Private Sector as a State Actor in Indian Constitution: Kalyana State Employment Act, 2021, Lecture notes of Economics and Law

Download Private Sector as a State Actor in Indian Constitution: Kalyana State Employment Act, 2021 and more Lecture notes Economics and Law in PDF only on Docsity! Page 1 of 26 TEAM CODE: GODAVARI ADVOCATE P. SIVAJI SHETTY MEMORIAL SIXTH NATIONAL MOOT COURT COMPETITION Before THE HONOURABLE HIGH COURT OF KALYANA WRIT PETITION (WP NO.____/2021) Chamber of private sector ………. Petitioners Versus Stateof Kalyana………………. Respondents Counsels appearing on behalf of Respondents Page 2 of 26 Table of contents LIST OF ABBREVIATIONS…………………………………………………….3 INDEX OF AUTHORITIES………………………………………………………4 STATEMENT OF JURISDICTION………………………………………………7 ISSUES PRESENTED ……………………………………………………………9 STATEMENT OF FACTS ……………………………………………………….10 SUMMARY OF PLEADINGS…………………………………………………...12 ARGUMENTS ADVANCED …………………………………………………...14 1. Whether the private sector concerns are state for the purpose of Part III of the constitution…………………………………………………………………………14 2. Whether the Act violates the fundamental right to carry on business…………18 3. Whether the government is estopped from superimposing the Act on the private sector after attracting them to invest in the state with concessions……………21 4. Whether prohibiting the employees from joining political parties including students wings of the political parties is ultravires the Act and also the Constitution. ……………………………………………………………………...24 PRAYER……………………………………………………………………………………26 Page 5 of 26 STATUTES 1. INDIAN EVIDENCE ACT 1872 2. MINES AND MINERALS (DEVELOPMENT AND REGULATION) ACT 1957 3. CENTRAL CIVIL SERVICES CONDUCT RULES 1964 CONSTITUTIONAL PROVISIONS ART. 12 OF THE INDIAN CONSTITUITON OF INDIA ART. 13 OF THE INDIAN CONSTITUITON OF INDIA ART. 14 OF THE INDIAN CONSTITUITON OF INDIA ART. 15 OF THE INDIAN CONSTITUITON OF INDIA ART. 16 OF THE INDIAN CONSTITUITON OF INDIA ART19 OF THE INDIAN CONSTITUITON OF INDIA ART 21 OF THE INDIAN CONSTITUITON OF INDIA ART 38 OF THE INDIAN CONSTITUITON OF INDIA Page 6 of 26 BOOKS DR. J.N. PANDEY, CONSTITUTIONAL LAW OF INDIA (57TH 2020) 4 JUSTICE S.S. SUBRAMANEE, COMMENTARY ON THE CONSTITUTION OF INDIA, ART. 14 (9TH) KUMAR KARTIKEYA’S ART. 12 (1ST 2020) 2 JUSTICE S.S. SUBRAMANEE, COMMENTARY ON THE CONSTITUTION OF INDIA, ART. 13 AND 14 (9TH) 5 JUSTICE S.S. SUBRAMANEE, COMMENTARY ON THE CONSTITUTION OF INDIA, ART. 20-24 (9TH) 3 JUSTICE S.S. SUBRAMANEE, COMMENTARY ON THE CONSTITUTION OF INDIA, ART. 13-19 (9TH) 2 SCC (1997) 1 H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA (4TH ) 4 SHAKIL AHMAD KHAN, THE INDIAN EVIDENCE ACT, LAW OF EVIDENCE (21ST) WEBSITES 1. WWW.MANUPATRAFAST.COM 2. WWW.SCCONLINE.COM 3. WWW.INDIACODE.NIC.IN 4. WWW.LIVELAW.IN Page 7 of 26 Statement of jurisdiction THE PETITIONERS HAVE APPROCHED THE HONOURABLE HIGH COURT OF KALYANA UNDER ART. 226 AND 227 OF THE INDIAN CONSTITUTION, WHICH READS AS UNDER Power of High Courts to issue certain writs (1) Notwithstanding anything in Article 32 every High Court shall have powers, throughout the territories in relation to which it exercises jurisdiction, to issue to any person or authority, including in appropriate cases, any Government, within those territories directions, orders or writs, including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of them, for the enforcement of any of the rights conferred by Part III and for any other purpose (2) The power conferred by clause (1) to issue directions, orders or writs to any Government, authority or person may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power, notwithstanding that the seat of such Government or authority or the residence of such person is not within those territories (3) Where any party against whom an interim order, whether by way of injunction or stay or in any other manner, is made on, or in any proceedings relating to, a petition under clause (1), without (a) furnishing to such party copies of such petition and all documents in support of the plea for such interim order; and (b) giving such party an opportunity of being heard, makes an application to the High Court for the vacation of such order and furnishes a copy of such application to the party in whose Page 10 of 26 Statement of facts Kalyana is a State in the Union of India. It is always referred to as a backward State as it was hit by famine due to its huge patches of fallow and barren lands, hills and irregular rain. The State Government of Kalyana a coalition of three national parties to improve the living conditions of its people adopted a major policy decision which attracted huge investment in myriad sectors by offering lands at subsidised price, free water, exemption from taxes and electricity and mining operations and industrial activities started on a massive scale generating much employment opportunities. An exodus of people from other states of India who came to Kalyana and occupied these jobs and the locals were employed majorly only in clerical, non-skilled and menial jobs leading to scuffles between the locals and outsiders locals organised themselves and formed the Kalyana Peoples Welfare Organisation which was a federation of 30 associations from 30 districts in the State in order bring pressure on the State Government to adopt a policy for protection of the interests of the local populace. Kalyana State Equal Opportunity of Employment in Private Sector Act, 2021. The important features of the Kalyana State Equal Opportunity of Employment in Private Sector Act, 2021 are as follows: 1. The preamble of the Act provides that it is an Act to secure the interests of the local people and also to promote the interest of investors by providing for equal opportunities in employment in private sector and to insulate the private sector from political interference. 2. The Act is applicable to private sector companies, societies, trusts, limited liability partnerships, etc which employ more than 20 persons and who have taken any benefit from the State in the form of land at subsidised price, free electricity, free water, exemption from taxes, etc. Page 11 of 26 3. It provides that 50% of the skilled and 80% of the unskilled jobs be reserved for the locals. 4. Persons who have lived in Kalyana for a period of 15 years prior to the date of employment are defined to be local candidates. 5. Skilled jobs are defined to be those jobs that require the applicants to be technically qualified. Further the State Government is authorised to notify a list of skilled jobs to which the Act applies. 6. The provisions of the State laws relating to reservation in public employment shall equally apply to private sector companies, societies, trusts and limited liability partnerships, etc. 7. The private sector has to comply with the requirements of the Act by 2025. 8. In case of failure to comply with the provisions of the Act, the private sector concern has to return the benefit it has received from the government. The State Government through the Kalyana State Equal Opportunity of Employment in Private Sector Rules, 2021 provided that the employees cannot join political parties including students wings of the political parties. Page 12 of 26 Summary of Arguments Issue 1: Whether the private sector concerns are “state” for the purpose of part III of the constitution It is humbly presented that Private sector do comes under Art. 12 of the Indian Constitution as the “State” conferred by the Part III of the Indian Constitution. It is very well presented in the Art. what should be included in the same. Private sector and any concerned body under private sector do come under the definition of the “State” given in the Part III of the Constitution. Issue 2: Whether the Act that is enacted by the state government of Kalyana violates fundamental right to carry on any business It is submitted that the Act that is enacted by the state government of Kalyana do not violates fundamental right to carry on any business. The Constitution of India guarantee every citizen right to practice any profession, or to carry on any occupation, trade or business provided by Art 19 (1)(g). Issue 3: Whether the government is estopped from superimposing the Act on the Private sector after attracting them to invest in the state with concessions. It is most humbly submitted that the government is not estopped from superimposing the Act on the Private sector after attracting them to invest in the state with concessions. Issue 4: Whether the rule prohibiting the employees from joining political parties including wings is ultravires It is submitted that the rule prohibiting the employees from joining political parties including wings is not ultravires. In the Kalyana State Opportunity of Employment in Page 15 of 26 the regard to the private sector including industries that settled in the State of Kalyana, government of the State invited those investors with the intention to develop and uplift people of that state. As the State was a backward State there were no other course of action with regards to development that could be taken by the government. ➢ Functionality of government Referring to the facts, the State of Kalyana is mentioned as a ‘backward’ state. The condition of the people is deteriorated with absolutely no immediate solution. That’s when the State government of Kalyana adopted the policy decisions encouraging many Private sector to invest in a vast amount. Accordingly, the main objective or the function of Government was to improve the condition of the people in the State of Kalyana. It is the Private sector who is providing the employment opportunities to the people in the State of Kalyana. It acting as an instrumentality of State here. With reference to Rajasthan Electricity Board case bodies that are created for the purpose to promote people who are economically incapacitated are included in state. As stated in the facts, Kalyana State was a backward State and to uplift the living conditions of State population government enacted policy concerning private sector in order to attract huge investments. These investments in return would facilitate more job opportunities and further accelerate the development in the State of Kalyana. It was the governmental function of the State to raise the living standard of the people of Kalyana. Here, private sector is discharging the governmental duty of the State by being an agent. They are providing employment opportunities to the people leading to amelioration of them. As clearly observed in Som Prakash v. Union of India2, 2 Som Prakash Rekhi v. Union of India 1981 AIR 212 Page 16 of 26 “The Court held that the expression other authorities comprise of all statutory authorities on whom powers are conferred for carrying commercial activities. It was also held that the expression other authorities are not confined to statutory corporation also include a government company, a registered society or bodies which have some nexus and interrelation with the government.” Supreme court in Ajay Hasia case3 noted down that “It is immaterial for this purpose whether the corporation is created by a statute or under a statute. The test is whether it is an instrumentality or agency of the Government and not as to how it is created. The inquiry has to be not as to how the juristic person is born but why it has been brought into existence. The corporation may be a statutory corporation created by a statute or it may be a Government Company or a company formed under the Companies Act, 1956 or it may be a society registered under the Societies Registration Act, 1860 or any other similar statute. Whatever be its genetical origin, it would be an 'authority' within the meaning of Article 12 if it is an instrumentality or agency of the Government and that would have to be decided on a proper assessment of the facts in the light of the relevant factors. The concept of instrumentality or agency of the Government is not limited to a corporation created by a statute but is equally applicable to a company or society and in a given case it would have to be decided, on a consideration of the relevant factors, whether the company or society is an instrumentality or agency of the Government so as to come within the meaning of the expression 'authority' in Article 12.” To interpret the ratio given in the case, it should be noted that instrumentality of the State is not only applicable to the public sector or corporations having control of 3 Ajay Hasia Etc. V. Khalid Mujab Sehravardi & Ors. Etc. 1981 AIR 487 Page 17 of 26 the government but it can be extended to private sector as well if the reason for the incorporation is equivalent to any of those of the government. The Private sectors initiated in the State of Kalyana were set-up with motive of raising the living condition of people. Locals over there were deprived of any development as to the deteriorated condition of the state. The situation advanced to an extreme point of starvation death. This aggregate of worst scenarios compelled the government to give effect to the policy alluring private sector to invest in the state. There is an essence of governmental functions as it is a step towards public welfare. Thus, Private sector concern is ‘state’ for the purpose of Part III of the Constitution. Page 20 of 26 in the opinion of the state, is not adequately represented in the services under the state. It is given in the Art. 15(6)(a), that 19(1)(g) can be restricted when it is the matter of socially and economically weaker section. The people in the State of Kalyana were socially and economically weaker. As per the facts, the condition of the people was deteriorated that extreme conditions like starvation prevailed. Thus, the Art. 19(1)(g) cannot be infringed when it comes to socially and economically backward people. Stated in the Art. 16(4), that the State can make any provisions in favour of backward classes who are not represented. People residing in the Kalyana were not adequately represented, leading the State to enact the act of reservation. Thus, Act do not violate the right of the Private sector to carry on business. Page 21 of 26 3. Whether the government is estopped from superimposing the Act on the Priv ate sector after attracting them to invest in the state with concessions. It was for the protection of the people of Kalyana the government framed the policies in the year 2018 encouraging several Private sectors to invest in the state. There was no other way possible as it was not a agrarian State where development could be achieved. ➢ No promise by the government The promise done by the government should be abide by the law. The decisions that were taken by adopting policies in the year 2018, indicates there was no estoppel as it was voluntary investment by the private sector. It was specifically said that the said policy was solely for benefit of the weaker section of the state. ➢ Public welfare to be given preference In the case of State of Rajasthan & Anr vs M/S. Mahaveer Oil Industries & Ors5 it was observed that, “When new industries are set up on the basis of incentives scheme framed by the government, and by relying on the promise of benefits held out by it, public interest requires that the State be held bound by the promise held out by it in such a situation. But this does not preclude the State from withdrawing the benefit prospectively, even during the period of the scheme, if public interest so requires. Even in a case where a party has acted on the promise, if there is any supervening public interest which requires that the benefit be withdrawn or the scheme be modified, that supervening public interest would prevail over any promissory estopped.” As given in the facts, the local candidates did not get the benefit of the policy decisions that were taken by the State government of Kalyana. It was the outsiders 5 State of Rajasthan v. M/S Mahaveer Oil Industries (1999) 4 SCC 357 Page 22 of 26 who got major proportion of jobs in the private sector, set up in the State of Kalyana. The main aim of the State government while adopting the policy was to enhance the living conditions of people residing in the State. The migration of outsiders from other State would lead to more coercion and occupation of vast number of jobs disturbing the public interest which was the aim of the State government unless, the locals get skilled jobs, their condition will not enhance and the government has the responsibility as mentioned in Part IV of the Constitution to take every possible step in the interest of public. The Directive Principles of State Policy are the ideals that are directive in nature and are kept in the mind of the government while enacting laws and acts. Here, the government of Kalyana enacted the Kalyana State Equal Opportunity of Employment in Private Sector Act on the basis of those Directive Principles. Art. 38(1) of the Indian Constitution reads, “The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.” Art. 39(c) reads that, “The State shall, in particular, direct its policy towards securing, that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment.” The Directive Principles clearly states that the State shall deem to promote benefit of the people therefore the State government of Kalyana enacted the act which does the same. The act was a step towards the development and welfare of the people. There should not be any social disparity and to assure that it is implemented State tends to make laws and acts. Page 25 of 26 The said policies in 2018 were implemented in order to employee local people but migration of outsider led to disturbance of public order. If the employees are continued allowed to join the political party it would distress the public order. In Haji Mohd. V. District Board Malda7, it was held that a restriction requiring a teacher to take prior permission to engage in political activities is a reasonable restriction. It aimed at preventing teachers from getting mixed up at political institutions. For, a teacher is not merely a citizen but he has to be under certain terms and discipline of employment. In Ramakrishna v. President, District Board8, Nellore, government requiring municipal teachers not to join unions other than those officially approved was held to impose prior restraint on the right. To form association and union, which was in the nature of administrative censorship, and hence invalid. It the above cases the employee is restricted to join any political parties and court has said it is a valid restriction. Thus, the rule prohibiting employees to join political parties that included the students wing is not ultravires to the act and Constitution. 7 Hazi Mohammad v. District School Board Malda AIR 1958 Cal 401 8 Ramakrishna v. the president, district board AIR 1952 Mad 253 Page 26 of 26 PRAYER In the light of the issues raised, arguments advanced and authorities cited, may this Hon’ble be please to: DISMISS THE PETITIONS FILED BY THE PETITIONERS WITH EXEMPLARY COST. And/or Pass any other order that it deems fir in the internet of justice, equity, and good conscience. For this act of Kindness, the respondent shall be duty-bound forever to pray. Sd/- (Counsels for the Petitioner)