1

MOOT PROBLEM
Mr. Asif had been working in the Life Insurance Corporation of India as a Development Officer since the
last 20 years. On 21st May, 2018 a complaint was filed against him by a policy holder alleging corrupt
practices by Asif. On the basis of the complaint an Inquiry Committee was constituted on 23rd May, 2018
to inquire into the allegations against Mr. Asif. On 23 rd June, 2018, the Committee furnishes the inquiry
report holding Mr. Asif guilty of corrupt practices. However, it is noteworthy, that Mr.Asif was not
allowed to appear before the Committee though his written statement denying the allegations was
accepted by the Committee. During the course of its investigations, the Committee found that one Ms.
Iram working as a clerk in LIC was complicit with Mr. Asif in his corrupt activities. As such the Committee
recommended their termination from the services. On receipt of the inquiry report, the Chairman of LIC
on 24th June, 2018 issues the termination order of Mr. Asif whereas Ms. Iram is penalized by
withholding her increments. The leniency in favor of Ms. Iram is justified by LIC relying on regulation 42
of LIC Rules, 2000 which stipulates ‘that female employees should be dealt leniently in disciplinary
proceedings/matters’. Mr. Asif aggrieved because of the termination order files a writ petition before
the High Court of Delhi under Article 226 of the Constitution challenging violation of his fundamental
rights. In his petition, he alleges firstly, that the termination order is arbitrary because he has not been
afforded a reasonable opportunity of being heard. Secondly, he argues that the classification made by
regulation 42 between male and female employees is an unreasonable classification. The High Court
rejects the petition on the preliminary finding that LIC is not a ‘state’ within the meaning of Article 12.
Mr. Asif be aggrieved by the decision files a writ in the Supreme Court under Article 32 of the
constitution canvassing the following grounds:

1. That the judgment passed by the High Court has violated my fundamental right under Article 14.
2. That LIC is a ‘state’ within the meaning of Article 12 of the Constitution.
3. That the termination order passed by LIC is unconstitutional since he has not been given an
opportunity of being heard.
4. That the regulation 42 of the LIC Rules, 2000 is unconstitutional since it makes an unreasonable
classification.

On appraising the petition, the Chief Justice refers the matter to an eleven member Constitution bench
keeping in view the fact that it discloses issues of substantial constitutional importance. The Constitution
bench frames the following issues:

1. Whether a judicial order itself can be challenged on the grounds that it is violative of Part 3 rd rights?

2. Whether LIC is a ‘state’ within the meaning of Article 12 of the Constitution?

3. Whether the termination order can be challenged on the grounds of violation of principles of natural
justice?

4. Whether the regulation 42 of the LIC Rules, 2000 is unconstitutional on the touchstone of doctrine of
reasonable classification?
 2

Table of contents

 TITLE OF THE CASE………………………………………………………………………………….. 3

 INDEX OF AUTHORITIES……………………………………………………………………………4
 LIST OF ABBRIVATIONS…………………………………………………………………………….6
 STATEMENT OF JURISDICITION…………………………………………………………………7
 STATEMENT OF FACTS…………… ………………………………………………………….…….8
 STATEMANT OF ISSUES…………………………………………………………………….………9
 SUMMARY OF ARGUMNETS……………………………………………………………..…….10
 ARGUMENTS ADVANCED……………………………………………………………….………11

I. whether a judicial order itself can be challenged on the

ground that it is voilative of part III i.e. fundamental rights of
Indian constitution?
That any order passed by the state, if it is in contravention of part III i.e.
fundamental rights can be declared void under Article 13 of Indian constitution.

 PRAYER………………………………………………………………………………………………….15
 3

BEFORE THE HON’BLE SUPREME COURT OF INDIA AT NEW DELHI

WRIT PETITION NO: 45 OF 2022

DATE:9-06-2022

IN THE MATTER OF:

ASIF

--------------------------------PETITIONER

V.

UNION OF INDIA

------------------------------RESPONDENT

Most Respectfully Submitted On Behalf of Petitioner

Tabish Ferooz Haroon

Roll. No: 01

B.A.LL.B: 7th Semester

Batch: 2018-2022

Kashmir Law College

 4

INDEX OF AUTHORITIES

A. STATUTES

1. Constitution of India, 1950

B. INTERNATIONAL CASES

1. Minneapolis R. Co. V. Beckwith, 29 US 26 (1889, Supreme Court of the United States).

2. Ex Parte Virginia, 100 US 339 (1880, Supreme Court of the United States).

3. Murbarry v. Madison 5 U.S. 137 (1803).

C. INDIAN CASES

1. Prem Chand Garg V. Excise Commisioner, H.P., AIR 1963 SC 996…………………………………………

2. A. R. Antulay v. R S Nayak AIR 1988 SC 1531………………………………………………………………………..

3. Common Cause V. Union of India (2015) 7 SCC……………………………………………………………………

4. Naresh Shridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1………………………………………

5. Renu V. District and sessions Judge, Tis Hazari, AIR 2014 SC 2175………………………………………

6. Budhan v. State of Bihar, AIR 191……………………………………………………………………………………….

7. Srikant V. Vasant rao, AIR 2006 SC 918………………………………………………………………………………

8. Keshvananda Bharti V. Union of India (1973) 4 SCC 225…………………………………………………….

D. Books

1. J.N.Pandey, Constitutional Law of India 75,76 (Central Law Publication, Allahabad, 56 th edition, 2019).

2. P.M.Bakshi, The Constitution of India 16 (Universal Law Publishing, Gurgaon, 13 th edition, 2015).

3. M.P.Jain, Constitutional Law of India 885 (Lexis Nexis, Gurgaon, 8th edition, 2019).

4. V.N.Shukla and Mahendra Pal Singh, Constitution of India 20 (Eastern Book Company, Lucknow,5 th
edition, 2010).

5. DD Basu, Commentary on the Constitution of India 145 (Lexis Nexis, Gurgaon, 5th edition, 2018).

6. H.M.Seervai, Constitutional Law of India 155 (Law and Justice, Delhi, 3rd edition, 2016).
 5

7. Samaraditya Pal, INDIA’S CONSTITUTION ORIGINS AND EVOLUTION, 415 (Lexis Nexis,
Gurgaon,1st edition, 2014).

E. INTERNET SITES

1. http://www.indiankanoon.com

2. https://blog.ipleaders.in
 6

LIST OF ABBREVATIONS

Art Article

AIR All India Record

Const. Constitution

FR’s Fundamental Rights

i.e. That is

SC Supreme Court

SCC Supreme court cases

 7

STATEMENT OF JURISDICTION

ASIF HAS APPROACHED THE HON’BLE SUPREME COURT OF INDIA HAVING JURISDICTION UNDER ARTICLE
32 OF CONSTITUTUION OF INDIA. ARTICLE 32 OF THE CONSTITUTION OF INDIA READS AS HEREUNDER:

ARTICLE 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

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the
powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution.

ARTICLE 136: Special leave to appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special
leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter
passed or made by any court or tribunal in the territory of India

(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed or made
by any court or tribunal constituted by or under any law relating to the Armed Forces.
 8

STATEMENT OF FACTS
1. Mr. Asif had been working in the life Insurance Corporation of India as a development officer since the
last 20 years.

2. on 21st may, 2018 a complaint was filed against him by a policy holder alleging corrupt practices by
Mr. Asif.

3. on the basis of the complaint an enquiry committee was constituted on 23 rd may, 2018 to enquire into
the allegations against Asif.

4. on 23rd june 2018 the committee furnishes the enquiry report holding Asif guilty of corrupt practices.
However it is noteworthy, that Asif was not allowed to appear before the committee though his written
statement denying the allegations was accepted by the committee.

5. During the course of its investigations, the Committee found that one Ms. Iram working as a clerk in
LIC was complicit with Mr. Asif in his corrupt activities. As such the Committee recommended their
termination from the services. On receipt of the inquiry report, the Chairman of LIC on 24 th June, 2018
issues the termination order of Mr. Asif whereas Ms. Iram is penalized by withholding her increments.

6. The leniency in favor of Ms. Iram is justified by LIC relying on regulation 42 of LIC Rules, 2000 which
stipulates ‘that female employees should be dealt leniently in disciplinary proceedings/matters’.

7. Mr. Asif aggrieved because of the termination order files a writ petition before the High Court of Delhi
under Article 226 of the Constitution challenging violation of his fundamental rights. In his petition, he
alleges firstly, that the termination order is arbitrary because he has not been afforded a reasonable
opportunity of being heard. Secondly, he argues that the classification made by regulation 42 between
male and female employees is an unreasonable classification.

8. The High Court rejects the petition on the preliminary finding that LIC is not a ‘state’ within the
meaning of Article 12. Mr. Asif be aggrieved by the decision files a writ in the Supreme Court under
Article 32 of the constitution canvassing the following grounds:

1. That the judgment passed by the High Court has violated my fundamental right under Article 14.
2. That LIC is a ‘state’ within the meaning of Article 12 of the Constitution.
3. That the termination order passed by LIC is unconstitutional since he has not been given an
opportunity of being heard.
4. That the regulation 42 of the LIC Rules, 2000 is unconstitutional since it makes an unreasonable
classification.
 9

STATEMENT OF ISSUES

THE PETITIONER RESPECTFULLY ASKS THE HON’BLE SUPREME COURT OF INDIA QUESTION RELATING:

1. WHETHER THE JUDICIAL ORDER ITSELF CAN BE CHALLENGED ON THE GROUNDS THAT IT IS
VOILATIVE OF PART III i.e. FUNDAMENTAL RIGHTS OF THE INDIAN CONSTITUTION?
 10

SUMMARY OF ARGUMENTS

CHALLENGING A JUDICIAL ORDER PASSED BY THE HIGH COURT OF DELHI

ARTICLE 12: Definition In this part, unless the context otherwise requires, the State includes the
Government and Parliament of India and the Government and the Legislature of each of the States and
all local or other authorities within the territory of India or under the control of the Government of
India.

ARTICLE 13: Laws inconsistent with or in derogation of the fundamental rights

(1) All laws in force in the territory of India immediately before the commencement of this Constitution,
in so far as they are inconsistent with the provisions of this Part, shall, to the extent of such
inconsistency, be void

(2) The State shall not make any law which takes away or abridges the rights conferred by this Part and
any law made in contravention of this clause shall, to the extent of the contravention, be void

(3) In this article, unless the context otherwise requires law includes any Ordinance, order, bye law, rule,
regulation, notification, custom or usages having in the territory of India the force of law; laws in force
includes laws passed or made by Legislature or other competent authority in the territory of India
before the commencement of this Constitution and not previously repealed, notwithstanding that any
such law or any part thereof may not be then in operation either at all or in particular areas

(4) Nothing in this article shall apply to any amendment of this Constitution made under Article 368
Right of Equality

It is humbly submitted that any order passed by state shall be

declared as void under Art 13 if it is inconsistent with Fundamental
Rights guaranteed under Part III of Indian Constitution.
 11

ARGUMENTS ADVANCED

WHETHER A JUDICIAL ORDER ITSLEF CAN BE CHALLENGED ON THE GROUNDS THAT IT IS VIOLATIVE OF
PART III OF THE INDIAN CONSTITUTUTION?

The present petition is maintainable under Art 32 of the constitution since the judiciary falls within
the ambit of state.

1. It is most humbly submitted that any order passed by the judiciary can be challenged under
Art 13 on the ground of being violative of FR’s as judiciary comes within the ambit of the state
under Art 12 of Indian Const. In the case of Prem Chand Garg V. Excise commissioner1, it was
held that judiciary while exercising its rule making power should be included within the
definition of state under Art 12 of Indian Const. and further it was said that where the Supreme
Court has exercised its powers in contravention to the fundamental rights of the citizens, the
remedy under Article 32 can be sought. Here the court also emphasized that the word ‘State’
must include ‘courts’ else it will enable the courts to make laws in contravention of
fundamental rights. The judiciary, it is said, though not expressly mentioned in Art 12 it should
be included within the expression ‘other authorities’ since courts are set up by statute and
exercise powers conferred by law2. In Common Cause v. Union of India3, The Hon’ble SC held
that Legislature, Executive and Judiciary are integral part of the state within the meaning of Art
12 of the constitution.
2. While defining the scope of this Article, Dr. Ambedkar said the fundamental rights would be
binding on every authority and by the word ‘authority’ he meant every authority that has the
power to make laws or the power to have discretion vested in it4. In the case of Naresh
Shridhar Mirajkar v. State of Maharashtra5, Justice Hidayatullah in its dissenting opinion
opined that the Judiciary should be put under the ambit of Article 12, stating that the word
‘State’ must include the ‘courts’ because otherwise the courts would be allowed to make rules
which violate the fundamental rights of the citizens.
3. It is submitted that judiciary being the guardian of the Constitution shall not pass any order
which would be in contravention of FR’s. The Supreme Court through its seven Judge Bench
also held in the leading case of A.R. Antulay v. R S nayak6, that the court cannot pass an order
1
AIR 1963 SC 996
2
V.N.Shukla and Mahendra Pal Singh, Constitution of India 20 (Eastern Book Company, Lucknow,5th edition, 2010).
3
2015 7 SCC
4
Samaraditya Pal, INDIA’S CONSTITUTION ORIGINS AND EVOLUTION, 415 (1st ed., 2014).
5
1967 AIR, 1 1966 SCR (3) 744
6
1988 AIR 1531
 12

or issue a direction which would be violative of FR’s of citizens. Further, the Action of any of the
bodies comprised within the term state as defined in Art 12 can be challenged before the courts
under Art 13(2) which states The State shall not make any law which takes away or abridges the
rights conferred by this Part and any law made in contravention of this clause shall, to the
extent of the contravention, be void. Though the Supreme Court in the case of Budhan v. State
of Bihar7 has regarded the action of the Judiciary as a state action under Article 12 in the case
of violation of Article 14.
4. It is also stated in Art 13 that any law passed by the state which is inconsistent with the FR’s
shall be declared void. It was held in case of Renu v. District and Sessions judge Tis Hazari that
the main objective of Art 13 is to secure the paramountcy of the constitution especially with
regard to FR’s. The eminent jurist Mr. H.M.Seervai in his book “Constitutional law of India” has
opined that the judiciary should be included in the definition of “the State” 8. Moreover another
jurist DD Basu in his book “Commentary on the Constitution of India” has stated that the courts
like any other organ of the state are limited by the mandatory provisions of the Constitution
and they cannot be allowed to override fundamental rights9.
5. The definition of state is not confined to a Govt. department and the legislature, but extends
any action- administrative (whether statutory or non- statutory), judicial or quasi-judicial,
which can be brought within the fold of State action being action which violates a FR. In the
case of Srikant v. Vasantrao, it was held that the Government refers to the three wings of
governance of the state i.e. executive, legislature and judiciary10.
6. In US, the concept of ‘State action’ evolved due to the mention of the word ‘State’ in Section
1 of the 14th Amendment to the US Constitution as follows:
“No State shall make or enforce any law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive any person of life, liberty, or property,
without due process of law; nor deny to any person within its jurisdiction the equal protection
of the laws”11. The above concept has been enlarged to curb any kind of arbitrary exercise of
power by the State. In the case of Minneapolis R. Co. v. Beckwith12, it has been held that
prohibition under 14th amendment extends to any state action, legislative, executive, or
judicial, and against any agency exercising any of the powers. This was further approved by the
court in the Ex Parte Virginia13, where the court observed: “A State acts by its legislative, its
executive, or its judicial authorities. It can act in no other way. The constitutional provision,
therefore, must mean that no agency of the State, or of the officers or agents by whom its

7
1955 AIR 191 (1)1045
8
H.M.Seervai, Constitutional Law of India pg.155 (Law and Justice, Delhi, 3rd edition, 2016).
9
DD Basu, Commentary on the Constitution of India pg. 145 (Lexis Nexis, Gurgaon, 5th edition, 2018).
10
Prof. SR Bhansali, The Constitution of India pg.53 (Universal Law Publishing, Gurgaon, 1st edition, 2015).
11
U.S. Constitutional, Amendment XIV, S. 1.
12
Minneapolis R. Co. v. Beckwith, 129 US 26 (1889, Supreme Court of the United States).
13
Ex Parte Virginia, 100 US 339 (1880, Supreme Court of the United States).
 13

powers are exerted, shall deny to any person within its jurisdiction the equal protection of the
laws. Whoever, by virtue of public position under a State government, deprives another of
property, life, or liberty, without due process of law, or denies or takes away the equal
protection of the laws, violates the constitutional inhibition; and as he acts in the name and for
the State and is clothed with the State’s power, his act is that of the State. The concept was
evolved to give protection to the citizens against all forms of arbitrary actions by the
governmental authorities. This has been clarified by the US Supreme Court in Virginia v. Rives14,
where it observed that a judicial decision is included within the scope of state action for the
purpose of 14th Amendment to the Constitution. Hence, the Constitution of the US has the
provision to decide the liability of the Judiciary in case of violation of fundamental rights.
7. It is further submitted that if absolute powers are given to judiciary without keeping a check,
there might be abuse of powers. A judge while acting judicially should be impartial but in
certain cases the judge may not be impartial. The judge might be biased so if the orders of the
courts are not reviewed then there might be arbitrary rulings and judgements passed by the
courts.
The doctrine of judicial review was first introduced in the case named Marbury vs Maddison15
held that the Constitution is a supreme paramount law any legislative act which is repugnant
would be held void. Judicial review plays an important role in maintaining the supremacy of the
Constitution. It also helps us in maintaining the balance between the three organs of the
Constitution so that no law can be passed through without any check. All the laws, order, bye-
laws, ordinance and constitutional amendments and all other notifications are subject to
judicial review which are included in Article 13(3) of the constitution of India.In the case of
Keshvanada Bharati vs Union of India16 the Court held that as long as Fundamental Rights exist
the power of judicial review by the Court needs to be exercised so that those rights are not
abridged.
8. The Supreme Court of India has a power to review the orders to examine the actions of the
legislative, executive, and administrative arms of the government and to determine whether
such actions are consistent with the constitution. The supreme court also has Appellate
jurisdiction which means that the Court has the authority to review the decisions of lower
courts. The Supreme Court has a power to grant leave to appeal against all types of orders
passed by the various High Courts of India including the cases relating to criminal Appeals,
Criminal Revision Petitions etc.

Article 132 in The Constitution Of India 1949

132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases
14

15
5 U.S. 137 (1803)
16
(1973) 4 SCC 225
 14

( 1 ) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a High
Court in the territory of India, whether in a civil, criminal or other proceeding, if the High Court
certifies under Article 134A that the case involves a substantial question of law as to the
interpretation of this Constitution
The appellate jurisdiction of the Supreme Court can be invoked by a certificate granted by the
High Court concerned under Article 132(1) of the Constitution in respect of any judgement,
decree or final order of a High Court in both civil and criminal cases, involving substantial
questions of law as to the interpretation of the Constitution.
9.The Judiciary is not explicitly mentioned in Article 12 as a State. However, Judiciary having the
rulemaking powers can be included in the definition of the State. The above conclusion is
supported by Article 13 of the Constitution which lays down that any laws (includes rules,
regulations, etc.) in derogation of the fundamental rights is void17.
10.The National Commission to Review the Working of the Constitution (NCRWC) has
recommended that an Explanation should be added to the Article 12 wherein the word ‘other
authorities’ would mean the authorities whose functions relate to that of a public nature 18.
Since the courts were established to decide and interpret the law, which is related to the public
sphere, therefore Judiciary would fall under the definition of ‘State’ under Article 12. Also, in
Section 6(3) (b) of the UK Human Rights Act, 1998, the definition of public authority includes
any person whose functions are of a public nature19. Therefore, Judiciary can be added to the
definition of ‘State’ under Article 12 and the above provisions are supporting to bring the
reforms in this area.
Judiciary in India already exercises immense powers but it should not use its powers to shield
itself from the thrust of the Constitution. Now, the duty lies on the Supreme Court to include
the Judiciary as a State following the NCRWC recommendations and stop the criticism it is
facing due to its abeyance.

17
Art 13 of Indian Constitution
18
Ministry of Law & Justice, Government of India, NCRWC Report 2002, available at
http://legalaffairs.gov.in/sites/default/files/chapter%203.pdf, last seen on 26/9/2019.
19
S. 6(3) (b), U.K. Human Rights Act 1998 (United Kingdom).
 15

Prayer

In the light of the issues raised, arguments advanced and authorities cited, may
this Hon’ble court be pleased to:

TO HOLD

1. The judicial order passed by Delhi High Court, Void.

And/or

Pass any order that it deems fit in the interest of justice, equity and good
conscience. And for this, the petitioner is duty bound, shall humbly pray.

Counsel for the Petitioner