--MEMORIAL FOR APPELLANT--

12IP60009HARISH.N

IN THE HONOURABLE SUPREME COURT OF INDIA

NEW DELHI, INDIA

WRIT PETITION __/2012

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA

_______________________________________________________

SWASTH NAGRIK

(PETITIONER)

V.

UNION OF INDIA

(RESPONDENTS)

_______________________________________________________

MEMORIAL ON BEHALF OF PETITIONERS

2012

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TABLE OF CONTENTS

[A]. LIST OF ABBREVIATIONS..........................................................................................iii

[B]. INDEX OF AUTHORITIES.............................................................................................iv

[C]. STATEMENT OF JURISDICTION.................................................................................v

[D]. STATEMENT OF FACTS...............................................................................................vi

[E]. ISSUES RAISED............................................................................................................xiv

I. Whether The Court Has Requisite Jurisdiction To Maintain This Petition?...................xiv

II. Whether The Provision Is Violative Of Article 14 of Constitution of India?..................xiv

[F]. SUMMARY OF PLEADINGS.......................................................................................xv

[G]. PLEADINGS ADVANCED...........................................................................................1

[A]. PRAYER FOR RELIEF...................................................................................................10

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[A]. LIST OF ABBREVIATIONS

S.No ABBREVIATION EXPANSION

1. ¶ Paragraph

2. AIR All India Report

3. Anr Another

4. Art. Article 5. Cal Calcutta

7. Co Company

8. Ed Edition

9. ER England Reports

11. Ltd Limited

12. M.P Madhya Pradesh

13. Ors. Others

14. Pvt. Private 15. RBI Reserve Bank Of India

16. SC Supreme Court

17. SCC Supreme Court Cases

18. SCR Supreme Court Reports

19. U.O.I Union of India

20. U.P Uttar Pradesh

22. v. Versus 23. Vol. Volume

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[B]. INDEX OF AUTHORITIES

CONSTITUTION OF INDIA

I. LIST OF STATUTES

1. BIHAR MUNICIPALITY ACT, 2007

II. LIST OF CASES REFERRED

S.NO

.CASES CITATION ¶

1. Assistant Commission, Commercial Tax Dept., Work Contract and Leasing, Kota v. Shukla and Brother

2010 (4) KarLJ 256 13

2. Aswini Kumar v. Arbinda Bose AIR 1952 SC 369 31

3. Baban Naik v. Union of India AIR 1979 Goa 1 38

4. Bachan Singh v. State of Punjab AIR 1982 SC 1382 39

5. Budhan Choudhry v. State of Bihar AIR 1955 SC 191 44

6. Chinranjit Lal v. Union of India AIR 1950 SC 41 44

7. Food Corporation of India v. Bhanu Lodh (2005) 3 SCC 618 24

8. Hodge v. Hodge 1 All ER 359 (366) CA

32

9. Indian Hume Pipe Co. Ltd. V. State (2009) 5 SCC 187 19

10. Jatinder Kumar v. State of Punjab AIR 1984 SC 953 43

11. Kapurchand Kesaimal Jain v. State of Maharastra (1973) 3 SCC 299 11

12. Keshavanda Bharathi v. State of Kerala AIR 1973 SC 1461

16

13. Kunj Behari Lal v. State of Himachal Pradesh AIR 2000 SC 1069 38

14. Lakshmana v. State of M.P (1983) UJSC 499 p.3 45

15. M/s Bengal Chemical & Pharmaceutical Works Ltd., v. Their Workmen

AIR 1959 SC 633

16. Maneka v. Union of India AIR 1978 SC 597 38

17. Master Construction (P) Ltd v. State of Orissa and (2005) 1 SCC 481 3

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Anr18. Mathai v. George and Anr (2010) 4 SCC 358 7

19. National Human Rights Commission v. State of Arunachal Pradesh

AIR 1996 SC 1234

17

20. Om Prakash Sood v. Union of India (2007) 7 SCC 473 6

21. Pranab Kumar Roy v. RBI AIR 1993 Cal 50

22. Pritam Singh v. The State AIR 1950 SC 169 2

23. Punjab Beverages Pvt Ltd., v. Suresh Chand and Anr 1978 SCR (3) 370 29

24. R.K. Garg v. Union of India AIR 1981 SC 2138 25

25. Ram Prasad v. State of Bihar AIR 1953 SC 215 43

26. Ramakant Rai v. Madan Rai & Ors AIR 2004 SC 77 5

27. Sakharam v. State of Maharastra AIR (1973) SC 243 10

28. State of Punjab v. Joginder AIR 1963 SC 913 37

III. LIST OF BOOKS REFERRED

S.NO

BOOK TITLE ¶

1. CORPUS JURIS SECUNDUM, (5th Ed., West) Vol. 55 42

2. Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, (8th Ed., Wadwa Nagpur) Vol 1

14

3. Halbury’s LAWS OF ENGLAND, (4th Edn.), Vol. 1 41

4. Jennings, LAW OF THE CONSTITUTION, (5th Ed., London University Press) 25

5. M.P. Jain, INDIAN CONSTITUTIONAL LAW, 265 (6TH Ed., Lexis Nexis Butter

Worths Wadhwa 2011)

2

6. Venkataramiya’s LAW LEXICON-VOLUME 1, (HUMAN RIGHTS) 18

7. Vepa P. Sarathi, INTERPRETATION OF STATUTES, (4TH Ed., Eastern Book 30

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Company)

[C].STATEMENT OF JURISDICTION

The Honorable Supreme Court of India can exercise its jurisdiction under Article 32 of

the Constitution of India. The Appellant most humbly and respectfully submits to the

jurisdiction of the Honorable Supreme Court of India.

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[D].STATEMENT OF FACTS

1. The election for Patna Municipal Corporation was held during May/June of 2007 which

comprises of 72 member seats. After the election all the elected members will elect the

Mayor and Deputy Mayor.

2. In this election councilors elected Shri Sanjay Kumar as the Mayor and Shri Santosh Mehta

as the Deputy Mayor. Two years after the elections, no confidence motions were moved

against both of them on 13.06.2009 and passed on 14.07.2009 were 42 members voted in

favour, 28 opposed and two were absent.

3. Following this Sanjay Kumar challenged the decision on no confidence motion by filing a

writ petition in Patna High Court and was allowed followed by stay order by the Single

Judge. This order was challenged in an appeal in the Divisional Bench of Patna High Court

and the Divisional Bench reversed the Judgment given by single judge by its judgment on

14.05.2010.

4. This decision by Divisional Bench was again challenged by Sanjay Kumar by filling Special

Leave Petition to this court, praying for election to fill the vacancy should not be permitted,

which this court did not grant. Then directed election to be held for filling the vacancy and

passed order on 31.05.2010.

5. On 14.07.2010 Afzal Imam (Herein after, ‘appellant’) was elected as mayor with 44 votes in

his favour. He gave his oath of his office and on same day he nominated 7 councillors to be

members of Empowered Standing Committee.

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6. District Magistrate of Patna declined to give them the oath of office saying that such

nomination by Mayor is only a one time act. So the appellant filed a writ petition to

Divisional Bench of Patna High Court for declaration that section 27 of the act is ultra vires

to the provisions of Constitution of India and to Section 21 of the Act and also prayed for

writ of mandamus against D.M of Patna to administer oath of office to those nominees to

and the bench dismissed the petition in limine. Following this the judgment is challenged in

this Special Leave Petition by the appellant.

HENCE, THE PRESENT MATTER BEFORE THIS HONORABLE

COURT.

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[E]. ISSUES RAISED

I. WHETHER THE COURT HAS REQUISITE JURISDICTION TO MAINTAIN THIS

PETITION?

II. WHETHER THE PROVISION IS VIOLATIVE OF ARTICLE 14 OF CONSTITUTION

OF INDIA?

[F]. SUMMARY OF PLEADINGS

xiv

--MEMORIAL FOR APPELLANT--

(I). T HAT T HE C OURT HAS REQUISITE JURISDICTION TO MAINTAIN

THIS PETITION

The writ petition is maintainable under Article 32 as there has been a

violation of fundamental rights of the public at large.

(II). THAT THE PROVISION IS VIOLATIVE OF ARTICLE 14 OF

CONSTITUTION OF INDIA

xv

[G]. PLEADINGS ADVANCED

I. THAT THE COURT HAS REQUISITE JURISDICTION TO MAINTAIN THIS PETITION

MAINTAINABILITY OF WRIT PETITION

I.A.1 POWER UNDER ARTICLE 32 OF THE CONSTITUTION OF

INDIA

1. The Writ Jurisdiction of Supreme Court can be invoked under Article 32 of

the Constitution for the violation of fundamental rights guaranteed under Part

– III of the Constitution.

2. The sole objective of Art. 32 is the enforcement of the fundamental rights

guaranteed by the Constitution of India. The original jurisdiction of the

Supreme Court can be invoked in any case of violation of a fundamental right

guaranteed by part III of the Constitution of India as has been observed in the

case of Chiranjit Lal Chowdhury v. Union of India1 amongst the many others.

The constitution makers conferred on the Supreme Court the power to issue

writs for the speedy enforcement of fundamental rights and made the right to

approach the Supreme Court for such enforcement itself a fundamental right.2

3. The Fundamental Rights provided in the Indian Constitution are guaranteed

against any executive and legislative actions. Any executive or legislative

action, which infringes upon the Fundamental Rights of any person or any

group of persons, can be declared as void by the Courts under Article 14 of

the Constitution.

4. Dr. B.R.Ambedkar described Article 32 as the most important one, without

which the Constitution would be reduced to nullity. It is also referred to as the

heart and soul of the Constitution. By including Article 32 in the Fundamental

Rights, the Supreme Court has been made the protector and guarantor of these

Rights.

1 AIR 1951 SC 412 Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA 3711 (8rd Ed., Lexis Nexis Butterworths Wadhwa 2008).

5. A Public Interest Litigation can be filed before the Supreme Court under

Article 32 of the Constitution.

6. In this case, equals are not treated, central government arbitrary in its action

by not making the drugs available at reasonable affordable price for drugs of

special type and there is no nexus between the classification made and the

object that sort to be achieved i.e. making vital drugs available to public at

reasonably affordable price3. And the Right to Health of an individual which

comes under the purview of Article 21 “Right to Life” also violated.

7. Hence the petitioner is justified in challenging the authority of the Central

Government and filing a writ petition for the same under Art. 32.

I.A. MAINTAINABILITY OF PUBLIC INTEREST LITIGATION

8. In 1981 Justice P. N. Bhagwati in S. P. Gupta v. Union of India4, articulated

the concept of PIL as follows, “any member of public can maintain an

application for an appropriate direction, order or writ in the High Court under

Article 226 and in case any breach of fundamental rights of such persons or

determinate class of persons, in this court under Article 32 seeking judicial

redress for the legal wrong or legal injury caused to such person or

determinate class of persons.”

THAT THIS IS A MATTER OF PUBLIC INTEREST

9. The fact that 8 persons die out of every 100, out of which 5 persons die due to

lack of accessibility to proper medicines and these 5 persons belong to middle

and lower classes of society made parliament to enact a new legislation

Essential Commodities(Vital Drugs) Act, 2012 and delegated central

government to decide which drugs are vital

10. But the central government did not made any effort to make availability of

drugs coming under vital drugs of special type as result of which many people

belonging to these classes died.

3 Preamble of the act4 AIR 1982 SC 149

11. Since diseases listed under second category are very serious one central

government should make efforts of the medicines for them will be available at

reasonable affordable price.

12. The petitioner has filed a Public Interest Litigation for protection and

enforcement of rights of public at large and seeks remedy for the fundamental

right that has been deprived for them by making the Vital drugs of special

type available at reasonable affordable price.

THE PETITONER HAS LOCUS STANDI TO FILE A PETITION

13. It was made clear in Janata Dal v H.S. Chaudhary5 that only a person ‘acting

bona fide6’and ‘having sufficient public interest’7in the proceeding of public

interest litigation will have alone the locus standi8 but not a person for

personal gain or political motive or any oblique consideration.

14. The rule of locus standi have been relaxed and a person acting bonafide and

having sufficient interest in the proceeding of Public Interest Litigation will

alone have a locus standi and can approach the court to wipe out violation of

fundamental rights and genuine infraction of statutory provisions, but not for

personal gain or private profit or political motive or any oblique

consideration.

15. The petitioner Swasth Nagrik being an NGO which actively works in the field

of public health and welfare particularly to those belonging to lower strata

therefore capable of being acting bonafide.

5 AIR 1993 SC 892 ,¶ 646 Fertilizer Corporation Kamgar Union v Union of India, AIR 1981 SC 844“whenever there is a public wrong or public injury caused by an act or omission of the State or public authority which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury.7 In Black's Law Dictionary (Sixth Edition) Public Interest- Something in which community at large has some pecuniary interest or some interest by which their legal rights or liabilities are affected. It does not mean anything so narrow as mere curiosity, or as the interests of the particular localities, which may be affected by the matters in question. Interest shared by citizens generally in affairs of local, state or national government. See also Vineet Narain v Union of India, AIR 1998 SC 889. 8 In Blacks’s Law dictionary (6th Edition)Locus standi- the right to bring an action or to be heard in a given forum.

Hence, it is humbly submitted that since there has been a violation of the

fundamental rights, the Court has the requisite jurisdiction to entertain this writ

petition under Article 32 of the Constitution of India bought as a Public Interest

Litigation.

II. WHETHER THE PARENT AS WELL AS DELEGATED

LEGISLATION ARE VIOLATIVE OF CONSTITUTION

II.A. THAT THE PARENT ACT IS NOT VIOLATIVE OF CONSTITUTION

16. Right to health is not included directly in as a fundamental right in the Indian

Constitution .The Constitution maker imposed this duty on state to en-sure

social and economic justice. Part four of Indian constitution which is DPSP

imposed duty on States.

17. If we only see those provisions then we find that some provisions of them has

directly or indirectly related with public health.

18. The Constitution of India not provides for the right to health as a fundamental

right.

19. The Constitution directs the state to take measures to improve the condition of

health care of the people. Thus the preamble to the Constitution of India, inter

alia, seeks to secure for all its citizens justice-social and economic. It provides

a framework for the achieve-ment of the objectives laid down in the preamble.

The preamble has been amplified and elaborated in the Directive Principles of

State policy.

20. In the India the Directive Principle of State Policy under the Article 47

considers it the primary duty of the state to improve public health, securing of

justice, human condition of works, extension of sick-ness, old age,

disablement and maternity benefits and also contemplated. Further, State's

duty includes pro-hibition of consumption of intoxicating drinking and drugs

are injurious to health.

21. These factors influenced for enactment of “The Essential Commodities (vital

drugs) Act, 2012”, the act has been enacted keeping in mind the crucial role of

importance of Public Health.

22. The main objective of the Act is to make vital drugs available to the public at

reasonably affordable price. The directive principles of state policy

enumerated in our Constitution lay down that the State shall raise the level of

nutrition and the standard of living and improve public health.

23. The provisions of this act are intended to provide vital life saving drugs to the

people at reasonably affordable price in order to preserve their health and life

which the preamble of act clearly says.

24. Hence the Parent Act is not violative of Constitution.

THAT THE DELEGATED LEGISLATION IS VIOLATIVE OF THE CONSTITUTION

25. The act gives power to Central Government to classify drugs as vital or non-vital and make rules for availability of these vital drugs at reasonably affordable price9. And the same provision says reasonable affordable price means price to be fixed by Central Government taking into consideration of lower economic strata of the society.

26. This act enacted with the object of removing financial barrier which prevents a person from accessing medical drugs on account of high market price. The act also says Central Government shall take into consideration on the public interest in deciding vital drugs.

27. Right to live in Article 21 covers right to health, but unaffordability defeats that access. It defeats state’s endeavour to raise the level of nutrition and standard of living and improve public health.

28. It has been enacted primarily to remove financial barriers which impede access to drugs.

29. But Central Government made only drugs coming under vital drugs of Basic Type available at reasonably affordable price whereas vital drugs of Special Type at market price only.

THAT IT VIOLATES ARTICLE 14 OF CONSTITUTION

9 Section 5: (1) “For the provisions of this Act, only the Central Government has power to classify drugs as vital or non-vital and make rules for availability of these drugs at reasonably affordable price.

THAT IT VIOLATES ARTICLE 21 OF CONSTITUTION

30. The Supreme Court, while examining the issue of the constitutional right to

health care under arts 21, 41 and 47 of the Constitution of India in State of

Punjab v Ram Lubhaya Bagga10, The Supreme Court, in Paschim Banga Khet

mazdoor Samity & othrs v. State of West Bengal & othrs11, while widening the

scope of art 21 and the government's responsibility to provide medical aid to

every person in the country, held that in a welfare state, the primary duty of

the government is to secure the welfare of the people.

31. So constitution makers included Right to Health in DPSP to impose duty on

the State so that State will protect and improve public health.

32. Article 47 makes improvement of public health a primary duty of State.

Hence, the court should enforce this duty against a defaulting authority on

pain of penalty prescribe by law, regardless of the financial resources of such

authority12.

33. Public Interest Petition for maintenance of approved standards for drugs in

general and for the banning of import, manufacturing, sale and distribution of

injurious drugs is maintainable. A healthy body is the very foundation of all

human activities. That is why the adage “Sariramadyam Khalu Dharma

sadhanam”. In a welfare State, it is the obligation of the State to ensure the

creation and sustaining of conditions congenial to good health13.

34. The concept of personal liberty comprehended many rights, related to

indirectly to life or liberty of a person. And now a person can claim his right

of health14. Thus, the right to health, along with numerous other civil, political

and economic rights, is afforded protection under the Indian Constitution.

35. The Constitution guarantees the some fundamental rights having a bearing on

health care. Article 21deal with “No person shall be deprived of his life or

personal liberty except according to procedure established by law15”. Right to

live means something more, than more animal existence and includes the right

to live consistently with human dignity and decency.

36. The court held that the right to health and medical care is a fundamental right

under Article 21. The Supreme Court, while examining the issue of the 10 AIR 1998 SC 170311 (1996) 4 SCC 3712 Ratlam Municipal Council Vs Vardichand, AIR 1980 SC 162213 Vicent Vs UOI, AIR 1987, SC 99014 Sheeraj Latif Ahmad Khan, “right to health”. (1995) 2 SCJ 29-3415 Constitution of India

constitutional right to health care under arts 21, 41 and 47 of the Constitution

of India in State of Punjab v Ram Lubhaya Bagga16, observed that the right of

one person correlates to a duty upon another, individual, employer,

government or authority. Hence, the right of a citizen to live under art 21 casts

and obligation on the state. This obligation is further reinforced under art 47;

it is for the state to secure health to its citizens as its primary duty.

37. In Consumer Education and Research Center v. UOI17, the Court explicitly

held that the right to health was an integral factor of a meaningful right to life.

The court held that the right to health and medical care is a fundamental right

under Article 21.

38. Since it is one of the most sacrosanct and valuable rights of a citizen, and an

equally sacrosanct and sacred obligation of the state, every citizen of this

welfare state looks towards the state to perform this obligation with top

priority, including by way of allocation of sufficient funds. This in turn will

not only secure the rights of its citizens to their satisfaction, but will benefit

the state in achieving its social, political and economic goals.

39. The Supreme Court, in Paschim Banga Khet mazdoor Samity & ors v. State of

West Bengal & ors18, while widening the scope of art 21 and the government’s

responsibility to provide medical aid to every person in the country, held that

in a welfare state, the primary duty of the government is to secure the welfare

of the people.

40. In CESC Ltd. vs. Subash Chandra Bose19, the Supreme Court relied on

international instruments and concluded that right to health is a fundamental

right. It went further and observed that health is not merely absence of

sickness: “The term health implies more than an absence of sickness. Medical

care and health facilities not only protect against sickness but also ensure

stable manpower for economic development.

41. It is also relevant to notice as per the judgment of the Supreme Court in

Vincent Panikurlangara vs. Union of India20, Unnikrishnan, JP vs. State of

A.P21, the maintenance and improvement of public health is the duty of the

State to fulfill its constitutional obligations cast on it under Article 21 of the 16 1998) 4 SCC 17717 (1995) 3 SCC 42.18 (1996) 4 SCC 37.19 AIR 1992 SC 573,58520 AIR 1987 SC 99021 AIR 1993 SC 2178

Constitution.

42. Due to this duty state are taking steps in this regard and hospitals are running

in control of State to give free health service to public at large. There is no

need of right to health for a person to be healthy. A person should have health

entitlements, medical aid, medical assistance which provided by States.

43. In the present case, the Central Government through the power delegated to it

made only Vital drugs of Basic type to available at reasonable affordable price

but whereas the Vital Drugs of Special type is available only at market price.

44. This delegated legislation is ultra vires to the constitution but the Parent Act is

not violative. The Parent Act gives power to Central Government to classify

and make vital drugs available at affordable price but it makes only drugs of

basic type affordable.

45. This goes against the main objective of Parent Act and also violates persons

right to equality and right to health under right to life.

DIRECTIVE PRINCIPLES AND FUNDAMENTAL RIGHT

[A]. PRAYER FOR RELIEF

Wherefore in the light of the facts stated, issues raised, authorities cited and

pleadings advanced, it is most humbly prayed before this Honorable Court that it may

be pleased to:

1. Allow the appeal.

2. Issue a direction or writ in nature of mandamus, whichever is appropriate, to the

District Magistrate of Patna to give the oath of office to the council members

nominated by appellant.

And pass any other order that it deems fit in the interests of justice, equity and

good conscience. All of which is respectfully submitted.

Date: s/d 1. .........................

Place: New Delhi, India Harish.N

Counsel ID: 12IP60009

(COUNSEL FOR THE APPELLANT)