ADVOCATE SRI M.P. GOVINDAN NAMBIAR MEMORIAL ORGANISED BY. Dr. AMBEDKAR GOVT. LAW COLLEGE, PUDUCHERRY IN ASSOCIATION WITH

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1 ADVOCATE SRI M.P. GOVINDAN NAMBIAR MEMORIAL 2 nd ALL INDIA MOOT COURT COMPETITION 2019 ORGANISED BY Dr. AMBEDKAR GOVT. LAW COLLEGE, PUDUCHERRY IN ASSOCIATION WITH ADVOCATE SRI M.P. GOVINDAN NAMBIAR FOUNDATION Moot Proposition By Mr. Nirmalkumar Mohandoss Advocate, Madras High Court 1

2 MOOT PROPOSITION 1. Brahmadesh is a country that achieved independence from British occupation in Several princely States merged with the British Brahmadesh territory to become a member of the British Commonwealth, with Dominion status. In 1950, Brahmadesh adopted its own Constitution and declared itself a Sovereign Secular Democratic Republic with a Federal Constitution. 2. The Brahmadesh Federation was divided into States. The Constitution clearly provided for a division of powers between the Federal Government/Parliament and the State Government/State Legislature with residuary powers to the Federal Government/Parliament. However, the Constitution provided for certain Federal Territories which were to be directly administered by the Federal Government without any division of powers, a local Government and legislature. The federal set up laid down under the Constitution did not, therefore apply to these Federal Territories. 3. Subsequent to the adoption of the Brahmadesh Constitution, certain territories under the occupation of European powers other than the British, merged with the Republic of Brahmadesh, subject to treaties entered between such European Powers and the Brahmadesh Republic. 4. After holding discussions in the Parliament, the Federal Government resolved to grant Federal Territory status to the newly merged territories as they would not be well acquainted with the working of the Brahmadesh Constitution. However, since the newly merged territories had already had local elected bodies and since the federal Government was also committed to providing a federal and democratic polity in the newly merged territories, it was decided by the Federal Government to initially provide for a Legislature and Council of Ministers in such territories while retaining overall supervisory power over such Council and Legislature. 5. The Home Ministry proposed amendments to the Brahmadesh Constitution empowering the Parliament to establish a Legislature and Council of Ministers with substantial State powers in such newly merged Federal Territories. The Home Secretary requested the Ministry of Justice to propose adequate legislative measures keeping in mind the commitment to gradually provide Statehood to such Federal Territories. 2

3 6. Accordingly, the Ministry of Justice drafted the Administration of Federal Territories Bill providing for a Legislature, Council of Ministers and certain other authorities, their powers, functions and responsibilities. 7. In 1962, an amendment to the Brahmadesh Constitution was made empowering the Parliament to establish a Council of Ministers and a local legislature in certain Federal Territories. The Administration of Federal Territories Act, 1962 was passed with Six Federal Territories under the Act. The Legislature and Council of Ministers were established in these Federal Territories with substantial 'State powers'. 8. Subsequently, in 1963, Podhigai, one of the territories under the control of the French Government merged with the Republic of Brahmadesh by virtue of treaties entered between both the Governments. Since Podhigai had local elected bodies and the Government of Brahmadesh was committed to providing statehood to the territory gradually, Podhigai was also enlisted as one of the Federal Territories with Legislature under the Administration of Federal Territories Act, The City of Indraprastha, which is the capital of Brahmadesh had been given Federal Territory status as the Federal Government wanted to have full power and control with respect to its capital city. The political parties and people of Indraprastha had been seeking statehood for the capital city for quite sometime. Later the stakeholders requested the Federal Government of Brahmadesh to grant at least a 'Federal Territory with Legislature' status to the capital city under the Administration of Federal Territories Act. 10. After many rounds of intense consultation and deliberation, in 1991, the Federal Government of Brahmadesh decided not to grant special status to the city of Indraprastha under the Administration of Federal Territories Act, 1962 as it was clear that granting statehood to its capital was never the intention of the Government. However, it was decided to amend the Constitution of Brahmadesh so as to grant a special status to the capital city by establishing a Legislature and Council of Ministers for the capital city of Indraprastha barring jurisdiction over crucial 'State subjects' like 'land' and 'police'. An amendment was accordingly made and the name of the capital city was also amended as 'the Federal Capital Territory of Indraprastha' by inserting certain provisions in the Constitution of Brahmadesh. 11. By 1989, six Federal Territories with Legislature under the Act of 1962 attained Statehood leaving behind Podhigai as the only Federal Territory under the Act. By 2006, the people of Podhigai had elected the territorial Government of their choice 8 times. The Government and the Legislature of Podhigai had 3

4 established several authorities during this period. The Legislature had also passed several resolutions seeking statehood to the territory. The Members of Parliament from Podhigai also resonated the will of the people of Podhigai in the Parliament seeking statehood. The Federal Government had at various occasions promised to look into the issue and take a favourable decision keeping in mind the will of the people. 12. In 2016, Shalini, a women rights activist sought several information from the Podhigai Women s Commission in order to publish her doctoral thesis on safety of women in Podhigai. Much to her discontent, the Public Information Officer at the Women s Commission refused to give information under the Right to Information Act, 2005 citing several flimsy, vague and unreasonable grounds. Shalini immediately decided to lodge a complaint before the Information Commission under the relevant provisions of the Act of Much to her shock, she found that there was no State Information Commission functioning in the territory of Podhigai. 13. Shalini collected documents to ascertain as to why there was no Information Commission in the territory of Podhigai. It was found that though in 2006 the Government of Podhigai had established the Podhigai State Information Commission under the RTI Act, 2005, based on certain representations from unnamed individuals, the Home Secretary of Brahmadesh sent a note to the Chief Secretary of Podhigai directing him to wind up the Podhigai State Information Commission within a period of 10 days and report compliance of the same to him. The Chief Secretary had accordingly put up notes with the Chief Minister's office and the office of the Lieutenant Governor and with their approval, wound up the Information Commission in less than 10 days by publishing Government Order 7 of 2007 dated in the Gazette. A bare perusal of the documents revealed that no reason was assigned for the decision taken to wind up the Commission. The Podhigai Government had also not resisted the move. 14. On further research, it was found that under various Parliamentary statutes, the Government of Podhigai had established several authorities required to be established by the State Government. 15. Shalini immediately approached the High Court of Malabar, which is also the High Court of Podhigai (hereinafter referred to as High Court of Podhigai ) challenging the vires of the G.O. No. 7 of 2007 under various grounds. The writ petition was admitted by the High Court with a direction to the Federal Government and the territorial Government of Podhigai to file counter affidavits 4

5 with all relevant documents to show why the Information Commission was abolished. 16. Meanwhile, Poor People s Party (PPP), a recently founded political party started amidst a massive anti-corruption movement, organized a massive rally seeking establishment of Lokayukta at Podhigai in order to curb instances of corruption at Podhigai. A written representation to this effect was also made to the Secretary to Administrative Reforms wing and the Ministry of Law, Government of Podhigai. Mr. Aravindan Aggarwal, the convenor of the PPP at Podhigai met the chief of all Legislative parties at Podhigai and requested them to raise the issue in the Podhigai territorial legislature. 17. The issue of curbing corruption rocked the Podhigai local legislature as all the opposite party members in the legislature sought an explanation for not establishing a Lok-Ayukta to investigate and prosecute allegations of corruption of the Public functionaries at Podhigai. 18. The Home Minister explained to the Legislature that since Podhigai was only a Federal Territory, it was not competent to establish a Lok-Ayukta under the Lokpal and Lok Ayuktas Act, A reply to this effect was also issued to the representation made by the PPP. 19. PPP immediately filed a PIL before the High Court of Podhigai seeking a direction to the Government of Podhigai to establish Lok-ayukta under the Lokpal and Lokayuktas Act, 2013 with powers to enquire into allegations of corruption against public functionaries at Podhigai including its Chief Minister, other Council of Ministers and Members of the Podhigai Territorial Legislature. The High Court admitted the same and clubbed the matter along with the earlier petition filed by Shalini. 20. Subsequently, on a petition filed by the Government of National Capital Territory of Indraprastha U/A 131 of the Constitution, the Supreme Court had given a finding that the territorial Government of Indraprastha had all the powers akin to States subject to exceptions provided under the law and also restrained the Federal Government and the office of the Lieutenant Governor of Indraprastha from interfering with the working of the territorial Government unless extraneous circumstances compelled them to do so. 21. A jubilant Podhigai cabinet, which had been blaming the Federal Government of Brahmadesh of interfering with their powers, resolved unanimously in the local legislature requesting the Federal Government to follow the Supreme Court s order in letter and spirit. However, subsequently, the Chief Justice of Brahmadesh who was one of the members of the bench 5

6 that issued the historic judgement pertaining to the National Capital Territory of Indraprastha, clarified that the judgment applied only to Indraprastha as the Constitutional and statutory provisions governing special status of Indraprastha are different from those governing Podhigai. The secretary to the Lieutenant Governor of Podhigai released a press note stating that there was no change in the position of Podhigai subsequent to the Supreme Court s judgment. 22. However, upon consultation with the law officers of the Podhigai Government, the territorial Government decided to take up the matter before the High Court of Podhigai as the law officers opined that law had given the territorial Government and local legislature at Podhigai more powers than those at Indraprastha. 23. Accordingly, the Government Pleader of Podhigai mentioned before the High Court of Podhigai to decide the larger question with respect to the federal status of Podhigai in the light of the Supreme Court judgment. Convinced that the question needs to be determined to solve several connected legal questions, including the petitions filed by Shalini and Poor People's party, the High Court of Podhigai suo moto took up the question and directed the Federal Government and Podhigai Government to make their submissions in this regard and clubbed the matter along with the petitions filed by Shalini and Poor People s Party and posted the matter for final hearing on The following issues were framed by the High Court of Podhigai which also granted liberty to all parties to raise additional relevant grounds at the time of final hearing: 1. Whether the G.O. No. 7 of 2007 dated is Constitutionally valid?; 2. Whether the Government of Podhigai should be directed to establish a Lokayukta under the provisions of the Lokpal and Lok Ayuktas Act, 2013? 3. Whether the ratio in the Supreme Court s judgment pertaining to the National Capital Territory of Indraprastha can be applied to the facts and circumstances at Podhigai keeping in view the special status granted to Podhigai under the Constitution of Brahmadesh, the Administration of Federal Territories Act, 1962 and connected rules and regulations? If yes, to what extent? 6

7 Note: i. The Moot Proposition is purely fictional. Resemblance of any kind to any person (living or dead), name, company, property, political party, union, association or organisation etc. is purely co-incidental. ii. iii. iv. The proposition is a fictitious factual account prepared for the purposes of the present moot competition only, and as such it does not attempt to influence or predict the outcome of any matter whatsoever. The problem is set in the fictional Republic of Brahmadesh, whose Constitution and other laws are in pari materia with that of the Republic of India. The Participants are at liberty to frame additional issues other than those given in the Moot Proposition, which they feel might be relevant and necessary for the adjudication of the dispute. Enclosure: ANNEXURE A: Letter dated written by Home Secretary of Brahmadesh to Chief Secretary of Podhigai ANNEXURE - B: Impugned GO No. 7 of 2007 dated

8 ANNEXURE - A Akbar Ali, (PAS) Secretary. Ph: Fax: Ministry of Home Affairs Government of Brahmadesh North Block, Indraprastha Letter: 78/MHA/GB/2007 Date: Dear Sir, I may mention here that the decision to wind up the Podhigai Information Commission established by the Government of Podhigai under the Right To Information Act, 2005 was taken at the Secretarial meeting of the Ministry of Home Affairs with approval from the Hon ble Home Minister on It may be ensured that the decision of the Ministry is complied with immediately and a conformation to this effect shall be made by your good-office within 10 days. With Regards, Yours sincerely Akbar Ali To The Chief Secretary, Government of Podhigai 8

9 ANNEXURE B Government of Podhigai GO No. 7/2007 Date: The Podhigai Information Commission established by the Government of Podhigai in accordance with Section 15 of the Right To Information Act, 2005 is abolished with immediate effect. All the proceedings pending with the Podhigai Information Commission stand transferred to Federal Information Commission at Indraprastha. Sd/- Chief Secretary Government of Podhigai Copy to: 1. Office of Her Excellency, the Lt-Governor of Podhigai; 2. Office of the Hon ble Chief Minister of Podhigai 3. Secretary, Administrative Reforms Wing, Government of Podhigai 9