Moot Petitioner- Team 09 (Constitutional Law) PDF

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UNIVERSITY OF MUMBAI LAW ACADEMY’S 5 TH FRESHERS’ MOOT COURT COMPETITION, 2020TEAM CODE 09IN THE HON’BLE SUPRERME COURT OF INDIANA___________________________________________________________________________ORIGINAL CRIMINAL JURISDICTION_________________________________________________________________...

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TEAM CODE 09

IN THE HON’BLE SUPRERME COURT OF INDIANA

___________________________________________________________________________ ORIGINAL CRIMINAL JURISDICTION ___________________________________________________________________________

WRIT PETITION: CRIMINAL NO. 123 OF 2019 (PUBLIC INTEREST LITIGATION)

IN THE MATTER OF WELFARE COLLECTIVE SOCIETY------------------------------------------------ PETITONER VERSUS UNION OF INDIANA----------------------------------------------------------------RESPONDENT

COUNSEL ON BEHALF OF PETITIONER

UPON THE SUBMISSION TO THE HON’BLE CHIEF JUSTICE OF INDIA AND HIS COMPANION JUSTICES OF THE SUPREME COURT OF INDIA. THE HUMBLE PETITON OF THE PETITIONER ABOVE NAMED

5th FRESHERS’ MOOT COURT COMPETITION,2020

TABLE OF CONTENTS

1. List of Abbreviations---------------------------------------------------------------------------------3 2. Index of Authority------------------------------------------------------------------------------------4 3. Statement of Jurisdiction----------------------------------------------------------------------------6 4. Statement of Facts------------------------------------------------------------------------------------7 5. Questions Raised-------------------------------------------------------------------------------------9 6. Summary of Arguments----------------------------------------------------------------------------10 7. Arguments Advanced-------------------------------------------------------------------------------11 7.1 Issue 1: Whether this Writ Petition by way of Public Litigation Interest is maintainable under Article 32 of the Constitution? -----------------------------------------------------------11 1.1 Maintainability of Public Interest Litigation-------------------------------------------11 1.2 The Petitioner has Locus Standi to file a Petition-------------------------------------12 1.3 Fundamental Rights Have Been Violated----------------------------------------------13 7.2 Issue 2: Whether the government of Indiana violated the provision of Article 22 of the constitution? ----------------------------------------------------------------------------------------14 2.1 Rights Given to an Arrested Person----------------------------------------------------14 2.2 Provides Protection Against Arrest and Detention in Certain Cases---------------14 2.3 Principles of Natural Justice: Audi Alteram Partem----------------------------------15 2.4 Preventive Detention---------------------------------------------------------------------16 7.3 Issue 3: Whether Section 124Aof the IPC satisfies the golden triangle test under Article 14, 19 and 21 of the Constitution? --------------------------------------------------------------17 8. Prayer ------------------------------------------------------------------------------------------------21

MEMORANDUM ON BEHALF OF THE PETITIONER

5th FRESHERS’ MOOT COURT COMPETITION,2020 LIST OF ABBREVIATIONS

Hon’ble

Honourable

WCS

Welfare Collective Society

DPI

Democratic Party of Indiana

IPC

Indian Penal code

PIL

Public Interest Litigation

SCC

Supreme Court Cases

V

Versus

Anr.

Another

AIR

All India Reporter

MEMORANDUM ON BEHALF OF THE PETITIONER

5th FRESHERS’ MOOT COURT COMPETITION,2020 INDEX OF AUTHORITIES Table of Cases: 1) S. P. Gupta v. Union of India 2) Janta Dal v. H. S. Chaudhary 3) D. K Basu v. State of West Bengal 4) Government of India v. Alka Subhash Gadia 5) State of Maharashtra v. Public Concern of Governance Trust 6) Rustom Cavasjee Cooper v. Union of India 7) Maneka Gandhi v. Union of India 8) Tika v. State of Uttar Pradesh 9) Hansraj v. State 10) Romesh Thappar v. Union of India 11) Minerva Mills v. Union of India 12) T. R Kothandaranum v. T. N Water Supply and Drainage Board 13) Shambhu Nath Sarkar v. State of West Bengal 14) Haradhan Saha & Ans. v. State of West Bengal 15) Gurjatinder Pal Singh v. State of Punjab 16) Balwant Singh v. State of Punjab Books Referred: 1. The Constitution of India by Durga Das Basu 2. The Criminal Procedure Code- Bare Act 3. The Indian Penal Code- Bare Act Research Data Base: 1) SCC online: http://www.scconline.com/WebEdition.aspx 2) AIR online: http://www.airwebworld.com/ 3) Government Gazette: http://egazette.nic.in/

MEMORANDUM ON BEHALF OF THE PETITIONER

5th FRESHERS’ MOOT COURT COMPETITION,2020 Statues: 1) The Constitution of India 2) The Indian Penal Code, 1860 3) The Criminal Procedure Code, 1973

MEMORANDUM ON BEHALF OF THE PETITIONER

5th FRESHERS’ MOOT COURT COMPETITION,2020 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court has the original jurisdiction to hear the petition under Article 32 of the constitution of India.

Article 32 of the Constitution of India which reads as follows:

“32. Remedies for enforcement of rights conferred by this Part(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this part is guaranteed. (2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.”

MEMORANDUM ON BEHALF OF THE PETITIONER

5th FRESHERS’ MOOT COURT COMPETITION,2020 STATEMENT OF FACTS For the sake of brevity and convenience of this Hon’ble Court the facts of the present case are summarised as follows: 1. Union of Indiana gained independence from Dritish in 1947. The constitution was adopted on 26th November, 1949.The Preamble declared Indiana to be a Sovereign, Socialist, Secular, Democratic Republic. 2. Despite the election being ‘free’ and ‘fair’, Democratic Party of Indiana (DPI) won every election and became the de facto ruling government of Indiana in its initial years. 3. The Constitution granted its citizens freedom of speech and expression (Article 19), freedom to practice and profess any religion (Article 25) and the ever expanding right to life and liberty (Article 21). 4. In 1977, DPI began cracking down on its citizens because of its policies and programmes and imprisoned and detained them without any opportunity to defend themselves. 5. DPI justified the detainment and imprisonment by taking support of section 124(A) of the IPC. 6. The Prime Minister of Indiana and President issued a press release and clarified that the statements were against the ruling government and the detainment was a precautionary. 7. Massive protest broke out against section 124(A) of the IPC and they called for immediate release of imprisoned individuals. Several international organisations called this act as ‘affront of democracy’ 8. After the immense pressure from all sides DPI amended section 124(A) of the IPC. 9. DPI still managed to form the government but with a reduced vote margin. Several bills were introduced in the parliament to abolish section 124(A) form the IPC. 10. Eventually in 2013 Indiana People’s Party (IPP) formed the ruling government and Mr. S. K. Kumar became the president of Indiana. 11. The Prime Minister’s main agenda was to abolish Section (A) from the IPC. 12. However, within two years of coming to power, the IPP arrested Mr. Jim Sharma, a standup comedian for allegedly exhibiting cartoons that insulted the integrity of Indiana. The cartoon said, “welcome to Indiana: the hub of corruption in the world.” 13. Several arrests were made in the upcoming years, beginning with Mrs. Pam Bohra for exhibiting ‘provocative art’ at her exhibition and Mr. Kevin Noronha for holding readings

MEMORANDUM ON BEHALF OF THE PETITIONER

5th FRESHERS’ MOOT COURT COMPETITION,2020 on books which advocated mass demonstrations as the answers to Indiana’s ‘quasiautocratic government. On 24th July, 2017 Noel Romany John, a blogger and activist, was arrested for having made anti-Indiana slogans at an event organized by Indiana Press Association. On 29th September, 2017 Shirsti Sahu, a nuclear scientist was arrested on grounds of protesting against the proposed installation of a nuclear plant sanctioned by the government, which would displace the concerned villager from their homes. On 7th August, 2018 Alex Mathias, a folk singer was arrested from his home early in the morning for composing and performing songs on Indiana’s liquor policies. On 6th December, 2018 Jesvin Thomas, a stock broker was arrested on the basis of purported derogatory comments published on Facebook against the Government’s proposed surveillance program. On 3rd February, 2019 Garima Sadhwani and Abhishek Arora, leaders of student unions were arrested from their college campus on charges of raising anti-Indiana slogans and influencing other students to take up arms against the State. 14. The reasons provided by the government were bogus and no detailed explanation was given for the imprisonment and detention. The detained individuals were again not given a chance to defend themselves. 15. After all this Welfare Collective Society (WCS), a non- governmental organization filed a Public Interest Litigation before the Hon’ble Supreme Court under Article 32 challenging the constitutionality of Section 124 (A). 16. WCS stated that Section 124(A) had a chilling effect on freedom of speech and expression guaranteed under Article 14, it further violates Article 21 which talks about right to life and liberty, also arbitrary exercise of power of government in arresting citizens falls under foul of equality principle under Article 14. 17. The government has questioned the maintainability of this petition under Article 32 since the PIL was under the name of their society. The government also took help of the reasonable restriction clause in Article 19 states that freedom of speech and expression is not an absolute right.

MEMORANDUM ON BEHALF OF THE PETITIONER

5th FRESHERS’ MOOT COURT COMPETITION,2020 QUESTIONS RAISED The Issues to be considered by the Hon’ble Supreme Court are as follows:

Issue 1: Whether this Writ Petition by way of Public Interest Litigation is maintainable under Article 32 of the Constitution?

Issue 2: Whether the government of Indiana violated the provision of Article 22 of the Constitution?

Issue 3: Whether Section 124A of the IPC satisfies the golden triangle test under Articles 14, 19 and 21 of the Constitution?

MEMORANDUM ON BEHALF OF THE PETITIONER

5th FRESHERS’ MOOT COURT COMPETITION,2020 SUMMARY OF ARGUMENTS

Issue 1: Whether this Writ Petition by way of Public Interest Litigation is maintainable under Article 32 of the Constitution? The petitioner humbly submits before the Hon’ble Court that present PIL is maintainable under Article 32 of the Constitution as the Society who is filing the Petition does not have any personal interest in the given litigation. It is further submitted that since there has been gross violation of Article 14, 19 and 21 of the constitution. Hence the PIL is maintainable and account of the same relief is sought.

Issue 2: Whether the government of Indiana violated the provision of Article 22 of the Constitution? The petitioner humbly submits before the Hon’ble Court that Article 22 of the Constitution has been violated on account of arbitrary arrests made by the Government. The individuals were not informed before being arrested or detained, also they were not given a chance to be defended by a legal practitioner of their choice, which were the provisions of Article 22. Hence the Article 22 of the of the constitution has been violated and we sought relief for the same.

Issue 3: Whether Section 124A of the IPC satisfies the golden triangle test under Articles 14, 19 and 21 of the Constitution.? The petitioner humbly submits before the Hon’ble Court that, Article 19 and 21 of the constitution have been violated on account of arbitrary arrests made by the government, thus resulting in violation of Article 14 as well. Section 124(A) does not satisfy the golden triangle test as it is violating the rights of arrested individuals.

MEMORANDUM ON BEHALF OF THE PETITIONER

5th FRESHERS’ MOOT COURT COMPETITION,2020 ARGUMENTS ADVANCED Issue 1: Whether this Writ Petition by way of Public Interest Litigation is maintainable under Article 32 of the Constitution? The Petitioner humbly submits to the Hon’ble court that the petition filed is maintainable under Article 32 of the Constitution, as the society who is filing the Petition must not have any personal interest in the litigation, this Petition is accepted by the Court only if there is interest of large public involved. In the given case WCS does not have any personal interest involved as it is a non-governmental organization committed to the cause of championing human rights. 1.1 MAINTAINABILITY OF PUBLIC INTEREST LITIGATION: In 1981 Justice P.N Bhagwati in S.P Gupta v. Union of India1, articulated the concept of PIL as follows, “Where a legal wrong or a legal injury is caused to a person or to a determinate class of a persons by reason of violation of any constitutional or legal right or any burden is imposed in contravention of any constitutional or legal provision or without authority of law or any such legal wrong or legal injury or legal burden is threatened, and any such person or determinate class of persons is by reason of poverty or disability or socially or economically disadvantaged position unable to approach the court for relief, any member of the public or social action group can maintain an application for an appropriate direction, order or writ in the High Court under Article 226 and in case of breach of any fundamental right of such person or class of persons, in this Court under Article 32 seeking judicial redress for the legal wrong or injury caused to such person or determinate class of persons” The present case is matter of public interest: 1) The fact that the Government of Indiana arrested and detained individuals, without due notice and without giving them an opportunity to defend themselves. 2) The reasons provided by the Government were bogus and inadequate. The government justified themselves saying that the act done was in ‘public interest’ and ‘potential to

1

AIR 1982 SC 149

MEMORANDUM ON BEHALF OF THE PETITIONER

5th FRESHERS’ MOOT COURT COMPETITION,2020 incite violence’, and no further explanation was given. Further most individuals are still in jail and no proper trial is conducted or even a proper opportunity of being heard. 1.2 THE PETITONER HAS LOCUS STANDI TO FILE A PETITON: It was made clear in Janta Dal v. H.S. Chaudhary2 that only a person ‘acting bona fide’3 and ‘having sufficient public interest’ in the proceeding of public interest litigation will have alone the ‘locus standi’ but not a person for personal gain or political motive or any oblique consideration. The rule of locus standi has been relaxed and a person acting bona fide and having sufficient interest in the proceeding of PIL will alone have a locus standi and can approach the court to wipe out the violation of fundamental rights and genuine infraction of statutory provisions, but not for personal gain or private profit or political motive or any oblique consideration. The Petitioner WCS being an NGO which actively works in championing human rights and public welfare are therefore capable of being acting bona fide. 1.3 FUNDAMENTAL RIGHTS HAVE BEEN VIOLATED: Fundamental rights such as Freedom of speech and expression (article 19), and the ever expanding right to life and liberty (Article 21), guaranteed in the Constitution, have been violated by the by the arbitrary acts of the government. The DPI government arrested and detained individuals without any chance to defend themselves. Hence the PIL is maintainable under Article 32 of the Constitution. The freedom of speech and expression under Article 19 has been violated as Mr. Jim Sharma through his cartoons has only exercised the constitutional right guaranteed to him. The right to life and liberty under Article 21 includes right to live with human dignity, right to livelihood, etc. Section 124A labels an individual as a criminal and tarnishes his reputation due to which he cannot lead a normal life.

2

AIR 1993 SC 892. 64 Fertilizer Corporation Kamgar Union v. Union of India, AIR 1981 SC 844 “whenever there is a public wrong or public injury caused by an act or omission of the State or Public authority which is contrary to the constitution or the law, any member of the public acting Bona fide and having sufficient interest can maintain an action for redressal of such public wrong or public injury. 3

MEMORANDUM ON BEHALF OF THE PETITIONER

5th FRESHERS’ MOOT COURT COMPETITION,2020 In the case of State of Maharashtra v. Public Concern of Governance Trust, the court held that good reputation was an element of personal security and was protected by the constitution, equally with the right to the enjoyment of life, liberty, and property. Also, the right to equality under Article 14 has been violated as the Government has misused its power in arresting citizens for exercising rights guaranteed to them in constitution Hence it is humbly submitted that since there has been a violation of the fundamental rights, the court has the requisite jurisdiction to entertain the writ petition filed by the Petitioner.

MEMORANDUM ON BEHALF OF THE PETITIONER

5th FRESHERS’ MOOT COURT COMPETITION,2020 Issue 2: Whether the government of Indiana violated the provision of Article 22 of the Constitution? The Petitioner humbly submits to the Hon’ble court that the Article 22 of the Constitution has been violated on account of the arbitrary arrests made by the government. 2.1 Rights given to an arrested or detained person: According to the case D.K Basu v. State of West Bengal: ‘As stated by the Court, the safeguards flow from the fundamental rights guaranteed in Articles 21 and 22 of the Constitution of India. The life in liberty of a person is secured under Article 214 and supplemented by Article 225 that provides key protections against arbitrary arrests or detention to every arrested person. These are: the rights to be informed of the grounds of arrest; the right to consult a lawyer of choice, and the obligation to produce every person arrested and detained in custody before the nearest (judicial) magistrate within 24 hours of arrest.6’ 2.2 Provides protection against arrest and detention in certain cases: Sawant. J in Addl. Secy. to the Govt. of India v. Alka Subhash Gadia (Smt)7 made it clear that Article 22 had to be tested on the anvil of Articles 14, 19 and 21. It was stated as under: “8. … After the decision of this Court in Rustom Cavasjee Cooper v. Union of India which is otherwise known as the Bank Nationalisation case and in Maneka Gandhi v. Union of India, it is now well settled that the fundamental rights under chapter III8 of the Constitution are to be read as a part of an integrated scheme. They are not exclusive of each other but operate, and are, subject to each other. The action complained of must satisfy the tests of all said rights so far as they are applicable to individual cases. It is not enough, that it satisfies the requirement 4

Article 21, Constitution of Indiana: Protection of life and personal liberty- “No person shall be deprived of his life and personal liberty except according to procedure established by law.” 5 Article 22(1), Constitution of Indiana: “ No person who is arrested shall be detained in the custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice”. 6 Article 22(2), Constitution of Indiana: “every person who is arrested sh...