030R

IN THE

HONOURABLE SUPREME COURT OF MODUS

AT GARVPUR

IN THE MATTERS OF

ALANKAAR (REPRESENTED BY MR. SAHAYTA)

PETITIONER

v.

THE FEDERATION OF MODUS

(REPRESENTED BY FOREIGN SECRETARY, MINISTRY OF EXTERNAL AFFAIRS)

RESPONDENT

WRIT PETITIONER NO.: 1112/2017

[Under Article 32 of The Constitution of Modus, 1950 read with Rule 1, Order XXXVIII of

the Supreme Court Rules, 2013]

AND
 ARSHIN AND RUSHWAH

APPELLANT

v.

STATE OF MURTHYPUR

(REPRESENTED BY ADDITIONAL ADVOCATE GENERAL)

RESPONDENT

CIVIL APPEAL NO.: 1072/2017

[Under Article 133 of The Constitution of Modus, 1950 read with Rule 1, Order XIX of the

Supreme Court Rules, 2013.]

AND

NAARUSHI MODUS PRIVATE LIMITED

APPELLANT

v.

THAKURTRAVEL

RESPONDENT

CIVIL APPEAL NO.: 1094/20

[Under Article 133 of The Constitution of Modus, 1950 read with Rule 1 of Order XIX of

The Supreme Court Rules, 2013.

[ALL CLUBBED UNDER ARTICLE 142 OF THE CONSTITUTION OF MODUS, 1950 READ WITH

RULE 3 OF ORDER LV OF THE SUPREME COURT RULES, 2013]

-Memorial On Behalf of the Respondents-

 TABLE OF CONTENT

TABLE OF CONTENT................................................................................................ III

INDEX OF AUTHORITIES .......................................................................................... V

STATEMENT OF FACTS ........................................................................................... IX

STATEMENT OF JURISDICTION ........................................................................... XI

ISSUS FOR CONSIDERATION ................................................................................ XII

SUMMARY OF ARGUMENT ................................................................................. XIII

I. MODUS SHOULD NOT SUBMIT TO THE JURISDICTION OF THE INTERNATIONAL COURT OF

JUSTICE ............................................................................................................................... XIII

II. THE ACT DOES NOT VIOLATES THE.............................................................................. XIII

III. THE ARBITRATION CLAUSE IS LEGAL AND VALID. ................................................... XIII

ARGUMENT ADVANCED ............................................................................................ 1

IV. MODUS SHOULD NOT SUBMIT TO THE JURISDICTION OF INTERNATIONAL COURT OF

JUSTICE ................................................................................................................................... 1

1) Modus was acting under the responsibility to protect. .............................................. 1

2) The state of Modus was following its international obligation.................................. 2

iii
 V. THE FOOD STANDARD ACT IS CONSTITUTIONALLY VALID ............................................ 3

1) The Act Does Not Violate The Right Of The Appellant Under Art. 14 ...................... 3

2) The Act Does Not Violate fundamental right guaranteed under Art.19 and Art. 21 . 7

VI. THE ARBITRATION CLAUSE IS NULL, VOID AND INOPERATIVE ................................ 10

1) Domestic parties cannot choose to seat their arbitration in a foreign country ....... 10

2) Part I Of The Act Cannot Be Excluded. ................................................................... 11

3) The arbitration agreement is null, void and inoperative ......................................... 12

4) THE AGREEMENT IS CONTRARY TO PUBLIC POLICY .................................... 12

5) ARBITRATION CLAUSE IS SEPARATE FROM THE AGREEMENT .................... 13

PRAYER ......................................................................................................................... 16

iv
 INDEX OF AUTHORITIES

CONSTITUTION OF INIDA, 1950

Article 19(6) (i)& (ii), The Constitution of India, 1950. --------------------------------------------- 9

SUPREME COURT CASES

A.B.C. Laminart Pvt. Ltd. &Anr vs A.P. Agencies, Salem, 1989 AIR 1239. ------------------- 13

Atlas Exports v Kotak Company, (1999) 7 SCC 61.------------------------------------------------ 15

Bharat Aluminium Co. vs. Kaiser Aluminium Technical Services Inc, (2012) 9 SCC 552 --- 11

Chintamanrao v. State of M.P., AIR 1951 SC 118. ------------------------------------------------ 10

Chiranjit Lal Choudhuri v Union of India, 1950 SCR 869; B. Krishna Murthi v. State of Andhra

Pradesh, 2005 (2) ALT 342. -------------------------------------------------------------------------- 4

Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220. ---------------------------- 10

D.S. Nakara& Others v. Union of India, 1983 SCR (2) 165 ---------------------------------------- 4

Damodar Valley Corporation vs. K.K. Kar, (1974) SCR (2) 240. ------------------------------ 14

Dharam Dutt v. Union of India, (2004) 1 SCC 712. ------------------------------------------------- 4

Ibrahim v. R.T.A., AIR 1953 SC 79. ------------------------------------------------------------------ 10

K. Industries Ltd v. Chief Inspector of Factories, 6 SCC (1996) 665.----------------------------- 9

Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124.-------------------------------------- 10

LIC of India v. Consumer Education Research Centre, AIR 1995 SC 1811. -------------------- 9

Municipal Corpn v. Jan Md., AIR 1986 SC 1205. ------------------------------------------------- 10

Ramchand v. Union of India, AIR 1963 SC 563 (566).---------------------------------------------- 9

S.K. Chakraborty v. Union of India, (1988) 3 SCC 575 --------------------------------------------- 4

v
Shashikant Laxman Kale and Anr. v. Union of India, 1990 AIR 2114. --------------------------- 4

Sivarajan v. Union of India, AIR 1959 SC 556. ----------------------------------------------------- 10

Southern Pharmaceuticals v. State of Kerala, AIR 1981 SC 1863.------------------------------ 10

State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699.-------------------------------- 8

State of Maharashtra v. Himmatbhai, AIR 1970 SC 1157. --------------------------------------- 10

State of Orissa v. Radheysham Meher, AIR 1995 SC 85. ------------------------------------------- 9

State of U.P. v. Union of India, AIR 1957 SC 628(631). -------------------------------------------- 8

TDM Infrastructure Pvt. Ltd. vs. UE Development India Private Ltd, (2008) 2 UJ SC 0721 11

TDM Infrastructure Pvt. Ltd. vs. UE Development India Private Ltd, (2008) 2 UJ SC 0721. 12

TDM Infrastructure Pvt. Ltd.vs. UE Development India Private Ltd, (2008) 2 UJ SC 0721. 13

Videocon Industries Limited vs. Union of India, (2011) 6 SCC 161. ------------------------ 11, 13

RULES

ADVOCATES ACT, 1961 ----------------------------------------------------------------------------- 1, 2, 3

THE SUPREME COURT RULES, 1966 --------------------------------------------------------------- 1, 2, 3

ENGLISH COURT CASES

Heyman V. Darwins Ltd., [1942] 1 All ER 337. ---------------------------------------------------- 14

CONSULTATION PAPER

Datar. A., & Nicosia N. (2012). Junk Food in Schools and Childhood Obesity. Journal of

Policy Analysis and Management: [the Journal of the Association for Public Policy Analysis

and Management], 31(2), 312337. ----------------------------------------------------------------- 7

Junk Food Lurking In Schools & Colleges: Need To Be Banned, The lawmantra Journal, Vol

3, Issue 5. ------------------------------------------------------------------------------------------------ 7

vi
Uday Foundation for Congenital Defects and Rare Blood groups v. Union of India ----------- 5

UNIVERSAL DECLERATION OF HUMAN RIGHT ,1948

Article 3, Universal Declaration of Human Rights. -------------------------------------------------- 3

INDIAN CONTRACT ACT, 1872.

Section 23, The Indian Contract Act, 1872. --------------------------------------------------------- 13

OTHER AUTHORITIES

Asgary.S, Nazari.B, Sarrafzadegan.N, Parkhideh.S, Saberi.S, Esmaillzadeh.A, et al.

Evaluation of fatty acidcontent of some Iranian fast foods with emphasis on trans fatty

acids., Asia Pac J ClinNutr 2009; 18: 187-92 ---------------------------------------------------- 6

Deepak Kumar Gupta et al. Secular Trends in Prevalence of Overweight and Obesity from

2006 to 2009 inUrban Asian Indian Adolescents Aged 14-17 Years. PLOS One, 2011 --- 6

Francis Deng et al., Sovereignty as Responsibility: Conflict Management in

Africa (Washington, D.C.: Brookings Institution Press, 1996. ---------------------------------- 2

J.W. Samuels, The Relevance of International Law in the Prevention and Mitigation of Natural

Disasters, in DISASTER ASSISTANCE: APPRAISAL, REFORM AND NEW

APPROACHES at 24748. --------------------------------------------------------------------------- 1

Massachusetts Schools: Junk Food Banned, The Huffington Post, Posted: 15th July 2011. -- 7

Schmidt. M, Affenito. SG, Streigl-Moore. R, Khoury. PR, Barton. B, Crawford. P, et al. Fast

food intake and diet quality in black and white girls,Arch Pediatric Adolescent Med.

2005;159:626-31. 15 ----------------------------------------------------------------------------------- 6

UN General Assembly Resolution A/RES/63/308 on the Responsibility to Protect. ----------- 1

vii
UN General Assembly, Promotion and protection of human rights in post-disaster and post-

conflict Situations, A/HRC/RES/22/16, 10 April 2013 ------------------------------------------- 3

World Health Organization, 2010, Global status report on non-communicable diseases --- 7

viii
 STATEMENT OF FACTS

The Federation of Modus apart from being the Richest Nation in the world is also the World

leader in the sphere of Medical Science and Technology. Modus shares its Western Boundaries

with the nation of Shiviland. Despite vociferous protests from the people of Shiviland as well

as other Princely States to join Modus but a treaty of accession was instead signed with

Kritistan by Bana, the King of Shiviland.

II

On January 1, 2016 a warning was sounded by eminent scientists of Kritistan issued a warning

that a major Tsunami was to strike the country and the same would also affect Shiviland owing

to its' Geographical location. In response to an appeal by the residents of Kritistan to take

precautionary steps the Government of Kritistan brought all children aged below Fifteen to

Parahi Cave, the only elevated region of Shiviland. The Government of Modus in a massive

rescue operation issued an order sanctioning the adoption of the evacuated children by childless

Modusan Families.

III

Pursuant to the concern regarding the obesity issues among the youth and children of the

country the Government of Modus enacted the Murthypur Universities Food Standards Act,

2016 (Act) thereby banning the sale and consumption of "Junk Food" inside University

Campuses across the state. The ban was openly criticised by the Manufacturers and Retailers

of Junk Food.
ix
 IV

Naarushi Private Limited which was a company registered in Modus had assembled a team of

software developers, top - class engineers and architects to develop the World's First ' Travel

Pod'. Pursuant to this, Naarushi on 18th January 2011 entered into a Joint Venture Agreement

with Thakurtravel Private Limited, a company incorporated as per the laws of Modus. For

safeguarding it's monetary interests Naarushi novated it's rights, liabilities and obligations

under the Joint Venture Agreement to its wholly owned subsidiary " Modus Naarushi Pvt.

Ltd.", a company incorporated as per the laws of Modus. Naarushi , subsequently exited from

every other investment in the markets of Modus. A few months into the proposed project,

disputes started taking shape between Naarushi and Thakurtravel

x
 STATEMENT OF JURISDICTION

The Respondent most humbly submit to the jurisdiction of this Honorable Court:

WRIT PETITION NO. 1112/2017

Under Article 32 of the Constitution of Modus, 1950 read with Rule 1, Order XXXVIII of The

Supreme Court Rules, 2013.

CIVIL APPEAL NO.: 1072/2017

Under Article 133 of the Constitution of Modus,1950 read with Rule 1 ,Order XIX of The

Supreme Court Rules, 2013.

CIVIL APPEAL NO.: 1094/2017

Under Article 133 of The Constitution of Modus, 1950 read with Rule 1, Order XIX of the

Supreme Court Rules, 2013.

All the matters have been clubbed and brought before the Supreme Court of Modus under

Article 142 of The Constitution of Modus, 1950 read with Rule 3 of Order LV of the Supreme

Court Rules, 2013. The Appellants/ Petitioners most humbly and respectfully submit that this

HON'BLE Court has the requisite jurisdiction.

xi
 ISSUS FOR CONSIDERATION

I. WHETHER MODUS SHOULD SUBMIT TO THE JURISDICTION OF

INTERNATIONAL COURT OF JUSTICE FOR BREACHING

INTERNATIONAL LAW.

II. WHETHER THE FOOD STANDARDS ACT, 2016 IS VIOLATES THE

FUNDAMENTAL RIGHT GUARANTEED BY THE CONSTITUTION.

III. WHETHER THE ARBITRATION CLAUSE IS LEGAL AND VALID.

xii
 SUMMARY OF ARGUMENT

I. MODUS SHOULD NOT SUBMIT TO THE JURISDICTION OF THE INTERNATIONAL

COURT OF JUSTICE.

Modus should not submit to jurisdiction of the international court of justice because it has not

violated any International Law and was acting under the responsibility to protect and under

humanitarian obligations while rescuing the kids.

II. THE ACT DOES NOT VIOLATES ANY FUNDAMENTAL RIGHTS.

It is humbly submitted that the Act passed by the state does not violate any Fundamental Right.

That the Act is not volatile of the fundamental right because it is not arbitrary in nature, neither

does it violate the appalments right to trade.

III. THE ARBITRATION CLAUSE IS LEGAL AND VALID.

The arbitration clause is legal and valid because Domestic parties cannot choose to seat their

arbitration in a foreign country, Part I Of The Act Cannot Be Excluded, the agreement is

contrary to public policy arbitration clause is separate from the agreement and the arbitration

agreement is null, void and inoperative.

xiii
 ARGUMENT ADVANCED

I. MODUS SHOULD NOT SUBMIT TO THE JURISDICTION OF INTERNATIONAL COURT

OF JUSTICE

The country of Modus should not submit to the jurisdiction of International court of justice

because it was following its obligation under international law in rescuing the kids stuck in

Shiviland.

1) MODUS WAS ACTING UNDER THE RESPONSIBILITY TO PROTECT.

The State carries the primary responsibility for protecting populations from genocide, war

crimes, crimes against humanity and ethnic cleansing, and their incitement; the international

community has a responsibility to encourage and assist States in fulfilling this responsibility.

The international community also has a responsibility to use appropriate diplomatic,

1
humanitarian and other means to protect populations from these crimes. If a State is manifestly

failing to protect its populations, the international community must be prepared to take

collective action to protect populations, in accordance with the Charter of the United Nations.2

The state sovereignty comes into question when it fails to protect its own citizens from

genocide, war, crimes or a natural disaster.3Sovereignty in todays view of international law is

1
J.W. Samuels, The Relevance of International Law in the Prevention and Mitigation of Natural
Disasters, in DISASTER ASSISTANCE: APPRAISAL, REFORM AND NEW
APPROACHES at 24748.
2
UN General Assembly Resolution A/RES/63/308 on the Responsibility to Protect.
3
Francis Deng et al., Sovereignty as Responsibility: Conflict Management in
Africa (Washington, D.C.: Brookings Institution Press, 1996.
1
dependent and conditional upon the states ability to protect its own citizen.4 In such a situation

when the state fails to protect its own citizens in the case of natural calamities, there is

obligation on the international community to come up and provide necessary help to protect

the livelihood of the victims of the natural calamity.5

In the present situation, it is humbly submitted that the Sate of Kritistan was well aware of the

situation of its citizens residing in Shiviland. The state failed to take adequate step to prevent

such wide destruction and to save the lives of the people affected, there was utter disregard

toward the lives of the citizens, the children were trapped in the cave for 4 days without any

assistance from the state, hence it is humbly submitted that the intervention of Modus was

necessary to provide humanitarian assistance and hence it did not breach the sovereignty of the

state of Kritistan.

2) THE STATE OF MODUS WAS FOLLOWING ITS INTERNATIONAL OBLIGATION.

The council would like to humbly submit that as a signatory of the UN Charter, both the nation

in question here have endorsed the responsibility to protect, according to which,6 there is an

international obligation on the state to provide assistance to another state which is in need of

assistance and also in case when the suffering state is not able to provide relief to its own

citizens,7 then there is a responsibility on the neighboring state to go out of its was and provide

4
Bertrand de Jouvenel, Sovereignty: An Inquiry into the Political Good (Cambridge:
CambridgeUniversity Press, 1957).
5
Tyra R. Saechao, Natural Disasters and the Responsibility to Protect: From Chaos to Clarity,
32 Brook. J. Int'l L. (2007).
6
ILC, Draft Articles on the Protection of Persons in the Event of Disasters, see especially draft
articles 6,7, 8 and 9. UN Doc. A/CN.4/L.776 (2010)
7
Strengthening of the coordination of humanitarian emergency assistance of the United
Nations, GA Res 46/182, UN GAOR, 46th sess, 78th plenmtg, UN Doc A/RES/46/182 (1991),
[3].
2
relieve to the suffering state and its citizens.8 This is understood as providing humanitarian

assistance to the state and people in need,9 this responsibility to protect is also important to

protect the fundamental human right that has been provided to every person by the universal

declaration of human rights.10

In the present case, the council would like to humbly submit that Modus in rescuing the children

from the caves were fulfilling their international obligation toward preventing human right

violation and were empowered under the right to protect.

II. THE FOOD STANDARD ACT IS CONSTITUTIONALLY VALID

It is humbly submitted that the Act passed by the state does not violate any Fundamental Right.

That the Act is not violative of the fundamental right as established in the following

submissions:

1) THE ACT DOES NOT VIOLATE THE RIGHT OF THE APPELLANT UNDER ART. 14

It is humbly submitted that the principle underlying guarantee of Art. 14 is not that the same

rules of law should be applicable to all persons within the Indian Territory or that the same

remedies should be made available to them irrespective of differences of circumstances. 11 It

only means that all persons similarly circumstanced shall be treated alike both in privileges

conferred and liabilities imposed.12 Equal laws would have to be applied to all in the same

8
U.N. OFF. FOR THE COORDINATION OF HUMANITARIAN AFF. [OCHA], IRIN Web
Special: Disaster Reduction and the Human Cost of Disaster, June 2005,
9
UN General Assembly, Promotion and protection of human rights in post-disaster and post-
conflict Situations, A/HRC/RES/22/16, 10 April 2013
10
Article 3, Universal Declaration of Human Rights.
11
Chiranjit Lal Choudhuri v Union of India, 1950 SCR 869; B. Krishna Murthi v. State of
Andhra Pradesh, 2005 (2) ALT 342.
12
Shashikant Laxman Kale and Anr. v. Union of India, 1990 AIR 2114.
3
situation, and there should be no discrimination between one person and another if as regards

the subject-matter of the legislation their position is substantially the same.13 It does not mean

that legislative classification should be scientifically perfect or logically complete.14

i. The Classification Is Based On Intelligible Differentia

Art. 14 permits reasonable classification for the purpose of disposition.15 The classification

must be rational, that is to say, it must be based on some qualities or characteristics which are

to be found in all the persons grouped together and not in others who are left out. The condition

that the classification must be founded on an intelligible differentia which distinguishes those

that are grouped together must be fulfilled.16 The subject matter of legislation should be a well-

defined class founded on an intelligible differentia which distinguishes that subject matter from

the others left out.17 In other words, equals must be treated alike in like circumstances and

conditions18 and such classification is based in legal and relevant consideration.19

The council humbly submits that there is intelligible differentia behind the specific

categorization of the food that is done in the present case. Junk food can be better understood

as any food, which is low in essential nutrients and high in everything else in particular

calories and sodium. Junk foods contain little or no proteins, vitamins or minerals but are rich

in salt, sugar, fats and are high in energy (calories). Highly salted like chips, high in refined

carbohydrates (empty calories) like candy, soft drinks and high in saturated fats like cake and

13
D.S. Nakara& Others v. Union of India, 1983 SCR (2) 165
14
Dharam Dutt v. Union of India, (2004) 1 SCC 712.
15
S.K. Chakraborty v. Union of India, (1988) 3 SCC 575.
16
Special Courts Bill, 1978, In re, (1979) 2 SCR 476
17
DharamDutt v. Union of India, (2004) 1 SCC 712.
18
ParvejAktar v. Union of India, (1993) 2 SCC 221.
19
U.P. Power Corpn. Ltd v. Ayodhya Prasad Mishra, (2008) 10 SCC 139.
4
chocolates.20 The honorable Delhi High Court in the Junk Food Judgement21stated that there

is no need to define the term junk food as such as it is a colloquial term, and said that these

food items are understood to be food that have been categorized under the category of H.S.F.F

which is Food items high in sugar fat and salt content.

This definition is used by the honorable Delhi High Court in defining all the various kind of

food items that were supposed to banned from being sold 500m around school campuses, and

was borrowed from the UK Food Standards Agency (FSA) extensive nutrient profiling of

foods. The Australian government also uses the same term to define food that are high in sugar

and salt content and are generally spoken off as junk food. The judgment included all kind

of food that are considered dangerous for consumption for school kids. Hence, the council

would like to humbly submit that the classification done in the present matter is an apt one and

that there exists an intelligible differentia behind the classification.

ii. There Is a Nexus Between The Classification Done By The Act And The

Objective That Is Sought To Be Achieved By The Said Classification.

The council would like to humbly submit that there is reasonable nexus between the

classification done by the Act and the object that is sought to be achieved by it. The country of

Modus at the moment is facing a Gargantuan issue of obesity among its youth. One of the

primary reasons behind obesity is the easy availability of junk food to the youth.Junk food has

high level of fat and sugar that are not only unhealthy but addictive which creates a vicious

20
Dietary Guidelines for Indians, 2011, National Institute of Nutrition (NIN).
21
Uday Foundation for Congenital Defects and Rare Blood groups v. Union of
India,WritPetition No. 8568/2010
5
cycle making it hard for children to choose healthy food.22 Junk food intake leads to higher

proportion of calories being derived from total and saturated fat.23A study published in science

journal PLOS in February 2011, which examined the prevalence of overweight and obesity

among urban Indian adolescents in New Delhi, has shown that while one in five adults is obese,

about 20 per cent of children are either already obese or overweight.24

Regular consumption of junk food leads to metabolic changes and conditions such as

becoming overweight, high blood pressure, and raised blood glucose and cholesterol.25 Studies

have established the link between consumption of junk food and obesity. 26 From the various

research cited above, the council would like to humbly bring home the fact that there is a threat

from Junk Food to the health of the nation's youth and hence by banning sale of junk food

inside university campus the state is trying to reduce consumption of junk food among the

youth of the state.

The council would also like to humbly submit that various other states in the country and

various other countries in different instance too have banned the sale of junk food inside

University Campuses which in- turn lead to reduced consumption of junk food among the

youth. The elementary schools in Arizona, Georgia, Kentucky, Louisiana, Maryland,

22
Asgary.S, Nazari.B, Sarrafzadegan.N, Parkhideh.S, Saberi.S, Esmaillzadeh.A, et al.
Evaluation of fatty acidcontent of some Iranian fast foods with emphasis on trans fatty
acids., Asia Pac J ClinNutr 2009; 18: 187-92
23
Schmidt. M, Affenito. SG, Streigl-Moore. R, Khoury. PR, Barton. B, Crawford. P, et al.
Fast food intake and diet quality in black and white girls,Arch Pediatric Adolescent Med.
2005;159:626-31. 15
24
Deepak Kumar Gupta et al. Secular Trends in Prevalence of Overweight and Obesity from
2006 to 2009 inUrban Asian Indian Adolescents Aged 14-17 Years. PLOS One, 2011
25
World Health Organization, 2010, Global status report on non-communicable diseases
26
Datar. A., & Nicosia N. (2012). Junk Food in Schools and Childhood Obesity. Journal of
Policy Analysis and Management: [the Journal of the Association for Public Policy Analysis
and Management], 31(2), 312337.
6
Mississippi, Nebraska, New Jersey, New York, and West Virginia have banned the sale of junk

food in schools.27 The Punjab government has banned junk food in and around schools due

to similar reasons.28

Hence, the council would like to humbly submit that there is reasonable nexus between the

object sought to be achieved by the Act and the classification done by it, as has been established

by examples above, that junk easy availability of junk food is injurious to the students of the

state and the ban on its sale inside university campus would help in cutting down its

consumption.

2) THE ACT DOES NOT VIOLATE FUNDAMENTAL RIGHT GUARANTEED UNDER ART.19 AND ART.

21

It is humbly submitted before the Honble Court that Art. 19(1)(g) grants a fundamental right

to practice any profession or to carry on any occupation, trade or business. The restrictions

that can imposed on the Right to Freedom of Trade have been stated in Art. 19(2) to 19(6).

Therefore the restriction if any imposed by the Government in the present case falls within the

ambit of reasonable restrictions as given between Art. 19 (2) to 19 (6).

i. There is No Fundamental Right to Trade in Junk Food

Business in Junk food is Res extra commercium. It means, a thing which by law is excluded

from the sphere of private transaction: thing not subject to commerce or trade; things which

cannot be bought or sold. The expression means outside the commerce. The doctrine was

applied by the Supreme Court , in a number subsequent cases, to hold that there is no

27
Massachusetts Schools: Junk Food Banned, The Huffington Post, Posted: 15th July 2011.
28
Junk Food Lurking In Schools & Colleges: Need To Be Banned, The lawmantra Journal, Vol
3, Issue 5.
7
fundamental right to trade in the business of a substance of deleterious nature, or to deal in

adulterated foodstuff. 29The Indian Penal Code contains provisions for punishment to anyone

who sales noxious food or drink.

Res extra commercium is a doctrine introduced by Chief Justice Das of the Supreme Court in

the case, State of Bombay v. R.M.D. Chamarbaugwala,30 which has the effect of constricting

the scope of fundamental rights by rendering as constitutional outcasts certain purportedly

immoral or noxious activities. It does this by blocking these activities from falling with in

the purview of the protection of fundamental rights. Hence it is humbly submitted that there

exists no fundamental right to trade in Junk Food.

ii. The Right Provided Under Article 19 is not Absolute

The fundamental right of a citizen to carry on any occupation, trade or business under Art 19(1)

(g) of the Constitution of India is not absolute; it is subject to reasonable restrictions which

may be imposed by the State in the interests of general public. 31 The authorities, or private

persons or industry are bound by the direction contained in Part IV, Part III and Preamble of

the Constitution of India. The right to carry on trade is subject to directions contained in the

Constitution, the Universal Declaration of Human Rights, European Convention of Social,

Economic and Cultural Rights and the Convention on Right to Development for Socio-

Economic justice. Social security is a facet of Socio-Economic justice to the people and means

of livelihood.32 Cl. (6) of Article 19 authorizes the State to impose reasonable restrictions

29
State of U.P. v. Union of India, AIR 1957 SC 628(631).
30
State of Bombay v. R.M.D. Chamarbaugwala, AIR 1957 SC 699.
31
Ramchand v. Union of India, AIR 1963 SC 563 (566).
32
LIC of India v. Consumer Education Research Centre, AIR 1995 SC 1811.
8
upon the freedom of trade, business, occupation or profession. 33 The object of imposing

restrictions under Clause (6) is to strike a balance between individual freedom and social

control.34 Government order issued in public interest overrides individual interest and the

question of public interest must be considered not from the point of view of interest of the

person on whom the restriction is imposed, even if the restriction operates on him harshly.35

iii. Banning Of Junk Food Is A Reasonable Restriction Under The Provisions of

Art. 19(2) - 19(6) of the Constitution.

Banning of junk food is a reasonable restriction as it is in the interest of general public. As

the Interest of general public is a comprehensive expression comprising any matter which

affects public welfare, or public convenience,36 e.g. public order, health, morality,37 of the

country as well as the implementation of Directive Principles in Part IV. 38 Hence under this

power the State may impose restrictions, requiring that a beverage must contain a maximum

percent of fruit juice. 39Any business or trade irrespective of its nature is liable to be controlled

or restricted by the State, if it is necessary in the interests of the general public, such as public

order, morality, health or the like, provided such restrictions are not unreasonable.40 The mere

fact that the regulation of a trade would cause hardship to or result in the elimination of a

section of traders would render the regulation unreasonable,41 for control or regulation of any

kind is bound to cause hardship that are unable to satisfy the requirements of the regulatory

33
Article 19(6) (i)& (ii), The Constitution of India, 1950.
34
K. Industries Ltd v. Chief Inspector of Factories, 6 SCC (1996) 665.
35
State of Orissa v. Radheysham Meher, AIR 1995 SC 85.
36
Ibrahim v. R.T.A., AIR 1953 SC 79.
37
State of Maharashtra v. Himmatbhai, AIR 1970 SC 1157.
38
Municipal Corpn v. Jan Md., AIR 1986 SC 1205.
39
Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124.
40
Chintamanrao v. State of M.P., AIR 1951 SC 118.
41
Krishna Sugar Mills v. Union of India, AIR 1959 SC 1124.
9
rules or provision.42 The rationale is that reasonable restriction includes prohibition, having

regard to the exceptional circumstances calling for restriction,43 namely, the patent and

widespread danger to the community.44 Thus the consumption of junk food if continued will

cause inherent danger to the health of youth. Thus, the Council humbly submits that there is no

violation of any Fundamental Right on account of the restrictions imposed by the Government

as the same qualifies as a reasonable restriction under the purview of Article 19(2) - 19(6) of

the Constitution.

III. THE ARBITRATION CLAUSE IS NULL, VOID AND INOPERATIVE

It is humbly submitted that the arbitration clause is not legally valid because of the following

reasons

1) DOMESTIC PARTIES CANNOT CHOOSE TO SEAT THEIR ARBITRATION IN A FOREIGN COUNTRY

In TDM Infrastructure case45, the Court directed the arbitrating Indian parties to

conduct their arbitration in India with Indian law as the substantive law of the

contract even though the parties had contractually agreed to an " arbitration in

India or Singapore" with English law as the substantive law because the parties

were Indian companies. Therefore, it is an accepted approach that Domestic v

parties to agreement cannot be relegated to arbitrate in the foreign court excluding their

42
Sivarajan v. Union of India, AIR 1959 SC 556.
43
Cooverjee B. Bharucha v. Excise Commissioner, AIR 1954 SC 220.
44
Southern Pharmaceuticals v. State of Kerala, AIR 1981 SC 1863.
45
TDM Infrastructure Pvt. Ltd. vs. UE Development India Private Ltd, (2008) 2 UJ SC 0721.
10
domestic laws altogether.46 Whenn the parties choose a foreign substantive law to govern them,

they derogate from Indian laws.47

In the present case, by choosing to be governed by rules of Arbitration under the ICC, Paris,the

parties abstain from abiding by the domestic rules. Even the agreement says thats all matters

shall be governed by the Laws of Modus.

2) PART I OF THE ACT CANNOT BE EXCLUDED.

Supreme Court has held that the when both the parties to the arbitration agreement are

registered as companies in Modus, it is a case of domestic arbitration and the provisions of

section 2(1)(f) of the Arbitration and Conciliation Act 1996 cannot be invoked in such a

case.48This judgment was relied upon in order to support the plea that two Modus parties cannot

fall within the ambit of the international commercial arbitration and thus cannot exclude the

applicability of the part I of the arbitration and Conciliation Act.49

Due to the novation of the agreement, the agreement between the parties have become an

agreement between two Indian parties and thus such an exclusion of the jurisdiction and

contracting out part I of the Act, when the said part is applicable to the Indian parties is clearly

against the public policy which is impermissible in law and the same is required to be held

unenforceable. In the present case, it is no longer a matter under International Arbitration,

hence, part I is essential for dispute resolution. The redressal of the dispute through the

arbitration has become impossible in as much as the essence of the arbitration tribunal does not

46
Videocon Industries Limited vs. Union of India, (2011) 6 SCC 161.
47
Bharat Aluminium Co. vs. Kaiser Aluminium Technical Services Inc, (2012) 9 SCC 552.
48
TDM Infrastructure Pvt. Ltd. vs. UE Development India Private Ltd, (2008) 2 UJ SC 0721.
49
Ibid
11
exist anymore. The said arbitration clause in the present form also violates the provisions of

Section 28 of the Indian Contract Act as it restrains the parties from exercising their legal rights

under the laws of India.

3) THE ARBITRATION AGREEMENT IS NULL, VOID AND INOPERATIVE

Section 45 of the Indian arbitration and conciliation act, which deals specifically with foreign

arbitrations requires a court to refer a party to arbitration unless the court finds that the

arbitration agreement is null and void, inoperative or incapable of being performed. This

provision is in line with Article II (iii) of the NYC which deals with the validity of an arbitration

agreement. Clause 7 of the JVA signed is null and void because it is contrary to public policy

[A], and it is inoperative because Arbitration clause is separate from the original agreement[B].

4) THE AGREEMENT IS CONTRARY TO PUBLIC POLICY

An agreement which purports to oust the jurisdiction of the Court absolutely is contrary to

public policy and hence void.50 Two Indian parties cannot by agreement or otherwise derogate

from Indian law.51This amounts to an unlawful object and agreements/contracts entered into

by any Indian party of which the object is unlawful, are prohibited. 52 Since the Arbitration

Clause would circumvent the laws of India and defeat the provisions of law, and also denude

the Courts of this country of their jurisdiction, the objective of the Arbitration Clause is

unlawful and therefore is liable to be declared null and void.53 An agreement contrary to the

provisions of law would be unenforceable and that it would not be permissible to any person

50
A.B.C. Laminart Pvt. Ltd. &Anr vs A.P. Agencies, Salem, 1989 AIR 1239.
51
TDM Infrastructure Pvt. Ltd.vs. UE Development India Private Ltd, (2008) 2 UJ SC 0721.
52
Section 23, The Indian Contract Act, 1872.
53
Videocon Industries Limited vs. Union of India, (2011) 6 SCC 161.
12
to rely upon the contract the making of which the law prohibits. A contract forbidden by law

cannot become valid even if the parties act according to the contract. It is further submitted that

the Arbitration Clause is also contrary to the provisions of Section 28 of the Indian Contract

Act, as it restrains the parties from exercising their legal rights under the laws of India.

Further, considering that the JVA is between two Domestic parties of Modus, the Contract was

signed in Modus and the performance of the contract was in Modus, adjudication proceedings,

including arbitration can only be held in Modus and in no other country, and to be governed

by the laws of Modus not by any foreign laws.

Thus, the present agreement is null and void.

5) ARBITRATION CLAUSE IS SEPARATE FROM THE AGREEMENT

Arbitration clause in a contract has a unique distinction from that of the other clauses.54 While

the other clauses set out the obligations which the respective parties have to carry out,

arbitration clause is a neutral clause wherein both the parties consent for the same and

unanimously agree to refer the dispute to the arbitrator and settled the same through the tribunal

of their own choice.55

i. Doctrine of Severability is applicable

According to this doctrine, the invalidity of an underlying agreement does not have an impact

on the arbitration clause. The arbitration agreement and the underlying agreement have

54
Damodar Valley Corporation vs. K.K. Kar, (1974) SCR (2) 240.
55
Heyman V. Darwins Ltd., [1942] 1 All ER 337.
13
different qualities. The arbitration agreement is jurisdictionally autonomous and shall not be

affected when the main contract is rendered invalid.

In the present case, when Naarushi novated its rights, liabilities and obligations under the JVA

to its wholly owned subsidiary Modus Naarushi Pvt. Ltd. [Naarushi Modus] and exited

from all its investments in Modus, the agreement stood novated.56 Applying the doctrine of

severability, the Arbitration Agreement was not novated as it is different from the JVA.

Therefore, the agreement is inoperative and so the Domestic courts have the power to

adjudicate in the matter of disputes.

ii. Consent of the parties

In Reliance Industries v Union of India, the court allowed the Indian parties to deviate from

domestic curial law by choosing to arbitrate in London since arbitration is a private process

and the parties should indeed have the right to choose the law that they desire to be bound by.

However, the court did not say that the domestic laws of India could be violated or were not to

be adhered to. The important element is the presence of consent of the parties.57 The parties

should be willing to arbitrate. Courts should always strive to give effect to the free will of the

parties to arbitrate.

In the present case, there was a clause to resolve disputes through arbitration in the original

JVA between Thakurtravel and Narushi. However, post-novation, the arbitration clause being

a separate agreement was no longer functional. There was no consent by Narushi Modus to

resolve disputes through arbitration under rules by the ICC. Two parties cannot resolve to

56
Paragraph 23 and 24 of the compromise.
57
Atlas Exports v Kotak Company, (1999) 7 SCC 61.
14
arbitration for dispute resolution without mutually agreeing to it. There wasnt even a new

arbitration clause when Narushi Modusbecame a party to the JVA. Thus, the agreement is

inoperative.

15
 PRAYER

Wherefore in the light of facts stated, issues raised, authorities cited and arguments advanced,

it is most humbly and respectfully prayed that this Honorable Court may be pleased to:

Dismiss the Writ Petition No. 1112/2017 and thereby direct the Federation of Modus

to not submit to the Jurisdiction of The International Court of Justice.

Dismiss the Civil Appeal No. 1072/2017 and declare the Food Standards Act, 2016 as

Constitutionally valid.

Dismiss the Civil Appeal No. 1094/2017 and hence direct the parties to the suit to not

to refer to Arbitration.

And further pass any other order in favor of the Respondents, as this Court may so deem fit in

the ends of equity, justice and good conscience.

S/d...........................................

Date: 04th February, 2013. Counsel for the Respondents

Council Code.: 30R

16