--MEMORIAL FOR APPELLANT--

12IP60009 HARISH.N

IN THE HONOURABLE SUPREME COURT OF INDIA

NEW DELHI, INDIA

WRIT PETITION __/2012 UNDER ARTICLE 32 O F 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.................................................................................................ii [B]. INDEX OF AUTHORITIES.................................................................................................iii [C].STATEMENT OF JURISDICTION......................................................................................iv [D].STATEMENT OF FACTS......................................................................................................v [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.............................................................................................xiv [G].PLEADINGS ADVANCED....................................................................................................1 THAT THE DELEGATED LEGISLATION IS VIOLATIVE OF THE CONSTITUTION. . .5 [A].PRAYER FOR RELIEF..........................................................................................................9

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

S.No 1. 2. 3. 4. 5. 7. 8. 9. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 22. 23.

ABBREVIATION AIR Anr Art. Cal Co Ed ER Ltd M.P Ors. Pvt. RBI SC SCC SCR U.O.I U.P v. Vol.

EXPANSION Paragraph All India Report Another Article Calcutta Company Edition England Reports Limited Madhya Pradesh Others Private Reserve Bank Of India Supreme Court Supreme Court Cases Supreme Court Reports Union of India Uttar Pradesh Versus 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. 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. CASES Assistant Commission, Commercial Tax Dept., Work Contract and Leasing, Kota v. Shukla and Brother Aswini Kumar v. Arbinda Bose Baban Naik v. Union of India Bachan Singh v. State of Punjab Budhan Choudhry v. State of Bihar Chinranjit Lal v. Union of India Food Corporation of India v. Bhanu Lodh Hodge v. Hodge Indian Hume Pipe Co. Ltd. V. State Jatinder Kumar v. State of Punjab Kapurchand Kesaimal Jain v. State of Maharastra Keshavanda Bharathi v. State of Kerala Kunj Behari Lal v. State of Himachal Pradesh Lakshmana v. State of M.P CITATION
2010 (4) KarLJ 256

13 31 38 39 44 44

AIR 1952 SC 369 AIR 1979 Goa 1

AIR 1982 SC 1382

AIR 1955 SC 191

AIR 1950 SC 41

(2005) 3 SCC 618 24

1 All ER 359 (366) CA (2009) 5 SCC 187

32 19 43 11

AIR 1984 SC 953

(1973) 3 SCC 299

AIR 1973 1461

SC 16 38 45

AIR 2000 SC 1069 (1983) UJSC 499 p.3

M/s Bengal Chemical & Pharmaceutical Works Ltd., AIR 1959 SC 633 v. Their Workmen AIR 1978 SC 597 Maneka v. Union of India Master Construction (P) Ltd v. State of Orissa and Anr Mathai v. George and Anr
iii

38

(2005) 1 SCC 481 3

(2010) 4 SCC 358

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19. 20. 21. 22. 23. 24. 25. 26. 27. 28.

National Human Rights Commission v. State of Arunachal Pradesh Om Prakash Sood v. Union of India Pranab Kumar Roy v. RBI Pritam Singh v. The State Punjab Beverages Pvt Ltd., v. Suresh Chand and Anr R.K. Garg v. Union of India Ram Prasad v. State of Bihar Ramakant Rai v. Madan Rai & Ors Sakharam v. State of Maharastra State of Punjab v. Joginder

AIR 1996 1234

(2007) 7 SCC 473 AIR 1993 Cal 50

SC 17 6

AIR 1950 SC 169

1978 SCR (3) 370 AIR 1981 SC 2138 AIR 1953 SC 215

2 29 25 43 5 10 37

AIR 2004 SC 77
AIR (1973) SC 243 AIR 1963 SC 913

III.

LIST OF BOOKS REFERRED

S.NO 1. 2. 3. 4. 5.

BOOK TITLE CORPUS JURIS SECUNDUM, (5 Ed., West) Vol. 55

th

42 14 41 25 2

Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, (8th Ed., Wadwa Nagpur) Vol 1 Halburys LAWS OF ENGLAND, (4th Edn.), Vol. 1 Jennings, LAW OF THE CONSTITUTION, (5th Ed., London University Press) M.P. Jain, INDIAN CONSTITUTIONAL LAW, 265 (6 Ed., Lexis Nexis Butter Worths
TH

Wadhwa 2011) 6. 7. Venkataramiyas LAW LEXICON-VOLUME 1, (HUMAN RIGHTS) Vepa P. Sarathi, INTERPRETATION OF STATUTES, (4 Ed., Eastern Book Company)
TH

18 30

[C]. STATEMENT OF JURISDICTION The Honorable Supreme Court of India can exercise its jurisdiction under Article 32 of
iv

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the Constitution of India. The Appellant most humbly and respectfully submits to the jurisdiction of the Honorable Supreme Court of India.

[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.
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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.

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
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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 M ATTER B EFORE THIS HONORABLE COURT.

vii

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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

(I).

THAT THE C OURT H AS R EQUISITE J URISDICTION T O M AINTAIN T HIS P ETITION The writ petition is maintainable under Article 32 as there has been a violation of fundamental rights of the public at large.
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(II). THAT THE PROVISION IS VIOLATIVE OF ARTICLE 14 OF CONSTITUTION OF INDIA

xv

[G].

PL E AD I N GS 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 2

AIR 1951 SC 41 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 4

Preamble of the act 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 fide6and having sufficient public interest7in 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.

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
5 6

AIR 1993 SC 892 , 64 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 Blackss Law dictionary (6th Edition) Locus standi- the right to bring an action or to be heard in a given forum.

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 nonvital 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 states 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

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
9

Section 5: (1) For the provisions of this Act, only the Central Government has power to classify drugs as vital or nonvital and make rules for availability of these drugs at reasonably affordable price. 10 AIR 1998 SC 1703

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 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
11 12

(1996) 4 SCC 37 Ratlam Municipal Council Vs Vardichand, AIR 1980 SC 1622 13 Vicent Vs UOI, AIR 1987, SC 990 14 Sheeraj Latif Ahmad Khan, right to health. (1995) 2 SCJ 29-34 15 Constitution of India 16 1998) 4 SCC 177

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 governments 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 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
17 18

(1995) 3 SCC 42. (1996) 4 SCC 37. 19 AIR 1992 SC 573,585 20 AIR 1987 SC 990 21 AIR 1993 SC 2178

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: Place: New Delhi, India

s/d 1. ......................... Harish.N Counsel ID: 12IP60009 (COUNSEL FOR THE APPELLANT)