Petitioners (BR 13)

Team Code: BR 13
BEFORE THE SUPREME COURT OF INDUS

At Dilli Pradesh
Under Article 32 read with Article 139-A of the Constitution of Indus
W.P. No. _____/2016 & T.P. No. ____/2016
KING BIRD LIQUOR PVT. LTD.
...PETITIONER NO. 1
GOVERNMENT OF NCT OF DILLI PRADESH
...PETITIONER NO. 2
Versus
REPUBLIC OF INDUS
RESPONDENT
Memorandum Submitted to the Honble Chief Justice of Supreme Court of Indus and His
Companion Justices of the Supreme Court of Indus
MEMORANDUM FILED ON BEHALF OF THE PETITIONERS

10TH NALSAR BODH RAJ SAWHNY MEMORIAL MOOT COURT COMPETITION
2016
MEMORANDUM ON BEHALF OF THE PETITIONERS

TABLE OF CONTENTS
TABLE OF CONTENTS.................................................................II
INDEX OF AUTHORITIES............................................................IV
STATEMENT OF JURISDICTION..................................................VII
STATEMENT OF FACTS.............................................................VIII
STATEMENT OF ISSUES.............................................................IX
SUMMARY OF ARGUMENTS........................................................X
ARGUMENTS ADVANCED............................................................1
I.
THAT
A.
THE
WRIT PETITIONS
ARE MAINTAINABLE...............................1
That the Honble Supreme Court of Indus has the jurisdiction to hear the Petition
of Petitioner No. 1..............................................................................................................2

B.
That the High Court of Dilli Pradesh had the jurisdiction to hear the petition of
Petitioner No. 2 under Article 226 of the Constitution......................................................2

C.
That the Honble Supreme Court of Indus rightly transferred the petition filed by
the Petitioner No. 2 pending before the High Court of Dilli Pradesh................................3
II. THAT
THE
RESPONDENT
DO NOT HAVE THE LEGISLATIVE COMPETENCE TO
THE DILLI PRADESH PROHIBITION ORDER, 2016.........................4
ISSUE
A.
That the Respondent disturbed the demarcation between source of power and
fields of legislation under the Constitution of Indus..........................................................4

B.
That the Executive Order is bad in law....................................................................6

i.
That there is a procedure established by law for passing an Executive Order........6
ii.
That the Executive has usurped the powers vested with the Legislative
Assembly.........................................................................................................................7
iii.
III.
That the Respondent cannot do indirectly, what it cannot do directly.................8
THAT
2016
THE ISSUANCE OF
THE DILLI PRADESH PROHIBITION ORDER,
ESSENTIALISES HUMAN NATURE AND DETRIMENTALLY AFFECTS POSITION
OF THE PUBLIC EX-CHEQUER...........................................................9
IV.
THAT
2016
1.
THE ISSUANCE OF
THE DILLI PRADESH PROHIBITION ORDER,
IS IN DEROGATION OF THE
FUNDAMENTAL RIGHTS
OF
PETITIONER
NO.
10
A.
That dealing in liquor deserves Fundamental Rights protection...........................10
B.
That the Prohibition Order is in violation of Article 14, Article 19(1)(g) and
Article 21..........................................................................................................................12
2

i.
That the Prohibition Order is in violation of Article 14........................................12
ii.
That the Prohibition Order is in violation of Article 19(1)(g)...........................14
iii.
That the Prohibition Order is in violation of Article 21....................................15
PRAYER..................................................................................XII

INDEX OF AUTHORITIES
STATUTES
Industries (Development and Regulation) Act of 1951..............................................................6
The 69th Constitutional Amendment of 1991............................................................................4
The Constitution of India of 1950..................................................................................1, 5, 6, 7
The General Clauses Act of 1897, 2(42)................................................................................12
The Government of NCT of Dilli Pradesh Act of 1991.............................................................6
Transaction of Business of NCT of Dilli Pradesh Rules of 1993..............................................7
FOREIGN CASES
Attorney General for Alberta v. Attorney General for Canada, [1939] AC 117.........................8
Gallagher v. Lynn, [1937] AC 863.............................................................................................8
Guy v. Baltimore, (1879) 100 US 434.......................................................................................8
Middleburg Municipality v. Gertzen, [1914] AD 544................................................................8
INDIAN CASES
Angurbala Mullick v. Debabrata Mullick, AIR 1951 SC 293..................................................11
Assistant Director of Inspection Investigation v. Kum. A.B. Shanthi, (2002) 6 SCC 259........8
Atiabari Tea Co. v. State of Assam, AIR 1961 SC 232............................................................15
Automobile Transport v. State of Rajasthan, AIR 1961 SC 232..............................................14
B.R. Enterprises v. State Of Uttar Pradesh, (1999) 9 SCC 700................................................11
Budhan Choudhry v. State of Bihar, AIR 1955 SC 191...........................................................13
Chiranjit Lal Chowdhuri v Union of India and Ors., (1950) 1 SCR 869.................................12
Dadu @Tulsidas v. State of Maharashtra, (2000) 8 SCC 437....................................................1
Delhi Cloth & General Mills Co. Ltd. and Ors. v. Union of India and Ors., AIR 1983 SC 937
..............................................................................................................................................2, 14
Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors., AIR 1987 SC 579......................................8
Dwarka Prasad Agarwal v. B.D. Agarwal, (2003) 6 SCC 230...................................................1
Godawant Pan Masala Products (India) Pvt. Ltd. v. Union of India, AIR 2004 SC 4057.......10
Har Shankar v. Deputy Excise Commissioner, AIR 1975 SC 1121.........................................10
Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166...................................4
Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45............................................5
Jijubhai Nanabhai Kachar v. State of Gujarat, (1995) 1 SCC Supp. 596...................................5

K.C. Gajapati Narayan Deo and Ors. v. The State of Orissa, AIR 1953 SC 375.......................8
K.R. Lakshman and Ors. v. Karnataka Electricity Board and Ors., (2001) 1 SCC 442...........13
Khoday Distilleries v. State of Karnataka, (1995) 1 SCC 574.................................................11
Krishna Kumar Narula v. State of Jammu & Kashmir, AIR 1967 SC 1368............................11
L. Chandra Kumar v. Union of India, (1997) 3 SCC 216..........................................................1
Lakshmi Precision Screws Ltd. v. Ram Bahagat, (2002) 6 SCC 552......................................12
Maharaj Umeg Singh and Ors. v. The State of Bombay and Ors., AIR 1955 SC 540...............5
Mahesh Kumar Saharia v. State of Nagaland and Ors., (1997) 8 SCC 176...............................6
Nashirwar v. State of Madhya Pradesh, AIR 1975 SC 360................................................10, 11
National Council for Teacher Education v. Shri Shyam Shiksha Prashikshan Sansthan, (2011)
2 SCR 291................................................................................................................................13
Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority and Ors., (2011) 3 SCC 139
....................................................................................................................................................4
Olga Tellis and Anr. v. Bombay Municipal Corporation and Ors., (1985) 3 SCC 545............15
P.N. Kaushal v. Union of India, AIR 1978 SC 1457................................................................10
Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors., AIR 1958 SC 538....................5
S.P. Sampath Kumar v. Union of India, (1987) 1 SCC 124.......................................................1
S.S. Bola and Ors. v. B.D. Sardana and Ors., AIR 1997 SC 3127.............................................1
State of Andhra Pradesh and Ors. v. McDowells and Co. and Ors., (1996) 3 SCC 709............5
State of Bombay v. F.N. Balsara, AIR 1951 SC 318................................................................10
State of Bombay v. RMD Chamarbaugwala, AIR 1975 SC 699.............................................10
State of Gujarat v. Jamat, arising out of Appeal No. 4937-4940/1998, Judgement Dated 26th
October 2005............................................................................................................................15
State of Kerala and Anr. v. Peoples Union for Civil Liberties, Kerala State Unit and Ors.,
(2009) 8 SCC 46.........................................................................................................................8
State of Kerala v. Abdul Kadir, (1969) 2 SCC 363..................................................................15
State of Punjab v. Devans Modern Breweries, (2004) 11 SCC 26...........................................11
State of Uttar Pradesh v. Kaushailiya and Ors., AIR 1964 SC 416..........................................13
State of Uttar Pradesh v. Modi Distillery Ltd., (1995) 5 SCC 753............................................5
State of West Bengal v. Anwar Ali Sarkar, (1952) SCR 284...................................................13
Sukh Deo Narain v. State of Rajasthan, (1984) 4 SCC 235.......................................................3
Syed Ahmed v. State of Mysore, AIR 1975 SC 1443..............................................................14
The Management of Advance Insurance Co. Ltd. v. Gurudasmal and Ors., (1970) 1 SCC 6335
Ujagar Prints v. Union of India, (1989) 3 SCC 488...................................................................4
5

BOOKS
D.D. BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed., LexisNexis 2010)......11
D.D. BASU, SHORTER CONSTITUTION OF INDIA (14th ed., Lexis Nexis 2012)..........................3
ESSAYS, ARTICLES
AND
REPORTS
Alcohol: Balancing Risks And Benefits, The Nutrition Source, Harvard T.H. Chan School of
Public
Health,
2016,
p3-6,
available
at:
https://www.hsph.harvard.edu/nutritionsource/alcohol-full-story/......................................9, 13
Arvind Datar And Shivprasad Swaminathan, Police Powers And The Constitution Of India:
The Inconspicuous Ascent Of An Incongruous American Implant, 28 Emory Int. Rev. 63.....11
Arvind P. Datar, Privilege, Police Powers and Res Extra Commercium Glaring Conceptual
Errors, 21 Nat'l L. Sch. India Rev. 133-134 (2009).............................................................9, 10
Burden and Socio-economic Impact of Alcohol, the Bangalore Study (Alcohol Control Series
No. 1), World Health Organisation (WHO), Regional Office for South East Asia, 2006,
Summary
VI,
available
at:
http://www.searo.who.int/entity/mental_health/documents/9290222727.pdf?ua=1..................9

STATEMENT OF JURISDICTION
Petitioner No. 1 has approached the Honble Supreme Court of Indus by filing a writ
petition under Article 32 which confers upon this Court the jurisdiction to issue any
directions, orders or writs for the enforcement of any of the rights conferred by Part III of the
Constitution of Indus:
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 clause (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.
The Honble Supreme Court of Indus under the power provided under Article 139-A, has
tagged the petition filed by the Government of the National Capital Territory of Dilli Pradesh
under Article 226 before the Honble High Court of Dilli Pradesh with the aforementioned
Writ Petition.
The petitioner humbly submits that this Court has the appropriate jurisdiction to hear
the matter and adjudicate accordingly.

STATEMENT OF FACTS
I.
Republic of Indus is a Union of States, governed by the provisions of a written constitution.
The governing laws of Indus (including the Constitution of Indus) are in pari materia to the
laws of India. Unlike other union territories, the union territory of Dilli Pradesh has been
conferred with a special status of National Capital Territory of Dilli Pradesh, having a
separate Legislative Assembly under Article 239AA of the Constitution of Indus.
II.
Excessive consumption and high proliferation of alcohol in Dilli Pradesh has led to a
widespread menace in the Union territory. In response to the trepidations conveyed by the
stakeholders of the society, the Government of Dilli Pradesh reciprocated with a sense of
empathy and initiated deliberations for a watertight solution to the impending menace.
III.
However, the newly elected Central Government side-stepped these efforts by issuing the
Dilli Pradesh Prohibition Order, 2016 The Prohibition Order completely prohibited the
sale, distribution, consumption and marketing of whisky, wine, rum, vodka, gin, tequila or
any other alcohol, expressly excluding beer and any other alcoholic beverage, with less than
5% alcohol content. The Lieutenant Governor supported the issuance of the Prohibition Order
by claiming that the Order was in consonance with Directive Principles of State Policy.
IV.
As the embargo became operative, the business of manufacturing of premium whiskies and
vodkas of Petitioner No. 1 was gravely affected. The company filed a writ petition before this
Honble Court under Article 32 alleging the violation of its fundamental rights. Furthermore,
it was observed that exclusive power to legislate on potable liquor vests with the Petitioner
No. 2. In this backdrop, the Petitioner No. 2 filed a writ petition under Article 226 before the
High Court of Dilli Pradesh, inter alia, challenging the legislative competence of the
Respondent to issue the Prohibition Order. It also emphasized on the adverse impact of the
Prohibition Order on indirect taxes and the economy at large.
V.
This court was pleased to transfer the petition, pending before the High Court of Dilli
Pradesh, and tag it with the petition filed by Petitioner No. 1 In light of this, the petitions
have been placed before this Honble Court for final disposal.

STATEMENT OF ISSUES
I. WHETHER THE WRIT PETITIONS ARE MAINTAINABLE?
II. WHETHER THE RESPONDENT HAS THE LEGISLATIVE
COMPETENCE TO ISSUE THE
DILLI PRADESH PROHIBITION ORDER, 2016?

III. WHETHER THE ISSUANCE OF THE DILLI PRADESH PROHIBITION ORDER, 2016
DETRIMENTALLY AFFECTS POSITION OF THE PUBLIC EX-CHEQUER ?
THE ISSUANCE OF THE DILLI PRADESH PROHIBITION
IV. WHETHER
VIOLATES THE
FUNDAMENTAL RIGHTS OF PETITIONER NO. 1?
ORDER, 2016

SUMMARY OF ARGUMENTS
I. THAT THE WRIT PETITIONS ARE MAINTAINABLE.
Judicial review is an indispensable part of the basic structure of the constitution and
endows the constitutional courts with the power to review legislative acts and administrative
orders. The Honble Supreme Court enjoys extraordinary writ jurisdiction for the
enforcement of fundamental rights. Petitioner No. 1 filed a writ petition before the Supreme
Court claiming fundamental rights violation. It is submitted that the company squarely falls
within the purview of the expression any person and citizen for soliciting fundamental
rights protection and the Honble Court cannot dismiss the writ petitions at the threshold. It is
further submitted that the Government of NCT of Dilli Pradesh rightly filed the writ petition
under Article 226 before the Honble High Court of Dilli Pradesh questioning the legislative
competence of the Respondent. The two petitions were suo motu tagged by the Honble
Supreme Court under Article 139A of the Constitution owing to the relatable facts and
common questions of general importance.
II. THAT THE RESPONDENT
DO NOT HAVE THE LEGISLATIVE COMPETENCE TO ISSUE
THE
DILLI PRADESH PROHIBITION ORDER, 2016.

Federal nature of the constitution provides for a clear demarcation of the legislative and
executive powers through the three legislative lists provided in Schedule VII of the
Constitution. The powers and functions of the Legislative Assembly of NCT of Dilli Pradesh
is analogous to the State Legislature in light of Article 239AA(3)(a). It is submitted that the
Respondent disturbed the demarcation of legislative powers and issued the Dilli Pradesh
Prohibition Order in the presence of the exclusive powers of the Legislative Assembly under
Entry 8 of List II.
Furthermore, the executive power can be exercised under Article 73 upon the matters over
which the Parliament can make laws. The Respondent passed the Prohibition Order that is
bad in law as it suffers from several infirmities. Upon a harmonious reading of the relevant
provisions, it is submitted that the Prohibition Order was issued by the Respondent,
bypassing the procedure. It is also submitted that the Respondent issued the notification upon
colorable exercise of its powers and in complete usurpation of the established powers of the
Legislative Assembly.
10

III. THAT
THE ISSUANCE OF
THE DILLI PRADESH PROHIBITION ORDER, 2016
ESSENTIALISES HUMAN NATURE AND DETRIMENTALLY AFFECTS POSITION OF THE PUBLIC

EX-CHEQUER.
The commercial significance of liquor has been belittled by the preconceived notions
about alcohol. The noxious nature of alcohol and the need to completely prohibit its
consumption, eclipses the potential adverse effects of this prohibition such as black marketing
and boot legging. In light of these unexplored possibilities, it is submitted that the Prohibition
Order essentialises human nature and the implementation of this Order does more harm than
good to the pocket of the public ex-chequer.
IV. THAT
THE ISSUANCE OF
IN DEROGATION OF THE
FUNDAMENTAL RIGHTS
OF
PETITIONER
NO.
IS
1.
The nature of business conducted by Petitioner No. 1 largely impacts entire fate of this
issue. Petitioner No. 1 engages in the business of premium whiskies and vodkas which
impedes its cause of claiming fundamental rights protection as the nature of business attracts
the application of the Roman Law doctrine of res extra commercium. Upon critically
analyzing the application of the doctrine over the years, it is submitted that the doctrine does
not have the remotest connection to trade in liquor.
Fundamental rights, provided in Part III, rest at the cornerstone of the Constitution. Every
democratic country guarantees this protection with certain reasonable restrictions. It is
submitted that the Prohibition Order has violates the fundamental rights under Article 14 as
the Order does not establish a reasonable classification, Article 19(1)(g) as it violates the
freedom to carry on occupation, trade or business and Article 21 as it deprives the company
against its right to livelihood.
11

ARGUMENTS ADVANCED
I.
THAT
THE
WRIT PETITIONS
ARE MAINTAINABLE.
The courts of law have been conferred with extraordinary writ jurisdiction under the
Constitution of Indus. According to the Constitution, the Supreme Court 1 and the High
Courts2 of the country have the power to enforce the fundamental rights and other legal rights
(under Article 226) by issuing directions or orders or high prerogative writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari. Moreover, these courts
also enjoy the power to judicial review where the order passed by the State or a statutory
body suffers from illegality, irrationality and procedural impropriety.3 Judicial review is the
heart and soul of the constitutional scheme. The judiciary is constituted the ultimate
interpreter of the Constitution and is assigned the delicate task of determining the extent and
scope of the powers conferred on each branch of the Government, ensuring that action of any
branch does not transgress its limits.4 Dr. Ambedkar, the father of the Constitution in his
closing remarks on the Draft Constitution, stated that the soul and heart of the
Constitution lie in Article 32 and mutatis mutandis in Articles 226 and 227 of the
Constitution. A co-ordinate seven-judge bench of this Honble Court in L. Chandra Kumar v.
Union of India,5 held that,
It was held that judicial review is the basic feature of the Constitution and is the
function of the Constitutional courts. The Parliament is devoid of power, by
1 The Constitution of India of 1950, Article 32 [hereinafter The Constitution].
2 Id., Article 226.
3 Dwarka Prasad Agarwal v. B.D. Agarwal, (2003) 6 SCC 230.
4 Dadu @Tulsidas v. State of Maharashtra, (2000) 8 SCC 437; S.S. Bola and Ors. v. B.D.
Sardana and Ors., AIR 1997 SC 3127; S.P. Sampath Kumar v. Union of India, (1987) 1 SCC
124.
5 L. Chandra Kumar v. Union of India, (1997) 3 SCC 216.

operation of Articles 323A and 323B, to deprive this Court of power of judicial
review under Article 32 and the High Courts under Article 226/227. The
Constitutional courts, viz., this Court and the High Courts, have fundamental duty
and, therefore, they exercise the power of judicial review of legislative Acts,
administrative actions and quasi-legislative orders.
Therefore, judicial review forms a part of the basic structure of the constitution and
endows the constitutional courts with the power to review legislative acts and administrative
orders.
A. That the Honble Supreme Court of Indus has the jurisdiction to
hear the Petition of Petitioner No. 1
In the present case, Petitioner No. 1 filed a writ petition under Article 32 before this
Honble Court. Petitioner No. 1 is a company engaged in the business of premium whiskies
and vodkas. It has been alleged, through the writ petition, that the issuance of the Prohibition
Order has gravely affected the business of Petitioner No. 1 to trade in the licensed business of
whiskies and vodkas.
It is pertinent to address the premise that Petitioner No. 1, as a company, deserves
fundamental rights protection. Much ink has been spilt over the interpretation of the subject
by this Honble Court. A company is required to fall within the purview of the expression
any person and citizen for soliciting fundamental rights protection under Part III of the
Constitution. It has been held by this Honble Court in Delhi Cloth & General Mills Co. Ltd.
and Ors. v. Union of India and Ors.6 that this is an often repeated contention whenever the
petitioner is an incorporated company, but the law in this behalf is in a nebulous state and
therefore, it is not possible to throw out the petition at the threshold. Therefore, it is humbly
submitted that a company squarely falls within the purview of these terminologies and that
this Honble Court cannot dismiss the writ petitions at the threshold.
Petitioner No. 1 contends that the Prohibition Order is ambiguous and uncertain with
respect to the extent of prohibition that it imposes upon the sale, distribution, marketing and
consumption of the classes of alcohol demarcated on the basis of the percentage of alcohol
6 Delhi Cloth & General Mills Co. Ltd. and Ors. v. Union of India and Ors., AIR 1983 SC
937 [hereinafter Delhi].

content. It is submitted that the defining factor for imposing prohibition of potable liquor as
less than 5%7 is arbitrary and invites writ proceedings.
Therefore, it is respectfully submitted that the Honble Court has the extraordinary writ
jurisdiction to hear the violation of fundamental rights and adjudicate accordingly.
B. That the High Court of Dilli Pradesh had the jurisdiction to hear
the petition of Petitioner No. 2 under Article 226 of the
Constitution.
The Petitioner No. 2 had filed a writ petition before the High Court of Dilli Pradesh. It
was alleged that the Respondent lacked the legislative competence to issue the Prohibition
Order, effecting complete prohibition on the sale, distribution, marketing and consumption
of different classes of potable alcohol. The Petitioner No. 2 claims that it reserves the
exclusive power to make laws on the subject Intoxicating liquors as laid down under Entry 8
of List II of the Schedule VII read with Article 245, Article 246 and Article 304(b).
The Petitioner No. 2 claims that the Prohibition Order is bad in law on several grounds. It
is submitted that the Respondent by-passed the set procedure for passing an Executive order
in the nature of a notification. The Executive has acted in colourable exercise of its power and
arrogated the powers exclusively vested with the State Legislature. In light of these
contentions, the Petitioner No. 2 seeks the indulgence of the court by exercising its power of
judicial review.
Therefore, it is submitted that the High Court of Dilli Pradesh had the extraordinary writ
jurisdiction to hear the writ petition before this Honble Court was pleased to transfer this
petition and tag it with the petition filed by Petitioner No. 1.
C. That the Honble Supreme Court of Indus rightly transferred
the petition filed by the Petitioner No. 2 pending before the
High Court of Dilli Pradesh.
The Supreme Court of Indus is conferred with an array of powers which are exercisable
for the purpose of meeting the ends of justice and uphold the spirit of law. Article 139A was
introduced as a part of the scheme of the Constitution 42 nd Amendment that proposed to
invest the Supreme Court with exclusive jurisdiction to determine the constitutional validity
of central laws by inserting Articles 131A, 139A and 144A. However, Article 131A and
7 Moot Proposition, 7.

Article 144A were omitted by the 43rd Amendment Act, leaving Article 139A intact.8 The
Supreme Court has been conferred with the power to transfer cases pending before the
Supreme Court and one or more High Courts for avoiding conflicting orders by the High
Courts. With respect to the procedure for transfer, this Honble Court in Sukh Deo Narain v.
State of Rajasthan9 held that, a petition under Article 139A(1) would be thrown out unless it
contains firstly, the facts relating to the two cases concerned; and secondly, the alleged
common questions involved.
In the present case, a writ petition was filed by Petitioner No. 1 before this Honble Court
under Article 32 of the Constitution alleging that the Prohibition Order violated its
fundamental rights. On the other hand, another writ petition was filed by the Petitioner No. 2
before the Honble High Court of Dilli Pradesh, wherein the Petitioner No. 2, inter alia
challenged the legislative competence of the Respondent to issue the Prohibition Order
against the sale, distribution, marketing and consumption of potable alcohol. This court
exercised its powers under Article 139A and transferred the writ petition pending before the
High Court of Dilli Pradesh as that petition was concerned with the same factual matrix and
was centred around the constitutional validity of the Prohibition Order.
Therefore, it is respectfully submitted that the petitions were maintainable before the
appropriate forums and that this Honble Court rightly transferred the petition under Article
139A of the Constitution.
II.
THAT
THE
TO ISSUE
RESPONDENT
DOES NOT HAVE THE LEGISLATIVE COMPETENCE
THE DILLI PRADESH PROHIBITION ORDER, 2016.
The Republic of Indus is divided into various states and union territories. Along with the
states, the union territories have also been recognized as an integral part of the Republic of
Indus. Dilli Pradesh was a Union Territory, until it was conferred with the special status of a
National Capital Territory (hereinafter referred to as NCT) by Article 239AA of the
Constitution.10 This special provision also provided for the establishment of a Legislative
Assembly for the NCT. Furthermore, the Parliament passed the Government of NCT Act,
8 1 D.D. BASU, SHORTER CONSTITUTION OF INDIA 1016 (14th ed., Lexis Nexis 2012).
9 Sukh Deo Narain v. State of Rajasthan, (1984) 4 SCC 235.
10 The 69th Constitutional Amendment of 1991, 2.

1991 (hereinafter referred to as the NCT Act) governing the functioning of the Legislative
Assembly and its Council of Ministers. In light of these provisions and the legislative
capacity of the Legislative Assembly of the NCT, it is respectfully submitted that the
Respondent did not enjoy the legislative competence to issue the Prohibition Order.
A That the Respondent disturbed the demarcation between
source of power and fields of legislation under the Constitution
of Indus.
The Constitution of Indus provides for a clear demarcation of powers between the
legislative bodies. It is trite law that the various entries in the three lists are not powers of
legislation, but are fields of legislation; whereby the power to legislate flows from Article 246
of the Constitution.11 In the present case, the Legislative Assembly of the National Capital
Territory (hereinafter referred to as NCT) of Dilli Pradesh is empowered to make laws on
the subjects enumerated in the State List, except those subjects provided under Entries 1, 2
and 18.12 Further, it is submitted that Section 3(58) of the General Clauses Act, 1897 connotes
that a Union Territory shall fall within the purview of the definition of a State. This
definition of State found favour with the Supreme Court in The Management of Advance
Insurance Co. Ltd. v. Gurudasmal and Ors.13 Therefore, the Legislative Assembly of NCT of
Dilli Pradesh is analogous to a State Legislature for the purpose of interpretation and its
source of legislative power must be traced by harmoniously reading Article 239AA(3)(a),
Article 245, Article 246(3) and Article 304.
11 Offshore Holdings Pvt. Ltd. v. Bangalore Development Authority and Ors., (2011) 3 SCC
139; Harakchand Ratanchand Banthia v. Union of India, (1969) 2 SCC 166; Ujagar Prints v.
Union of India, (1989) 3 SCC 488; Jijubhai Nanabhai Kachar v. State of Gujarat, (1995) 1
SCC Supp. 596; Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45.
12 The Constitution, supra note 1, Article 239AA(3)(a).
13 The Management of Advance Insurance Co. Ltd. v. Gurudasmal and Ors., (1970) 1 SCC
633.

Upon tracing the source of legislative power, it is imperative to address the fields of
legislations under Schedule VII of the Constitution. The power to make laws on potable
alcohol may be exercised under the subject Intoxicating liquors 14 with respect to its
production, manufacture, possession, transport, purchase and sale. For the purposes of
interpretation, the expression Intoxicating liquors refers to only that liquor which is
consumable by human beings as it is.15 The unfettered and plenary power to make a law with
respect to intoxicating liquors squarely falls within the domain of the State Legislature and
persons engaged in the manufacture of intoxicating liquors are governed by the law
prohibiting their manufacture and production in addition to their sale, consumption,
possession and transport with reference to Entry 6 and 8 of List II read with Article 47 of
the Constitution.16 Therefore, it is respectfully submitted that the Legislative Assembly of the
NCT enjoys the legislative competence to rule on the regulation of potable liquor under Entry
8 of List I.
Assuming, but not admitting, that the Parliament has powers to rule on prohibition of
potable liquor, it may be exercised under Entry 52 of List I dealing with Industries, the
control of which by the Union is declared by the Parliament by law to be expedient in the
public interest. By virtue of this entry, the Parliament enacted the Industries (Development
and Regulation) Act, 1951 (hereinafter referred to as IDRA) for the purpose of declaring
industries, specified in its First Schedule, to be under the control of the Union in public
interest.17 It is pertinent to note that Entry 26 of the Schedule deals with Fermentation
Industries which includes Alcohol as an industry. However, the IDRA Amendment Act,
2016 amended the title of Entry 26 which read as Fermentation Industries (other than
Potable Alcohol). This amendment vested the power in the hands of the State Legislature to
14 The Constitution, supra note 1, Entry 8, List II, Schedule VII.
15 State of Uttar Pradesh v. Modi Distillery Ltd., (1995) 5 SCC 753.
16 State of Andhra Pradesh and Ors. v. McDowells and Co. and Ors., (1996) 3 SCC 709;
Ram Krishna Dalmia v. Shri Justice S.R. Tendolkar and Ors., AIR 1958 SC 538; Maharaj
Umeg Singh and Ors. v. The State of Bombay and Ors., AIR 1955 SC 540.
17 Industries (Development and Regulation) Act of 1951, 2.

rule upon the regulation of Potable Alcohol. It was observed by this Honble Court in
Mahesh Kumar Saharia v. State of Nagaland and Ors. that incidental trenching does not put
an embargo on the State legislature to pass legislation within its competence. 18 Moreover, the
application of the latin maxim, generalia specialibus non derogate (the provisions of a
general statute must yield to those of a special one) restrains the Parliament from overriding
the power of the State Legislature make laws under Entry 8 List II.
In light of this, it is respectfully submitted that the Respondent did not enjoy the
legislative competence to issue this notification.
D. That the Executive Order is bad in law.
Executive power of the Union shall extend to the matters with respect to which the
Parliament has power to make laws. The executive power shall not extend in any state to
matters with respect to which the State Legislature has also power to make laws. 19 The power
of the Executive under Article 73 cannot be read in isolation and needs to be co-related with
Article 245 and Article 246. Upon a harmonious reading of these constitutional provisions, it
appears that the State Legislature reserves the right to rule on the consumption of potable
liquor under the subject Intoxicating liquors laid down under Entry 8 of List II. Therefore,
executive power of the Union is barred by the legislative power of the State Legislature.
i. That there is a procedure established by law for passing an Executive Order.
Article 73 further states that the Union shall retain its executive power when there is an
express provision in the Constitution or an act passed by the Parliament to that effect. By
virtue of this saving clause, the Parliament passed the Government of NCT of Dilli Pradesh
Act, 1991 (hereinafter referred to as the NCT Act). The NCT Act confers powers upon the
President to make rules for the purpose of transaction of business with the ministers. 20 In
furtherance to this, the President has enacted the Transaction of Business of the NCT of Dilli
Pradesh Rules, 1993 (hereinafter referred to as the NCT Rules). The intermingling
18 Mahesh Kumar Saharia v. State of Nagaland and Ors., (1997) 8 SCC 176.
19 The Constitution, supra note 1, Article 73(1)(a).
20 The Government of NCT of Dilli Pradesh Act of 1991, 44.

provisions of these enactments provide for a settled procedure to be followed in order to pass
a legislative proposal by the Central Government.
The relevant portion of the NCT Rules provides that every legislative proposal shall be
referred by the Lieutenant Governor to the Central Government, which
a) if introduced in a Bill form and enacted by the Legislative Assembly, is required to be
reserved for the consideration of the President;
b) attracts provisions of articles 286, 287, 288 and 304 of the Constitution as applicable to
the Capital;21
Sub-Rule (b) is required to be read in light of the provisions of Article 304 of the
Constitution. It empowers the State Legislature to impose reasonable restrictions on the
freedom of trade, commerce and intercourse within that State as may be required in public
interest, provided no such Bill or amendment shall be moved in the State Legislature without
the previous sanction of the President.22 Moreover, the rules state that further action shall not
be taken except in accordance with the decision of the Central Government. 23 An overview of
these provisions indicates that every legislative proposal must be introduced or moved before
the Legislative Assembly of the NCT to attain the character of an Executive Order passed by
the Respondent.
In the present case, it is pertinent to note that the legislative proposal of the Prohibition
Order was never put before the floor of the Legislative Assembly for consideration. The
Executive Order has been issued by the Respondent by circumventing the procedural
requirements. Therefore, it is respectfully submitted that the Respondent has ex-facie erred in
abiding by the procedure established by law.
ii. That the Executive has usurped the powers vested with the Legislative Assembly.
The governmental functionaries are required to operate in accordance with the provisions
laid down under the Constitution. It is pertinent to note that the Executive cannot claim an
21 Transaction of Business of NCT of Dilli Pradesh Rules of 1993, Rule 55 [hereinafter The
Rules].
22 The Constitution, supra note 1, Article 304(b).
23 The Rules, supra note 21, Rule 56.

imperialist paramountcy with respect to law making. This Honble Court in H.H.
Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Ors. v. Union of
India and Anr.,24 held that the doctrine of paramountcy, with its brazen-faced autocracy, no
longer survived the enactment of the Constitution. Under our Constitution an action not
authorised by law against the citizens of the Union cannot be supported under the shelter of
paramountcy. The law making function is entrusted by the Constitution to the Legislature and
if the Executive were permitted to rule without submitting to the voice of the Legislature, it
would be nothing short of usurpation by the Executive of the law making function of the
Legislature.25
Therefore, it is respectfully submitted that the power of the Executive to make laws are
blatant usurpations of the powers originally vested with State Legislature.
iii. That the Respondent cannot do indirectly, what it cannot do directly.
It is incumbent upon the legislative and executive bodies to act within the respective
spheres marked out by specific legislative entries. Transgression of these constitutional limits
may be exercised in a patent, manifest or direct manner or in a disguised, covert and indirect
manner, attracting the doctrine of colourable legislation. The doctrine of colourable
legislation is directly connected with the legislative competence of the State. 26 The doctrine
does not involve any question of bona fides or mala fides on the part of the legislature. It
resolves itself into the question of competency of a particular legislature to enact a particular
law. If the legislature lacks competency, the question of motive does not arise at all.27
24 H.H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadur of Gwalior and Ors. v.
Union of India & Anr., AIR 1971 SC 530.
25 Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors., AIR 1987 SC 579.
26 State of Kerala and Anr. v. Peoples Union for Civil Liberties, Kerala State Unit and Ors.,
(2009) 8 SCC 46.
27 K.C. Gajapati Narayan Deo and Ors. v. The State of Orissa, AIR 1953 SC 375.

It is settled law that a constitutional authority cannot do indirectly what it is not permitted
to do directly. If there is a constitutional provision inhibiting the constitutional authority from
doing an Act, such provision cannot be allowed to be defeated by adoption of any
subterfuge.28 It is only when a legislature which has no power to legislate, or the legislation is
camouflaged in such a way as to appear to be within its competence when it knows it is not
then alone it can be said that the legislation so enacted is a colourable legislation and that
there is no legislative competence.29 The application of this common law doctrine has been
widely acknowledged in the foreign jurisprudence. 30 In the instant case, the Executive issued
the Prohibition Order under the cloak of the exclusive powers of the State Legislature.
In light of this doctrine, it is respectfully submitted that the measures taken by the
Respondent were in colourable exercise of its executive powers as the State Legislature was
exclusively empowered to rule on Intoxicating liquors under Entry 8 of List II.
III.
THAT
THE ISSUANCE OF
ESSENTIALISES HUMAN NATURE AND DETRIMENTALLY AFFECTS POSITION

OF THE PUBLIC EX-CHEQUER.
In light of commercial significance of liquor, it is submitted that the present case cannot
be limited to territory of Dilli Pradesh becoming high and dry. This, in fact, is a case of the
country becoming high and dry. This premise is substantiated by the application of the
doctrine of atrophy whereby law is an organic element of the society and every law or
enactment is bound to undergo change after a lapse of time. This indicates that law has an
extraordinary characteristic of being replicated.
Furthermore, it is submitted that the Prohibition Order essentialises human nature by
erroneously assuming two precepts:
28 Dr. D.C. Wadhwa & Ors. v. State of Bihar & Ors., AIR 1987 SC 579.
29 Assistant Director of Inspection Investigation v. Kum. A.B. Shanthi, (2002) 6 SCC 259.
30 Attorney General for Alberta v. Attorney General for Canada, [1939] AC 117; Gallagher v.
Lynn, [1937] AC 863; Middleburg Municipality v. Gertzen, [1914] AD 544; Guy v.
Baltimore, (1879) 100 US 434.
10

a) Whenever liquor is consumed, the consumer will be a hazard to the society at large. This
assumption is relied upon by the Respondent without a Brandeis brief;
b) Consuming liquor within limits will also be detrimental to the smooth fabric of the
society. To the contrary, it has been observed through studies 31 that alcohol consumption
within limits i.e. moderate drinking is deemed to beneficial for health.
It is pertinent to note imposing prohibition on potable liquor will inevitably increase the
perils of black marketing and boot legging which has been an essential characteristic of every
alcohol control policy notified and enforced in the territory of Indus. The Respondent, while
choosing between the worst and less worse, has unfortunately adopted the former.
In a recent study, it was estimated that gains in terms of revenue from alcohol sales is Rs.
216 Billion every year.32 It is indeed ironic that while the Honble Supreme Court has
remarked that liquor and gambling are harmful activities, the major source and revenue of
most states is the sale of potable alcohol or what is paradoxically called as Indian Made
Foreign Liquor (IMFL).33
31 Alcohol: Balancing Risks And Benefits, The Nutrition Source, Harvard T.H. Chan School
of
Public
Health,
2016,
p3-6,
available
at:
https://www.hsph.harvard.edu/nutritionsource/alcohol-full-story/ [hereinafter Harvard].
32 Burden and Socio-economic Impact of Alcohol, the Bangalore Study (Alcohol Control
Series No. 1), World Health Organisation (WHO), Regional Office for South East Asia, 2006,
Summary
VI,
available
at:
http://www.searo.who.int/entity/mental_health/documents/9290222727.pdf?ua=1.
33 Arvind P. Datar, Privilege, Police Powers and Res Extra Commercium

Conceptual Errors, 21 Nat'l L. Sch. India Rev. 133-134 (2009) [hereinafter Datar].
11
Glaring

IV.
THAT
THE ISSUANCE OF
IS IN DEROGATION OF THE
FUNDAMENTAL RIGHTS
OF
PETITIONER
NO.
1.
A That dealing in liquor deserves Fundamental Rights protection.

Petitioner No. 1 is a company engaged in the business of premium whiskies and vodkas.
In lieu of the Prohibition Order issued by the Respondent, Petitioner No. 1 moved this
Honble Court by filing a writ petition under Article 32 claiming violation of fundamental
rights. It is pertinent to note that the nature of product i.e. potable liquor in which Petitioner
No. 1 conducts its business impedes its cause to claim fundamental rights protection.
It has been consistently held by the this Honble Court that dealing in liquor is beyond the
purview of trade or business as provided under Article 19(1)(g) of the Constitution as it
attracts the doctrine of res extra commercium.34 The expression res extra commercium
literally means outside commerce.35 Trades which have reprehensible, moral and social
effects are categorized as res extra commercium and do not fall under the clause trade or
business as contemplated under Article 19(1)(g). 36 The nature of this doctrine merits
consideration to determine whether dealing in liquor, in essence, deserves fundamental rights
protection.
Res extra commercium doctrine traces its conceptual roots to Roman Law. Res in
commercio in Roman Law, were things capable of ownership, and hence a subject of property
rights while res extra commercium were things incapable of ownership. Therefore, it is clear
that morality had no role to play whatsoever in the classification of property as res extra
commercium. In fact, no individual could claim any right over such property because it was
meant for the common benefit of all. In contemporary times, this Honble Court has classified
liquor as res extra commercium. This, in itself, is a paradigm shift in which the doctrine is to
34 Hoke v. U.S., (1913) 227 US 308; Har Shankar v. Deputy Excise Commissioner, AIR
1975 SC 1121; Nashirwar v. State of Madhya Pradesh, AIR 1975 SC 360 [hereinafter
Nashirwar]; P.N. Kaushal v. Union of India, AIR 1978 SC 1457.
35 Godawant Pan Masala Products (India) Pvt. Ltd. v. Union of India, AIR 2004 SC 4057.
36 State of Bombay v. RMD Chamarbaugwala, AIR 1975 SC 699; State of Bombay v. F.N.
Balsara, AIR 1951 SC 318.
12

be interpreted. The disquiet would give way to perplexity upon learning that, despite the odds
stacked up so heavily against the doctrine of res extra commercium, it is now so well
ensconced in the constitutional law of India, that hardly anyone has questioned its soundness
in the last seven decades.37 The Supreme Court of Indus briefly threatened the ascent of the
doctrine in Krishna Kumar Narula v. State of Jammu & Kashmir,38 which involved the
constitutionality of the trade in liquor. Not only did the Supreme Court in Narula turn down
the state's invitation to extend the doctrine to trade in liquor, but the Court also expressed
reservations about the congruity of the doctrine with India's constitutional scheme.39
It is pertinent to note that Angurbala Mullick v. Debabrata Mullick 40 is the only judgement
wherein the doctrine was interpreted in line with the original concept in the Roman Law.
After this judgement, there have been an array of judgements 41 which erroneously interpreted
and applied this doctrine of res extra commercium.
The acceptance of the broad argument that liquor is dangerous to the community and
subversive to its morals connotes an acceptance of the standards of morality prevalent in a
country. It is of crucial importance that the morality or otherwise of a deal does not affect the
quality of the activity, though it may be one of the many grounds for imposing restrictions on
the said activity. The illegality of the activity does not affect the character of the activity but
37 Datar, supra note 33, p.134-136.
38 Krishna Kumar Narula v. State of Jammu & Kashmir, AIR 1967 SC 1368.
39 Arvind Datar And Shivprasad Swaminathan, Police Powers And The Constitution Of
India: The Inconspicuous Ascent Of An Incongruous American Implant, 28 Emory Int. Rev.
63.
40 Angurbala Mullick v. Debabrata Mullick, AIR 1951 SC 293.
41 Nashirwar, supra note 34; Khoday Distilleries v. State of Karnataka, (1995) 1 SCC 574;
B.R. Enterprises v. State Of Uttar Pradesh, (1999) 9 SCC 700; State of Punjab v. Devans
Modern Breweries, (2004) 11 SCC 26.
13

operates as a mere restriction on it.42 However, this Honble Court is considerably influenced
by morality while dealing with the boundaries of trade.
The applicability of the doctrine of res extra commercium is a product of judicial
precedent and is non-existent in the Constitution of Indus. To hold that certain activities
would be excluded from the protection under Article 301 would lead to an uncertain
speculation as to what activities may be regarded as res extra commercium. It is humbly
submitted that such a pedantic approach leads to incoherence in thought and expression. The
incorrect use of this expression underscores the importance of relying on the language used in
the Constitution and manifests the pitfalls of importing doctrines and theories from other
jurisdictions. It is submitted that judicial decisions must primarily be given on the basis of our
own constitution. It is only when a constitution is silent or has not contemplated a particular
problem that foreign doctrines can be applied. Even then, it is necessary to subject them to
strict scrutiny.
In the words of Justice S.B. Sinha,
Law is not to be laid down having regard to the perception of a judge, but on
premises having a solid foundation thereof, both on facts as well as in law. If the
Constitution or the relevant statutes do not prohibit a trade or business, the courts
cannot do so by taking recourse to the interpretative process or on the grounds of
public morality.
Therefore, it is submitted that the doctrine of res extra commercium does not have even a
remote connection to trade in liquor. It is a latin maxim in Roman Law used in a totally
different context. Hence, the application of the doctrine by the courts has nothing to do with
the purport of the doctrine and thus dealing in liquor deserves fundamental rights protection.
E. That the Prohibition Order is in violation of Article 14, Article
19(1)(g) and Article 21.
The Respondent issued a notification referred to as the Dilli Pradesh Prohibition Order,
2016 which was notified and put in force from August 1, 2016. This Prohibition Order
provided for a complete embargo on the sale, distribution, marketing and consumption of
specific class of alcohol, with a saving clause. This clause expressly excluded Beer and any
other alcoholic beverage where the alcohol content is less than 5%. Petitioner No. 1 is a
company engaged in the business of premium whiskies and vodkas. It is submitted that the
42 8 D.D. BASU, COMMENTARY ON
THE
CONSTITUTION
2010).
14
OF INDIA
9738 (8th ed., LexisNexis

issuance and notification of this Prohibition Order has violated certain rights under Part III of
the Constitution.
i
That the Prohibition Order is in violation of Article 14.
Article 14 of the Constitution provides for equality before law or the equal protection
of the laws within the territory of India. It is pertinent to note that this protection has been
bestowed upon any person. A person, for the purpose of this provision, may be construed as
any company or body or association of individuals, whether incorporated or not43 as per
the General Clauses Act, 1897. Therefore, it is submitted that Petitioner No. 1 enjoys the
fundamental right protection of equality.
It is a settled principle of law that arbitrariness is the antithesis of equality. In Lakshmi
Precision Screws Ltd. v. Ram Bahagat44 it was held by this Honble Court that, arbitrariness
is an antithesis of rule of law, equity, fair play and justice. Every state action has to pass the
test of reasonable classification in order to prove that it is not arbitrary. The test as laid down
in Chiranjit Lal Chowdhuri v Union of India and Ors.,45 states that, when there is a
reasonable classification made which is based on an intelligible differentia and it has a
rational relation to the object sought to be achieved by the impugned legislation, then no
question of constitutionality may be raised. Further, this Honble Court has reiterated the
same principle and consistently observed that Article 14 forbids class legislation but permits
reasonable classification provided that it is founded on an intelligible differentia which
distinguishes persons or things that are grouped together from those that are left out of the
group and the differentia has a rational nexus to the object sought to be achieved by the
legislation in question.46
43 The General Clauses Act of 1897, 2(42).
44 Lakshmi Precision Screws Ltd. v. Ram Bahagat, (2002) 6 SCC 552.
45 Chiranjit Lal Chowdhuri v Union of India and Ors., (1950) 1 SCR 869.
46 National Council for Teacher Education v. Shri Shyam Shiksha Prashikshan Sansthan,
(2011) 2 SCR 291; K.R. Lakshman and Ors. v. Karnataka Electricity Board and Ors., (2001)
1 SCC 442; Budhan Choudhry v. State of Bihar, AIR 1955 SC 191; State of Uttar Pradesh v.
15

In the present case, it is respectfully submitted that the Prohibition Order conveys neither
a reasonable classification nor a rational nexus to the object of the statute. The classification
made by the Respondent is not based on an intelligible differentia as the two groups are not
based on any comprehensive ground. Firstly, the classification is not based exclusively on the
alcohol content in the beverages as beer has been completely exempted from this rule.
However, an eventuality of permitting beer, having more than 5% alcohol content, cannot
easily be disregarded. Secondly, it cannot be said with conviction that the classification is
based on the prohibition of all the hard liquors as wine, not falling within the category of
hard liquors, has been completely prohibited from being sold, distributed, marketed or
consumed. On the contrary, studies47 indicate alcohol consumption within limits i.e. moderate
drinking is deemed to beneficial for health. Therefore, it is submitted that the classification
made is not based on an intelligible differentia as an interpretation of this differentia will
certainly open the Pandoras Box for all the stakeholders.
Further, the Respondents defended the Order by stating that the object of the Prohibition
Order is in consonance with Article 47 of the Constitution. Article 47 provides for the duty of
the State to raise the level of nutrition and the standard of living of its people and to improve
the public health to endeavour to bring about prohibition of the consumption except for
medicinal purposes of intoxicating drinks and of drugs which are injurious to health. In State
of West Bengal v. Anwar Ali Sarkar48 the Court held that the classification may be founded
on different basis; such as, geographical, or according to objects or occupation or the like.
What is necessary is that there must be a nexus between the basis of classification and the
object of the Act under consideration. Thus, it is clear that the object of Article 47 is to
impose complete prohibition on all kinds of potable liquor. However, the prohibition order
continues to allow the sale, distribution, marketing and consumption of beer and all other
alcoholic beverages with an alcohol content of less than 5%. It is evident that the prohibition
order lacks a reasonable classification based on an intelligible differentia which has a rational
nexus with the object that the legislation aims to achieve. Therefore, it is humbly submitted
that the Prohibition Order is in violation of Article 14 of the Constitution.
Kaushailiya and Ors., AIR 1964 SC 416.
47 Harvard, supra note 31.
48 State of West Bengal v. Anwar Ali Sarkar, (1952) SCR 284.
16

iv. That the Prohibition Order is in violation of Article 19(1)(g).
Article 19 guarantees the freedom to practice any profession, or carry on any occupation,
trade and business to all the citizens of Indus. It must be ascertained as to whether a
corporation falls within the purview of citizen. Upon express deliberations on this subject,
this Honble Court in Delhi Cloth & General Mills Co. Ltd. and Ors. v. Union of India and
Ors.49 held that this is an oft repeated contention whenever the petitioner is an incorporated
company, but the law in this behalf is in a nebulous state and therefore, it is not possible to
throw out the petition at the threshold. Therefore, it is humbly submitted that this Honble
Court cannot dismiss the writ petitions at the threshold.
Further, the proviso to this entitlement under Article 19(6) provides that nothing in 19(1)
(g) shall affect the operation of any existing law, insofar as it imposes restrictions which are
reasonable and in the interests of the general public. Article 301 imposes a limitation on the
exercise of legislative power, whether by the Union or by a State. 50 Hence, there is prima
facie overlapping of powers between Articles 19(1)(g) and 301, because both aim to provide
the freedom of trade or business. A contravention of Article 301 would ordinarily involve an
infringement of citizens fundamental right under Article 19(1) (g).51 The freedom of trade,
commerce and intercourse under Article 301 of the Constitution is subject to restrictions
imposed by legislative bodies in Articles 302 and 304 of the Constitution.
This violation of its fundamental right under Article 19(1)(g) forms the epicentre of the
writ petition filed by Petitioner No. 1. The two pre-conditions of reasonableness and public
interest are common for any legislative or executive action which restricts the freedom of
trade, commerce and intercourse within the territory of Indus. Wherever a law is challenged
on grounds of violation of Article 301 of the Constitution, the court has to examine the pith
and substance as well as the effect and operation of the impugned law on inter-state trade and
commerce.52
The Prohibition Order, issued in public interest and in consonance with Article 47,
promotes total prohibition as a desired goal. History shows that prohibition in its wake, does
49 Delhi, supra note 6.
50 Automobile Transport v. State of Rajasthan, AIR 1961 SC 232.
51 Syed Ahmed v. State of Mysore, AIR 1975 SC 1443.
17

more harm than good. It has been witnessed that imposing prohibition on potable liquor
inevitably increases the perils of black marketing and boot legging which has been an
essential characteristic of every alcohol control policy notified and enforced in the territory of
Indus. In conclusion, the proposed effect and operation of the Prohibition Order is not
conducive towards the goal of improving public health and safety.
In State of Gujrat v. Jamat,53 the Honble apex court laid out certain settled principles
under Article 19(1)(g), namely that prohibition could constitute a reasonable restriction but
prohibition would only be justified where a lesser alternative would clearly be inadequate.
v. That the Prohibition Order is in violation of Article 21.
Article 21 provides for the most organic and dynamic fundamental right in a democratic
society. It states that no person shall be deprived of right to life or personal liberty except by
procedure established by law. Apart from the apparent meaning, the Constitutional Courts in
the Republic of Indus have extended the purport of this entitlement and read various other
rights into it. This Honble Court, in Olga Tellis and Anr. v. Bombay Municipal Corporation
and Ors.,54 stretched the application of Right to life to include Right to livelihood. It was
observed as follows:
The sweep of the right to life conferred by Article 21 is wide and far reaching
An equally important facet of that right is the right to livelihood because; no
person can live without the means of living, that is, the means of livelihood. If the
right to livelihood is not treated as a part of the constitutional right to live, the
easiest way of depriving a person of his right to life would be to deprive him of his
means of livelihood to the point of abrogation. Such deprivation would not only
denude the life of its effective content and meaningfulness but it would make life
impossible to live. And yet, such deprivation would not have to be in accordance
52 Atiabari Tea Co. v. State of Assam, AIR 1961 SC 232; State of Kerala v. Abdul Kadir,
(1969) 2 SCC 363.
53 State of Gujarat v. Jamat, arising out of Appeal No. 4937-4940/1998, Judgement Dated
26th October 2005.
54 Olga Tellis and Anr. v. Bombay Municipal Corporation and Ors., (1985) 3 SCC 545.
18

with the procedure established by law, if the right to livelihood is not regarded as
a part of the right to life. That, which alone makes it possible to live, leave aside
what makes like livable, must be deemed to be an integral component of the right
to life.
It is also pertinent to note that a person is entitled to the right to livelihood under Article
21. This indicates that Petitioner No. 1 also deserves protection of this right in the character
of a company. The right to livelihood, under Article 21, is paramount as it can only be
restricted by the procedure established by law. The prohibition order, if upheld and
enforced, will affect its very existence as it will take away this petitioners livelihood to trade
in the business of premium whiskies and vodkas. Therefore, it is submitted that the
Prohibition Order is in violation of the right to livelihood, encompassed under Article 21 of
the Constitution.
19

PRAYER
Wherefore, in light of the facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly and respectfully prayed before this Honorable Court that it may be
pleased to allow the Petition and adjudge and declare that:
That the Dilli Pradesh Prohibition Order, 2016 is unconstitutional; or That the Respondent
lacks the legislative competence to issue The Dilli Pradesh Prohibition Order, 2016.
And
Pass any other order or grant any other relief in favour of the Petitioners, which this
Honorable Court may deem fit in the ends of equity, justice and good conscience.
Date: day of September 2016

Place: Dilli Pradesh
Sd/Counsel(s) for Petitioners
12

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Team Code: BR 13

BEFORE THE SUPREME COURT OF INDUS

Under Article 32 read with Article 139-A of the Constitution of Indus

W.P. No. _____/2016 & T.P. No. ____/2016

KING BIRD LIQUOR PVT. LTD.

GOVERNMENT OF NCT OF DILLI PRADESH

MEMORANDUM FILED ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

of Petitioner No. 1..............................................................................................................2

Petitioner No. 2 under Article 226 of the Constitution......................................................2

DO NOT HAVE THE LEGISLATIVE COMPETENCE TO

THE DILLI PRADESH PROHIBITION ORDER, 2016.........................4

fields of legislation under the Constitution of Indus..........................................................4

That the Executive Order is bad in law....................................................................6

That there is a procedure established by law for passing an Executive Order........6

That the Respondent cannot do indirectly, what it cannot do directly.................8

THE DILLI PRADESH PROHIBITION ORDER,

ESSENTIALISES HUMAN NATURE AND DETRIMENTALLY AFFECTS POSITION

OF THE PUBLIC EX-CHEQUER...........................................................9

THE DILLI PRADESH PROHIBITION ORDER,

That dealing in liquor deserves Fundamental Rights protection...........................10

MEMORANDUM ON BEHALF OF THE PETITIONERS

That the Prohibition Order is in violation of Article 14........................................12

That the Prohibition Order is in violation of Article 19(1)(g)...........................14

That the Prohibition Order is in violation of Article 21....................................15

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

COMPETENCE TO ISSUE THE

DILLI PRADESH PROHIBITION ORDER, 2016?

FUNDAMENTAL RIGHTS OF PETITIONER NO. 1?

MEMORANDUM ON BEHALF OF THE PETITIONERS

DO NOT HAVE THE LEGISLATIVE COMPETENCE TO ISSUE

DILLI PRADESH PROHIBITION ORDER, 2016.

MEMORANDUM ON BEHALF OF THE PETITIONERS

THE DILLI PRADESH PROHIBITION ORDER, 2016

ESSENTIALISES HUMAN NATURE AND DETRIMENTALLY AFFECTS POSITION OF THE PUBLIC

THE DILLI PRADESH PROHIBITION ORDER, 2016

MEMORANDUM ON BEHALF OF THE PETITIONERS

2 Id., Article 226.

3 Dwarka Prasad Agarwal v. B.D. Agarwal, (2003) 6 SCC 230.

5 L. Chandra Kumar v. Union of India, (1997) 3 SCC 216.

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

MEMORANDUM ON BEHALF OF THE PETITIONERS

DOES NOT HAVE THE LEGISLATIVE COMPETENCE

THE DILLI PRADESH PROHIBITION ORDER, 2016.

9 Sukh Deo Narain v. State of Rajasthan, (1984) 4 SCC 235.

10 The 69th Constitutional Amendment of 1991, 2.

MEMORANDUM ON BEHALF OF THE PETITIONERS

12 The Constitution, supra note 1, Article 239AA(3)(a).

MEMORANDUM ON BEHALF OF THE PETITIONERS

15 State of Uttar Pradesh v. Modi Distillery Ltd., (1995) 5 SCC 753.

17 Industries (Development and Regulation) Act of 1951, 2.

MEMORANDUM ON BEHALF OF THE PETITIONERS

19 The Constitution, supra note 1, Article 73(1)(a).

20 The Government of NCT of Dilli Pradesh Act of 1991, 44.

MEMORANDUM ON BEHALF OF THE PETITIONERS

22 The Constitution, supra note 1, Article 304(b).

23 The Rules, supra note 21, Rule 56.

MEMORANDUM ON BEHALF OF THE PETITIONERS

W.P. No. _/2016 & T.P. No. /2016