ALS, noida - memo - R MK Nambyar

4TH M. K. NAMBYAR MEMORIAL NATIONAL LEVEL MOOT COURT

COMPETITION – 2014

i

MEMORIAL ON BEHALF OF RESPONDENT

BEFORE THE HON’BLE SUPREME COURT OF INDUS

PUBLIC INTEREST LITIGATION

W.P. (CIVIL) NO. ____ OF 2014

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDUS

IN THE MATTER OF ARTICLE 21 OF THE CONSTITUTION OF INDUS

SAMAJH SEVA SANGH………………………………………………………...…….. PETITIONER

V.

UNION OF INDUS……………………………………………………………..……. RESPONDENT

UPON SUBMISSION TO THE HON‟BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDUS

MEMORIAL ON BEHALF OF THE RESPONDENT

Amity Law School, Noida



ii


TABLE OF CONTENTS

Table of contents…………………………………………………………..………………………ii

List of Abbreviations……………………………………………………….…………………….iii

Index of Authorities……………………………………………………………………………….v

Statement of Jurisdiction…………………………………………...…………………………….xi

Questions Presented……………………………………………………………………………xii

Statement of Facts………………………………………………………………………………xiii

Summary of Pleadings……………………….xv

Pleadings………………………….1

1. Whether the said petition is maintainable?..................1

1.1. Locus standi of the petitioner…………………………………………………….3

1.2. No violation of fundamental right………………………………………………4

1.3. Judiciary has no say in policy decisions of the legislative authority…………….5

2. Whether the impunged Act is violation of the Constitution…………………………….7

2.1. The Act is in compliance with Part III of the Constitution………………………….9

2.2. The Act is in compliance with Part IV of the Constitution………….14

2.3. Power of judiciary to interfere in the administrative order of legislative Acts……..14

3. Whether the impugned legislation is violative of international human rights

instruments....................................................................................................................15

3.1. International treaties not an obligation on the legislature…………………….16

3.2. Impugned legislation is in accordance with international human rights

instruments………………………………………………………………………..17

3.3. Intent of the legislature………………………………………………………19

Prayer……………………………………………………………………xvi



iii


LIST OF ABBREVIATIONS

&………………………………………………………………………..………………………And

AC……………………………………………………………………………………Appeal Cases

AIR …………………………………………………………………………..…All India Reporter

All ER………………………………………………………..……………. All England Reporters

App………………………………………………………………………………………….Appeal

Art…………………………………………………………………………………………...Article

cl……………………………………………………………….…………………………….Clause

CRC………………………………………………………………...Convention of Rights of Child

DB………………………………………………………………..………………Divisional Bench

Ed…………………………………………………………………………………………...Edition

FAO…………………………………………………………..Food and Agricultural Organisation

Hon‟ble…………………………………………………………………………………Honourable

i.e………………………………………………………………………………………….therefore

ibid………………………………………………………………………………………….Ibidium

ICESCR……………..…………International Covenant on Economic, Social and Cultural Rights

ILR…………………………………………………………………………….Indian Law Reports

LR……………………………………………………………………………………..Law Reports

No…………………………………………………………………………………………..Number



iv


Ors…………………………………………………………………………………………...Others

PC……………………………………………………………………………………Privy Council

PIL………………………………………………………………………..Public Interest Litigation

SC……………………………………………………..……………………………Supreme Court

SCC…………………………………………………….……………………Supreme Court Cases

SCR……………………………………………………………………….Supreme Court Reporter

U/A…………………………………………………………………………………...Under Article

UNDHR……………………….……………………United Nations Declaration of Human Rights

UOI …………………………………………………………………………………Union of India

V……………………………………………………….…………………………………….Versus



v


INDEX OF AUTHORITIES

CASES:

1. A.K. Gopalan v. State of Madras AIR 1950 SC 27………………………...……………..8

2. ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207 ………………………………..12

3. Ashoka Kumar Tahakur v. Union of India & Ors (2008) 6 SCC 1…………………...…20

4. Ashuthosh Gupta v. State of Rajasthan (2002) 4 SCC 34, AIR 2002 SC 1533………….10

5. B. Krishna Bhat v. Union of India AIR 1990 SC 851……………………………….........8

6. Badhua Mukti Morcha v. Union of India (1984) 3 SCC 161…………………………..…2

7. BALCO Employees Union (Regd.) v. Union of India & Ors., AIR 2002 SC 350………3,4

8. Birma Ram v. state of Rajasthan 1977 WLN UC 497…………………………..………16

9. Chandra Bhavan Boarding v. State of Mysore, AIR 1970 SC 2042……………………14

10. Charanjit Lal Chowdhury v. Union of India 1951 SC 41…………………………...…4,15

11. Chhetriya Pardushan Mukti v. State Of Uttar Pradesh And Ors 1990 AIR

2060……..............................................................................................................................2

12. Chintamandrao v. State of Madhya Pradesh 1950 SCR 759……………………….…...12

13. Coffee Board v. Jt. C.T.O., Madras AIR 1971 SC 870 (877)……………………….….…8

14. Confederation of Ex-serviceman Association v. Union of India, (2006) 8 SCC 399 AIR

2006 SC 2945 …………………………………………………….……………………..11

15. Council of Civil Service Unions and Others v. Minister For The Civil Service (1985 A.C.

374)……………………………………………………………………....………………13

16. D.A.V. College v. State of Punjab AIR 1971 SC 1737, (1971) 2 SCC 269……..……….15

17. D.C. Bhatia v. Union of India (1995) 1 SCC 104…..……………………………………..9

18. D.C. Wadhwa v. State of Bihar AIR 1982 SC 579……………………………….……3,15

19. Daryao v State of Uttar Pradesh AIR 1961 SC 1457……………………………………..8

20. Deep Chand v. State of Uttar Pradesh 1959 AIR 648…………………………..……..5,17

21. Dharam Dutt v Union of India AIR 2004 SC 1295………………………………............8



vi


22. Divisional Manager, Aravali Golf Club and Anr. v. Chander Hass and Anr. 2008 (3) 3JT

221…………………………………………………………………………...…………….5

23. Dwarkadas v. Bombay Port Trust (1989) 2 SCC 293…………………………………...10

24. Esmail v. Competent Officer AIR 1967 SC 1244…………………………………………8

25. Express Newspaper v. Union of India, (1986) 1 SCC 633………………………………..8

26. Federation of Bar Assns. v. Union of India (2000) 6 SCC 715…………………………...4

27. Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries 1993 (1) SCC 71..13

28. Garg, R.K. v. Union of India, AIR 1981 SC 2138 ……………………………………...10

29. Goodyear India v. State of Haryana AIR 1990 SC 781…………………………………15

30. Government of Andhra Pradesh and Ors. v. Smt. P. Laxmi Devi 2008(2) 8 JT 639.…….5

31. Guruvayur Devaswom Managing Committee v. C.K. Rajan, & Ors AIR 2004 SC 561.....3

32. Hamdard Dawakhana v. Union of India AIR 1960 SC 554…………………………..…13

33. Hanif Quareshi Mohd. v. State of Bihar AIR 1958 SC 731……………………………..12

34. Hindi HitrakshakSamiti And Ors v. Union Of India And Ors 1990 AIR 851…………….4

35. Hughes v. Superior Court (1950) 339 US 460 ……………………………………….…10

36. Inderjeetv. State of U.P., AIR 1979 SC 1867……………………………………………11

37. J.P.Bansal v. State of Rajasthan,2003(3) SCALE 154……………………………………6

38. Janata Dal v. H.S. Chowdhary and Ors. (1992) 4 SCC………………………………...1,3

39. Jasbhai Motibhai Desai v. Roshan Kumar, Haji Basheer Ahmed and others (1976) 1 SCC

671………………………………………………………………………………………....4

40. Jolly Jeorge Vs. Bank of Cochin, AIR 1980 SC 470…………………………………….16

41. Kartar Singh v. State of Punjab, (1994) 3 SCC 569 …………………………………….11

42. Kathi Ranning Rawat v.State of Saurashtra, AIR 1952 SC 123…………………….........5

43. Kaushal P.N. v. Union of India, AIR1978 SC1457…………………………………….…5

44. Kesavananda Bhartiv. State of Kerala, (1973) 4 SCC 225, AIR 1973 SC 1461………...14

45. Khyerbari Tea Co. v. State of Assam AIR 1964 SC 925………………………………….8

46. Kochuni K.K. v State of Madras AIR 1960 SC 1080……………………………............12

47. Kochunni v. State of Madras AIR 1959 SC 725…………………………………….........8

48. Krishna Chandra v. State of Madhya Pradesh AIR 1965 SC 307………………………11

49. KushumLata v. Union Of India And Ors MANU/SC/8225/2006…………...........2

http://www.indiankanoon.org/doc/1830927/



vii


50. Laxmanappa v. Union of India, AIR 1955 SC 3, (1955) 1 SCR 769…………………..…8

51. Maganbhai v. Union of India (1970) 3 SCC 400…………………………......................16

52. Maneka Gandhi v. Union of Gandhi, AIR1978 SC 597…………………………………..9

53. Messrs Shanti Vijay and Company and Others v. Princess Fatima Fouzia and Others,

1980 (1) SCR 459……………………………………………………………..................13

54. Minerva Mills v. Union of India, AIR 1980 SC 1789 ………………………..………….14

55. Mortensen v. Peters (1906) 14 Scots LTR 227……………………………………….….16

56. Muneeb v. Govt. of Jammu and Kashmir AIR 1984 SC 1585…………………………….8

57. NandLal Bajaj v. State of Punjab, AIR 1981 SC 2041 ………………………………....11

58. Narinderjit Singh Sahni v Union of India (2002) 2 SCC 210……………………………11

59. National Council For Civil Liberties v. Union Of India & Ors MANU/SC/2993/2007.…7

60. Nirmal Chand v. Union of India 1966 SCR (1) 986 ……………………………….……16

61. Om Kumar v. Union of India, (2001) 2 SCC 386, AIR 2000 SC 3689 ……………........11

62. P.M. Ashwathanarayana Setty v State of Karnataka AIR 1989 SC 100………………...11

63. P.Ramachandra Rao v. State of Karnataka(2002) 4 SCC 578………………………….6,7

64. Pannalal Binjraj v. Union of India, AIR 1957 SC 397……………………………...……5

65. Papsanam Labour Union v Madura Coats Ltd AIR 1995 SC 2200, (1995)1 SCC 501...12

66. Parent of a student of Medical College, Shimla v State of Himachal Pradesh AIR 1985

SC 910……………………………………………………………………………………..2

67. Pathuma v State of Kerala AIR 1978 SC 771…………………………………………...13

68. People’s Union for Civil Liberty v. Union of India, 2003 (10) SCALE 967…………...…6

69. Poonam v. Sumit Tanwar AIR (2010) SC 1384, (2010) 4 SCC 460, JT (3) SC 259…...…1

70. Preston v. Inland Revenue Commissioners (1985 A.C. 835)…………………………....13

71. Ram Bachan Lal v. State of Bihar, AIR 1967 SC 1404………………………………..…5

72. Ramesh v. Union of India AIR 1988 SC 775…………………………………………….15

73. Ramjilal v. ITO AIR 1951 SC 97……………………………………………………….…8

74. Ramsharam Autyannuprasi v. Union of India (1989) Supp 1 SCC 251…………………..2

75. Ranjit D. Udeshiv. State of Maharashtra, AIR 1965 SC 881………………………...…11

76. Reliance Energy Ltd. v. Maharashtra State Road Development Corporation Ltd.(2007)8

SCC 1, 21, 36……………………………………………………………………………...9



viii


77. Sachidanand Pandey v. State of West Bengal (1987) 2 SCC 295 p 331; AIR 1987 SC

1109, (1987), (1987) 2 SCR 223…………………………………………………………..1

78. Sadhu Singh v. Delhi Administration AIR 1966 SC 91 (95)………………………….…15

79. Samdasani P.D v. Central Bank of India, AIR 1952 SC 59 : 1952 SCR 391…….....12, 14

80. Shiv Bahadur Singh Raov. State of U.P., AIR 1953 SC 394…………………………….11

81. Shri Krishna Sharma v. State of West Bengal AIR 1954 Cal. 598………………………16

82. Star Sugar Mills v. State of Uttar Pradesh AIR 1984 SC 37………………………..……8

83. State (Govt of NCT of Delhi) v. Prem Raj(2003) 7 SCC 121……………………………..5

84. State of Bihar v. Bihar distillery Ltd. AIR 1997 SC 1511…………………………….…11

85. State of Gujarat v. Shantilal Mangaldas- AIR 1969 SC 634……………………………12

86. State of Kerala v. Thomas,N.M., AIR 1976 SC 490……………………………………..14

87. State of Madras v V.G. Rao AIR 1952 SC 196…………………………………………..13

88. State of Orissa v. B.K. Bose, AIR 1962 SC 945………………………………………....10

89. State of Tamil Nadu v. Anarthi Ammal AIR 1995 SC 2114…………………………..…10

90. State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75…………………………....10

91. Subhash Kumar v. State of Bihar, AIR 1991 SC 420………………………………..........3

92. Supdt, Central Prison, Fatehgarhv. Ram ManoharLohia, AIR 1960 SC 633……..........11

93. Supreme Court Employees Welfare Association v. Union of India(1989) 4 SCC 187……6

94. Syed Quasim Razvi v. State of Hyderabad (1953) SCR 589………………………………9

95. Syed T.A. Haqshbandi v. State of Jammu and Kashmir, (2003) 9 SCC 592……………...6

96. Tika Ramji Ch. v. State of Uttar Pradesh., AIR 1956 SC 676…………………………....5

97. U.P. State co-operative Land Development Bank Ltd. v. Chandrabhan Dubey (1999) 1

SCC 741………………………………………………………………………………….15

98. Ujjain Bhai v. State of Uttar Pradesh AIR 1962 SC 1621………………………………..8

99. Union of India and Another v. Deoki Nandan Aggarwal1992 Supp. (1) SCC 323…….…6

100. Villianur Iyarkkkai Padukappu Maiyam v. Union of India (2009) 7 SCC 561…...4

101. Williamson v. Lee Optical (1954) 384 US 483…………………………………..10

102. Zahir v. Union Of India (1993) 23 ATC 812………………………………......….8



ix


BOOKS:

1. Black‟s Law Dictionary, 8th edition

2. Cambridge Learners Dictionary, 1st edition

3. Constitution of India by J.N. Pandey,44th edition 2007

4. Constitution of India by D.D. Basu, 14th edition 2009

5. Constitution of India by V.N. Shukla,10th edition 2006

6. Constitutional of India by H.M. Seervai, Vol. I & II, 4th edition 2006

7. Public Interest Litigation in India by Videh Upadhyay

8. Shorter Constitution of India by D.D. Basu in the , Fourteenth Edition, 2009

9. Ultra vires by B. C. Sarma

LEGAL DATABASES:

1. Hein Online

2. Manupatra

3. SCC Online

4. West Law

LEXICONS:

1. Aiyar Ramanathan P, Advanced Law Lexicon, 3rd

edition, 2005, Wadhwa Nagpur.

2. Garner Brayana, Black‟s Law Dictionary, 7th

edition, 1999.

LEGISLATIONS:

1. The Constitution of India, 1950.

2. The National Food Security Act, 2013.

INTERNATIONAL INSTRUMENTS:

1. Convention of Rights of Child

2. Food and Agricultural Organisation



x


3. International Covenant on Economic, Social and Cultural Rights

4. United Nations Declaration of Human Rights, 1948

ARTICLES:

1. David Deener, Judicial Review in Modern Constitutional Systems, 46 (4) Am. Pol. Sc.

Rev. 1079 (1952).

2. E. S. Crown, Essay on the Judicial Review in Encyclopedia of Social Sciences. Vol. VIII

3. Giovanni Sartori, Constitutionalism: A Preliminary Discussion, 56 AM. POL. SC REV.

853(1962)

4. S.P. Sathe, Judicial Review in India: Limit and Policy, 35 Ohio St. L.J. 870 (1974).



xi


STATEMENT OF JURISDICTION

The Hon‟ble Supreme Court of Indus has the jurisdiction in this matter under Article 32 of the

Constitution of Indus which reads as follows:

“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.”



xii


QUESTIONS PRESENTED

If it may please this Hon’ble court, in the interest of justice and on account of the reason of

necessity and brevity, this Hon’ble bench is empowered to address the following issues, provided

as hereunder:

ISSUE 1:

Whether the said petition is maintainable?

ISSUE 2:

Whether the impugned Act is violative of the Constitution of Indus?

ISSUE 3:

Whether the impugned Act is violative of the International Human Rights instruments?



xiii


STATEMENT OF FACTS

I

Due to a survey result that was published it came to the notice of the government that while there

being a surplus stock of food grains lying unused & rotted in the government go downs, there

were still a large number of people who were dying due to starvation. Therefore, the government

decided to enact the Food For All Act, 2013.

II

The main objectives of this Act were:

(a) To give effect to the various International Instruments on “Right to food”.

(b) To have sufficient and nutritious food at affordable price for all the family members.

III

Each member belonging to “deserved family” shall be entitled to sufficient food but:

(a) Exclusion of one member is deemed to be exclusion of other members of family from

the purview of this Act.

(b) Farmers shall contribute 50% of these food grains for the purpose of this Act, for

which they shall be paid minimum price by the government.

IV

Cases mentioned are:

(a) A five year old girl Soadha in Ghasibpur village died due to starvation, as her poor

father could not get benefit of the said Act as he didn‟t fall within the definition of

“deserved family”.

(b) Ghazaginagar village faced deluge, which swept away innumerable villagers and the

one who survived were trapped in water and were unable to get essential commodities



xiv


like food, water because of the flood. The private shops operating in that village

provided the survivors with food which were not only inadequate but also too costly.

V

Samaj Seva Sangh, a Non Governmental Organization espousing the cause of those deprived &

hapless people, filed a Public Interest Litigation before the Supreme Court.



xv


SUMMARY OF PLEADINGS

1. Whether the said petition is maintainable?

In the present matter as the fundamental rights of the petitioner has not been infringed. The same

does not grant them a locus standi to file for PIL in this petition and the courts should be cautious

while deciding the maintainability of the petition.

2. Whether the impugned Act is violative of the Constitution?

The Act is constitutionally valid as it does not violate the Part III and is in pursuance of Part IV

of the Constitution. The court will not interfere with the administrative order of the legislature.

3. Whether the impugned legislation is violative of International Human Rights

instruments?

The Food For All Act, 2013 is not violating any international human rights instrument because

each clause of the statute is in accordance with the covenants. The intent of the legislature was

bonafide and that following an international treaty is not fully obligatory on the legislature.



1


PLEADINGS

1. Whether the said petition is maintainable?

In accordance to the fact sheet, the Petition was filed by Samajh Seva Sangh,1 A Non-

Government Organisation before the Hon‟ble Supreme Court of India praying for the Food For

All Act, 2013 to provide food for all under all circumstances.

The petitioners are entitled to appropriate relief under the provisions of Article 322 of the

Constitution of India, provided it is proved to the satisfaction of the Hon‟ble Court that the

petitioners have a sufficient interest in the matter and that their Fundamental Rights have been

violated3

The Hon‟ble Court has laid down a chain of notable decisions with all emphasis at their

command about the importance and significance of this newly developed doctrine of Public

Interest Litigation, it has also hastened to sound a red alert and a note of severe warning that

courts should not allow their process to be abused.4

Justice Khalid in Sachidanand Pandey v. State of West Bengal5 said “today public spirited

litigants rush to courts to file cases in profusion under this attractive name. They must inspire

confidence in courts and among the public. They must be above suspicion. I will be second to

none to help when such help is required. But this does not mean that the doors of this court are

always open for anyone to walk in. It is necessary to have some self-imposed restraint on public

interest litigants”

It was also held in the same case6 that, "If Courts do not restrict the free flow of such cases in the

name of public interest litigation, the traditional litigation will suffer and the Courts of law,

1 The petitioner in the instant case

2 Constitution of Indus PariMateriato Constitution of India (hereafter referred to as Constitution of India)

3 Poonam v. Sumit Tanwar AIR (2010) SC 1384, (2010) 4 SCC 460, JT (3) SC 259

4 Janata Dal v. H.S. Chowdhary and Ors. (1992) 4 SCC

5 (1987) 2 SCC 295 p 331; AIR 1987 SC 1109, (1987), (1987) 2 SCR 223

6 ibid

http://www.indiankanoon.org/doc/1830927/



2


instead of dispensing justice, will have to take upon themselves administrative and executive

functions".

In the instant matter, the Non-Government Organisation, Samajh Seva Sangh has no sufficient

interest whatsoever. The petitioner‟s interest and the subject matter of the complaint clearly do

not coincide.

There must be real and genuine public interest involved in the litigation and not merely an

adventure of knight errant borne out of wishful thinking. Public Interest Litigation which has

now come to occupy an important field in the administration of law should not be "publicity

interest litigation" or “private interest litigation” or “politics interest litigation”.7 The courts of

justice should not be allowed to be polluted by unscrupulous litigants by resorting to an extra

ordinary jurisdiction. Public interest litigation is a weapon which has to be used with great care

and circumspection and the judiciary has to be extremely careful to see that behind the beautiful

veil of public interest an ugly private malice, vested interest and/or publicity seeking. It is to be

used as an effective weapon in the armory of law for delivering social justice to the citizens.8

It has been said that Public Interest Legislation is a weapon that has to be used with great care

and circumspection.9

Elsewhere it has been added that public interest legislation‟ is an

instrument for the administration of justice to be used properly in proper cases.10

Further, it has

been clarified that, „while it is the duty of this court to enforce fundamental rights, it is also the

duty of the court to ensure that this weapon under Article 32 should not be misused or permitted

to be misused creating a bottleneck in the superior court preventing other genuine violation of

Fundamental Rights being considered by the court.11

The courts have also noted that on account

7 ibid

8 KushumLata v. Union Of India And Ors MANU/SC/8225/2006

9 Parent of a student of Medical College, Shimla v State of Himachal Pradesh AIR 1985 SC 910

10 Ramsharam Autyannuprasi v. Union of India (1989) Supp 1 SCC 251; Badhua Mukti Morcha v. Union of India

(1984) 3 SCC 161 11

Chhetriya Pardushan Mukti v. State Of Uttar Pradesh And Ors 1990 AIR 2060



3


of unwanted proceedings under frivolous public interest legislation a lot of time gets wasted

which could otherwise has been spent for the disposal of cases of genuine litigants.12

1.1.Locus standi of the petitioner

Supreme Court in Guruvayur Devaswom Managing Committee v. C.K. Rajan, & Ors.,13

has

observed that any member of public having „sufficient interest‟ may maintain petition by way of

Public Interest Litigation provided there is an injury to a disadvantaged section of the population

for whom access to legal justice system is difficult.14

The petitioner in the present case has to

show their sufficient interest in the present petition. Samaj Seva Sang is just a voluntary

organisation and does not necessarily have a genuine interest in this matter. It is a settled

principle that a Public Interest Litigation can only be filed by a person who has a genuine interest

in the matter.15

The Supreme Court in Janata Dal v. H. S. Chowdhary,16

has observed that the

process of Public Interest Litigation has been abused by persons who do not have any interest or

concern with the issue except for some oblique consideration. The Court went on saying that

such suits should not be entertained by the courts as it does not fall under the category of public

interest litigation.17

The Supreme Court has said that if the executive is not carrying out any duty laid upon it by the

constitution or the law, the court can certainly require the executive to carry out such duty and

this is precisely what the court does when it entertains public interest legislation. But at the same

time the court cannot unsurp the functions assigned to the executive and the legislature under the

constitution and it cannot even indirectly require the executive to introduce a particular

legislation or the legislature to pass it or assume to itself a supervisory role over the law making

activities of the executive and the legislature.18

12

ibid 13

AIR 2004 SC 561; B. P. Banerjee, Writ Remedies, (4th

ed. rep. 2008)). 14

BALCO Employees Union (Regd.) v. Union of India & Ors., AIR 2002 SC 350; Dr. D.C. Wadhwa & Ors. v. State

of Bihar & Ors., AIR 1987 SC 579. 15

Subhash Kumar v. State of Bihar, AIR 1991 SC 420 16

Supra note 4 17

Supra note 8 18

Supra note 9



4


It has been clarified that in context of locus standi an applicant may ordinarily fall in any of these

categories: (i) „persons aggreived‟ (ii) „stranger‟ (iii) „busybody or meddlesome interloper‟.

Persons in the last category usually interfere in things that do not concern them. They

masquerade as crusaders for justice. They pretend to act in the name of pro bono public, though

they have no interest of the public or even of their own to protect.19

Thus in the present case if the Samaj Seva Sang fails to prove sufficient and genuine interest of

their organization in the writ petition than the petition is not maintainable before the court.

1.2. No violation of fundamental rights

The jurisdiction vested in the Supreme Court is exercisable only for the enforcement of

fundamental rights conferred by Part III of the Constitution. Where there is no question of the

enforcement of a Fundamental right, Article 32 has no application.20

In the present case there is neither a violation of fundamental rights of the petitioner nor of the

people on behalf of whom this particular petition is filed.

Relying on BALCO Employees’ Union (Regd.) v. Union of India21

, the court has again reminded

that only the only ground in which a person can maintain Public Interest litigation is where there

has been an element of violation of Article 21 on human rights or where the litigation has been

initiated for the benefit of the poor and the underprivileged who are unable to come to the court

due to some disadvantage.22

Article 32 of the Constitution of India guarantees enforcement of fundamental rights. It is well-

settled that the jurisdiction conferred on the Supreme Court under Article 32 is an important and

integral part of the Indian Constitution but violation of a fundamental right is the sine qua non

for seeking enforcement of those rights by the Supreme Court. In order to establish the violation

19

Jasbhai Motibhai Desai v. Roshan Kumar, Haji Basheer Ahmed and others (1976) 1 SCC 671 20

Charanjit Lal Chowdhury v. Union of India AIR 1951 SC 41,60; Federation of Bar Assns. v. Union of India

(2000) 6 SCC 715 21

Supra note 14 22

Villianur Iyarkkkai Padukappu Maiyam v. Union of India (2009) 7 SCC 561



5


of a fundamental right, the Court has to consider the direct and inevitable consequences of the

action which is sought to be remedied or the guarantee of which is sought to be enforced.23

Also, the Directive Principles of State Policy are not enforceable. Article 37 read with the case

Deep Chand v. State of Uttar Pradesh 1959 AIR 648 it was held that the directive principles of

the State Policy, which by Article 37 are expressly made unenforceable by a Court, cannot

override the provisions found in Part III which, notwithstanding other provisions, are expressly

made enforceable by appropriate Writs, Orders or directions under Article 32.

It is submitted by the counsel for respondent that there is no violation of fundamental rights and

hence there is no way of approaching the court on under Article 32 of the Constitution of India

which provides remedies in terms of violation.

1.3.Judiciary has no say in policy decisions of the legislative authority

In such a petition, the Court cannot interfere in matters of legislative policy.24

The Court must

maintain judicial restraint in matters relating to the legislative or executive domain.25

The policy

of a law may be gathered from the Preamble,26

read in the light of the circumstances in which it

was passed,27

or its object,28

with its provisions read together.29

In the case of State (Govt of NCT of Delhi) v. Prem Raj30

, the Court held that “Where the words

are clear, there is no obscurity, there is no ambiguity and the intention of the legislature is clearly

conveyed, there is no scope for the court to innovate or to take upon itself the task of amending

or altering the statutory provisions. In that situation the judge should not proclaim that they are

playing the role of lawmaker merely for an exhibition of judicial valour. They have to remember

that there is a line, though thin, which separates adjudication from legislation. That line should

23

Hindi HitrakshakSamiti And Ors v. Union Of India And Ors 1990 AIR 851 24

ibid 25

Divisional Manager, Aravali Golf Club and Anr. v. Chander Hass and Anr. 2008 (3) 3JT 221; Government of

Andhra Pradesh and Ors. v. Smt. P. Laxmi Devi 2008(2) 8 JT 639; 26

Kaushal P.N. v. Union of India, AIR1978 SC1457 27

Kathi Ranning Rawat v.State of Saurashtra, AIR 1952 SC 123; Pannalal Binjraj v. Union of India, AIR 1957 SC

397 28

Tika Ramji Ch. v. State of Uttar Pradesh., AIR 1956 SC 676 29

Ram Bachan Lal v. State of Bihar, AIR 1967 SC 1404 30

(2003) 7 SCC 121



6


not be crossed or erased.”31

“Moreover, mere possibility of abuse cannot be counted as a ground

for denying the vesting of powers or for declaring a statute unconstitutional.” 32

The Supreme Court under Article 32 is empowered to issue any of the five prerogative writs or

any other order for the enforcement of rights guaranteed under Part III of the Constitution. It has

been held that even though the recourse to remedy under Article 32 is extraordinary in nature,

the ordinary rules of procedure will continue to apply and there is nothing in the Constitution

which merits a different stance,33

Mr. A.S. Chandhiok, learned Additional Solicitor General, submitted that under the Constitution

it is only the Legislature which has the power to make law and amend the law and the Court

cannot in exercise of its judicial power encroach into the field of legislation. In support of this

submission, he relied on the decision of a seven-Judge Bench of this Court in P.Ramachandra

Rao v. State of Karnataka34

in which this Court has recognized the limits of judicial power in a

constitutional democracy. He also cited the decision in Union of India and Another v. Deoki

Nandan Aggarwal35

for the proposition that courts cannot rewrite, recast or reframe the

legislation for the very good reason that it has no power to legislate.

Further, it was held in Supreme Court Employees Welfare Association v. Union of India36

that

the court cannot direct the legislature and delegated authority to make any particular law.

It is well-settled that judicial review, in order to enforce a fundamental right, is permissible of

administrate, legislative and governmental action or non-action, and that the rights of the citizens

of this country are to be judged by the judiciary and judicial forums and not by the administrators

or executives. But it is equally true that citizens of India are not to be governed by the Judges or

judiciary. If the governance is illegal or violative of rights and obligations, other questions may

arise out whether, as mentioned hereinbefore, it has to be a policy decision by the Government or

31

J.P.Bansal v. State of Rajasthan,2003(3) SCALE 154 32

People’s Union for Civil Liberty v. Union of India, 2003 (10) SCALE 967; Syed T.A. Haqshbandi v. State of

Jammu and Kashmir, (2003) 9 SCC 592. 33

Supra note 33 34

(2002) 4 SCC 578 35

1992 Supp. (1) SCC 323 36

(1989) 4 SCC 187



7


the authority and thereafter enforcement of that policy, the Court should not be, and we hope

would not be an appropriate forum for decision.37

Judgment of the seven-Judge Bench in P. RamachandraRao v. State of Karnataka:38

“Courts can

declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but

they cannot entrench upon in the field of legislation properly meant for the legislature.”

The Latin maxim of ubi jus ibi remedium would work here as there is absolutely no legal wrong,

thus there can be no question of any remedy. It is submitted that looking to judicial precedent,

even after the matter has been posted for final hearing, The court may hear counsel on the issue

of maintainability of the petition and if it is found to be non-maintainable, then the same is liable

to be dismissed.39

Thus it is submitted, that the petitioner had no requisite locus standi and sufficient interest in the

present case, hence the petition is not maintainable and should be dismissed.

2. Whether the impugned Act is violative of the Constitution?

The impugned Food For All Act, 2013 is not violative of the Constitution. It is well settled that

the jurisdiction conferred on the Supreme Court under Article 32 is an important and integral

part of the Constitution but violation of a Fundamental Right is the sine qua non for seeking

enforcement of those rights by the Supreme Court.40

Whatever other remedies may be open to a

person aggrieved, he has no right to complain under Article 32 where no „Fundamental‟ right has

37

Supra note 23 38

Supra note 34 39

National Council For Civil Liberties v. Union Of India & Ors MANU/SC/2993/2007 40

Supra note 23



8


been infringed.41

A remedy under Article 32 would not lie for enforcement of government

policy42

or a Directive Principle,43

including interlocutory reliefs.44

Since Article 32 is concerned only with the enforcement of Fundamental rights, it is not directly

concerned with the determination of the legislative competence or ultra virus of a particular

enactment. To make out a case under this Article, it is incumbent upon the petitioner to establish

not merely that the law complained of is beyond the competency of the particular legislature as

not being covered any of the items in the legislative lists, but also that is affects or invades his

Fundamental Rights guaranteed by the Constitution of which he could seek enforcement by an

appropriate writ or order. The Court confines itself to the question of infringement of

Fundamental Rights and does not go into any other question.45

It is well settled that while dealing with a challenge to the constitutional validity of any

legislation, the court should prima facie lean in favor of constitutionality and should support the

legislation, if it is possible to do so, on any reasonable ground and it is for the party who attacks

the validity of the legislation to place all materials before the court which would make out a case

for invalidating the legislation.46

Further this argument is threefold, firstly, that the Food For All Act, 2013 is in compliance with

Part III of the Constitution of India; secondly, that the Food For All Act, 2013 is in compliance

with Part IV of the Constitution of India; thirdly, power of Judiciary to interfere in the

administrative order of legislative Acts

41

Zahir v. Union Of India (1993) 23 ATC 812; Esmail v. Competent Officer AIR 1967 SC 1244; Muneeb v. Govt. of

Jammu and Kashmir AIR 1984 SC 1585; Ujjain Bhai v. State of Uttar Pradesh AIR 1962 SC 1621; A.K. Gopalan

v. State of Madras AIR 1950 SC 27; Ramjilal v. ITO AIR 1951 SC 97; Daryao v State of Uttar Pradesh AIR 1961

SC 1457; Kochunni v. State of Madras AIR 1959 SC 725 42

Supra note 23 43

B. Krishna Bhat v. Union of India AIR 1990 SC 851 44

Coffee Board v. Jt. C.T.O., Madras AIR 1971 SC 870 (877); Star Sugar Mills v. State of Uttar Pradesh AIR 1984

SC 37; Express Newspaper v. Union of India, (1986) 1 SCC 633; Laxmanappa v. Union of India, AIR 1955 SC 3,

(1955) 1 SCR 769 45

Khyerbari Tea Co. v. State of Assam AIR 1964 SC 925 46

Dharam Dutt v Union of India AIR 2004 SC 1295



9


2.1. The Act is in compliance with Part III of the Constitution of India

The validity of the provisions of a law is to be tested on the cornerstones of the Golden Triangle

of the Constitution enshrined under Article 14, Article 19 and Article 2147

which cover the

various facets of life.48

It is humbly submitted that the provisions of Food for all Act, 2013 are in

compliance with Part III of the Constitution of India. For the purpose of this argument, the

Fundamental Rights are dealt with in detail.

2.1.1. No violation of Article 14

Article 14 states that, “The state shall not deny to any person equality before the law and equal

protection of the laws within the territory of India”.

Article 14 confers a personal right by enacting a prohibition; the only question which has to be

determined when a law is said to violate the right is to inquire whether the prohibition has been

violated.49

In the present case, there isn‟t even slight inequality that springs from Food for all Act, 2013 and

any of its provisions. The legislature has rightly distinguished the people who require food,

neither is the law discriminatory nor is it derogatory. It is for the legislature to decide what

should be the cut off point for making classification for legislation and whether a section of the

people should be protected by law. The Legislature has a lot of latitude for making classification

keeping in view the attendant facts and circumstances. The safeguard provided by Article 14

may be invoked only if the classification has been made on grounds which are not at all relevant

to the object of the statute. The court will not question the validity of the legislation on the

legislation on the ground of lack of legislative wisdom. 50

47

Maneka Gandhi v. Union of Gandhi, AIR1978 SC 597 48

Reliance Energy Ltd. v. Maharashtra State Road Development Corporation Ltd.(2007) 8 SCC 1, 21, 36 49

Syed Quasim Razvi v. State of Hyderabad (1953) SCR 589. 50

D.C. Bhatia v. Union of India (1995) 1 SCC 104.



10


It was held that when a law is challenged as violation of Article 14, it is necessary in the first

place to ascertain the policy underlying the statute and the object intended to be achieved by the

legislation.51

A law does not become invalid because it is not all-embracing52

and that it is

limited as at the territory, persons, or objects to which it is applied or the evils to be remedied.53

The presumption is always in the favor of the Constitutionality of an enactment, since it must be

assumed that the Legislature understands and correctly appreciates the needs of its own people,

that its laws are directed to problems made by manifest by experience and its discrimination are

based on adequate grounds.54

When a statute is alleged to be violative of Article 14 of the Constitution, the Court has to decide

whether the statute is so arbitrary or unreasonable that it must be struck down. The Constitutional

validity of a statute cannot be challenged as discriminatory by comparing it with another statute

of similar subject which derives its authority from another source.55

Article 14 cannot be

construed as a charter for judicial review of state action, to call upon the state to account for its

action in its manifold activities by stating reasons for such actions.56

It is submitted that in order to pass the test of permissible classification two conditions must be

fulfilled namely: the classification must be founded on an intelligible differentia which

distinguishes persons grouped together from others left out of the group; and the differentia must

have a rational nexus with the object sought to be achieved by the statute in question. It is

important to note that although Article 14 forbids class legislation, it does not forbid

classification which rests upon reasonable grounds of distinction.57

If the legislature takes care to

reasonable classify persons for legislative purposes and if it deals equally with all persons

belonging to a „well defined class‟, it is not open to the charge of denial of equal protection on

the ground that the law does not apply to other persons.58

51

Ashuthosh Gupta v. State of Rajasthan (2002) 4 SCC 34, AIR 2002 SC 1533 52

Hughes v. Superior Court (1950) 339 US 460 53

Williamson v. Lee Optical (1954) 384 US 483 54

Garg, R.K. v. Union of India, AIR 1981 SC 2138 55

State of Tamil Nadu v. Anarthi Ammal AIR 1995 SC 2114. 56

Dwarkadas v. Bombay Port Trust (1989) 2 SCC 293. 57

State of West Bengal v. Anwar Ali Sarkar, AIR 1952 SC 75. 58

State of Orissa v. B.K. Bose, AIR 1962 SC 945



11


It is humbly submitted by the Respondent in the instant matter, that the Act in question has

created a reasonable classification and a basis of distinction which is in consonance with the

object of the Act. The Legislature controls the policy and enacts laws in the best interest of the

safety and security of the State. The measures taken by the Government is for the welfare of its

people. As a result it cannot be said the Act is violative of Article 14.


On account of liberal interpretation of the words „life‟ and „liberty‟ in Article 21 of the

Constitution of India, the said Article has now come to be invoked almost as a residuary right,

even to the extent which the founding father of the Constitution never dreamt of.59

The Supreme Court has held that the lack of perfection in a legislative measure does not

necessarily imply its unconstitutionality.60

Mere allegation of an Act being discriminatory is not

sufficient for the Supreme Court to strike down legislation as ultra vires, some constitutional

infirmity has to be shown and established.61

A law is a valid law if it is enacted by a competent legislature and if it does not violate any of the

other Fundamental Rights declared by the Constitution like Article 1462

or Article 19.63

Individual rights cannot be absolute in a welfare state. It has to be subservient to the Rights of

the public at large.64

The right of life and liberty so guaranteed under Article 21 is also subject to

the rule of proportionality.65

Liberty is the right of doing an act which the law permits.66

Liberty

is confined and controlled by law as it is regulated freedom. It is not an abstract or absolute

freedom. The safeguard of liberty is in the good sense of the people and in the system of

59

Narinderjit Singh Sahni v Union of India (2002) 2 SCC 210. 60

P.M. Ashwathanarayana Setty v State of Karnataka AIR 1989 SC 100. 61

State of Bihar v. Bihar distillery Ltd. AIR 1997 SC 1511 62

Shiv Bahadur Singh Raov. State of U.P., AIR 1953 SC 394; NandLal Bajaj v. State of Punjab, AIR 1981 SC 2041 63

Inderjeetv. State of UttarPradesh., AIR 1979 SC 1867; Ranjit D. Udeshiv. State of Maharashtra, AIR 1965 SC

881; Supdt, Central Prison, Fatehgarhv. Ram ManoharLohia, AIR 1960 SC 633; Krishna Chandra v. State of

Madhya Pradesh., AIR 1965 SC 307. 64

Confederation of Ex-serviceman Association v. Union of India, (2006) 8 SCC 399, AIR 2006 SC 2945 65

Om Kumar v. Union of India, (2001) 2 SCC 386, AIR 2000 SC 3689 66

Kartar Singh v. State of Punjab, (1994) 3 SCC 569



12


representative and responsible Government which has been evolved. Liberty is itself the gift of

law and may by law be forfeited or abridged.67

Therefore, the Food for all Act, 2013 does not violate Art 14 and 21 of the Constitution. The

state is acting as the guardian of these very fundamental rights and hence, their intention cannot

be questioned.


Article 19(1) guarantees certain fundamental rights, subject to the power of the State to impose

restrictions on the exercise of those rights. The Article was thus intended to protect these rights

against State action other than in legitimate exercise of its power to regulate private rights in the

public interest.68

Reasonable restriction in the instant matter fall within the guidelines set by this court in

Papsanam Labour Union v Madura Coats Ltd.69

If, however, the respondent shows that the

impugned law is covered by one of the permissible grounds of restriction, e.g. interests of the

general public, public order or the like, then the onus to show that restriction is unreasonable

would shift back to the petitioner.70

Reasonableness of a restriction has to be determined in an objective manner and from the

standpoint of the interests of the general public and not from the point of view of the persons

upon whom the restrictions are imposed or upon abstract considerations71

. In other words a law

cannot be said to be unreasonable merely because, in a given case it operates harshly.72

It is the

effect of a law which constitutes the test of its reasonableness, its object whether good or bad, is

immaterial for this purpose.73

67

ADM Jabalpur v. Shivkant Shukla, AIR 1976 SC 1207 68

Samdasani P.D v. Central Bank of India, AIR 1952 SC 59, 1952 SCR 391 69

AIR 1995 SC 2200, (1995)1 SCC 501. 70

Chintamandrao v. State of Madhya Pradesh 1950 SCR 759. 71

Hanif Quareshi Mohd. v. State of Bihar AIR 1958 SC 731. 72

State of Gujarat v. Shantilal Mangaldas- AIR 1969 SC 634 73

Kochuni K.K. v State of Madras AIR 1960 SC 1080.



13


In adjudging the validity of a restriction, the courts have necessarily to approach it from the point

of view of furthering the social interest which it is the purpose of the legislation74

. And the

situation which presented itself to the legislature when the impugned law was enacted75

. For the

same reason corresponding laws of other countries, made under different conditions cannot be

referred to for the purpose of determining the reasonableness of our laws. 76

Hence it doesn‟t violate Article 19(1)(a), Article 21 or Article 14 of the Constitution of India.

2.1.4. The government has met the doctrine of legitimate expectation:

The doctrine of legitimate expectation has been explained in Food Corporation of India v. M/s

Kamdhenu Cattle Feed Industries77

as under:

“…the mere reasonable or legitimate expectation of a person, in such a situation, may not by

itself be a distinct enforceable right, but failure to consider and give due weight to it may render

the decision arbitrary, and this is how the requirement of due consideration of a legitimate

expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule

of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair

decision-making process. Whether the expectation of the claimant is reasonable or legitimate in

the context is a question of fact in each case. Whenever the question arises, it is to be determined

not according to the claimant's perception but in larger public interest wherein other more

important considerations may outweigh what would otherwise have been the legitimate

expectation of the claimant. A bona fide decision of the public authority reached in this manner

would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine

of legitimate expectation gets assimilated in the rule of law and operates in our legal system in

this manner and to this extent.”

74

Pathuma v State of Kerala AIR 1978 SC 771 75

State of Madras v V.G. Rao AIR 1952 SC 196. 76

Hamdard Dawakhana v. Union of India AIR 1960 SC 554. 77

1993 (1) SCC 71; Messrs Shanti Vijay and Company and Others v. Princess Fatima Fouzia and Others, 1980 (1)

SCR 459; Preston v. Inland Revenue Commissioners (1985 A.C. 835); Council of Civil Service Unions and Others

v. Minister For The Civil Service (1985 A.C. 374)



14


The Act is in accordance with the legitimate expectation and within the public interest at large.

2.2. The Act is in pursuance of Part IV of the Constitution of India

Part IV of the Constitution78

encompasses the Articles which contain directives stating the duties

of the States in the matter of administration as well as law-making. The Directives and the

Fundamental Rights supplement79

each other at the goals of bringing about social revolution as

well as to establish a welfare state which is enshrined in our Preamble80

and thus there should be

no disharmony81

between the Directives and the Fundamental Rights.82

It is the principal duty of

the State separates the judiciary from the executive where public service is concerned, and hence

it is submitted that the said Act is in pursuance of Article 37, Article 39(a) and Article 47 of the

Directive Principles of State Policy. The legislation had been made, it is the duty of the executive

to implement it perfectly.

In the Minerva Mills’ Case83

it was held that, Directive Principles are "nevertheless fundamental

in the governance of the country and it shall be the duty of the State to apply those principles in

making laws." The Constitution overtly states that the Directive Principles are binding on the

State and the State is under a constitutional obligation to carry out this mandate contained in

Article 37. Article 37 clearly states that the Directive Principles of State Policy are not

enforceable. Non-compliance with the Directive Principles would be unconstitutional on the part

of the State only and would also render a vital part of the Constitution meaningless and futile. In

light of the above stated, it is submitted that the Act seeks to uphold the ideals of Part III and IV

of the Constitution of India.

2.3.Power of Judiciary to interfere in the administrative order of legislative Acts

78

Directive Principles of State Policy 79

Chandra Bhavan Boarding v. State of Mysore, AIR 1970 SC 2042;State of Kerala v. Thomas,N.M., AIR 1976 SC

490. 80

Samdasani P.D v. Central Bank of India, AIR 1952 SC 59 : 1952 SCR 391; KesavanandaBhartiv. State of Kerala,

(1973) 4 SCC 225 (para 134, 139, 1714) : AIR 1973 SC 1461; Sapru Committee Report, 1948. 81

Minerva Mills v. Union of India, AIR 1980 SC 1789 82

Kesavananda Bharti v.State of Kerala, (1973) 4 SCC 225, AIR 1973 SC 1461. 83

Minerva Mills Ltd. & Ors. v. Union of India AIR 1980 SC 1789



15


The legislative incompetence competence of any law will not be considered by the Supreme

Court provided the Fundamental Right is violated and not otherwise.84

The court will not, under

Article 32, interfere with an administrative order, however erroneous, where the constitutionality

of the statute or the order made thereunder is not challenged on the ground of contravention of a

Fundamental Right.85

If it is found that no fundamental Right of the petitioner has been infringed by the impugned law,

the court cannot go into the legislative validity in the proceeding under Article 32.86

3) Whether the impugned legislation is violative of International Human Rights

instruments?

India advocates a holistic and integrated approach that emphasizes the interdependence, inter-

relatedness, indivisibility and universality of human rights. India‟s position reinforces the inter-

relationship between development, human rights, democracy and international cooperation. The

Constitution is not to be construed as a mere law87

or simply a statute. It is the fountain head of

all other statutes.88

Entering into international treaties and agreements is one of the attributes of State sovereignty.89

Though International law requires a State to recognize its international obligations undertaken by

it by ratifying international treaties, but it does not govern the process of incorporating

international law into municipal law.90

In fact, the States follow different processes of

incorporating international law into their domestic legal system, depending on their

84

D.A.V. College v. State of Punjab AIR 1971 SC 1737, (1971) 2 SCC 269; Charanjit Lal Chowdhury v. Union of

India 1951 SC 41; D.C. Wadhwa v. State of Bihar AIR 1982 SC 579; Ramesh v. Union of India AIR 1988 SC 775 85

Sadhu Singh v. Delhi Administration AIR 1966 SC 91 (95) 86

D.A.V. College v. State of Punjab AIR 1971 SC 1737, (1971) 2 SCC 269 87

Goodyear India v. State of Haryana AIR 1990 SC 781 88

U.P. State co-operative Land Development Bank Ltd. v. Chandrabhan Dubey (1999) 1 SCC 741 89

UN Charter is the cornerstone of the international relations between the States. See Articles 2(1) and 2(2) of the

UN Charter; R. P. Anand, Sovereignty of States in International Law, in: R.P. Anand, Confrontation or Cooperation:

International Law and the Developing Countries (1987) 90

Dualism theory of relationship between international law and municipal law



16


constitutional provisions in this respect.91

Thus, the process of implementation of international

law at national level varies in different countries. The divergent State practices pertaining to

incorporation of international law into municipal law have been explained by two schools of law

– monist and dualist.

India follows the dualist theory for the implementation of international law at domestic level.92

International treaties do not automatically become part of national law in India.93

It, therefore,

requires the statute to be made by the Parliament for the implementation of international law in

India. If there is a conflict then municipal law will prevail.94

In various cases95

it has been followed that the legislative power exclusively belongs to the

Parliament. They relied on Article 252 of the Constitution of India which says that:

“Parliament has power to make any law for whole or any part of the territory of India for

implementing any treaty, agreement or convention with any country or countries or any decision

made at any international conference, association or other body.”

This means that it is only the legislature that has the power to enact a law. Therefore, looking at

the current scenario of India and as an obligation to the international instruments like ICESCR,

UDHR, CRC, FAO, etc after providing copious provisions for combating malnourishment and

starvation deaths, took cognizance of the situation and responded by enacting a statute “Food For

All Act, 2013”.

3.1.International treaties not an obligation on the legislature

The basic provision of the Constitution of India, by virtue of which international covenant

becomes implementable through municipal laws of India is Article 51 (c) of the Constitution of

India. Article 51 (c) of the Constitution enjoins the State “to endeavour to foster respect for

international law and treaty obligations in the dealings of organized peoples with one another.”

91

D.D. Basu, Commentary on the Constitution of India, Vol III 92

Jolly Jeorge Vs. Bank of Cochin, AIR 1980 SC 470 93

Birma Ram v. state of Rajasthan 1977 WLN UC 497 94

Mortensen v. Peters (1906) 14 Scots LTR 227 ; Shri Krishna Sharma v. State of West Bengal AIR 1954 Cal. 598 95

Maganbhai v. Union of India (1970)3 SCC 400;Nirmal Chand v. Union of India 1966 SCR (1) 986;Supra note 92



17


It is pertinent to mention that Article 51 enshrines one of the Directive Principles of State Policy

embodied in Part IV of the Constitution of India.

As mentioned before as well, the Directive Principles of State Policy as per Article 3796

of the

Constitution of India, are not enforceable through the Court of law Article 37 read with the case

Deep Chand v. State of Uttar Pradesh97

it was held that the directive principles of the State

Policy, which by Article 37 are expressly made unenforceable by a Court, cannot override the

provisions found in Part III which, notwithstanding other provisions, are expressly made

enforceable by appropriate Writs, Orders or directions under Article 32, nevertheless they are

fundamental in the governance of the country and there is a „non-obligatory‟ duty on the part of

the State to apply these principles in making of laws. Thus, the Article 51 of the Constitution of

India and the international law per se are not justiciable in the realm of Indian municipal law. It

is the municipal law that will prevail.98

It is submitted by the counsel for Respondent that it is not an obligation of the legislature to take

into account the international treaties which it has signed while making legislations as the

Directive Principles of State Policy are not enforceable. Nevertheless, the Food For All Act,

2013 is in accordance with the all signed covenants.

Arguendo, even if the impugned legislation is in violation of any international instrument the

said legislation cannot be questioned until and unless it is violating Part III of the Constitution,

which is already dealt with by the counsel for Respondent. This is because any statute affecting

the Fundamental Rights is void.

3.2.Impugned legislation is in accordance with the International Human Rights Instruments.

96

Article 37 of the Constitution of India: “Applications of the principles contained in this part – the provisions

contained in this part shall not be enforceable by any court, but the principles therein laid down are nevertheless

fundamental in the governance of the country and it shall be the duty of the state to apply these principles in making

laws.” 97

1959 AIR 648 98

Supra note 90



18


The Food For All Act, 2013 is in accordance with the International Human Rights Instruments.

Even clause (4)99

of the Food for All Act, 2013 clearly states that International Instruments on

Human Rights were kept in mind for the execution of this Act. Hence, if there was any issue in

the execution of the Act, it is the duty of the executive to implement it perfectly.

The right to food is protected under international human rights and humanitarian law and the

correlative state obligations are well-established under international law. The right to food is

recognized in Article 25 of the Universal Declaration on Human Rights,100

Article 11 of the

International Covenant on Economic, Social and Cultural Rights,101

Article 24102

and Article

27103

of the Convention on Rights of Child, the Preamble of Food and Agricultural

Organisation,104

as well as a plethora of other instruments. Noteworthy is also the recognition of

the right to food in numerous national constitutions.

After reading and analyzing these international covenants, it may be understood that these

instruments include the key words of right to food, easy access to this food, right to a standard of

living, nutritious food at a subsidized cost, etc. The key elements of right to food are are

availability of food, accessibility of food and adequacy of food. Availability requires that food

should be easily available from either cultivation or for sale in markets and shops.

Accessibility requires economic and physical access to food to be guaranteed. Economic

accessibility means that food must be affordable. Individuals should be able to afford food for an

adequate diet without compromising on any other basic needs. Physical accessibility means that

food should be accessible to all, including to the physically vulnerable, such as children, the sick,

99

Clause (4) of the Food For All Act,2013 : „The provisions of international instruments on Human Rights shall be

taken into account while giving effect to the provisions of this Act.‟ 100

Article 25 of the UDHR state sthat everyone ahs the right to a standard of living adequate for the health and well-

being of himself and his family, including food… 101

Article 11 of ICESR recognizes the right of everyone to an adequate standard of living for himself and his family,

including adequate food. It also mentions that the State Parties will take appropriate steps to ensure the realization of

this right, recognizing to this effect the essential importance of international cooperation based on free consent. 102

Article 24 of CRC states that State Parties recognize the right of the child to the enjoyment of the highest

attainable standard of health and to facilitate for the treatment of illness and rehabilitation of health. State Parties

shall strive to ensure that no child is deprived of his or her right of access to health care services. 103

Article 27 states that the State Parties, in accordance with national conditions and within their means… shall in

case of need provide material assistance and support programmes, particularly with regard to nutrition… 104

The Preamble states that the Nations accepting this Constitution, being determined to promote the common

welfare by furthering separate and collective action on their part for the purpose of raising levels of nutrition and

standards of living... and thus... ensuring humanity's freedom from hunger



19


persons with disabilities or the elderly, for whom it may be difficult to go out to get food.

Adequacy means that the food must satisfy dietary needs, taking into account the individual‟s

age, living conditions, health, occupation, sex, etc. For example, if children‟s food does not

contain the nutrients necessary for their physical and mental development, it is not adequate.

Food should also be safe for human consumption and free from adverse substances, such as

contaminants from industrial or agricultural processes, including residues from pesticides,

hormones or veterinary drugs. Adequate food should also be culturally acceptable. For example,

aid containing food that is religious or cultural taboo for the recipients or inconsistent with their

eating habits would not be culturally acceptable.

It should be noted by the Hon‟ble Court that all of these provisions have been included in the

Food For All, Act. The Act clearly states that there must be sufficient availability of food,105

which is adequate, nutritious and affordable.106

It even says that there must be an economic

access107

through Public Distribution Shops108

of food at all times at a subsidized,109

minimum110

or reasonable price.111

International obligations once undertaken must be complied with, but International Law does not

mention the manner in which compliance is to be carried out, with this perception, all the

divergence of state practices are accommodated.

3.3. Intent of the Legislature

The intent of the legislature is fully bonafide as each and every aspect is covered by the Act

completely. The preamble of the Food For All Act, 2013 read with clause (4) clearly says that it

must be in consonance of international treaties and shall be taken into account while giving

effect.

105

Clause 2(a) of the Food For All Act, 2013 106

Clause 2(b) of the Food For All Act, 2013 107

Clause 2(g) of the Food For All Act, 2013 108

Clause 2(e) of the Food For All Act, 2013 109

Clause 2(f) of the Food For All Act, 2013 110

Clause 2(h) of the Food For All Act, 2013 111

Clause 2(i) of the Food For All Act, 2013



20


The only controversial clause is 2(c) of the Act which defines “deserved family”. The legislature

has made sure that this definition is given a broad perspective. The definition is limited only to

the extent of the economic capacity of state. In Ashoka Kumar Thakur v. Union of India and

Ors112

it is pointed out that our Constitution additionally enshrines Directive Principles of State

Policy in Part-IV of the Constitution requiring the State to strive to promote justice social,

economic and political and to minimize the inequalities in income and endeavour to remove

inequalities in status, facilities and opportunities.

Therefore, the counsel for respondents proves that the intention of legislature is bonafide and that

the Food For All Act, 2013 covers all the provisions of the international covenants.

112

(2008)6SCC1



xvi


PRAYER

IN THE LIGHT OF THE ARGUMENTS ADVANCED, CASES AND AUTHORITIES CITED, THE COUNSEL FOR

RESPONDENTS HUMBLY REQUESTS THE HON‟BLE SUPREME COURT OF INDUS TO UPHOLD THE FOOD

FOR ALL ACT, 2013 AND ADJUDGE AND DECLARE THAT:

1. THE FOOD FOR ALL ACT, 2013 DOES NOT VIOLATE THE FUNDAMENTAL RIGHTS OF THE

CONSTITUTION OF INDUS.

2. THE FOOD FOR ALL ACT, 2013 UPHOLDS THE PRINCIPLES OF SOCIAL JUSTICE ENSHRINED

IN THE PREAMBLE OF THE CONSTITUTION OF INDUS.

3. THE FOOD FOR ALL ACT, 2013 IS NOT VIOLATIVE OF ANY INTERNATIONAL INSTRUMENT

THAT INDUS IS A SIGNATORY TO.

AND PASS ANY OTHER ORDER, DIRECTION OR RELIEF THAT THE COURT MAY DEEM FIT IN THE

BEST INTERESTS OF JUSTICE, FAIRNESS, EQUITY AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE RESPONDENT SHALL DUTY BOUND FOREVER PRAY.

SD/-

COUNSELS FOR RESPONDENT

UNION OF INDUS

Documents

ALS, noida - memo - R MK Nambyar