TC-15P Memorial For Petitioner

TC - 15P
JUSTICE Y.K. SABHARWAL CONSTITUTIONAL LAW MOOT

COURT COMPETITION, 2018
ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA
IN THE MATTER OF
BOARD OF CONTORL FOR CRICKET UNION OF INDIA

IN INDIA & ANR.
V.
(PETITIONER) (RESPONDENT)
-MEMORIAL ON BEHALF OF THE PETITIONERS -
Word Count - 3797

JUSTICE Y.K. SABHARWAL CONSTITUTIONAL LAW MOOT COURT COMPETITION, 2018
- TABLE OF CONTENTS -
- INDEX OF AUTHORITIES - ....................................................................................................... II
- SUMMARY OF PLEADINGS - .................................................................................................. IV
- PLEADINGS - ............................................................................................................................ 1
I. THAT THERE ARE IMPLIED LIMITATIONS IN THE CONSTITUTION WHICH PREVENTS
THE CREATION OF ANY MECHANISM WHICH EXCLUDES JUDICIAL REVIEW ....................... 1
A. THAT THE CONSTITUENT ASSEMBLY WAS NOT IN FAVOUR OF INCLUDING SCHEDULE

IX…………………………………………………………………………………………1
B. THAT THE FUNDAMENTAL RIGHTS ARE AN INDISPENSABLE FEATURE OF THE INDIAN
CONSTITUTION .................................................................................................................... 2
C. THAT THE IMPUGNED CONSTITUTIONAL AMENDMENT IS VIOLATIVE OF ARTICLE 32 .3
D. THAT WHILE INTERPRETING A PROVISION, THE LEGISLATIVE INTENT OF THE
PARLIAMENT MUST BE KEPT IN MIND .................................................................................. 4
E. THAT THE LEGISLATIVE INTENT OF THE ENACTMENT OF NINTH SCHEDULE WAS TO
PROVIDE PROTECTION TO LAWS RELATED TO SOCIAL WELFARE LEGISLATIONS AFFECTING
PROPRIETARY RIGHTS .......................................................................................................... 5
F. THAT THE PROTECTION AGAINST INFRINGEMENT OF ARTICLE 13 WILL NOT BE
ATTRACTED BY THE IMPUGNED ACT ................................................................................... 7
G. THAT THE IMPUGNED CONSTITUTIONAL AMENDMENT IS IN CONTRAVENTION TO
ARTICLE 13(2) .................................................................................................................... 8
II. THAT THE SUPREME COURT WAS NOT RIGHT IN LAYING DOWN THE ‘DOCTRINE OF
PROSPECTIVE OVERRULING’ IN GOLAK NATH V. STATE OF PUNJAB .................................. 9
A. THAT THE GOLAK NATH DOES NOT FOLLOW LINKLETTER IN PRINCIPLE ..................... 9
B. THAT THE PROPOSITION OF AMENDMENTS BEING ENFORCEABLE IN FUTURE AS WELL

AS PAST IS UNTENABLE...................................................................................................... 10
C. THAT THE COURT IS THE CUSTODIAN OF THE CONSTITUTION FIRST.......................... 11
D. THAT THE IMPORTATION OF THE IMPUGNED DOCTRINE IS INCOMPATIBLE WITH THE
CONSTITUTION OF INDIA ................................................................................................... 13
PRAYER ..................................................................................................................................... V
Page I of V
- INDEX OF AUTHORITIES -
ARTICLES PARA NO.
A.R. Blackshield, “Fundamental Rights and the Economic Viability of the

Indian Nation”, 10(1), JOURNAL OF THE INDIAN LAW INSTITUTE, 107 21
(1968)
Currier, “Time and Change in Judge-Made Law: Prospective

31
Overruling,” 51 VA. REV. 201, 257-259 (1965)
W.S. Hooker Jr., Prospective Overruling in India: Golak Nath and After,
38
9 JILI 596 (1967)
BOOKS PARA NO.
1, BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 59 11
ROSCOE POUND, THE SPIRIT OF THE COMMON LAW, 174 (1921) 12
SALMOND, JURISPRUDENCE, 105 (2nd Ed.) 10
SCHWARTZ, AMERICAN CONSTITUTIONAL LAW 724, 767-68 (1955) 35
W. FRIEDMANN, LEGAL THEORY, 483-501 (4th ed. 1960) 27
CASES PARA NO.
A. K. Gopalan v. State of Madras, AIR 1950 SC 27 8
Aron Solomon v. A. Solomon and Co. Ltd, (1897) AC 22 (HL) 10
Chiranjit Lal Chowdhury v. Union of India, AIR 1951 SC 41 14
Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648 42
Page II of V
Dwarka Prasad v. State of UP, (1953) SCR 674 8
Golak Nath v. State of Punjab, AIR 1967 SC 1643 5, 24, 32
Great Northern Ry. v. Sunburst Oil & Ref. Co., 287 US 358 (1932) 41
Jenkins v. Delaware, 395 US 213 (1969) 29
Karmeshwar Singh v. State of Bihar, [1951] 38 AIR 91 (Patna) 3
Kochunni v. State of Madras, AIR 1959 SC 725 8
Linkletter v. Walker, 381 US 618 (1965) 43
Norton v. Shelby County, 118 US 425, 440 (1885) 40
R.L. Arora v. State of U.P., AIR 1964 SC 1230 14
Rai Ramkrishna v. State of Bihar, AIR 1963 SC 1667 39
Re, Kerala Education Bill, AIR 1958 SC 956 8
S. Pratap Singh v. State of Punjab, AIR 1964 SC 72 7
Sanghvi Jeevraj Ghewar Chand v. Secretary, Madras Chillies, Grains and

17
Kirana Merchants Workers Union, AIR 1969 SC 530
State of West Bengal v. Subodh Gopal, AIR 1954 SC 92 39
OTHER AUTHORITIES PARA NO.
Constituent Assembly Debates, Vol. VII, p. 953 7
INDIA CONST. amend. I, Statement of Objects and Reasons 17
Parliament Debates.Vols. XII – XIII, pt. II, p.8814 (1951) 15
Page III of V
- SUMMARY OF PLEADINGS -
I. THAT THERE ARE IMPLIED LIMITATIONS IN THE CONSTITUTION WHICH PREVENT
THE CREATION OF ANY MECHANISM WHICH EXCLUDES JUDICIAL REVIEW
It is humbly submitted that there are implied limitation in the Constitution of India which
prevents the creation of any mechanism which excludes judicial review of any law. The
Constituent Assembly was not in favour of including Schedule IX in the Constitution as it
was not satisfied that there should be mechanism which excludes the court’s power of judicial
review. Article 13, according to the majority view, expressed this limitation on the powers of
Parliament. Parliament could not modify, restrict or impair fundamental freedoms due to this
very scheme of the Constitution and the nature of the freedoms granted under it.
PROSPECTIVE OVERRULING’ IN GOLAK NATH V. STATE OF PUNJAB
It is contended that the American Supreme Court’s decision in the Linkletter case in no way
supports the Golak Nath position. Retrospective overruling is in accordance with the
declaratory theory of common law that the judges do not make or change the law. The
interpretation of the term ‘void’ in article 13(2) of the Constitution can be traced from the
landmark cases from the past. According to Mr. Justice Wanchoo and others, in Deep Chand
v. State of Uttar Pradesh, the Court had spoken broadly and absolutely as to characterize
laws hit by article 13(2) as being “still-born”. Therefore, by construction of article 13 the
doctrine of prospective overruling cannot be introduced into India.
Page IV of V
- PLEADINGS -
1. The following submissions have been made before the Hon’ble Chief Justice and his
companion judges of the Supreme Court of India. The Bench accepted Attorney General
Niren De’s contention that the Constitution Bench (instant case) be limited to the question of
validity of the Constitutional Amendments, and that the vires of the BCCI (Social Justice)
Act be taken up by a smaller bench thereafter.
I. THAT THERE ARE IMPLIED LIMITATIONS IN THE CONSTITUTION WHICH PREVENTS

THE CREATION OF ANY MECHANISM WHICH EXCLUDES JUDICIAL REVIEW
2. It is humbly submitted that there are implied limitation in the Constitution of India
which prevents the creation of any mechanism which excludes judicial review of any law.
Firstly, the Constituent Assembly was not in favour of including Schedule IX [A]; secondly,
the fundamental rights are an indispensable feature of the Indian Constitution [B]; thirdly, the
impugned constitutional amendment is violative of Article 32 [C]; fourthly, the legislative
intent of the Parliament must be kept in mind while interpreting a provision [D]; fifthly,
legislative intent of the enactment of Ninth Schedule was to provide protection to laws related
to social welfare legislations affecting proprietary rights [E]; sixthly, protection against
infringement of Article 13 will not be attracted by the impugned Act [F]; and finally, the
impugned constitutional amendment is in contravention to Article 13(2) [G].
A. THAT THE CONSTITUENT ASSEMBLY WAS NOT IN FAVOUR OF INCLUDING SCHEDULE IX
3. It is submitted that in the original constitution itself, the land reform legislation had
been excluded from the protection of article 31. But when the Patna High Court invalidated
such legislation on the ground that it violated the right to equality, 1 the first amendment was
1
Karmeshwar Singh v. State of Bihar, [1951] 38 AIR 91 (Patna).
- PLEADINGS - - MEMORIAL ON BEHALF OF PETITIONERS - Page 1 of 15

enacted to bring two new articles, 31-A and 31-B, into the constitution.2 These articles
extended the immunity of social reform legislation against other fundamental rights also.
4. It is submitted that the Constituent Assembly was not in favour of including Schedule
IX in the Constitution as it was not satisfied that there should be mechanism which excludes
the court’s power of judicial review. But the legislature after one year of commencement of
the constitution passed the Constitution (1st Amendment) Act, 1951 and introduced the IX
schedule, this no doubt is in clear conflict with the intention of the constitution framers.
B. THAT THE FUNDAMENTAL RIGHTS ARE AN INDISPENSABLE FEATURE OF THE INDIAN

CONSTITUTION
5. It is submitted that Part III of the Constitution of India provides for certain basic
rights which are necessary for the human survival. The Supreme Court in the case of Golak
Nath v. State of Punjab3 invoked the concept of implied limitations on Parliament's powers to
amend the Constitution. This view held that the Constitution gives a place of permanence to
the fundamental freedoms of the citizen. In giving the Constitution to them the people had
reserved the fundamental rights for themselves.
6. Article 13, according to the majority view, expressed this limitation on the powers of
Parliament. Parliament could not modify, restrict or impair fundamental freedoms due to this
very scheme of the Constitution and the nature of the freedoms granted under it. The judges
stated that the fundamental rights were so sacrosanct and transcendental in importance that
they could not be restricted even if such a move were to receive unanimous approval of both
houses of Parliament. In other words, the apex court held that some features of the
2
INDIA CONST. amend. I.
3
Golak Nath v. State of Punjab, AIR 1967 SC 1643.

Constitution lay at its core. Hence, the fundamental rights are an indispensable feature of the
Constitution which in no circumstance be violated.
C. THAT THE IMPUGNED CONSTITUTIONAL AMENDMENT IS VIOLATIVE OF ARTICLE 32
7. It is submitted that Article 32 is designed to ensure that each and every authority in
the State, including the Government, acts bona fide and within limits of its powers and that
when a court is satisfied that there is an abuse or misuse of power and its jurisdiction is
invoked, it is incumbent on the court to afford justice to the individual. 4 As Dr. Ambedkar
stated “If I was asked to name any particular article in this Constitution as the most
important, an article without which this Constitution would be a nullity, I could not refer to
any other article except this one (Article 32). It is the very soul of the Constitution and the
very heart of it and I am glad that the House has realized its importance.”5
8. Moreover, in the very earliest years of constitutional litigation, the Supreme Court
stressed the fact that Article 32, while providing a remedy to rights breaches is itself a
guaranteed fundamental right.6 Since the remedy under Article 32 is itself a guaranteed right
it follows that it can neither be directly curtailed by any legislation nor can it be indirectly
rendered illusory or nugatory.7 In determining the constitutionality of a provision alleged to
be violative of a fundamental right, the court must weigh the substance, the real effect and
4
S. Pratap Singh v. State of Punjab, AIR 1964 SC 72.
5
Constituent Assembly Debates, Vol. VII, p. 953.
6
Kochunni v. State of Madras, AIR 1959 SC 725.
7
A. K. Gopalan v. State of Madras, AIR 1950 SC 27.

impact thereof on the fundamental right,8 and would not allow the legislature to bypass a
constitutional prohibition by employing indirect methods.9
9. In the instant case the Parliament by enacting the impugned Constitutional
amendment inserted the ‘Board of Control for Cricket in India (Social Justice) Act, 1969’ in
the 9th Schedule to the Constitution meaning thereby that the impugned Act cannot be
questioned before any court of law.10 A vital constitutional provision cannot be so construed
as to make a mockery of the constitutional guarantee and the constitutional restrictions on the
power of the legislature. If the impugned amendment is allowed then it will defeat the very
intention of the Constitution framers and would result in bypassing of a constitutional
prohibition.
D. THAT WHILE INTERPRETING A PROVISION, THE LEGISLATIVE INTENT OF THE PARLIAMENT

MUST BE KEPT IN MIND
10. According to Salmond, the duty of the court is to act upon the true intention of the
legislature i.e. the mens or sentenial legis.11 Legislative intent can be determined from what it
has chosen to act, either expressly or by reasonable or necessary implication.12 A statute is to
be construed according “to the intent of them to make it.”13
11. According to Blackstone, the most fair and rational method for interpreting a statute is
by exploring the intention of the legislature through the most natural and probable signs
8
Re, Kerala Education Bill, AIR 1958 SC 956.
9
Dwarka Prasad v. State of UP, (1953) SCR 674.
10
Moot Proposition, para 1, page 6.
11
SALMOND, JURISPRUDENCE, 105 (2nd Ed.).
12
Aron Solomon v. A. Solomon and Co. Ltd, (1897) AC 22 (HL).
13
RMD Chamarbaugwala v. Union of India, AIR 1957 SC 628.

which are “either the words, the context, the subject matter, the effects and consequences, or
the spirit or reason of law.”14
12. If the Legislature was to be consulted about its intention, the answer of most of the
legislators in all probability will be: “such a problem never occurred to us, solve it as best as
you can, consistent with the words used, and the purpose indicated by us in the statute.”15
13. It is, therefore, humbly pleaded before the Hon’ble Supreme Court that the legislative
intent of the Parliament be considered while deciding the validity of the impugned
Amendment.
E. THAT THE LEGISLATIVE INTENT OF THE ENACTMENT OF NINTH SCHEDULE WAS TO
PROVIDE PROTECTION TO LAWS RELATED TO SOCIAL WELFARE LEGISLATIONS AFFECTING
PROPRIETARY RIGHTS
14. Parliamentary history, including the speech of the minister introducing the bill, can be
admitted as evidence “of the circumstances which necessitated” the passing of the Act.16 The
court is entitled to take into account “such external or historical facts as may be necessary to
understand the subject-matter of the statute” or to have regard to “the surrounding
circumstances” which existed at the time of passing the statute.17
15. While moving the Constitution (First Amendment) Bill, the then Prime Minister
Jawaharlal Nehru said:18 “The Bill is not a very complicated one; nor is it a big one.
14
1, BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 59.
15
ROSCOE POUND, THE SPIRIT OF THE COMMON LAW, 174 (1921).
16
Chiranjit Lal Chowdhury v. Union of India, AIR 1951 SC 41.
17
R.L. Arora v. State of U.P., AIR 1964 SC 1230.
18
Parliament Debates.Vols. XII – XIII, pt. II, p.8814 (1951).

Nevertheless, I need hardly point out that it is of intrinsic and great importance.”
Emphasizing the need of Article 31-B and Ninth Schedule, he said that if they did not make
proper arrangements for the land, all their schemes would fail. As such something of the
above amendment was necessary.19
16. When notices for amendments were given by certain members to add other laws,
Nehru responded that:20 "It is not with any great satisfaction or pleasure that we have
produced this long Schedule. We do not wish to add to it for two reasons. One is that the
Schedule consists of a particular type of legislation, generally speaking, and another type
should not come in. Secondly, every single measure included in this Schedule was carefully
considered by our President and certified by him. If you go on adding at the last moment, it is
not fair, I think, or just to this Parliament or to the country."
17. Reference to the Statement of Objects and Reasons is also permissible for
understanding the background, the antecedent state of affairs, the surrounding circumstances
in relation to the statute, and the evil which the statute was sought to remedy. 21 The main
object of the Constitution (First Amendment) Act, 1951 was to insert provisions for securing
the constitutional validity of laws abolishing zamindari system and certain specified State
Acts.22
18. Through Article 39, the Constitution directs the State to effect a distribution of its
material resources in such a manner as best to subserve the common good. It was, therefore,
19
Id. at 8831-2.
20
V. Venkatesan, Act of foresight, https://www.frontline.in/static/html/fl2402/stories/20070209005101200.htm.
21
Sanghvi Jeevraj Ghewar Chand v. Secretary, Madras Chillies, Grains and Kirana Merchants Workers Union,
AIR 1969 SC 530.
22
INDIA CONST. amend. I, Statement of Objects and Reasons.

essential for the State early to legislate for agrarian reforms so that the large blocks of land
concentrated in the hands of Zamindars, since the time of the Permanent Settlement, were
distributed amongst the agricultural community.
19. The Constitution (First Amendment) Act, 1951, was, therefore, enacted with a view to
eliminating all litigation challenging the validity of legislation for the abolition of proprietary
and intermediary interests in land, on the ground of contravention of the fundamental rights
contained in Article 14 or 19 or 31.
20. In order to validate State Acts which had already been held to be void on such
grounds by the various High Courts, the Amendment Act inserted Art. 31B and the Ninth
Schedule, specifically enumerating such Land Reform Acts and immunising them,
retrospectively, from unconstitutionality on the ground of contravention of any of the
Fundamental Rights.
F. THAT THE PROTECTION AGAINST INFRINGEMENT OF ARTICLE 13 WILL NOT BE ATTRACTED

BY THE IMPUGNED ACT
21. According to Professor A.R. Blackshield, the opening words of Article 31 B (Without
prejudice to the….) is a structural interconnection between Articles 31-A and 31-B.23 He had
also pointed out that Ninth Schedule has become an open ended weapon of protecting
unconstitutional laws indefinitely in terms of time, subject and space.24
22. It is submitted that the boundaries of Article 31-A is limited to the five kind of laws
mentioned in the sub-clauses of the first clause. The implication of the opening words of the
23
A.R. Blackshield, “Fundamental Rights and the Economic Viability of the Indian Nation”, 10(1), JOURNAL OF
THE INDIAN LAW INSTITUTE, 107 (1968).
24
Id. at 99.

Article 31-B is that the protection of Article 31-A isn’t withdrawn merely because a law has
been included in Ninth Schedule by Article 31-B. The laws which may be protected under
Article 31-B is definitely protected by Article 31-A as well. But there may be laws enacted
under Article 31-A that may not be present in Article 31-B. It would be useless to provide
that Article 31-B doesn’t detract from the generality of Article 31-A if their subject matters
did not coincide.
23. Therefore, it is submitted that Art.31-B should be interpreted as above, so as to render
unconstitutional any additions to the Ninth Schedule which are not covered by Art.31-A.25
G. THAT THE IMPUGNED CONSTITUTIONAL AMENDMENT IS IN CONTRAVENTION TO ARTICLE

13(2)
24. It is submitted that Article 13(2) provides that 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. 26 The hon’ble Supreme Court in
the case of Golak Nath v. State of Punjab27 held that Article 368 does not contain the power
of Amendment but only lays down a procedure of Amendment and that such power lies in
Article 248. It was held that the power under Article 248 is to make a law hence a
constitutional amendment is a ‘law’ under Article 13(2) of the Constitution.
25. In the instant case, as has been established, Article 32 is being violated by the
inclusion of the impugned Act in the 9th Schedule to the Constitution. Therefore, in the light
of the decision of the Supreme Court in Golak Nath a constitutional law should be treated as
25
Id.
26
INDIA CONST. art. 13(2).
27
Supra note 3.

an ordinary law which in no circumstances can take away or abridge a fundamental right.
Hence, the impugned Constitutional amendment should be struck down as it strikes on the
very soul and heart of the Constitution.
PROSPECTIVE OVERRULING’ IN GOLAK NATH V. STATE OF PUNJAB
27. It is humbly submitted before the hon’ble Court that the introduction of the doctrine
of prospective overruling signifies a trend toward recognizing the utility of civil law theories
of jurisprudence.28 But it is contended that the Supreme Court was not right in laying down
the doctrine of prospective overruling in Golak Nath Case for, firstly, the Golak Nath does
not follow Linkletter in principle [A]; secondly, the proposition of amendments being
enforceable in future as well as past is untenable [B]; thirdly, the Court is the custodian of the
Constitution first [C]; and lastly, the importation of the impugned doctrine is incompatible
with the Constitution of India [D].
A. THAT THE GOLAK NATH DOES NOT FOLLOW LINKLETTER IN PRINCIPLE
28. It is contended that the American Supreme Court’s decision in the Link letter case in
no way supports the Golak Nath position for they amount to no more than saying that a
conviction will not be reopened because of a subsequent change in the interpretation of the
Constitution. This is merely the normal rule of res judicata freed from the anomalous
American practice of reopening convictions on habeas corpus. It is quite a different matter for
a court to say that it will not apply the correct law to the case before it, but only to future
cases.
28
W. FRIEDMANN, LEGAL THEORY, 483-501 (4th ed. 1960).

29. The Constitution Review Group considered that the American approach of limiting
retrospective effect is pragmatic, but “intellectually difficult to defend” and “leads to
arbitrary results”. In the words of the U.S. Supreme Court itself, the application of the
doctrine remains uncertain: there is no inflexible rule requiring in all circumstances either
absolute retroactivity or complete prospectivity for decisions construing the broad language
of the Bill of Rights. Rather we have proceeded to weigh the merits and demerits in each case
by looking to the prior history of the rule in question, its purpose and effect, and whether
retrospective operation will further or retard its operation.29
30. The Supreme Court Judges used the doctrine of in Golak Nath very differently from
the way the doctrine has been made use of in the U.S.A. The theory has been applied to hold
the impugned law invalid from the date of the decision and not earlier. But in Golak Nath, all
the constitution amendments were to remain valid for ever, even after the Supreme Court
decision in Golak Nath, only the principle of non-amendability of the Fundamental Rights
was to apply in future. If the American doctrine had been applied, the amendments ought to
have been held invalid from the date of the Golak Nath decision if not earlier. Therefore, the
Supreme Court has incorporated a diluted version of the doctrine.
B. THAT THE PROPOSITION OF AMENDMENTS BEING ENFORCEABLE IN FUTURE AS WELL AS
PAST IS UNTENABLE
31. It is contended that the refusal to of the Courts to give their decisions retroactive
effect, which had the likelihood of upsetting vested rights hardly of the magnitude found in
the Golak Nath case, was primarily on the basis of five factors, namely- equality, reliance on
the law as contemporaneously declared, the image of justice, stability and efficient judicial
29
Jenkins v. Delaware, 395 US 213 (1969).

administration.30 According to Professor Currier, in the area of individual liberties the like
treatment of persons in like circumstances is a paramount consideration and the interests of
reliance not very important.31
32. Furthermore, the protection of constitutional right to equality, which is common in
property rights, presupposes a much greater reliance on contemporaneous law than do
individual civil liberties. Also, American authority might have been cited to support, had the
Chief Justice so chosen, a holding that the amendments would be considered valid only prior
to the date of Golak Nath decision and thereafter would be unenforceable. But Mr. Chief
Justice Subba Rao chose instead to declare that the amendments continued to be enforceable
in the future as well as the past.32
33. Therefore, what has been established as a substantive matter in Golak Nath is the
privilege of the people to not be governed by legislative amendment as well as the provisions
of part III as they are written now. Hence, the law laid down in Golak Nath is untenable.
C. THAT THE COURT IS THE CUSTODIAN OF THE CONSTITUTION FIRST
34. It is submitted that the establishing of the Supreme Court in the same principal
document which constituted the Parliament itself alludes to the prominent position accorded
to the Court.
35. The reason given by the learned Chief Justice for choosing the doctrine of prospective
overruling was that “the chaotic situation that may be brought about by the sudden
30
Currier, “Time and Change in Judge-Made Law: Prospective Overruling,” 51 VA. REV. 201, 257-259 (1965).
31
Id at 204.
32
Supra note 3.

withdrawal at this stage of the amendments from the Constitution.”33 But this is an
unacceptable reason for the Supreme Court’s conclusion as it is parallel to the American
Supreme Court’s decision in Johnson case, which was decried for using prospective
overruling to cushion the impact of its decision on the merits in order to reduce its
unpopularity.34
36. Also, the judgment declared that “in future Parliament will have no power to amend
Part III of the Constitution so as to take away or abridge the fundamental rights.”35 At this
juncture Mr. Chief Justice failed to realize that his prescription cannot work for the future
legislations. He has no control over prospective actions by the government. And such
approach is reprehensible for the Court must not forget its role as the custodian of the
Constitution and must leave it to the legislature to decide upon the impact on the economy of
the country, if there is any.
37. Retrospective overruling is in accordance with the declaratory theory of common law
that the judges do not make or change the law but merely declare it. The common law is
never changed: it is merely restated correctly. Consequently all judicial overruling operates
retrospectively. It is this which distinguishes judicial overruling from overruling statutes,
since the latter operates only when statutes becomes operative. This doctrine allows old
Transactions to be reopened.
38. In general, it may be said that to warrant prospectivity, there must be awareness that
the results of ‘normal’ retrospectivity would be, not merely inconvenient, but gravely unjust
33
Id at 814.
34
SCHWARTZ, AMERICAN CONSTITUTIONAL LAW 724, 767-68 (1955).
35
Supra note 3.

or would involve an extremely burdensome sorting out process for courts or administrators.36
And foreign doctrines must not be adopted so readily unless fully delved in the circumstances
the foreign court was embroiled in. Therefore, in such a scenario, subjectivity becomes
inevitable and inescapable. Hence, the Court must have left it to the legislature to decide.
D. THAT THE IMPORTATION OF THE IMPUGNED DOCTRINE IS INCOMPATIBLE WITH THE
CONSTITUTION OF INDIA
a. That the departure from the principle of retrospective overruling is unacceptable
39. It is submitted that by putting the legislature in the place of judiciary and questioning
that whether the legislature has the power to pass a statute if it operates retrospectively so as
to upset transactions among private parties or of private parties with the government. The
answer to this question was given in the case of Rai Ramkrishna v. State of Bihar,37 where a
retroactive taxing statute came under attack. The Supreme Court in this case agreed with the
contention of the petitioner that retroactivity of the Act was a factor to be weighed in
determining the reasonableness of an Act under article 19,38 but the Court felt that under the
circumstances and the species of provision at issue the term of retroactivity of ten years was
not excessive enough to violate article 19 standards of reasonableness. So, Government can
and should take care of retrospective effects of declaring a law unconstitutional and the courts
should not depart from the principle that unconstitutional statutes are void ab initio.
b. That article 13(2) of the Constitution does not allow the gloss of the impugned doctrine
40. It is submitted that the declaring of a law as unconstitutional is beset with problems.
There are two possible solutions to the problems which a finding of unconstitutionality can
36
W.S. Hooker Jr., Prospective Overruling in India: Golak Nath and After, 9 JILI 596 (1967).
37
Rai Ramkrishna v. State of Bihar, AIR 1963 SC 1667.
38
State of West Bengal v. Subodh Gopal, AIR 1954 SC 92.

cause: (a) declaring that the law only becomes invalid at a specified date, or (b)
circumscribing the effects of its invalidity. In countries with written Constitution, a law
which conflicts with a higher norm must be completely void. In India, the fate of the law
declared unconstitutional by the Court was locked by the constituent members by bestowing
the Constitution with art. 13. In Chief Justice Field’s view an unconstitutional law is, in legal
contemplation, as inoperative as though it had never been passed.39
41. In the landmark case of Great Northern Ry. v. Sunburst Oil & Ref. Co.,40 the
American Supreme Court speaking through Justice Cardozo laid to rest all apprehensions by
ruling that there was no constitutional proscription against a court adopting any remedy,
including prospective overruling, which it considered the best under the circumstances. It was
therefore established, at least where rights under the federal Constitution itself were not at
issue, that there was no basic injustice done in a court at its discretion acknowledging the
existence of a right and at the same time refusing to apply it to past transactions.
42. The interpretation of the term ‘void’ in article 13(2) of the Constitution can be traced
from the landmark cases from the past. According to Mr. Justice Wanchoo41 and others,42 in
Deep Chand v. State of Uttar Pradesh43 the Court had spoken broadly and absolutely as to
characterize laws hit by article 13(2) as being “still-born”. Also, it was held that “laws”
within the meaning of article 13(2) are void ab initio and cannot be acted upon at all.
39
Norton v. Shelby County, 118 US 425, 440 (1885).
40
Great Northern Ry. v. Sunburst Oil & Ref. Co., 287 US 358 (1932).
41
Supra note 3 at 852-53, (per Wanchoo, J., dissenting).
42
Id at 921-22, (per Bachawat, J., dissenting).
43
Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648.

Therefore, by construction of article 13 the doctrine of prospective overruling cannot be
introduced into India.
43. The primary assumption upon which Linkletter was founded does not hold well in
India. That assumption was that the American Constitution ‘does not say whether prospective
or retrospective effect should be given to judicial decisions.44 But the Indian Constitution
does say what would be the effect of unconstitutionality, by the use of word ‘void’ in Arts. 13
and 254 which can never mean ‘void for tomorrow, but valid for yesterday’. Hence, it can be
plausibly concluded that the impugned doctrine is incompatible with the Constitution of
India.
44
Linkletter v. Walker, 381 US 618 (1965).

PRAYER
Wherefore, in light of the Facts stated, Arguments advanced and Authorities cited, it is
humbly prayed before this Hon’ble Court to adjudge and declare that:
1. That there are implied limitations in the Constitution which prevent the creation of
any mechanism which excludes Judicial Review.
2. That the Supreme Court was not right in laying down the ‘Doctrine of Prospective
Overruling’ in Golak nath v. State of Punjab.
And pass any other order this Hon’ble Court may deem fit in the interest of justice.
All of which is respectfully submitted.
Sd/-
ON BEHALF OF COUNSELS FOR PETITIONERS
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TC - 15P

JUSTICE Y.K. SABHARWAL CONSTITUTIONAL LAW MOOT

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDIA

BOARD OF CONTORL FOR CRICKET UNION OF INDIA

-MEMORIAL ON BEHALF OF THE PETITIONERS -

Word Count - 3797

- INDEX OF AUTHORITIES - ....................................................................................................... II

- SUMMARY OF PLEADINGS - .................................................................................................. IV

I. THAT THERE ARE IMPLIED LIMITATIONS IN THE CONSTITUTION WHICH PREVENTS

THE CREATION OF ANY MECHANISM WHICH EXCLUDES JUDICIAL REVIEW ....................... 1

A. THAT THE CONSTITUENT ASSEMBLY WAS NOT IN FAVOUR OF INCLUDING SCHEDULE

B. THAT THE FUNDAMENTAL RIGHTS ARE AN INDISPENSABLE FEATURE OF THE INDIAN

C. THAT THE IMPUGNED CONSTITUTIONAL AMENDMENT IS VIOLATIVE OF ARTICLE 32 .3

D. THAT WHILE INTERPRETING A PROVISION, THE LEGISLATIVE INTENT OF THE

PARLIAMENT MUST BE KEPT IN MIND .................................................................................. 4

E. THAT THE LEGISLATIVE INTENT OF THE ENACTMENT OF NINTH SCHEDULE WAS TO

PROVIDE PROTECTION TO LAWS RELATED TO SOCIAL WELFARE LEGISLATIONS AFFECTING

PROPRIETARY RIGHTS .......................................................................................................... 5

F. THAT THE PROTECTION AGAINST INFRINGEMENT OF ARTICLE 13 WILL NOT BE

ATTRACTED BY THE IMPUGNED ACT ................................................................................... 7

G. THAT THE IMPUGNED CONSTITUTIONAL AMENDMENT IS IN CONTRAVENTION TO

ARTICLE 13(2) .................................................................................................................... 8

B. THAT THE PROPOSITION OF AMENDMENTS BEING ENFORCEABLE IN FUTURE AS WELL

C. THAT THE COURT IS THE CUSTODIAN OF THE CONSTITUTION FIRST.......................... 11

D. THAT THE IMPORTATION OF THE IMPUGNED DOCTRINE IS INCOMPATIBLE WITH THE

CONSTITUTION OF INDIA ................................................................................................... 13

ARTICLES PARA NO.

A.R. Blackshield, “Fundamental Rights and the Economic Viability of the

Currier, “Time and Change in Judge-Made Law: Prospective

BOOKS PARA NO.

1, BLACKSTONE, COMMENTARIES ON THE LAWS OF ENGLAND, 59 11

ROSCOE POUND, THE SPIRIT OF THE COMMON LAW, 174 (1921) 12

SALMOND, JURISPRUDENCE, 105 (2nd Ed.) 10

SCHWARTZ, AMERICAN CONSTITUTIONAL LAW 724, 767-68 (1955) 35

W. FRIEDMANN, LEGAL THEORY, 483-501 (4th ed. 1960) 27

CASES PARA NO.

A. K. Gopalan v. State of Madras, AIR 1950 SC 27 8

Aron Solomon v. A. Solomon and Co. Ltd, (1897) AC 22 (HL) 10

Chiranjit Lal Chowdhury v. Union of India, AIR 1951 SC 41 14

Deep Chand v. State of Uttar Pradesh, AIR 1959 SC 648 42

Dwarka Prasad v. State of UP, (1953) SCR 674 8

Golak Nath v. State of Punjab, AIR 1967 SC 1643 5, 24, 32

Jenkins v. Delaware, 395 US 213 (1969) 29

Karmeshwar Singh v. State of Bihar, [1951] 38 AIR 91 (Patna) 3

Kochunni v. State of Madras, AIR 1959 SC 725 8

Linkletter v. Walker, 381 US 618 (1965) 43

Norton v. Shelby County, 118 US 425, 440 (1885) 40

R.L. Arora v. State of U.P., AIR 1964 SC 1230 14

Rai Ramkrishna v. State of Bihar, AIR 1963 SC 1667 39

Re, Kerala Education Bill, AIR 1958 SC 956 8

S. Pratap Singh v. State of Punjab, AIR 1964 SC 72 7

Sanghvi Jeevraj Ghewar Chand v. Secretary, Madras Chillies, Grains and

State of West Bengal v. Subodh Gopal, AIR 1954 SC 92 39

OTHER AUTHORITIES PARA NO.

Constituent Assembly Debates, Vol. VII, p. 953 7

INDIA CONST. amend. I, Statement of Objects and Reasons 17

Parliament Debates.Vols. XII – XIII, pt. II, p.8814 (1951) 15

I. THAT THERE ARE IMPLIED LIMITATIONS IN THE CONSTITUTION WHICH PREVENT

THE CREATION OF ANY MECHANISM WHICH EXCLUDES JUDICIAL REVIEW

Constituent Assembly was not in favour of including Schedule IX in the Constitution as it

PROSPECTIVE OVERRULING’ IN GOLAK NATH V. STATE OF PUNJAB

doctrine of prospective overruling cannot be introduced into India.

Act be taken up by a smaller bench thereafter.