MOOT MEMORIAL.RESPONDENTS, Study Guides, Projects, Research of Law

Download MOOT MEMORIAL.RESPONDENTS and more Study Guides, Projects, Research Law in PDF only on Docsity! i __________________________________________________________________ MAR GREGORIOS COLLEGE OF LAW MOOT COURT-2020 __________________________________________________________________ BEFORE THE HON’BLE SUPREME COURT OF INDISTAN W.P. (PIL) No. ___/2020 (PETITION INVOKED UNDER ART 32 OF THE CONSTITUTION OF INDISTAN) ASSOCIATION FOR POLITICAL REFORMS (Petitioner) VERSUS UNION OF INDISTAN (Respondent) __________________________________________________________________ UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS LORDSHIP’S COMPANION JUSTICES OF THE SUPREME COURT OF INDISTAN __________________________________________________________________ WRITTEN SUBMISSION ON BEHALF OF RESPONDENTS ii TABLE OF CONTENTS __________________________________________________________________ TABLE OF ABBREVIATIONS………………………………………………… iv INDEX OF AUTHORITIES…………………………………………………….. vi I. CASES…………………………………………………………………..... vi II. STATUTES…………………………………………………………….…. vi III. BOOKS……………………………………………………………...……. vii IV. REGULATIONS………………………………………………………..... vii V. CONSTITUTIONAL PROVISIONS…………………………………….. vii VI. JOURNALS……………………………………………………………… vii STATEMENT OF JURISDICTION………………………………………….... viii STATEMENT OF FACTS………………………………………………………. ix STATEMENT OF ISSUES……………………………………………………… xi SUMMARY OF ARGUMENTS……………………………………………..… xii ARGUMENTS ADVANCED…………………………………………………… 1 I. WHETHER THE PIL FILED BY APR UNDER ART 32 IS MAINTAINABLE BEFORE THE HON’BLE COURT?.............................................................................................................................1 1. Lack of Locus standi fails the maintainability of the PIL…………………………... 1 2. The fundamental right guaranteed under Art 19(1)(a) is not violated……………… 2 II. WHETHER SUCH AMENDMENT WILL HAVE REPERCUSSIONS IN THE TRANSPARENCY ASPECT OF POLITICAL FUNDING OF POLITICAL PARTIES?......................................................................................................................... 3 1. Sec 29C of Representation of People Act is a progressive step to curb black money……………………………………………………………………………….. 4 2. It ensures complete transparency with respect to funds raised by companies……… 5 III. WHETHER THE CONTENTS OF THIS ACT BE QUALIFIED TO BE A MONEY BILL?........................................................................................................................ .......... 6 v SC Supreme Court Sec Section S.O Standing Order U.S United States v. Versus W. P Writ Petition vi INDEX OF AUTHORITIES __________________________________________________________________ I. CASES 1. Arvind Kejriwal v. Central Public Information Officer, AIR [2012] Delhi 29……... 2 2. Brown v Socialist Workers, 459 U.S. 87 (1982) …………………...………………. 3 3. Charan Lal Sahu v. Giani Zail Singh, AIR 1984 SC 309……………...………….… 1 4. Janata Dal v. H.S. Chowdhary & Ors, (1992) 4 SCC 305…………………….….… 1 5. Mohd. Saeed Siddiqui v State of UP & Anr, AIR 2014 SC 2051………………....... 7 6. R.K. Jain vs Union of India, (2013) 14 SCC 794……………………….................... 3 7. Raja Ram Pal v. The Hon`ble Speaker, Lok Sabha, (2007) 3 SCC 184……...…….. 6 8. S.P Gupta and Ors v. President of India and Ors, AIR 1982 SC 149 …………........ 1 II. STATUTES 1. Companies Act, 2013…………………………………………………………….…. 5 2. Finance Act, 2017……………………………………………................................... 4 3. Income Tax Act, 1961…………………………………………………………..…... 7 4. Reserve Bank of India Act, 1954………………………………………………….... 3 5. Representation of People Act, 1951…………………………………………..…….. 4 6. Right to Information Act, 2005……………………….……………………..……… 1,2 vii III. BOOKS 1. Dr. J. N. Pandey, Constitutional Law of India, 421, (54th Ed, 2017) …..…… 1 IV. REGULATION 1. Gazette Notification S.O. 29(E), dated 2nd January 2018………………….… 2, 4 V. CONSTITUTIONAL PROVISIONS 1. Art 19(1)(a) of the Constitution of India, 1950………………………………. 2 2. Art 32 of the Constitution of India, 1950……………………………………... 1 3. Art 110(1) of the Constitution of India, 1950………………………………… 6 4. Art 110(3) of the Constitution of India, 1950………………………………… 6 5. Art 122(1) of the Constitution of India, 1950………………………………… 6 6. Art 212 of the Constitution of India, 1950……………………………………. 7 VI. JOURNALS 1. Dr. Anil Kumar Maurya, Money Bill, Non-Money Matters and Damage to Democracy, Dehradun Law Review, 10, (2020) …………………………… 7 2. Pratik Datta, Shefali Malhotra & Shivangi Tyag, Judicial Review and Money Bills, NUJS L. Rev, (2017) …………………………………………………… 7 x VI. The Petitioners have filed the instant Public Interest Litigation under Article 32 of the Constitution of Indistan on the issue of corruption and subversion of democracy through illicit & foreign funding of political parties and opaqueness in the accounts of all political parties. VII. The petitioners are seeking directions from this Hon’ble Court to strike down amendments made through Finance Act, 2017 and earlier Finance Act, 2016, both passed as money bills, and which have opened doors to unlimited political donations, even from foreign companies and thereby legitimizing electoral corruption at a huge scale, while at the same time ensuring complete non-transparency in political funding. xi STATEMENT OF ISSUES __________________________________________________________________ ISSUE I Whether the PIL filed by APR under Article 32 is maintainable before the Hon’ble Court ISSUE II Whether such amendments will have repercussions in the transparency aspect of political funding of political parties ISSUE III Whether the contents of the Finance Act be qualified as a money bill xii SUMMARY OF ARGUMENTS __________________________________________________________________ I. WHETHER THE PIL FILED BY APR UNDER ART 32 IS MAINTAINABLE BEFORE THE HON’BLE SUPREME COURT? The respondents humbly submit before this Hon’ble Court that the present petition is not maintainable. The PIL filed by the petitioner, Association for Political Reforms is not maintainable because none of their Fundamental Rights are not violated but was filed in political motive. II. WHETHER SUCH AMENDMENT WILL HAVE REPERCUSSIONS IN THE TRANSPARENCY ASPECT OF POLITICAL FUNDING OF POLITICAL PARTIES? The respondents humbly submit that the amendments brought to various legislations by the introduction of electoral bond scheme introduced by the Finance Act, 2017 have constitutional validity and the electoral bond scheme has been pitched of serving an alternative to cash donations made to political parties as an effort to bring transparency in political funding. III. WHETHER THE CONTENTS OF THIS ACT BE QUALIFIED TO BE A MONEY BILL? The respondents humbly submit that the amendments can be passed as a money bill and comes under the ambit of Article 110 and that the decision of the Lok Sabha speaker is final when a question arises as to whether a bill is a money bill or not. 3 officer intends to disclose any information which relates to a third party may within five days request the third party to make submission whether the information may be disclosed and Sec 810 deals with exemptions from disclosure of information. The Supreme Court of India in R.K. Jain v Union of India11 observed that (a) The third-party may plead privacy defense, but such defense may, for good reasons, be overruled, in other words, after following the procedure outlined in section 11 of the RTI Act, and the authority may decide that information should be disclosed in public interest overruling any objection that the third-party may have to the disclosure; and (b) The disclosure must have nexus to any public activity or public interest; and (c) The bonafide of the applicant must be considered. In this petition, the third parties, in this case, the donor of political parties under the election bond scheme has the right to defend the disclosure of information on the ground that the information, the disclosure of which would endanger the life or physical safety of any person under Sec 8(g) of the Right to Information Act, 2005. In Brown v. Socialist Workers12, the U.S. Supreme Court exempted campaigns from making disclosures where there existed “specific evidence of hostility, threats, harassment and reprisals.” This is a balanced solution. In the general, where there are no risks to contributors, the voters right to know requires candidates to disclose their contributors and contributions. In specific instances, where a credible risk exists that compelling disclosures will dissuade or put at risk contributors, their privacy must be maintained. Thus, it is submitted before the Hon’ble Court that the present petition should not be allowed since no fundamental rights were violated and was filed with a mala-fide motive to defame the ruling government. II. WHETHER SUCH AMENDMENT WILL HAVE REPERCUSSIONS IN THE TRANSPARENCY ASPECT OF POLITICAL FUNDING OF POLITICAL PARTIES? Electoral bond is a bearer banking instrument in the nature of a promissory note to be used for funding eligible political parties. The amendment brought to Sec 3113 of Reserve Bank of Indistan Act, 1934 through Sec 13514 of Finance Act enables the scheduled banks to issue 10 S.8, Right to Information Act, 2005 11 (2013) 14 SCC 794 12 459 U.S. 87 (1982) 13 S. 31, Reserve Bank of India Act, 1934 14 S. 135, Finance Act, 2017 4 electoral bonds upon authorization from the Central government to intending donors, but only against cheque and digital payments. According to the provisions of the scheme it may be purchased by a person who is a citizen of Indistan or incorporated or established in Indistan. A “person” includes- (i) an individual; (ii) a Hindu undivided family; (iii) a company; (iv) a firm; (v) an association of persons or a body of individuals, whether incorporated or not; (vi) every artificial juridical person, not falling within any of the preceding subclauses; and (vii) any agency, office or branch owned or controlled by such person15. Political parties registered under Section 29A16 of the Representation of the People Act that have secured not less than 1 per cent of the votes polled in the last election of the Lok Sabha or Legislative Assembly will be eligible to receive electoral bonds. An electoral bond will be valid for 15 days from the date of issue. No payment would be made to any payee political party if the bond is deposited after expiry of the validity period. The bond deposited by any eligible political party into its account would be credited on the same day. The bonds shall be issued in the denomination of Rs. 1000, Rs. 10,000, Rs. 1,00,000, Rs.10,00,000 and Rs. 1,00,00,000. The extant instructions issued by the Reserve Bank of Indistan regarding KYC norms of a bank’s customer shall apply for buyers of the bonds. The authorized bank may call for any additional Know Your Customer documents, if it deems necessary. It is humbly submitted before the Hon’ble Court that the introduction of electoral bond scheme brought via Sec 135, Sec 137, Sec 154 and Sec 11 of the Finance Act, 2017 which in turn amends Sec 31 of the Reserve Bank of Indistan Act, 1934, Sec 29C of Representation of People Act, 1951, Sec 182 of Companies Act, 2013 and Sec 13A of Income Tax Act, 1961 respectively promotes transparency in political funding and donations. The main reasons for issuing electoral bonds in bearer form are to bring in transparency to funding in the political system. If an actual test of the scheme needs to be done, the test would be to compare whether cash donations have come down after introduction of electoral bonds or not and which party is receiving more donation in cash compared to electoral bonds. The respondents submit the following arguments to affirm the same. 1. Sec 29C of Representation of People Act is a progressive step to curb black money The amendment to Representation of People Act allows political parties to skip recording donations received by political parties through electoral bonds in their contribution reports to 15 Item 2(d), Notification S.O. 29(E), dated 2nd January 2018 16 S. 29A, Representation of People Act, 1951 5 the Election Commission of Indistan. It has been argued by the petitioner that this is a retrograde step with regard to political funding. It has been stated so because, after the amendment, the political parties are free from reporting under the Contribution Report to the Election Commission of Indistan. However, it has to be noted that even before the amendment, the political parties would not inform the total amount received in cash in Form 24A. Moreover, the bonds issuing branches would have a record on the amount donated to political parties by way of electoral bonds, thereby the Election Commission can access them when required. This step is rather progressive than retrograde as claimed by some. 2. It ensures complete transparency with respect to funds raised by companies The first proviso of Sec 182 of the Companies Act was removed, thereby the limit of 7.5% of the average net profits in the preceding three financial years on contributions by companies has been removed from the provision. It has been argued that lifting the upper cap of 7.5% will lead to open up the feasibility of several companies being set up for the sole purpose of funding the political parties, but with no business motive. However, it is not the case. Even though the upper cap was lifted, the companies need to disclose in its profit and loss account the total amount contributed by it in a financial year17. This provides complete transparency with respect to the funds raised by companies. Moreover, the Know Your Customer (KYC) guidelines seek for the source of funds whereby black money circulation can be subsided. The RBI guidelines (2013-14) state that “banks should examine the control structure of the entity, determine the source of funds and identify the natural persons who have a controlling interest and who comprise the management.”18 Hence, removing the upper cap would not be a threat to transparency. The accounting entries of the companies enhance complete transparency with respect to the source of funds. Moreover, the amount is donated to the KYC compliant bank accounts of the political parties. Thus, the KYC compliance and audit trail ensures greater transparency compared to cash donations. Therefore, it is humbly submitted before this Hon’ble Court that the said amendments brought to these provisions with the introduction of electoral bond scheme is valid since this is a massive effort made by the government to cleanse the system of political funding. This scheme cannot be considered to be a scam when the political contribution is given from the white money of a company or from somebody's bank account after transparently buying it from the 17 Section 182(3) of Companies Act, 2013. 18 https://www.rbi.org.in/Scripts/BS_ViewMasCirculardetails.aspx?id=8179 8 purview of Art 110(1) sub-clause (g) which deals with matters incidental to those specified under subclauses (a) to (f). Therefore, it is humbly submitted by the respondents that the said amendments brought through finance act 2017, all relate to money matters and hence can be passed as a money bill. 9 PRAYER Wherefore in light of the issues raised, arguments advanced and authorities cited, it is humbly prayed that the Hon’ble Supreme Court may be pleased to hold, adjudge and declare that; 1. The PILs filed by the petitioner are not maintainable and are frivolous in nature; and 2. The introduction of electoral bond scheme brought through the Finance Act, 2017 has not violated any provisions of the Constitution; and 3. The said amendments will not have repercussions in the transparency aspect of political funding and that the information will be available to concerned authorities; and 4. The court cannot question the decision of the Lok Sabha speaker as to whether the bill is a money bill or not; and 5. The Act can be passed as a money bill. AND/OR Pass any order that it deems fit in the interest of Justice, Equity and Good Conscience. And for this act of kindness, the Respondent as in duty bound, shall humbly pray. Counsels for the Respondent