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i.e. That is
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INDEX OF AUTHORITIES
CASES
A.K. Gopalan v. State of Madras, 1950 SCC 228 : AIR 1950 2
SC 27
A.S. Krishna v. State of Madras, AIR 1957 SC 297 2
Andhra Bank v. B. Satyanarayana, (2004) 2 SCC 657 10
Ashok Kumar v. Union of India, (1991) 3 SCC 498 6
Berubari Union (I), Re, (1960) 3 SCR 250 4
CIT v. Hindustan Bulk Carriers, (2002) 7 SCC 705 : AIR 2002 12
SC 3491
Collector of Customs v. Digvijaysinhji Spg. & Wvg. Mills Ltd., 11
AIR 1961 SC 1549
Dwarkadas Shrinivas of Bombay v. Sholapur Spg. & Wvg. Co. 6
Ltd., AIR 1954 SC 119
E.M.S. Nambudiripad v. T.N. Nambiar, (1970) 2 SCC 325 : 8
AIR 1970 SC 2015
G. Narayanaswami v. G. Panneerselvam, (1972) 3 SCC 717 : 11
AIR 1972 SC 2284
Ganga Ram Moolchandani v. State of Rajasthan, (2001) 6 17
SCC 89
I.R. Coelho v. State of T.N., (2007) 2 SCC 1 9
Indian Handicrafts Emporium v. Union of India, (2003) 7 SCC 10
589
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1 : AIR 5, 7
1975 SC 2299
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https://indialawjournal.org/analysing-the-working-of-gst-
council.php
Varun Kannan, Coronavirus and the Constitution − XXXV : 13
Examining the GST Compensation Crisis, Indian
Constitutional Law and Philosophy (Sep. 8, 2020),
https://indconlawphil.wordpress.com/tag/gst/
Vibhor Mohan, Punjab CM moves Resolution against Centre's 19
farm laws, Times Of India (Aug. 29, 2020),
https://m.timesofindia.com/city/chandigarh/punjab-house-
resolution-rejects-farm
ordinances/amp_articleshow/77815564.cms
STATEMENT OF JURISDICTION
The Hon'ble Court has Jurisdiction to hear the instant matter under
Art. 131 and 32 of the Constitution of Meluha, 1950.
Art. 131 of the Constitution of Meluha reads as:
Original jurisdiction of the Supreme Court.— Subject to the
provisions of this Constitution, the Supreme Court shall, to the
exclusion of any other court, have original jurisdiction in any dispute—
(a) between the Government of India and one or more States; or
(b) between the Government of India and any State or States on one
side and one or more othe States on the other; or
(c) between two or more States,
If and in so far as the dispute involves any question (whether of law
or fact) on which the existence or extent of a legal right depends.
Art. 32 of the Constitution of Meluha reads as:
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 clauses (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.
STATEMENT OF FACTS
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5. Under both the options the principal borrower are the State
Governments. They felt Union was reneging on its federal obligations.
Many states, mostly of Central opposition, brought the matter before
the GST Council but it was overruled. The states began to realize that
the structure of the GST council may not be reflective of the principles
of cooperative federalism. The state of Chalukya approached the
Supreme Court challenging the constitutional validity of article 279A of
the 101st Constitutional Amendment and sought the Supreme Court to
order the Union to borrow the GST deficit. It also requested the court to
declare the recommendations of GST Council to be binding on the
Union.
6. Meanwhile in the Legislative Assembly of Chalukya, the Governor
in her speech mentions that the Union has breached the tenet of
Federalism and the state may consider leaving the framework of GST. It
also passed 2 resolutions in the House rejecting the two options and
resolved that the Union should borrow to compensate the states. A suit
was filed by Dr. Siobhan Roy against the State of Chalukya challenging
the insertion of the two paragraphs in the Governor's speech and the
Resolution passed.
7. The Supreme Court felt that the nation was heading towards a
Constitutional break down. Hence it decided to club all petitions. Hence
the Petition.
ISSUES RAISED
-I-
WHETHER THE ORDERS DATED 15.05.2020 AND 19.07.2020 ARE
CONSTITUTIONALLY I NVALID?
-II-
WHETHER THE ARTICLE 279 A OF THE 101ST CONSTITUTIONAL AMENDMENT I S
I N VIOLATION TO
THE BASIC STRUCTURE OF THE CONSTITUTION?
-III-
WHETHER THE RECOMMENDATIONS OF THE GST COUNCIL ARE BINDING ON THE
CENTRAL
GOVERNMENT?
-IV-
WHETHER THE DECISIONS OF THE UNION GOVERNMENT REQUIRING STATES TO
BORROW UNDER
I TS OWN NAME BE QUASHED AND THE COURT SHOULD DIRECT THE CENTRE TO
BE THE
PRINCIPAL BORROWER OF GST COMPENSATION?
-V-
WHETHER THE I NSERTION OF TWO PARAGRAPHS I N THE GOVERNOR SPEECH &
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ARGUMENTS ADVANCED
I. THAT THE ORDERS DATED 15.05.2020 AND 19.07.2020 ARE
CONSTITUTIONALLY INVALID.
1. Federalism as envisaged in the Constitution of India is a basic
feature.1 The distribution of legislative powers between the centre and
the states is the most important characteristic, rather the core, of any
federal system.2 The idea behind the cooperative federalism is
negotiation and coordination so as to iron out the differences which
may arise between the Union and the State Government in their
respective pursuit of development.3
2. The relationship between the Union of Meluha and the State of
Chalukya is based on the principles of Cooperative Federalism and
Economic Cooperation between the Centre and the State.4 The States
are autonomous units with residuary powers.5 It is humbly submitted
that the orders dated 15.05.2020 and 19.07.2020 violate the principles
of Cooperative Federalism as Slovid-19 is a matter of Public Health,
which is in the State List [1.1], and the conditions under which the
Union can legislate in the matters of State List were not fulfilled [1.2],
and the Central Government is not empowered to restrict intra-state
movements using Entry 29 of List III[1.3].
1.1. THE SLOVID-19 IS A MATTER OF PUBLIC HEALTH UNDER THE STATE
LIST.
3. The Legislature of any State has exclusive power to make laws for
such State or any part thereof with respect to any of the matters
enumerated in List II in the Seventh Schedule.6 Public Health,
Sanitation, Hospitals and Dispensaries are Subjects in the State List.7
The Entry in the State List must be given a broad and plentiful
interpretation and should not be interpreted in favour of Centre by
resorting to the residuary power.8 The Constitution must be interpreted
in a manner that does not whittle down the powers of the State
Legislature.9
4. It is humbly submitted that Slovid-19 is an unprecedented health
emergency,10 and falls under the ambit of Entry 6 of the State List. If a
particular matter falls within the exclusive competence of the States,
i.e. List II, that represents the prohibited field for the Centre.11 Any
invasion by one level of government on the area assigned to the other
level of government is a breach of the Constitution.12 Every law of
Parliament must conform to the provisions of the Constitution and if it
does not, it must be unconstitutional and must be so declared by the
courts.13 Therefore, the orders dated 15.05.2020 and 19.07.2020 are
unconstitutional.
1.1.1. PITH AND SUBSTANCE OF THE IMPUGNED ORDERS ARE PUBLIC
HEALTH MANAGEMENT.
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permissive power in the sense of the usual phrase “it shall be lawful”, it
is also capable of being construed as referring to a compellable duty.66
It is well recognised that if a statute leads to absurdity, hardship or
injustice, presumably not intended, a construction may be put upon it
which modifies the meaning of the words, and even the structure of the
sentence.67
3.1.1. THE INTENT OF THE LEGISLATURE IS TO MAKE
RECOMMENDATIONS BINDING AS NO OTHER ALTERNATIVE IS PROVIDED.
38. The object of interpreting a statute is to ascertain the intention
of the legislature enacting it, other methods of extracting the meaning
can be resorted to if the language is contradictory, ambiguous or leads
really to absurd results so as to keep at the real sense and meaning.68
An interpretation of the statutory provision which defeats the intent and
purpose for which the statute was enacted should be avoided.69
39. It is humbly submitted before this Hon'ble Court that the
legislature has not provided any alternative other than accepting the
recommendations of the GST Council, if the legislature has an intention
for doing so it would have provided it in 101st Constitutional
(Amendment) Act, 2016. Therefore, the objective of giving the GST
Council a constitutional status clearly specifies the intent of the
legislature. Hence, the intent of the legislature to make the
recommendations binding should be adhered and any other
interpretation should be avoided.
3.1.2. THE RECOMMENDATIONS SHOULD BE BINDING AS TO GIVE A
MEANING TO THE LEGISLATURE OTHERWISE THE GST STRUCTURE WILL
COLLAPSE.
40. Where alternative constructions are equally open that alternative
is to be chosen which will be consistent with the smooth working of the
system which the statute purports to be regulating; and that
alternative is to be rejected which will introduce uncertainty, friction or
confusion into the working of the system.70 A statutory enactment shall
be so construed as to make the remedy coextensive with the mischief it
is intended to prevent.71
41. It is humbly submitted before this Hon'ble Court that the role of
the GST is to make a unified tax structure which could subsume the
multiple indirect taxes levied by the Centre and the State,72 if the GST
Council can't make binding recommendations, the entire structure of
the GST will collapse, as each State will have a different and possibly
conflicting tax levy and collection mechanism.73 Therefore to give the
proper meaning and to resolve all the ambiguities from the legislature
the recommendations of the GST Council should be binding.
3.2. APPLICATION OF THE DOCTRINE OF HARMONIOUS CONSTRUCTION.
42. The result then is that there are two provisions of equal
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fund but the Centre is trying to hide its failure on economic platform
using this pandemic as it was unable to pay the compensation to the
States earlier also.95 There is no provision related to ‘Act of God’ in the
Constitution. Therefore, the reasoning behind the two options and
differentiation due to pandemic is not in accordance with the
constitution.
V. THAT THE INSERTION OF TWO PARAGRAPHS IN THE GOVERNOR'S
SPEECH, IT'S CONTENT & THE RESOLUTIONS PASSED BY THE
LEGISLATURE OF CHALUKYA ARE CONSTITUTIONALLY VALID.
55. It is humbly submitted before the Honourable Court that the
state of Chalukya exercised its constitutional right with the insertion of
two paragraphs in the speech of the Governor of Chalukya [5.1], the
content of the speech is constitutionally valid [5.2] and the resolution
passed by the Legislature of Chalukya are under the ambit of the
Constitution of Meluha [5.3].
5.1. INSERTION OF THE TWO PARAGRAPHS IS VALID.
56. At the commencement of first session of the Legislative
Assembly's new financial year, the Governor of that state is supposed
to address the Legislative Assembly.96 The Governor is also authorised
to address any Houses, any time and to require the attendance of the
members for the purpose.97 In the present case, the speech by the
Governor is on the first day of business of the state's legislature.98
57. If the Governor comes to the assembly and still is not able to
complete his address due to disturbance within the House, the speech
is laid on the Table of the House and the Governor walks out or if the
Governor reads part of his speech, the House considers the speech as
read.99
5.2. CONTENT OF SPEECH IS CONSTITUTIONALLY VALID.
58. Federalism is a key element of the Constitution of Meluha and is
defined as form of government where power is divided between the
Central Government and the State Governments.100
59. It is humbly presented before the court that content of the
Governor's speech is valid as the Central Government has failed the
basic tenets of Federalism, which was a key foundation for the
integration of the Princely state of Chalukya to the Nation of Meluha.
5.2.1. THE ACT OF THE CENTRAL GOVT IS AGAINST FEDERALISM
60. It is humbly presented before the court that the country of
Meluha follows federal form of governance, which divides policy making
power between the state and the central government. The distribution
of power between the Union and State governments101 is divided into
three lists. The Supreme Court has defined Federalism as a part of the
Basic Structure of the Constitution.102 Taxation comes under the
Concurrent list.103 In the101st Amendment of the Constitution to bring
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and implement Goods and Services Tax, the Government also formed a
body of GST Council.104
61. The GST Council has a voting system which effectively gives final
deciding power to the Central government,105 as they can use their veto
power to implement what the Union government prefers. The GST
Council comprises total of 33 members, 31 State Finance Ministers
(including Delhi & Pondicherry) and 2 representatives from the Central
government i.e. the Finance Minister and the Minister of State for
Finance,106 in the present case, the Union government through GST
Council, has negated the proposal brought by the state of Chalukya.107
62. It is humbly submitted before this Hon'ble Court that when all
the State Finance Ministers support a new tax change only then the
cumulative weighed vote of all States is around 21 votes (two-third
weightage), the States shall in this scenario have a collective veto over
the Centre, the probability of it happening is very rare as many state
governments can be of same Political party as that of the Central
Government.
5.2.2 STATE GOVERNMENT CAN APPROACH SUPREME COURT TO
CHALLENGE CENTRAL LAWS.
63. A state can file a suit in the Supreme Court in case of any
dispute that it may have with the Central government, invoking the
court's “original jurisdiction”.108 In 1997, a Constitutional Bench of the
Supreme Court observed:
64. “When differences arise between the representatives of the State
and those of the whole people of India on questions of interpretation of
the Constitution, which must affect the welfare of the whole people,
and particularly that of the people of the State concerned, it appears to
be, with great respect, to be too technical an argument to be accepted
by us that a suit does not lie in such a case under Article 131 of the
Constitution.”109
65. It is humbly pleaded before the Hon'ble Court that the second
paragraph in the speech of the Governor of Chalukya refereed to the
legal right of a state to approach the Supreme Court as per Article 131
of the Indian Constitution. The state can file a suit deeming the 101st
Constitutional Amendment as unconstitutional. The Supreme Court has
observed that the Basic Structure doctrine is as important as to any
parliamentary legislation.110 Hence the GST act breaks the basic tenet
of Basic Structure doctrine enshrined in the Constitution.
5.2.3. THE STATE CAN SEEK THE PRESIDENT'S ACCENT.
66. When a law made by a state legislature concerning any matter
that falls in the Concurrent List contains any provision repugnant to the
provisions of an earlier law made by Parliament or an existing law, with
respect to that matter. In such a case, the law made by the state
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2
1 M.P. Jain, Indian Constitutional Law, 555 (7th ed., 2014).
4 Moot Proposition, ¶ E.
5
Moot Proposition, ¶ F.
8
International Tourism Corporation v. State of Haryana, (1981) 2 SCC 318 : AIR 1981 SC
774.
10 Moot Proposition, ¶ M.
11
Jain, supra 2, at 560.
13 A.K. Gopalan v. State of Madras, 1950 SCC 228 : AIR 1950 SC 27.
14
Prafulla Kumar Mukherjee v. Bank of Commerce Ltd., AIR 1947 PC 60.
16 Mining and Allied Machinery Corporation Ltd. v. State of West Bengal, 2001 SCC OnLine Cal
676.
17
Jain, supra 2, at 613.
19
Kihota Hollohon v. Zachilhu, 1992 Supp (2) SCC 651 : AIR 1993 SC 412.
20
Jain, supra 2, at 965.
21 Dr. J.N. Pandey, Constitutional Law of India, 719 (57th ed., 2020).
23
Jayant Verma v. Union of India, (2018) 4 SCC 743.
24 Punjab Agricultural University Teachers Association v. State of Punjab, (2006) 3 SLR 615
(DB).
26
Krishna Bhimrao Deshpande v. Land Tribunal Dharwad, (1993) 1 SCC 287.
27 Union of India v. Valluri Basavaiah Chowdhary, (1979) 3 SCC 324, 343, 349.
29
Berubari Union (I), Re, (1960) 3 SCR 250.
30 Sujata Pawar, State responsibility for ensuring health care : Assam leads the way!, PL,
Jan. 2011, at S-2.
32
ITC Ltd. v. Agriculture Produce Market Committee, (2002) 9 SCC 232.
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33 Moot Proposition, ¶ P.
36 UOI v. Raghubhir Singh, (1989) 2 SCC 754 : AIR 1989 SC 1933; Kesavananda Bharati v.
State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461; Indira Nehru Gandhi v. Raj Narain,
1975 Supp SCC 1 : AIR 1975 SC 2299.
37 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461.
38
Jain, supra 2, at 555.
41 Id.
42 Dwarkadas Shrinivas of Bombay v. Sholapur Spg. & Wvg. Co. Ltd., AIR 1954 SC 119.
43 Sri K.C. Gajapati Narayan Deo v. State of Orissa, AIR 1953 SC 375.
45
Raja Jagannath Baksh Singh v. State of U.P., AIR 1962 SC 1563.
47
Prasanna Kumar, For a Mess of Potage : The GST's Promise of Increased Revenue to
States comes at the Cost of the Federal Structure of the Constitution, 28 NLSI Rev. 97, 108
(2016).
48 Kalpana Mehta v. Union of India, (2018) 7 SCC 1; Indira Nehru Gandhi v. Raj Narain, 1975
Supp SCC 1 : AIR 1975 SC 2299.
51 Id.
52
Jindal Stainless Ltd. v. State of Haryana, (2017) 12 SCC 1.
53 Id.
54
State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201.
56 E.M.S. Nambudiripad v. T.N. Nambiar, (1970) 2 SCC 325 : AIR 1970 SC 2015.
62 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461.
63
Yedida Chakradhararao v. State of A.P., (1990) 2 SCC 523.
64 Pratap Singh v. State of Jharkhand, (2005) 3 SCC 551; Tinsukhia Electric Supply Co. Ltd.
v. State of Assam, (1989) 3 SCC 709; Andhra Bank v. B. Satyanarayana, (2004) 2 SCC 657;
Indian Handicrafts Emporium v. Union of India, (2003) 7 SCC 589.
65
T.M.A. Pai Foundation v. State of Karnataka, (2002) 8 SCC 481.
67 State of M.P. v. Azad Bharat Finance Co., AIR 1967 SC 276; Tirath Singh v. Bachittar
Singh, (1955) 2 SCR 457.
68 Kartar Singh v. State of Punjab, (1994) 3 SCC 569; South Asia Industries (P) Ltd. v. S.
Sarup Singh, AIR 1966 SC 346; G. Narayanaswami v. G. Panneerselvam, (1972) 3 SCC 717 :
AIR 1972 SC 2284.
70 Collector of Customs v. Digvijaysinhji Spg. & Wvg. Mills Ltd., AIR 1961 SC 1549.
72 Moot Proposition, ¶ I.
77 CIT v. Hindustan Bulk Carriers, (2002) 7 SCC 705 : AIR 2002 SC 3491.
78 Moot Proposition, ¶ K.
79 101st Constitutional (Amendment) Act, 2016, Act No. 55, Act of Parliament, § 18.
81
The Goods And Services Tax (Compensation To States) Act, 2017, Act No. 15, Act of
Parliament, Preamble.
82
Union of India v. Mohit Mineral, (2019) 2 SCC 599.
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83 Varun Kannan, Coronavirus and the Constitution − XXXV : Examining the GST Compensation
Crisis, Indian Constitutional Law and Philosophy (Sep. 8, 2020),
https://indconlawphil.wordpress.com/tag/gst/.
84 The Goods And Services Tax (Compensation To States) Act, 2017, Act No. 15, Act of
Parliament, §10(2).
87
Union of India v. Mohit Mineral, (2019) 2 SCC 599.
88
INDIA CONST . Art. 293.
89 The Fiscal Responsibility And Budget Management Act, 2003, Act No.39, Act of Parliament,
§ 4.
90
Moot Proposition, ¶ Q.
91 Anisha Jhawar, Distribution Of Revenue In The Light Of The Constitution of India : Taxation
Provisions, Racolb Legal (Oct. 14, 2016), https://racolblegal.com/distribution-of-revenue-in-
the-light-of-the-constitution-of-india-taxation-provisions/.
92
Union of India v. Mohit Mineral, (2019) 2 SCC 599.
93
INDIA CONST . Art. 270.
95 Moot Proposition, ¶ L.
96
INDIA CONST . Art. 176(1).
98 Moot Proposition, ¶ U.
99
Syed Abdul v. Speaker, W.B. Legislative Assembly, AIR 1966 Cal 363.
102
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461.
105
Varun Kannan & Prashant Shukla, Analysing The Working Of The GST Council From The
Perspective Of Fiscal Autonomy Of The States, India Law Journal,
https://indialawjournal.org/analysing-the-working-of-gst-council.php.
106
Id.
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107
Moot Propoition, ¶ S
108
INDIA CONST . Art. 131(a).
109 State of Karnataka v. Union of India, (1977) 4 SCC 608 : AIR 1978 SC 68.
110 Maneka Gandhi v. Union Of India, (1978) 1 SCC 248 : AIR 1978 SC 597.
111
INDIA CONST . Art. 254(2).
112 P.B. Mukharji, Resolutions Of Parliament And State Legislatures-A Study Of Their Legal And
Constitutional Character, 4 JILI (1962) 309, 329.
113 Vibhor Mohan, Punjab CM moves Resolution against Centre's farm laws, Times Of India
(Aug. 29, 2020), https://m.timesofindia.com/city/chandigarh/punjab-house-resolution-rejects
-farm ordinances/amp_articleshow/77815564.cms.
114
Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461.
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