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VI JUSTICE MURTAZA HUSSAIN MEMORIAL MOOT COURT
COMPETITION, 2019
IN THE HON’BLE SUPREME COURT OF INDIANA
W.P.(CIVIL) NO. ………………./
(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 RESPONDENT
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
Table of Content
TEAM CODE- TC
Index of Authorities .......................................................................................................3-
List of Abbreviations ......................................................................................................
Statement of jurisdiction ................................................................................................
Summary of Facts .........................................................................................................9-
Statement of Issues ......................................................................................................
Summary of Arguments ............................................................................................12-
Arguments Advanced ................................................................................................14-33.
- Whether the instant writ petition is maintainable under Art.32 of the constitution of Indiana?
- 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 2017have affected transparency in political funding?
- Whether the Section 182,183,184,185 of finance act, 2017 which deals with merger’s of tribunal & qualifications, selection process and other service conditions of the tribunal effect the efficiency andIndependence of the tribunal’s?
- The introduction of the Finance Bill 2017 as money bill was constitutional.
PRAYER FOR RELIEF …………………………………………………………
INDEX OF AUTHORITIES
- Savita Kumari v. Union of India (1993) SC 892
- Union of India v. Delhi Court Bar Association (2002) 4 SCC 275
- Union of India v. Madras Bar Association (2010) 11 SCC 1
BOOKS
- M P Jain, Indian Constitutional Law, (8 th^ ed., Lexis-Nexis Butterworth Wadhwa Publications, Nagpur,2018)
- D. D. Basu Commentary on The Constitution of India, (8 th^ edn., Lexis Nexis Butterworth Wadhwa Publication, Nagpur, 2018)
- H.M. Seervai, Constitutional Law of India, (4 th^ ed., Universal Law Publishing,
New Delhi, 2010
- U.K. Bhargava, Income Tax, (64 th^ ed., Taxman Publications Pvt. Ltd., New
Delhi,2019)
- Taxman, Companies Act with Rules, (33 rd^ ed., Taxman Publications Pvt. Ltd., New Delhi,
- I.P.Massey, administrative Law, Statutory Tribunals,page no 175, 9 th^ edition,
ARTICLES
- Arun Jaitley, Why electoral bonds are necessary Facebook (sep. 1. 2019, 4:59pm)
- Ashish Tripathi, Electoral Bonds make political donations transperant Deccan Herald(sep. 2. 2019, 3:35pm)
- Administrative Tribunal,know india.gov.in, (26.3.17, 8:30 pm)
- Rahul Sharma,Inter-state river water disputes in India,clear IAS,(25 thApril,2017)
JOURNALS
- William McGeveran, Mrs.Mcintyre’s Checkbook: Privacy Costs of Political Contribution Disclosure , 6 Journal of Constitutional Law 19(2003).
List of abbreviation
AIR : All India Reporter
A : Allahabad
AP: Andhra Pradesh
Art. : Article
Bom: Bombay
Cal : Calcutta
Del : Delhi
HC : High Court
WP : Writ Petition
STATEMENT FOR JURISDICTION
Action for Democratic Reforms in the instant matter, has approached the Hon'ble Supreme Court of Indiana under Article 32 of the Constitution of Indiana, 1950.
- However, the Respondent reserves the right to contest the Maintainability
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.
STATEMENT OF ISSUES
- Whether the instant writ petition is maintainable under Art.32 of the Constitution of Indiana?
- Whether the amendment to :-
i. Section 29c of Representation of people act 1951 through part 4 section 137 of Finance act 2017 ii. Section 13A of income tax act 1961 through chapter 3 section 11 of Finance act 2017 have affected transparency in political funding?
- Whether the Section 182,183,184,185 of Finance act, 2017 which deals with merger’s of tribunal & qualifications, selection process and other service conditions of the tribunal effect the efficiency and Independence of the tribunal’s?
- Whether the introduction of the Finance Bill 2017 as a money bill was Constitutional?
SUMMARY OF ARGUMENTS
- Whether the instant writ petition is maintainable under Art.32 of the Constitution of Indiana? The instant writ petition is not maintainable under Art. 32 of Constitution of Indiana as violation of fundamental right is sine qua non for a writ petition to be maintainable under the said article and no fundamental right has been violated through the Finance Act 2017. Also the impugned amendments are totally act of legislative wisdom and the courts generally refrain from interfering in act of legislative wisdom. a person invoking the jurisdiction of this Hon’ble Court under Article 32 must approach the Court for the vindication of some fundamental rights of affected persons who are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law and not for any personal purpose. Infringement of fundamental right can not be claimed on remote of speculative ground or merely on apprehension of violation of fundamental right. Also judiciary may only step in where there is a statutory vacuum and not where there is a valid law.
- (^) Whether the amendment to :-
i. Section 29c of Representation of people act 1951 through part 4 section 137 of Finance act 2017 ii. Section 13A of income tax act 1961 through chapter 3 section 11 of Finance act 2017 have affected transparency in political funding? The scheme of electoral bonds and the various amendments through the Finance act 2017 have ensured transparency in political funding and are focused on protecting persons Right to Privacy as held to be fundamental right in “K.S
The introduction of finance bill,2017 as a money bill is constitutional in nature as it comes under the ambit of Article 109 and 110 (1) (g) in incidental matters to any of the matter specified in sub clause (a) to (f) although it is to bring into consideration that money spent in salaries and allowance of tribunal member comes from the consolidated fund of India.
Coming to the certification of Lok Sabha speaker regarding passing a draft legislation as a money bill it cannot be challenged in the court of law as it renders final also under Article 122 (1), the validity of any proceeding in parliament cannot be questioned .Therefore, it is submitted that the passing of finance bill as a money bill is constitutional.
ARGUMENTS ADVANCED
- Whether the instant writ petition is maintainable under Art.32 of the Constitution of Indiana? It is most humbly submitted before the Hon’ble Court that the instant writ petition is not maintainable before the Court of Law. The petitioner lacks the essential ingredients to maintain the matter before the apex Court. I. WRIT PETITION IS NOT MAINTAINABLE UNDER ARTICLR 32
- That it is submitted that no action lies in the Supreme Court under Art. 32 unless there is an infringement of a Fundamental Right, 1 as the Supreme Court has previously emphasized that “The violation of Fundamental Right is the sine qua non of the exercise of the right conferred by Art. 32.” 2 That in the given case there is no violation of fundamental right and moreover the government has acted in good conscience to make the process of electoral funding transparent thus enabling a more free and fair conduct of election which is one the essentials to democracy. 3
- That the jurisdiction of the Supreme Court under Art. 32 can be invoked only when Fundamental Right has been infringed. 4 No question other than relating to a Fundamental Right will be determined in a proceeding under Art. 32. 5 Thus, where there is no infringement of Fundamental Right or scope for enforcement of any Fundamental Right, the writ petition is not maintainable on the fragile ground. 6
1 Andhra Industrial Works v. Chief Controller of Imports, AIR 1974 SC 1539. 2 Fertilizer Corp. Kamgar Union v. Union of India, AIR 1981 SC 344. 3 Common Cause (A Registered Society) Vs. Union of India ,AIR 1996 SC 3081. 4 Gopal Das v. Union of India, AIR 1955 SC 1. 5 Coffee Bd. v. Joint C.T.O., AIR 1971 SC 870. 6 Federation of Bar Association in Karnataka v. Union of India, (2000) 6 SCC 715
32 must approach the Court for the vindication of some fundamental rights of affected persons who are not able to enforce their fundamental rights on account of their incapacity, poverty or ignorance of law and not for any personal purpose. 10
- That it is submitted that a person requires a locus standi, when he has to have a personal or individual right which has been violated or threatened to be violated. 11 Since, no right of petitioner has been infringed, he has no locus standi before the Court.
- It is submitted that petitioners have approached the Court on frivolous and fragile grounds and infringement of Fundamental Right cannot be founded on remote of speculative grounds. 12 There is no such action which infringes or poses a threat to Fundamental Right of the citizens. Mere apprehension that the petitioner would be deprived of his Fundamental Right is not enough to invoke the jurisdiction of the Court under Art. 32. 13 In the given case prima facie no fundamental right of the defendants have been violated and if any grounds of violation of fundamental right is contended it would be on remote speculative ground and the same would not suffice to invoke the jurisdiction under Art. 32.
- It is submitted that to make it a case under Article 32, it is incumbent upon the petitioner to establish not merely that the law complained of is beyond the competence of the particular legislature as not being covered by any of the items in the legislative list but that it effects or invades his fundamental right guaranteed by the Constitution by which he could seek enforcement by any appropriate writ or order. The right of the petitioner himself who complains of infraction of such right no one except those whose rights are directly affected by a law can raise the question of Constitutionality of that law. 14 that in the present writ petition the formulation of scheme of electoral bonds and the subsequent amendments carried out to various acts are totally exercise of legislative power of the parliament and
10 Janta Dal v. H.S.Chowdhary, AIR 1993 SC 892. 11 Calcutta Gas Co. Ltd. v. State of West Bengal, AIR 1962 SC 1044 12 Baldev Singh Gandhi v. State of Punjab, AIR 2002 SC 1124. 13 Magan Bhai v. Union of India,(1970) 3 SCC 400. 14 Chiranjit Lal v. Union Of India, AIR 1951 SC 41.
does not invade any of the fundamental right guaranteed by the Constitution. It is submitted that the petitioner would have no locus standi in the present case
- That it is further submitted that the judiciary may step in to fill gaps only where there is a statutory vacuum, but not where a valid law already occupies the field.^15
- In light of the averments made hereinabove, it is prayed that the Writ Petition may be dismissed as being without any merit and also on the ground of evident lack of bona fides. lt is further submitted that the writ petitioners are not entitled to any relief as prayed in the Writ Petition and the Writ petition is liable to be dismissed.
- Whether the amendment to :- i. Section 29c of Representation of people act 1951 through part 4 section 137 of Finance act 2017
ii. Section 13A of income tax act 1961 through chapter 3 section 11 of Finance act 2017have affected transparency in political funding?
- It is most humbly submitted before this Hon’ble court that the impugned amendment have ensured transparency in political funding and the government with an intention of reducing the cash transactions and to move towards the less cash economy, the government has taken several measures under the income tax Act, 1961 from time to time. Funding of political parties, which is,mostly in cash, is also in area concern. The provisions of section.13A.of the Income tax Act, inter-alia provides that political parties that are registered with the Election Commission of India are exempt from paying income tax subject to the conditions as specified.
- That it is submitted Prior to the amendment carried out in Section 13A vide Finance Act, 2017, the conditions for availing exemption under the income-tax Act, 1961 were that such political party keeps and maintains such books of account and other documents and maintains a record of voluntary contribution in excess of twenty thousand rupees accounts are audited by an accountant as defined in Explanation to sub section (2) of 15Pravasi Bharti Sangathan v. Union of India, (2014) 11 SCC 477.
concerned, as against the original system of cash which was non-transparent throughout, there is an improved transparency in the electoral bonds. The donor declares in his balance sheet the quantum of bonds that he has bought. The State Bank of India has a record of the donors. The recipient party declares the amount of bonds it has received. The link between the donor and the identity of the party is masked 16
- That it is submitted that the scheme of electoral bonds would ensure transparency in political bonds from both sides, the donors balance sheet would represent the amount of electoral bonds purchased by him, while political parties in their returns will have to disclose the amount of donations it has received through electoral bonds to the Election Commission. The entire transactions would be through banking instruments. As against a total non-transparency in the present system of cash donations where the donor, the donee, the quantum of donations and the nature of expenditure are all undisclosed, some element of transparency would be introduced in as much as all donors declare in their accounts the amount of bonds that they have purchased and all parties declare the quantum of bonds that they have received. 17
- That it is submitted that the government in an affidavit said the non-disclosure of identity of the donor is core objective of the scheme of electoral bond in order to safeguard the donor from political victimisation. Therefore, any donation received by the political party through an electoral bond is kept out of the ambit of reporting under the Contribution report as prescribed under Section 29C of the Representation of People Act, 1951. However, the records of the purchasers are always available in the banking channel and may be retrieved as and when required by the enforcement agencies. The electoral bonds can be encashed only by an eligible political party by depositing the same in the designated bank
16 Arun Jaitley, The Choice of Political Funding – Cheque, Electoral Bonds or Blackmoney from Contractors and middlemen Arun Jaitley (sep. 1.2019, 4:38pm)
https://www.arunjaitley.com/the-choice-of-political-funding-cheque-electoral-bonds-or- blackmoney-from-contractors-and-middlemen/ 17 Arun Jaitley, Why electoral bonds are necessary Facebook (sep. 1. 2019, 4:59pm)
https://www.facebook.com/notes/arun-jaitley/why-electoral-bonds-are-necessary/ 729708620551022/
account which means that a political party can open only one PAN India single bank account for crediting proceeds of the electoral bonds. The amount can be ascertained through the account statement. 18 II. NON DISCLOSURE OF DONOR’S IDENTITY PROTECTS PERSONS RIGHT TO PRIVACY
- It is most humbly submitted before this Hon’ble court right to privacy is protected as an intrinsic part of the right to life and personel liberty under Article 21 and as a part of the freedom guaranteed by part III of the Constitution. 19 It is submitted that the law of privacy is a recognition of the individual's right to be let alone and to have his personal space inviolate. The need for privacy and its recognition as a right is a modern phenomenon. It is the product of an increasingly individualistic society in which the focus has shifted from society to the individual. The term “privacy” has been described as “the rightful claim of the individual to determine the extent to which he wishes to share of himself with others and his control over the time, place and circumstances to communicate with others. It means his right to withdraw or to participate as he sees fit. It also means the individual's right to control dissemination of information about himself it is his own personal possession”. 20 Hence in case of electoral bonds a donor making donation to a political party has full right to have his information about donation not to be disseminated. Privacy of an individual is an essential aspect of dignity. 21
- It^ is^ submitted^ right to privacy would^ include^ a^ bundle^ of^ rights^ such^ as the right to privacy of beliefs, thoughts, personal information, home, and property. It is also seen as the claim of individuals to “ determine for themselves when, how, and to what extent information about them is communicated to others ”. 22
18Ashish Tripathi, Electoral Bonds make political donations transperant Deccan Herald(sep. 2. 2019, 3:35pm) https://www.deccanherald.com/national/electoral-bonds-make-political-donations- transparent-726994.html-+ 19 K.S.Puttaswamy and another v Union of India and other, SCC 2017 SC 652. 20Adam Carlyle Breckenridge: the Right to privacy, 1971. 21 K.S.Puttaswamy and another v Union of India and other, SCC 2017 SC 119. 22Alan Westin, Privacy and Freedom, (Atheneum Publishers, 1967 )
