY BE PLEASED TO GRANT IN THE INTEREST OF JUSTICE, EQUITY AND GOOD CONSCIENCE. AND FOR THIS ACT OF KINDNESS THE COUNSEL SHALL DUTY BOUND FOREVER PRAY. All of which is humbly and most respectfully submitted. Sd/-________ Counsels on the behalf of Petitioners.