1st Annual Inter College MOOT COURT Competition, 2020

TEAM CODE: C

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION

W.P.(CIVIL) No. OF 2020

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIANA

Council for Protection of Human Rights......................................................... PETITIONER

v/s

Union of Indiana .......................................................................................... RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDIANA

MEMORANDUM ON BEHALF OF THE RESPONDENT

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TABLE OF CONTENTS

 TABLE OF CONTENTS ........................................................................................... 2

 LIST OF ABBREVIATION .................................................................................. 3-4
 INDEX OF AUTHORITIES .................................................................................. 5-8
 STATEMENT OF JURISDICTION… ...................................................................... 9
 STATEMENT OF FACTS ...................................................................................... 10
 ISSUE ..................................................................................................................... 11
 SUMMARY OF ARGUMENTS ............................................................................. 12
 ARGUMENT ADVANCED.............................................................................. 13-32
 PRAYER… ............................................................................................................. 33

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LIST OF ABBREVIATIONS

AIR All India Reporter

AIR SC All India Reporter Supreme Court
Art. Article
Admn. Administration
AP Andhra Pradesh
CPHR Council for Protection of Human Rights
Cri.W Criminal
CriLJ Criminal Law Journal
Del. Delhi
Distt. District
Ed. Edition
Govt. Government
Hon’ble Honorable
i.e. That is
ISLJ Indiana Socio Legal Journal
IPC Indiana Penal Code
J. Justice
JCC Journal of Criminal Cases
LR Law Reports
MP Madhya Pradesh
No. Number
Ors. Others
Prof. Professor
PIL Public Interest Litigation
Ref Reference
Rly Railways
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter

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SAL Social Action Litigation

Sec. Section
Supp Supplementary
u/a Under Article
UP Uttar Pradesh
UOI Union of Indiana
v/s Versus
Vol. Volume
W.B. West Bengal
W.P. Writ Petition

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INDEX OF AUTHORITIES

CASES

1. A.K. Gopalan v/s The State of Madras,1950 AIR 27 ........................................... 21,22

2. Ahmed Noor Mohd. Bhatti v/s State of Gujarat, AIR 2005 SC 2115 ....................... 20
3. American Communications v/s Dauds, (1951) 340 U.S. 368 ....................................26
4. Anand Kumar Sharma v/s State of U.P., AIR 2014 All 106 (FB)............................. 31
5. Atmasingh v/s State of Punjab, (1976) ILR 1 Punjab & Haryana 879 ..................... 22
6. AlequePadamsee v/s UOI, (2007) 6 SCC 171 ........................................................ 29
7. All India Bank Employees Association v/s N. I. Tribunal, AIR 1962 SC 171 ........... 24
8. Babul Mitra v/s State of W.B.,1974 Cri LJ 395 ........................................................ 22
9. Balkotaiah v/s UOI,AIR 1958 SC 242...................................................................... 23
10. Bacha Bora v/s State of Assam, 1991 Cri LJ 2782… ................................................21
11. Bennett Coleman v/s UOI, AIR 1973 SC 106.......................................................... 25
12. Bharat Kumar K. Palicha v/s State of Kerala,AIR 1997 Kerala 291 ........................ 24
13. Brind v/s Secretary of State (1991) 1 ALL ER 720.................................................. 27
14. Brandenburg v/s Sohio, (1969) 395 U.S. 444 ......................................................... 27
15. B. Kishtaiah v/s Government of India, 1998 (5) ALT 13 ........................................ 15
16. ChhetriyaPardushanMuktiSangharshSamiti v/s State of U.P., the (1990) 4 SCC 499
……………………………………………………………………….……………….16
17. Communist Party of India (M) v/s Bharat Kumar ..................................................... 24
18. Commissioner Of Police v/s C. Anitha,(2004) 7 SCC 467 ....................................... 27
19. DayashankarKapoor v/s UOI, 1975 Cri LJ 1376 .....................................................22
20. DamayantiNaranga v/s UOI, (1971) 3 SCR 840 ...................................................... 24
21. D.A.V. College v/s State of Punjab, AIR 1971 SC 1737........................................... 24
22. DharamDutt v/s UOI (2004) I SCC 712: AIR 2004 SC 1295.................................. 23
23. DeonarayanMondal v/s State of W.B., (1973) 3 SCC 298 ...................................... 22
24. Delhi Police Non- GazettedKaramchariSangh v/s UOI, AIR 1987 SC 379: (1987) 1
SCC 115 ................................................................................................................. 24
25. Dr k. Krishna Swami v/s The S.P. Virubhunagar, (2006) 1 CTCT 396 (Mad
HC)..........................................................................................................................25
26. DolibenKantilal Patel v/s State of Gujarat, (2013) 9 SCC 447 .................................. 29
27. De Jonge v/s Oregon, (1937) 299 U.S. 353 ............................................................. 27

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28. Extra Judicial Execution Victim Families Association and Ors. v/s UOI and ors., AIR
2016 SC 3400 ..........................................................................................................28
29. Express Newspaper v/s UOI (ll), (1986) 1 SCC 133 ................................................ 25
30. Gitlow v/s N.Y. (1925) 268 U.S. 653 ...................................................................... 27
31. Girish Kumar Suneja v/s C.B.I., AIR 2017 SC 3620 ............................................... 32
32. Gouranga v/s State of Orissa and ors., 1987 Cri LJ 624 ............................................22
33. Gurubachan Singh v/s State of Bombay, AIR 19552 SCC 221 ................................ 17
34. HarpeetKaur v/s state of maharastra, (1992) 2 SCC 117 ......................................... 27
35. Hari Singh v/s State of U.P., (2006) 5 SCC 733 .......................................................29
36. Hare Ram Pandey v/s State Of Bihar AIR 2004 SC 738: (2004) 3 SCC 289 ............. 27
37. HavildarRatan Singh v/s UOI, 1992 Supp 716 ....................................................... 28
38. Herndon v/s Lowry, (1937) 301 U.S. 242................................................................. 27
39. Himmatlal v/s Police Commissioner, AIR 1973 SC 87 ............................................. 25
40. James Martin v/s State of Kerala, (2004) 2 SCC 203 ............................................... 24
41. Kartar Singh v/s State of Punjab, (1994) 3 SCC 569 at 679 ......................................17
42. Kailash Gaur v/s State of Assam, (2012) 2 SCC 34 .................................................. 29
43. K. HanumantaRao v/s Prl Sub-Judge (1997) 4 All LT 444 (DB) ............................ 15
44. KusoSah v/s State Of Bihar (1974) 1 SCC 185....................................................... 26
45. Kulkarni v/s State of Bombay, AIR 1954 SC 73...................................................... 24
46. Lal Singh v/s State of Gujarat, AIR 2001 SC 431… ................................................ 17
47. Makkan Singh v/s State of Punjab, AIR 1952 SC 27 ................................................ 21
48. Madhu V. Holamagi v/s UOI ...................................................................................14
49. Manekben v/s. UOI , Cri W. P. No. 1 of 1975 ........................................................... 22
50. Manoharlal v/s State , (1951) SCR 671 ..................................................................... 23
51. MaqboolHussain v/s State of Bombay, AIR 1953 SC 325 ........................................ 21
52. Mariappan v/s District Collector and Ors., (2011) 15 SCC 749 ................................ 20
53. Miranda v/s Arizona, 384 U.S. 436 (1966) ................................................................ 17
54. Mr. SharafatHussain Abdul RahmaanShalik and Ors. v/s State of Gujarat and Anr.,
1996 (4) Cri 244 .......................................................................................................18
55. NagendraNathMondal v/s State of W.B., 1972 SCC (Cri) 227 ............................. 22
56. O.K.A. Naur v/s UOI, AIR 1976 SC 1179................................................................. 24
57. P N Dubey v/s UOI AIR 1989 MP 225 ..................................................................... 15
58. PrayagVyaparMandal v/s State AIR 1997 All 1 at 5,6,7 ......................................... 16

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59. People’s Union for Civil Liberties v/s UOI, AIR 1997 SC 1203 ........................ 19,29
60. Pennsylvania v/s Nelson (1955) 350 U.S. 497 ........................................................... 27
61. Pralhad Krishna Kurane v/s The State of Bombay,AIR 1950 Bom 1 ......................... 22
62. Ramjilal v/s State of U.P., AIR 1SC 620 (623): 1957 SCR 860 ................................. 26
63. Ramdhandas v/s State of Punjab, AIR 1961 SC 1559 ................................................ 23
64. Raghubar v/s UOI, (1962) 3 SCR 497 ....................................................................... 23
65. Rice and Flour Mills v/s N.T. Gowda , 1970 SCR (3) 846 ........................................ 14
66. Ramaq International Ltd v/s IVR Construction Ltd (1999)1 SCC 492 ..................... 15
67. R.S. Keluskar v/s. UOI (UOI) and Ors 2007 (6) Bom CR 559 .................................. 15
68. S.N. Dube v/s N.B.Bhoir, 2000 Cri LJ 830............................................................... 18
69. S.K. Hasan Ali v/s State of W.B., AIR 1972 SC 2590 ............................................. 22
70. Secy. Ministry pf Information & broadcasting, Govt. of India v/s Cricket Association
of Bengal, AIR 1995 SC 1236: (1995) 2 SCC 161....................................................25
71. State of Bombay v/s AtmaramShridharVaidya, AIR (1951) SC 157… ................... 22
72. State of Tamil Nadu v/s Nalini,AIR 1999 SC 2640…............................................... 18
73. State of Maharashtra v/s Bharat ChaganlalRaghani and Ors., AIR 2002 409 ...........18
74. State of Maharashtra v/s Siraz Ahmed Nisar Ahmed and Ors.,AIR 2007 SC
185….................................................................................................................. 19
75. State of Maharashtra v/s Himatbhai, AIR 1970 SC 1157 ......................................... 23
76. State Of U.P. v/s SanjaiPratap Gupta,(2004) 8 SCC 591 ......................................... 27
77. State of U.P. v/s Kaushalaya, AIR 1964 SC 416...................................................... 23
78. State (NCT of Delhi) v/s NavjotSandhu, ( 2005) 11 SCC 600 .................................28
79. Stromberg v/s California (1931) 283 U.S. 359 (369) ........................................... 26,27
80. Sunil GnagadharKarve v/s State of Maharashtra, (2014) SCC 48 ............................. 29
81. Terminello v/s Chicago (1949) 337 U.S. 1 ............................................................... 27
82. T.K. Gopal v/s State Of Karnataka, (2000) 6 SC 168 ................................................ 27
83. T.N. GodavarmanThirumulpad v/s. UOI and others (supra) (2001) 10 S.C.C.
645…....................................................................................................................... 14
84. Union Carbide Corpn v. UOI, (1991) 4 SCC 584 ..................................................... 16
85. Vijay Kumar v/s State of Jammu and Kashmir and ors.,(1982) 3 SCR 522… ........... 21
86. Virendra v/s State of Punjab, AIR 1957 SC 896: 1958 SCR 409 ..............................26
87. Yates v/s U.S. (1957) 354 U.S. 298 ......................................................................... 26

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BOOKS
1. Bakshi,P.M. (3rd Ed.),Public Interest Litigation, New Delhi,Ashoka Law House
2. Myneni,S.R. (1st Ed.),Constitutional Law – I, Hyderabad, Asia Law House
3. Basu, D.D. (8th Ed.), Commentary on the Constitution of India, Nagpur, LexisNexis
4. Jain, M.P. (7th Ed.), Indian Constitutional Law, Gurgaon, LexisNexis

LEGAL DATABASES

1. www.Manupatrafast.com
2. www.SCCOnline.com
3. www.Lexus Nexus.com

LEXICONS

1. Garner, Bryan A. (10th Ed.) Black Law Dictionary ,Thomson Reuters

LEGISLATIONS

1. Constitution of Indiana.
2. The Armed Forces (Special Powers) Act, 1958.
3. Prevention and Detention Act, 2019.
4. Indiana Penal Code.
5. TADA Act, 1987.
6. The Army Act, 1950.

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STATEMENT OF JURISDICTION

It is humbly submitted that, the Respondent has appeared before this Hon’ble Court in
response to the notice sent to the respondent with regard to the PIL filed by the Petitioner
under Article 321 of the Constitution of Indiana.

1
Article 32 in The Constitution of Indiana, 1950

32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred
by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature of
habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part

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

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

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STATEMENT OF FACTS

PRIOR TO ENFORCMENT OF THE ACT

The State of Kashir is a province, located on the northern flank of the Indiana, and having
contiguous land border with a country called Pompeoland. Taking advantage of volatile
situation, Pompeoland, in furtherance of its nefarious designs against the Republic of Indiana,
started instigating such activities in the Kashir province and providing covert material support
to them. Consequently, many political parties and youth organized mass protest against the
government of Indiana, which took violent turn on many occasions. There was also
unconfirmed news of penetration and infiltration of armed Non- State Actors, supported by
Pompeoland.As a part of protest many government institutions were sabotaged and security
forces were attacked, which resulted in the death of few civilians.

ENFORCEMENT OF“ANTI NATIONAL AND DISRUPTIVE ACTIVITIES

PREVENTION ACT, 2019”

Some of the provisions of this Act are:

 Confession given by the arrested person, before the SP will be admissible in court
 Any person may be detained and interrogated by security forces for the period of
90days on the basis of suspicion and without any warrant.
 UOI shall be authorized to deploy Security Forces of the union in any Province
without any request by or permission of provincial govt.
 Formation of parties, unions and organizations shall be prohibited without approval of
Collector of the District.
 Right to freedom of speech and expression was restricted against the government and
country.
 Security forces are empowered to use reasonable force which may extend to causing
death of person who is found engaged in anti-national and terrorism activities.

AFTER THE ENFORCEMENT OF THE ACT

Though there was success in one part but this act received some criticisms from the
citizens, stating it was infringement of the fundamental rights. CPHR, a NGO, filed PIL
in the SC and challenged the constitutional validity of the Act.

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ISSUES RAISED

1. WHETHER THE PIL FILED BY THE PETITIONER IS MAINTAINABLE

BEFORE THE HON’BLE SC OF INDIANA?

2. WHETHER ANTI-NATIONAL AND DISRUPTIVE ACTIVITIES PREVENTION

ACT, 2019 IS VIOLATIVE OF FUNDAMENTAL RIGHTS OR NOT?

3. WHETHER THE POWER OF UNION TO DEPLOY SECURITY FORCES IN ANY

PROVINCE WITHOUT ANY REQUEST OR PERMISSION OF PROVINCIAL
GOVERNMENT IS CONSTITUTIONAL OR NOT?

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SUMMARY OF ARGUMENTS

1. WHETHER THE PIL FILED BY THE PETITIONER IS MAINTAINABLE

BEFORE THE HON’BLE S.C. OF INDIANA?
The respondent humbly submits before the Hon’ble Court that PIL file by the
petitioner is not maintainable as, neither any fundamental right is violated nor any
public interest is supressed. Though PIL is an exception to Locus Standi yet the
petitioner cannot challenge the Constitutional validity of the Act because the Act is
enforced with a basic motto of ensuring the security and safety of people of Indiana
including the people of Kashir.
2. WHETHER ANTI-NATIONAL AND DISRUPTIVE ACTIVITIES
PREVENTION ACT, 2019 IS VIOLATIVE OF FUNDAMENTAL RIGHTS OR
NOT?
In the exercise of the rights and freedoms, everyone shall be subject, only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the just
requirements of morality. Public order is in the general welfare of the democratic
society. In the given case though every citizen of Indiana has a Fundamental Right
enshrined under Art. 14, 19, 20, 21, 22 but seeing an alarming growth of separatist
sentiment, religious fanaticism communal hatred and dissatisfaction against the
government of Indiana.
3. WHETHER THE POWER OF UNION TO DEPLOY SECURITY FORCES IN
ANY PROVINCE WITHOUT ANY REQUEST OR PERMISSION OF
PROVINCIAL GOVERNMENT IS CONSTITUTIONAL OR NOT?
The respondent humbly submits that the power of union to deploy security forces in
any province without any request or permission of provincial government is
constitutional. Because, entry 1 of the union give permission to deploy the security
forces. Hence, union’s power to deploy security forces is constitutional.

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ARGUMENT ADVANCED

ISSUE1. WHETHER THE PIL FILED BY THE PETITIONER IS MAINTAINABLE

BEFORE THE HON’BLE S.C. OF INDIANA?

The counsel on behalf of the respondent humbly submits before the Hon’ble S.C. of Indiana
that the PIL filed before the Hon’ble Court is not maintainable as it is against the legal action
initiated in the Court of Law for the enforcement of public or general interest of the people of
Kashir.

Public Interest Litigation – (An Exception to locus standi).

The concept of Public Interest Litigation was given a convenient handle by Courts of law
with a view to accommodate the poor, down trodden and weaker sections of the society to
ventilate their grievances for seeking the necessary redressal with the aid and assistance of
associations, organizations and public spirited individuals. Procedural characteristics that
help to identify a PIL include locus standi are the methods of filing the petition, the
availability of an accessible alternative forum/remedy, a conciliatory procedure in the
courtroom, an expansion of the scope of the litigation and innovations in the nature of the
directions given. The abuse of PIL has become more rampant than its use and genuine causes
either receded to the background or began to be viewed with the suspicion generated by
spurious causes mooted by privately motivated interests in the disguise of so-called public
interests. It cannot be denied that piece of legislation which is being discussed in the given
case is necessary as it is an enactment designed to check terrorist activities. It is also essential
for the court to throw light on the fact, that there is a vital distinction between locus standi
and justifiability and it is not every default on the part of the State or a public authority that is
justiciable.2

In the case of Sachidanand Pandey v/s State of West Bengal3, the court held that, it is only
when the courts are apprised of gross violations of fundamental rights by a group or a class
action or when basic human rights are invaded or when there are complaints of such acts, that
the courts must leave aside procedural fetters and hear such petitions and extend their
jurisdiction under all available provisions for remedying the hardships off the needy. But here
in the given case the parliament of Indiana has enacted the “Anti NationalAnd Disruptive

2
As to the distinction between locus standi and justiciability
3
Sachidanand Pandey v/s State of West Bengal (1987) 2 SCC 295

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Activities Prevention Act” not with a motive to rub the basic human rights but in order to
maintain peace and security of nation by enacting a law to curb the destructive activities
taking place in Province of Kashir. Further in the case of Rice and Flour Mills v/s N.T.
Gowda4, the SC held that a rice mill owner has no locus standi to challenge under Art 226 for
setting up of a new rice mill even if the setting up of such rice mill is in contravention of the
rule because no right vested in the applicant has been infringed, due to which petitioners was
found abusing process of Court in the name of PIL, which was dismissed and petitioners had
to pay cost of one lakh rupees. Also in the case of Madhu V. Holamagi v/s UOI5, the court
held that, “we dismiss this Public Interest Litigation, but taking a liberal attitude, we impose
costs of Rs. 5,000/- (Rupees Five Thousand only) which shall be paid to the Maharashtra
State Legal Services Authority within four weeks from today.”His Lordship Bhagwati, J
expressed a note of caution regarding the PIL thus:

“But we must be careful to see that the member of the public, who approaches the court in
case of this kind, is acting bona fide and not for personal gain or private profit or political
motivation or other oblique consideration. The court must not allow its process to be abused
by politicians and others…”

Misuse of PIL

Former Chief Justice A.S. Anand cautioned the over use of PIL and emphasized “Care has to
be taken to see that PIL essentially remains public interest litigation and is not allowed to
degenerate into becoming political interest litigation or private inquisitiveness litigation”. The
Hon'ble Supreme Court itself in the case of T.N. Godavarman Thirumulpad v/s. UOI and
others6, has made it very clear that though a Public Interest Litigation cannot be entertained
at the instance of a malafide writ applicant, but, if the Courts finds that the issue brought
before the Court in such a writ petition involves public law obligation, then, it can entertain
the writ petition appointing an amicus curiae.Though we don’t fully claim that the petitioner
has a mala fide intention but yet we are also not able to find a bona fide intention as the
petitioners are challenging the constitutional validity of an Act which is enacted with a basic
motto of ensuring the security and safety of people of Indiana including the people of Kashir.

4
Rice and Flour Mills v/s N.T. Gowda , 1970 SCR (3) 846
5
Madhu V. Holamagi v/s UOI, W.P. No. 22 of 2008.
6
.N. GodavarmanThirumulpad v/s UOI and others (supra) (2001) 10 S.C.C. 645.

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In the case, R.S. Keluskar v/s. UOI and ors7, the court held that the main and basic feature
of a public interest litigation is that the litigation must be for a larger public interest, must be
free of action and which should not be determined malafide, malicious and abuse of the
process of the Court, it must not be individual or private interest oriented. Also in the case, P
N Dubey v/s UOI8, a number of public interest actions are rejected on the ground that they
have been filed only on the basis of newspaper reports where there is no sufficient inquiry on
the efficacy of these reports before approaching the court. In the case Ramaq International
Ltd v/s IVR ConstructionLtd9, the court held that before entertaining a writ petition and
passing any order in reference to petitions, the court must carefully weigh conflicting public
interests. Only when it comes to a conclusion that there is an overwhelming public interest in
entertaining the petition, the court must intervene. Similarly, in this case also how can the
petitioner contend that the enactment of the Act has caused abuse and misuse of Authority
and human rights violation as there is no such overwhelming instance which entitles them to
challenge the constitutional validity of the Act.

In the case of D.K. Joshi v. Chief Secretary, State of UP10, the court held that there have
been a number of PIL, which have been filed solely on the basis of reports in the media. In
the present case, the Act is misinterpreted by people, which led to protests against it. The Act
is passed for the benefit and security of the people of Kashir.

In the case of B. Kishtaiah v/s Government of India11, the petitioners in PIL are bound to
disclose their full particulars, details about their avocation and the effort made and methods
adopted by them in obtaining and collecting the data and information for filing the PIL and
here as well the respondents requests the petitioners to keep a rigid point as to what data they
have which make them challenge the Constitutional validity of the Act, which is enacted for
the National Security of the Country. In the case K. Hanumanta Rao v/s Prl. Sub-Judge 12,
the court held that, on issues of constitutional law, litigants who do not have expert
knowledge in the field must refrain from filing petitions.

7
R.S. Keluskar v/s. UOI (UOI) and Ors 2007 (6) Bom CR 559
8
P N Dubey v/s UOI AIR 1989 MP 225
9
Ramaq International Ltd v/s IVR Construction Ltd (1999)1 SCC 492
10
D.K. Joshi v/s Chief Secy, State of UP (1999) 9 SCC 578
11
B. Kishtaiah v/s Government of India, 1998 (5) ALT 135
12
K. HanumantaRao v/s Prl Sub-Judge (1997) 4 All LT 444 (DB)

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In the case, Chhetriya Pardushan Mukti Sangharsh Samiti v/s State of U.P.13, the court
held that, PIL must not be misused or permitted to be misused creating a bottleneck in the
superior court preventing other genuine violations of fundamental rights being considered by
the court. In the same way, in the given case also the PIL challenging the constitutional
validity should be looked upon several times before accepting it as it is challenging the
constitutional validity of an act which is enforced in order to determine and keep and check
on the security of the nation.

If it Deems Fit to The Hon’ble Court PIL should be Dismissed

While public activists must be permitted to espouse the cause of the poor citizens, there must
be a limit set to such activity and nothing must be done which would affect the dignity of the
court and bring down serviceability of the institution to the people at large. 14In the Public
Interest Litigation (Regulation) Bill, 1996 the misuse of PIL prompted the legislators to
introduce a bill regulating the practice of filing PIL in the higher courts. It was laid down in
the bill that before entertaining a PIL, the court must make sure that:

1. The petitioner is a citizen of India;

2. The subject matter of the petition is within its jurisdiction;
3. The petitioner has a locus standi in the matter; and
4. The petition raises a substantive issue in which the intervention of the court is
necessary.15

In the case of Prayag Vyapar Mandal v/s State16, the court held that, abuse of the process
of the Court in the garb of public interest add to the courts already docket. This at times also
results in manifest injustice to a public cause, because of interim orders.

Hence the counsel on behalf of the Respondent humbly submits that according to the present
case, the respondents are not saying that there is any malafide intention on the part of
petitioners but is there any rigid evidence that can prove the violation of the fundamental
rights. The law was passed for the security of the people not for the infringement of their
basic lifestyles. Hence, it is pleaded that public safety at large should be chosen.

13
ChhetriyaPardushanMuktiSangharshSamiti v/s State of U.P., the (1990) 4 SCC 499
14
Union Carbide Corpn v/s UOI, (1991) 4 SCC 584
15
Public Interest Litigation (Regulation) Bill 1996 sec 3(2)
16
PrayagVyaparMandal v/s State AIR 1997 All 1 at 5,6,7

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ISSUE2.WHETHER ANTI-NATIONAL AND DISRUPTIVE ACTIVITIES

PREVENTION ACT, 2019 IS VIOLATIVE OF FUNDAMENTAL RIGHTS OR NOT?

The counsel on the behalf of the respondent humbly submits before the Hon’ble Supreme
Court of Indiana that anti national and disruptive activities and prevention Act, 2019.

Giving admissibility to the Confession by the arrested person before the

Superintendent of Police.

The Respondent humbly submits before the Hon’ble SC that according to the facts of the case
a provision of the Act states that the confession given by the arrested person during the
course of investigation, before the S.P. is admissible in the court of law. No fundamental
rights are being violated due to these provisions as counter terrorism legislation; instruments
and policies are proliferating throughout the world and becoming permanent modes of
governance.

In the case of Kartar Singh v/s State of Punjab17a serious challenge was made to the
constitution validity of the TADA Act which contained a drastic departure from the existing
provision of the Evidence Act in particular section 25, SC in the Kartar Singh case considered
the constitutional validity of Sec. 15 of TADA, 1987. In the case of Gurubachan Singh v/s
State of Bombay18 it was noted that a law which contains an extraordinary procedure can be
made to meet the exceptional circumstances as the purpose and the object would be defeated.
In response to 185th report of Law Commission of India19 additional solicitor general cited
that in United States of America,20United Kingdom,21 and Australia have accommodated the
confession before the police as admissible. Courts have upheld the legal competence of the
legislature to make law, prescribing a different mode of proof. In the case of Lal Singh v/s
State of Gujarat22, SC held that Sec. 15 of above mentioned Act is not the violation of Article
14 and 21 of the Constitution of Indiana. The Malimath Committee on Reformation Criminal
Justice System observed that sec. 25 of the Evidence Act deprives the investigation agency of

17
Kartar Singh v/s State of Punjab, (1994) 3 SCC 569 at 679.
18
Gurubachan Singh v/s State of Bombay, AIR 1952 SC 221 .
19
LAW COMMISSION OF INDIA REP. NO. 180, ARTICLE 20(3) OF THE CONSTITUTION OF INDIA
And RIGHT TO SILENCE at 127.
20
Miranda v/s Arizona (1966) 384 US 436.
21
The terrorism act 2000 76 is applicable to the northern Ireland says that, any relevant admission made by the
accused is not excluded by mere fact that the accused was subject to torture, inhuman or degrading treatment.
22
Lal Singh v/s State of Gujarat, AIR 2001 SC 431.

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valuable piece of evidence in establishing the guilt of the accused.23Similarly in the given
case also seeing the situation of Kashir if admissibility is provided to the confession of the
accused given before the S.P won’t lead to violation of Fundamental Rights. In the case of
State of Tamil Naidu v/s Nalini24, it had been pleaded that non- obstante clause in Sec.
15(1) of TADA (Notwithstanding anything contains in the code or Evidence Act) is a clear
indication of the legislative intent to treat the confession of the co accused as substantive
evidence against other.

In the case S.N. Dubev/s N.B. Bhoir25, the SC held that accused was explained that he was
not bound to make a confession and that if he made it, that could be used against him as
evidence and that the confession was voluntary and it was taken and done by the police
officer fully and correctly, are all matters not left to be proved by the oral evidence. In the
case of State of Maharashtra v/s Bharat Chaganlal Raghaniand Ors. 26,it was held by the
SC that retracted confessions are good confessions if they are held to have been made
voluntarily and in accordance with the provisions of law. Corroboration of the confessional
statement is not a rule of law but a rule of prudence, and whether in the given cases
corroboration is sufficient, would depend upon the fact and circumstances of case. Further in
the case of Mr. Sharafat Hussain Abdul Rahmaan Shaik and Ors. v/s State of Gujarat
and Anr.27, the Court held that absence of the certificate below the confession statement will
not make the confessional statement, voluntarily made. The trial court further held that
looking into the statement to DSP, it appears that the confessional statements have been made
voluntarily by the accused. Under Section 15 of TADA Act, it is stated that notwithstanding
anything contained in the Indian Evidence Act, a confession made by accused before a police
officer not below the rank of Superintendent of Police shall be admissible in the trial of such
person, which shows that considerable amount of confidence has been reposed on the senior
officials for recording the confessional statement. Similarly in the given case also the
respondent is well aware of the fact, a confessional statement to police is not admissible
under the general law connected with administration of criminal justice which is made
admissible in anti- national and disruptive activities prevention act, 2019 so they would also

23
MALIMATH COMMITTEE REPORT, VOL. 1 , COMMITTEE ON REFORM OF CRIMINAL JUSTICE
SYSTEM 122 (Minister of Home Affairs, Govt. of India 2003).
24
State of Tamil Nadu v/s Nalini ,AIR 1999 SC 2640
25
S.N. Dube v/s N.B. Bhoir,2000 CriLJ 830
26
State of Maharashtra v/s Bharat ChaganlalRaghani and ors., AIR 2002 409.
27
Mr.SharafatHussain Abdul RahmaanShaik and Ors.v/s State of Gujarat and anr.,1996 (4) crimes 244.

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follow a standard procedure in the same way as TADA Act works in strict compliance of the
procedure prescribed in Rule 15 in TADA rules.

In the Case of State of Maharashtra v/s Siraz Ahmed Nisar Ahmed & Ors.28, it was held
that under Section 15 of TADA Act, if a confession made by the accused through police
officer not lower than the rank of Superintendent of Police is made admissible, it would still
be a confession made to police officer, and thus inbuilt safeguards will be followed. Also in
the case of People’s Union for civil liberties v/s UOI29, as with TADA, the SC upheld
POTA’s provisions authorizing confession to police officers against constitutional challenge.
Whether we talk in reference of TADA, POTA or Anti National Ant Disruptive Prevention
Activities Act it can be seen that all are formed with a basic motive of the ensuring the
security of nation and safety of people.

Detention and interrogation by security forces for maximum period of 90 days is no

violation of fundamental rights.

Indiana’s national security strategy is still evolving; the evolution has been based on security
environment, threat assessment and capabilities to meet those threats. As new laws enacted in
respond to terrorism and other threat to security in recent year, they have shared a number of
continuities with earlier emergency and security laws. Parliament of Indiana has passed a law
named “ Anti National and Disruptive Activities Prevention Act 2019” in response to entire
separatist movement that took place in state of Kashir and also in response to all news of
penetration and infiltration of armed non state actors supported by Pompeoland. There was a
gradual expansion of many violent act and synchronized bomb blasts at public place and
government buildings were orchestrated and carried out by anti-national elements taking the
shield of shoeing the demand of people of Kashir. The provision of above mentioned act
which talks about detaining and interrogating a person for a maximum period of 90 days by
security forces in connection of anti-national activities offences on the basis of suspicion and
without any requirement of warrant. This cannot be held to be in contravention to Article
2230of the Constitution of Indiana which talks about protection and detention in certain cases,

28
State of Maharashtra v/s Siraz Ahmed Nisar Ahmed &Ors.,AIR 2007 SC 1859
29
People Union for Civil Liberties v/s UOI, AIR 2004 SC 456
30
Article 22 . Protection against arrest and detention in certain cases:
(1) No person who is arrested shall be detained in 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.

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because Article 22(3) states that the right of protection against detention and arrest is not
applicable to a person who is arrested or detained under any law providing for preventive
detention. Preventive detention means to detain a person so that to prevent that person from
commenting on any possible crime or in another words preventive detention is an action
taken by the administration on the ground of suspicion that some wrong action may be done
by the person concerned which will be pre judicial to the state.

In the case of Mariappan v/s District Collector and Ors.31, it was held that the object of
detention and the detention laws, is not to punish, but, to prevent the commission of certain
offences. Further, in the case of Ahmed Noor Mohd. Bhatti v/s State of Gujarat32, a three
judges bench of SC while upholding the validity of power of police under sec. 15133 of CrPC
to arrest and detain a person without warrant to prevent the commission of a cognizable
offence, ruled that the provision could not be held to be unreasonable as arbitrary and
therefore, unconstitutional merely because the police official might abuse his authority. This
preventive detention act is a necessary tool in the hands of executive which authorize them to

(2) Every person who is arrested and detained in custody shall be produced before the nearest magistrate within
a period of twenty four hours of such arrest excluding the time necessary for the journey from the place of arrest
to the court of the magistrate and no such person shall be detained in custody beyond the said period without the
authority of a magistrate.
(3) Nothing in clauses ( 1 ) and ( 2 ) shall apply (a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing for preventive detention.
(4) No law providing for preventive detention shall authorise the detention of a person for a longer period than
three months unless (a) an Advisory Board consisting of persons who are, or have been, or are qualified to be
appointed as, Judges of a High Court has reported before the expiration of the said period of three months that
there is in its opinion sufficient cause for such detention.
(5) When any person is detained in pursuance of an order made under any law providing for preventive
detention, the authority making the order shall, as soon as may be, communicate to such person the grounds on
which the order has been made and shall afford him the earliest opportunity of making a representation against
the order.
(6) Nothing in clause (5) shall require the authority making any such order as is referred to in that clause to
disclose facts which such authority considers to be against the public interest to disclose(7) Parliament may by
law prescribe
(a) the circumstances under which, and the class or classes of cases in which, a person may be detained for a
period longer than three months under any law providing for preventive detention without obtaining the opinion
of an Advisory Board in accordance with the provisions of sub clause (a) of clause ( 4 );
(b) the maximum period for which any person may in any class or classes of cases be detained under any law
providing for preventive detention and(c) the procedure to be followed by an Advisory Board in an inquiry
under sub clause (a) of clause ( 4 ) Right against Exploitation
31
Marippan v/s District Collector and ors., (2011) 15 SCC 749
32
Ahmed Noor Mohd. Bhatti v/s State of Gujarat, AIR 2005 SC 2115
33
Sec-151.Arrest to prevent the commission of cognizable offences.(1) A police officer knowing of a design to
commit any cognizable offence may arrest, without orders from a Magistrate and without a warrant, the person
so designing, if it appears to such officer that the commission of the offence cannot be otherwise
prevented.(2) No person arrested under sub- section (1) shall be detained in custody for a period exceeding
twenty- four hours from the time of his arrest unless his further detention is required or authorised under any
other provisions of this Code or of any other law for the time being in force

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arrest any person from whom reasonable suspicion arises that he can commit any cognizable
offence or his activities are prejudicial to law and order to state that police can arrest person
without warrant. In the case of A.K. Gopalan v/s The State of Madras34, it was held that the
preventive detention Act 1950 with the exception of section 14 thereof did not contravene
any of the articles of the constitution and even though section 14 was ultra vires in as much as
it contravened the provisions of Art. 22 of the Constitution, as this section was severable
from the remaining sections of the Act, the invalidity of sec 14 did not affect the validity of
the Act as a whole and the detention of the petitioner was not illegal. Similarly, in the given
case also Constitutional validity of the Act which has been passed by the Parliament of
Indiana cannot be merely challenged on the ground that it provides provision for preventive
detention because this detention, though is an invasion on personal liberty but yet it is done in
order to promote public safety at large. And to check whether the deprivation of personal
liberty is not according to the procedures established by law, the Court has the power to order
for release of the detained person.35

Also, entry 936 of List I – Union List and Art.24637 empowers the Parliament of Indiana to
make laws related to preventive detention. Under entry 3 of list 3 of that schedule law can be
made for preventive detention for the reason connected with security of a state, the
maintenance of public order, or the maintenance of supplies and services essential to the
community; persons subject to such detention. In the habeas corpus case of Bacha Bora v/s
State of Assam38, the petition was denied because a later arrest by the civil police was found
to be legal. In the case of, Vijay Kumar v/s State of Jammu and Kashmir and ors.39, it
was observed that preventive detention is restored to thwart future actions. In the given case,
there may be a need to order preventive detention of a person already in jail. . The legislature

34
A.K. Gopalan v/s The State of Madras, 1950 AIR 27
35
Makkan Singh v/s State of Punjab, AIR 1952 SC 27; Maqbool Hussain v/s State of Bombay, AIR 1953 SC
325; Dr Ram Krishna Bhardwaj v/s State of Delhi, AIR 1953 SC 318
36
Preventive Detention for reasons connected with Defence, Foreign Affairs, or the Security of India; person
subject to such detention.
37
246. Subject matter of laws made by Parliament and by the Legislatures of States
(1) Notwithstanding anything in clauses ( 2 ) and ( 3 ), Parliament has exclusive power to make laws with
respect to any of the matters enumerated in List I in the Seventh Schedule (in this Constitution referred to as the
Union List)
(2) Notwithstanding anything in clause ( 3 ), Parliament, and, subject to clause ( 1 ), the Legislature of any State
also, have power to make laws with respect to any of the matters enumerated in List III in the Seventh Schedule
(in this Constitution referred to as the Concurrent List)
(4) Parliament has power to make laws with respect to any matter for any part of the territory of India not
included (in a State) notwithstanding that such matter is a matter enumerated in the State List
38
Bacha Bora v/s State of Assam, 1991 Cri LJ 2782
39
Vijay Kumar v/s State of Jammu and Kashmir,(1982) 3 SCR 522

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is required to make the law circumscribing the limits within which persons may be
preventively detained and providing for the safeguards prescribed by the Constitution; and
the courts are required to examine, when demanded, whether there has been any excessive
detention, viz. whether the limits set out by the constitution and legislature have been
transcript. In the case of Pralhad Krishna Kurane v/s The State of Bombay40, it was held
that the sec 12 of the preventive detention act, 1950 as amended by Preventive Detention
(Amendment) Act, 1951, is not ultra vires in as much as it continues a detention order in
force at the commencement of the amending act.

In the case of, Gouranga v/s State of Orissa and ors.41 , the court while dismissing the
application for the issue of writ of habeas corpus held that, that in each case it is to be
considered on the available materials if there has been any unreasonably long delay in the
matter and whether the explanation offered by appropriate authority for such delay can be
accepted or not.42 Also, the petitioner cannot claim the point that the given Act violates Art.
22 on the ground that it contains no provision of informing the detune the reasons of his
arrest, because as discussed in the case of Smt. Manekben v/s UOI43, Das J. made the
following observation which support the view that safeguard contemplated by clause 5 of Art.
22 need not to be incorporated in the preventive detention law.

Further, Das J. having therefore, regard to the language of Art 22 (5) and ration of decisions
in the cases of State of Bombay v/s Atmaram Shridhar Vaidya44 and in A.K. Gopalan,
held that if a law of preventive detention does not contain a provision similar to Art 22(5) the
law would not be invalid on that ground and only the detention order would be struck down
in case the constitutional safeguards provided in Art.22 (5) are not followed. The same view
was taken by Delhi H.C. in Dayashankar Kapoorv/s UOI45. In the case of Atma Singh v/s
State of Punjab46, it was held that the suspension of enforcement of rights under Art.21 & 22
of Constitution does not absolve the state from showing that the detention is lawful. Hence
the counsel humbly submits that the provision is protected under Art.22(3) and the
circumstances of Indiana justifies the Act.

40
Prahlad Krishna Kurane v/s The State of Bombay, AIR 1950 Bom 1
41
Gouranga v/s State of Orissa and ors.,1987 Cri LJ 624
42
S.K. Hasan Ali v/s State of W.B., AIR 1972 SC 2590; Babul Mitra v/s State of W.B., 1974 Cri LJ 395;
Nagendra Nath Mondal v/s State of W.B., 1972 SCC (Cri) 227 and Deonarayan Mondal v/s State of W.B.,
43
Manekben vs. UOI , Cri W. P. No. 1 of 1975
44
State of Bombay v/s Atmaram Shridhar Vaidya, AIR (1951) SC 157
45
Dayashankar Kapoor v/s UOI, 1975 Cri L.J. 1376
46
Atma singh v/s State of Punjab,(1976) ILR 1 Punjab & Haryana 879

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Prohibition Of Formation Of Parties, Union And Other Organization Without The

Approval And Up To The Satisfaction Of The Collector Of The Concerned District.

Art.19(1)(c) guarantees to the citizen of Indiana the right to form associations, unions or
cooperative societies. But according to Art. 19(4) reasonable restriction in the interests of
public order or morality or sovereignty and integrity of Indiana may be imposed on this right
by law.

In the case of DharamDuttv/s UOI47, it was held that a right to form association guaranteed
under Art.19(1)(c) does not imply the fulfilment of every object of an association as it would
be contradictory to the scheme underlying the text and the frame of several Fundamental
Rights guaranteed by Part III and particularly by the scheme of the guarantees conferred by
sub clauses (a) to (g) of clause 1 of Art. 19.

In the case of Balkotaiah v/s UOI48 Court held that the appellants, no doubt enjoyed a
Fundamental Right to form associations under Art.19(1)(c),but they had no Fundamental
Right remain in government service, and so when their services were terminated they could
not complain violation of any Fundamental Rights. Similarly, in the given case also though
every citizen of Indiana has a Fundamental Right to form an association as enshrined under
Art. 19(1)(c) but seeing a alarming growth of separatist sentiment, religious fanaticism
communal hatred and dissatisfaction against the government of Indiana. Consequences to
which the entire separatist movement took an organized form and any political parties and
youth groups started establishing themselves an organized mass protest against the
government of Indiana, which took a violent turn on many occasions. Art.22(2) of
International Covenant on Civil and Political rights, 1966 says that no restriction has to be
placed on the exercise of rights other than those which are prescribed by law and which is
necessary ina democratic society in the interest of national security or public safety, public
order49, the protection public health50, morals51 or the freedom of others. The Freedom of
Association guaranteed by this Article wouldnot include a right of any particular association
to obtain recognition of the government.52 Hence, the conditions imposed by government for

47
DharamDutt v/s UOI,(2004) I SCC 712: AIR 2004 SC 1295.
48
Balkotaiah v/s UOI, AIR 1958 SC 242.
49
Gurbachan v/s State of Bombay (1952) SCR 629
50
State of U.P. v/s Kaushalaya AIR 1964 SC 416 ; State of Maharashtra v/s Himatbhai AIR 1970 SC 1157
51
Ramdhandas v/s State of Punjab, AIR 1961 SC 1559 ; Manoharlal v/s State, (1951) SCR 671
52
Raghubar v/s UOI (1962) 3 SCR 497.

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obtaining recognition cannot be challenged, as reasonable restriction imposed on the freedom

of associations.53 While the right to freedom of association is Fundamental, requisition of
such association is not a fundamental right and Parliament can by law regulate the working of
such association by imposing condition and restriction on such formation. 54

In this case ofAll India Bank Employees Associationv/s N.I.T.,55 and D.A.V. College v/s
State of Punjab56, the freedom of association guaranteed by Art. 19(1)(c) does not imply that
apart from non-interference with the formation of an association, the state must, further,
ensure the fulfilment of the objects or purposes for which such association had been formed.
Further in the case of James Martin v/s State of Kerala57 it was held that irrespective of
whether hartal or strike or bandh has any legal sanctity, there can be no justification for
destruction of public property in the name of such strike and the same must be controlled by
an iron hand. It was held that such acts are not part of freedom of speech and expression or
freedom of association. In the case of Communist Party of India (M) v/s Bharat Kumar58
it was held that there cannot be any doubt that the fundamental rights of the people as a whole
cannot be subservient to the claim of fundamental rights of an individual or only a section of
the people. It is on the basis of their distinction that the H.C. has rightly concluded that there
cannot be any right to call or enforce a ‘bandh’ which interferes with the exercise of
fundamental freedoms of other citizen in addition to causing national loss in many ways.

The decision of the full bench of the Kerala H.C. in Bharat Kumar K. Palicha v/s State of
Kerala59 was affirmed. In this case though the Parliament of Indiana has passed a law which
lays down a restriction on freedom to form association as enshrined under Art.19(1)(2) of
Constitution of Indiana but it is justified under Art. 19(4). As held in the case of O.K.A.
Naur v/s UOI60 under any act, the central government was competent to make rules
restricting or curtailing the fundamental right under Art. 19(1)(c). In the case of Kulkarni v/s
State of Bombay61 sec. 2762which restricted the right of union to participate in an industrial
dispute was valid it not being violative of the freedom to form association or union. Similarly

53
Damayanti Naranga v/s UOI(1971) 3 SCR 840.
54
Delhi Police Non-Gazetted Karmcahri Sangh v/s UOI, AIR 1987 SC 379: (1987) 1 SCC 115.
55
All India Bank Employees Association v/s N.I.T.AIR 1962 SC 171
56
D.A.V. College v/s State Of Punjab AIR 1971 SC 1737.
57
James Martin v/s State of Kerela (2004) 2 SCC 203
58
Communist Party of India (M) v/s Bharat Kumar (1998) 1 SCC 201: AIR 1998 SC 184
59
Bharat Kumar K. Palicha v/s State of Kerala AIR 1997 Kerala 291
60
O.K.A. Naur v/s UOI AIR 1976 SC 1179
61
Kulkarni v/s State of Bombay AIR 1954 SC 73
62
Industrial Dispute (Appellate Tribunal) Act, 1950

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in the given case also Parliament of Indiana has passed a law restricting the fundamental
rights enshrined in Art. 19(1)(c) yet it is justified under Art. 19(4) as it are made to ensure the
national integrity and maintain public order.

Restriction on freedom of speech and expression as making speeches and other

remarks against government and country, at public platform was restrained.

The respondent humbly submits before the Hon’ble Court, that respondent is well aware of
the fact that freedom of speech is one of the most cherished right under the Constitution and
any restriction as this right is prime facie unconstitutional unless the same could be justified
in terms of limitation of Art.19(2).63 Similarly, in the given case also though provisions of
Anti National and Disruptive Prevention Act, 2019 lays down a restriction on freedom of
speech and expression but yet it is justified as Article 19(2) of Constitution Of Indiana
empowers the state to make a law which impose reasonable restriction on the exercise of the
right conferred by Article 19(1)(a) in the interest of the sovereignty and integrity of Indiana
,the security of the state, friendly relation of the foreign state, public orders , decency or
morality etc. The framers of the Universal Declaration of Human Rights (1948) were,
however, anxious to emphasize this self evident which is apt to be forgotten in course of a
zealous advocacy in individual rights. In Art.29 (2) of the declaration, therefore, it is stated:

“In the exercise of his rights and freedoms, everyone shall be subject, only to such limitations
as are determined by law solely for the purpose of securing due recognition and respect for
the rights and freedoms of others and of meeting the just requirements of morality. Public
order is in the general welfare of the democratic society.”

In the case of Secy. Ministry of information& broadcasting, Govt. of India v/s Cricket
Association of Bengal,64 Court held that the right of freedom of speech and expression
cannot rise, above national interest and interest of society, which is but another name for the
interest of general public. It is true the Art. 19(2) does not use the words “national interest”,
“interest of society” but several grounds mentioned in clause (2) are ultimately referable to
the interest of the nation “and interest of society”. Further in the case of Dr. K.
Krishnaswamy v/s The Supt. of Police, Virudhunagar 65 the Court held that fundamental

63
Express Newspaper v/s UOI (II), (1986) 1 SCC 133; Bennett Coleman v/s UOI AIR 1973 SC
106;Himmmatlal V/S Police Commissioner AIR 1973 SC 87.
64
Govt of India v/s Cricket Association Of Bengal AIR 1995 SC 1236: (1995) 2 SCC 161.
65
Dr. K. Krishnaswamy v/s The Supt. Of Police, Virudhunagar(2006) 1 CTCT 396 (Mad HC).

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rights of people as a whole cannot be subservient to claim of fundamental right of an

individual or a section of people. Where the police bona fide apprehends that law and order
will be affected if permission is granted to hold a meeting, the police will be justified in
rejecting the same since the apprehensiveness is real and proximate. When the satisfaction of
the police authorities is supported by materials in rejecting the application the same cannot be
termed as arbitrary or unreasonable. Also in the case of Ramjilal v/s State of U.P.66, court
held that “a law may not have been designed to directly maintain public order and yet may
have been enacted in the interest of public order. If, therefore, certain activities have a
tendency on cause public disorders a law penalising such activities as an offence cannot but
be held to be a law imposing reasonable restriction in the interested of public order although
in some cases those captivities may actually lead to a breach of public order. In this case
Virendra v/s State Of Punjab67 Court held Sec. 2 of a Punjab Act empowered the State
Government to prohibit the printing of any matter relating to a particular subject. Sec 3
authorised the state Government to prohibit the bringing into Punjab of any newspaper if it
was satisfied that such action was necessary to prevent any activity prejudicial to the
maintenance of communal harmony affecting public order. These provisions were challenged
on the ground of giving arbitrary and uncontrolled discretion to the government to curtail
freedom of speech “on itssubjective satisfaction”. The Supreme Court pointed out that there
existed in Punjab serious tension amongst the various communities and in such a situation,
conferment of wide powers to be exercised in the subjective satisfaction of the government
could not be regarded as an unreasonable restriction. The state government being in
possession of all material facts was the best authority to take anticipatory action for
prevention of threatened breach of peace. However precious the freedom of speech may be in
a democratic society, the means can never override the end itself. No state can, therefore
tolerate utterances which threaten the overthrow of organized government by unlawful or
Unconstitutional means68. In the words of Supreme Court, “freedom of speech, press and
assembly are dependent upon the power of constitutional government to survive. If it is to
survive it must have the power to protect itself against unlawful conduct and, under
somecircumstances against incitements to commit unlawful acts.”69 It has always been
acknowledged that the right of free speech does not prohibit the punishment of utterances

66
Ramjilal v/s State of U.P, AIR 1957 SC 620 (623): 1957SCR 860.
67
Virendra v/s State of Punjab AIR 1957 SC 896: 1958 SCR 409.
68
Stromberg v/s California, (1931) 283 US 359 (369).
69
American communications v/s Dauds.(1951) 340 US 268.

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which threaten the overthrow of the government by force or violence 70 or anarchy71, provided
such advocacy is accompanied by some overt action.72 Government has the substantive
authority to protect itself against a violent revolution.73But peaceful74 and orderly opposition
to the government with the object of substituting the government of one party by that of
“another political party equally high minded and patriotic, who do not agree with the one in
power cannot be suppressed.75In the case of Hare Ram Pandeyv/s State Of Bihar 76
Court
held the law has to be justified by the genius of its administration so as to strike the right
balance between individualliberty on the one hand and the needs of the orderly society on the
other. In the case of Brind v/s Secretary of State77 the Home Secretary issued directives to
the broadcasting authorities pursuant to section 29(3) of the broadcasting Act 1918,
prohibiting the broadcasting of direct statements be representatives of certain terrorist
organisations. The same was challenged on the ground it violated Art. 10 of the European
Convention. Hence the respondent humbly submits that restrictions are reasonable and are in
public interest.

Security forces are empowered to use reasonable force which may extent to causing
death.

Army has been called upon time and again to restore peace in insurgency and terrorist
affected areas. And in the given case also such situation has raised as there is news of
penetration and infiltration of armed non state actors supported by Pompeoland. Also taking
the advantage of growing separatist sentiments, communal hatred and dissatisfaction against
the government Pompeoland in furtherance of its wicked designs against the republic of
Indiana, started instigating activities in Kashir province and provided covert material to
support them. As a part of protest many government institutions weresabotaged and security
forces installations were sabotaged and security forces installations were attacked, which

70
Gitlow v/s N.Y. (1925) 268 US 653.
71
Stromberg v/s California,(1931) 283 US 359 (369).
72
Brandenburg v/s Sohio (1969) 395 US 444;Yates v/s U.S. (1957) 354 US 298.
73
Pennsylvania v/s Nelson (1955) 350 US 497.
74
De Jonge v/s Oregon,(1937) 299 US 353; Terminello v/s Chicago (1949) 337 US 1 ; Herndon v/s Lowry,
(1937) 301 US 242.
75
Stromberg v/s California, (1931) 283 US 359 (369); Herndon v/s Lowry, (1937) 301 US 242.
76
Hare Ram Pandey v/s State Of Bihar AIR 2004 SC 738: (2004) 3 SCC 289.
77
Brind v/s Secretary of state (1991) 1 ALL ER 720.; Commissioner Of Police v/s C. Anitha,(2004) 7 SCC 467:
T.k. Gopal v/s State Of Karnataka, (2000) 6 SC 168 ; Harpeet Kaur v/s state of maharastra, (1992) 2 SCC 117;
Kuso Sah v/s State Of Bihar (1974) 1 SCC 185; State Of U.P-. v/sSanjai Pratap Gupta ,(2004) 8 SCC 591.

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 1st Annual Inter College MOOT COURT Competition, 2020

resulted in death of civilians which was accompanied by synchronised bomb blast at public
places and government buildings.

In the case of Extra Judicial Execution Victim Families Association and Ors. v/s UOI
and Ors.78, it was held that the postulates for a declaration under Section 3 of the Armed
Forces (Special Powers) Act, 1958 (AFSPA) are that a public order situation exists and that
the assistance of the armed forces of the Union is required in aid of the civil power. In such a
situation, the AFSPA enables the armed forces of the Union to exercise vast powers as the
situation requires. Also in the same case was submitted by the Attorney general that it is
nevertheless fair and over the years as many as 70 personnel have been punished for human
rights violations and there is no need to have any independent enquiry into the alleged fake
encounters. Also there was no accurate and complete information about each of the 1528
cases that the Petitioners had complained about. Therefore, there was a need to obtain and
collate this information before any final directions can be given. With reference to the
allegation that in view of given provision of Act being discussed here a person can be killed
on the basis of reasonable believe by the armed forces, this is categorically denied by stating
that there are several safeguards and pre-requisite conditions that need to be fulfilled under
the given Act before a person might be killed by the armed forces. These safeguards and pre-
requisite conditions have been mentioned in the affidavit and it is concluded that it is
absolutely wrong to suggest that the armed forces personnel can kill any person without any
reason, as alleged. The person against whom action is being taken by armed forces must be
"acting in contravention of any law or order for the time being in force in the disturbed area".
It is submitted that though Kashir is facing an insurgency problem and the police and the
armed forces are dealing with that problem to the best of their ability, the common man is not
generally affected by the counter insurgency operations. In case Army personnel do not act
against an enemy or show cowardice, it is a Court-martial offence under Section 3479,
punishable with death. I

n the case of Ex-Havildar Ratan Singh v. UOI80, to conclude that a militant is an enemy
within the definition of Section 3(x) of the Army Act, 1950. This view is carried forward by
submitting that the victims have been persons waging war against the Government of India
and in terms of Section 121 of the Indian Penal Code anyone who joins an insurrection

78
Extra Judicial Execution Victim Families Association and Ors. v/s UOI and Ors. AIR2016SC3400
79
Sec 34 of Army Act, 1950
80
Ex-HavildarRatan Singh v. UOI 1992 Supp (1) SCC 716

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 1st Annual Inter College MOOT COURT Competition, 2020

against the Government of India has committed an offence of waging war. In this regard,
reference is made to State (NCT of Delhi) v. Navjot Sandhu81 wherein it is held that Under
Section 121 of the Indian Penal Code 'war' is not contemplated as conventional warfare
between two nations. Organizing and joining an insurrection against the Government of India
is also a form of war. Also in Kailash Gour v/s State of Assam82 to contend that the Rules
of evidence and the standards of evaluating the evidence cannot be given a go-by even by a
Court appointed Commission.

In the case of Hari Singh v/s State of U.P.83, it was held that procedure laid down in the
Code of Criminal Procedure is quite adequate and if there is any inaction on the part of the
authorities, recourse may be had to the grievance redressal procedure laid down in the Code
of Criminal Procedure. Similarly in the given case also the petitioner can’t claim that the
army official will exercise their power arbitrary because the provision which empowers the
Army to cause death of a person who resist execution of any command or law or is found
engaged in anti national and terrorist activities also expressly mentions that the use of power
should be reasonable.. In the past year as per Multi-Agency Centre (MAC) figures, 35
attempts were made by 230 terrorists to infiltrate across the Line of Control. Despite the best
efforts of the army, 54 of them got through. Intelligence reports suggest that the infrastructure
for abetting infiltration remains intact. Their ability to foment trouble and create conditions
for terrorist actions is given in the fact. In the case of People’s Union for Civil Liberties v/s
UOI84, B.P Jeevan Reddy J. while delivering the judgement held that civil society is based on
an expectation of peace and military society by contrasts predicated on the expectation of
war.Hence the respondent humbly submit before the Hon’ble SC that security forces who
work day and night to ensure the safety of people of Indiana can be trusted that much that
they are going to comply with the provision of the given Act by applying reasonable force.

ISSUE3. WHETHER THE POWER OF UNION TO DEPLOY SECURITY FORCES

IN ANY PROVINCE WITHOUT ANY REQUEST OR PERMISSION OF
PROVINCIAL GOVERNMENT IS CONSTITUTIONAL OR NOT?

81
State (NCT of Delhi) v. NavjotSandhu81(2005) 11 SCC 600
82
KailashGour v/s State of Assam, (2012) 2 SCC 34
83
Hari Singh v/s State of U.P.(2006) 5 SCC 733; AlequePadamsee v. UOI, (2007) 6 SCC 171; Sunil
GangadharKarve v. State of Maharashtra, (2014) 14 SCC 48; DolibenKantilal Patel v. State of Gujarat, (2013) 9
SCC 447
84
of People’s union for civil liberties v/s UOI AIR 1997 SC 1203

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The counsel on behalf of the Respondent humbly submits before the Hon’ble Court the power
of union to deploy security forces in any province without any request or permission of
provincial government is constitutional.Prior to the Constitution (Forty-Second Amendment)
Act, 1976, the relevant entries were as follows:

"List I-Union List, Entry 2.Naval, military and air forces, any other armed forces of
Union.List II-State List, Entry 1. Public order (but not including the use of naval, military
or air force or any other armed force of the Union in aid of the civil power)."

By the Constitution (Forty-Second Amendment) Act, 1976, Entry 2A was inserted in the
Union List. The said entry reads as follows:

"Deployment of any armed force of the Union or any other force subject to the control of the
Union or any contingent or unit thereof in any State in aid of the civil power, powers,
jurisdiction, privileges and liabilities of the members of such forces while on such
deployment."

Entry 1 of the State List was amended to read as under:

"Public order (but not including the use of any naval, military or air force or any other armed
force of the Union or of any other force subject to the control of the Union or of any
contingent or unit thereof in aid of civil power."

The Legislative Competence of Parliament to Make a Law.

Anti-National and Disruptive Activities Prevention Act, 2019 does not fall under any entry in
the state list and after the forty-second amendment of the Constitution of Indiana it is a law
falling under entry 2A of the Union List.perusal of Entry 1 of the State List would show that
while power to legislate in order to maintain public order has been assigned to the State
Legislature, the field encompassing the use of armed forces in aid of the civil power has been
carved out from the said Entry and legislative power in respect of that field has been
expressly excluded. This means that the State Legislature does not have any legislative power
with respect to the use of the armed forces of the Union in aid of the civil power for the
purpose of maintaining public order in the State and the competence to make a law in that
regard vests exclusively in Parliament. Prior to the Forty-Second Amendment to the
Constitution such power could be inferred from Entry 2 of the Union List relating to naval,
military and air forces and any other armed forces of the Union as well as under Article 248

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read with Entry 97 of the Union List of the Union to supplant or act as a substitute for the
civil power in the State. We are, however, unable to agree with the submission of the learned
counsel for the petitioners that during the course of such deployment the supervision and
control over the use of armed forces has to be with the civil authorities of the State concerned
or that the State concerned will have the exclusive power to determine the purpose, the time
period and the areas within which the armed forces should be requested to act in aid of civil
power. In our opinion, what is contemplated by Entry 2-A of the Union List and Entry I of
the State List is that in the event of deployment of the armed forces of the Union in aid of the
civil power in a State, the said forces shall operate in the State concerned in cooperation with
the civil administration so that the situation which has necessitated the deployment of the
armed forces is effectively dealt with and normalcy is restored. Maintenance of Public Order
involves cognizance of offences, search, seizure and arrest followed by registration of reports
of offences [FIRs], investigation, prosecution, trial and, in the event of conviction, execution
of sentences. The powers conferred under the given Act only provide for cognizance of
offences, search, seizure and arrest and destruction of arms dumps and shelters and structures
used as training camps or as hide-outs for armed gangs. The other functions have to be
attended by the State criminal justice machinery, viz., the police, the magistrates, the
prosecuting agency, the courts, the jails, etc. This would show that the powers that have been
conferred under the provision of the given Act do not enable the armed forces of the Union to
supplant or act as substitute for the civil power of the state and the Central Act only enables
the armed forces to assist the civil power of the State in dealing with the disturbed conditions
affecting the maintenance of public order in the state of Kashir.

The given provision of Act is not Arbitrary and unreasonable.

The respondent humbly submits that the given provision which empowers the union to
deploy security forces in any province without the permission or request of provincial
government is neither arbitrary nor unreasonable as it does not fall under any entry in the
state list and after the forty-second amendment of the Constitution of Indiana it is a law
falling under entry 2A of the Union List.

In the case of Anand Kumar Sharma v/s State of U.P.85, it was held that the question of
legitimate expectation would not arise where position is altered by rule or legislation or
where it is in public interest or where there is a change in policy. In the case, Girish Kumar
85
Anand Kumar Sharma v/s State of U.P., AIR 2014 All 106 (FB)

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Suneja v/s C.B.I.86, in the matter of Coal Block Allocation cases a different procedure has
been adopted in larger public interest.In the case of Pannalal Binjraj v. UOI87 the S.C. went
to say that mere possibility of abuse is not a valid ground to challenge the validity of a
statute. In the case of Naga people’s Movement for Human Right v/s UOI88Parliament was
competent to enact the Central Act in exercise of the legislative power conferred on it under
Entry 2 of List I and Article 248 read with Entry 97 of List I. After the insertion of Entry 2 A
in List I by the FortySecond Amendment to the Constitution, the legislative power of
Parliament to enact the Central Act flows from Entry 2A of List I. It is not a law in respect of
maintenance of public order falling under Entry I of List II. (2) The expression "in aid of the
civil power" in Entry 2A of List I and Entry 1 of List II implies that deployment of the armed
forces of the Union shall be for the purpose of enabling the civil power in the State to deal
with the situation affecting maintenance of public order which has necessitated the
deployment of the armed forces in the State. (3) The word "aid" postulates the continued
existence of the authority to be aided. This would mean that even after deployment of the
armed forces the civil power will continue to function.

Hence the respondent would humbly submit before the Hon’ble S.C. of Indiana that
Parliament of Indiana has enacted the given Central Act, keeping in view Entry 1 of the State
List and Article 248 read with Entry 97 and Entries 2 and 2A of the Union List Parliament
was competent to enact the Central Act in 1958 in exercise of its legislative power under
Entry 2 of the Union List and Article 248 read with Entry 97 of the Union List and, after the
forty-second amendment of the Constitution, the legislative power to enact the said
legislation is expressly conferred under Entry 2A of the Union List and that it cannot be
regarded as a law falling under Entry 1 of the State List. Since Parliament is competent to
enact the Central Act, it is not open to challenge on the ground of being a colorable
legislation or ultra vires of the legislative power conferred on Parliament.

86
Girish Kumar Suneja v/s C.B.I., AIR 2017 SC 3620
87
PannalalBinjraj v. UOI 1957 AIR 397
88
Naga people’s Movement for Human Right v/s UOI AIR1 998 SC 431

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PRAYER

Wherefore in the light of facts stated, issues raised, argument advanced and authorities cited,
it is most humbly prayed before the Hon’ble Supreme Court, that it may graciously be
pleased to-

a) Dismiss the instant PIL.

b) Hold that there were no violations of Fundamental rights of any person by the action
of government of Indiana under Anti- National and Disruptive Activities Prevention
Act, 2019.
c) Uphold the Constitutional validity of Anti- National and Disruptive Activities
Prevention Act, 2019.

And may pass any other order in favour of the respondent which this Hon’ble Court may
deem fit in the interest of justice, equity and good conscience.

All of which is most humbly and respectfully submitted

Sd/-

Counsels for the Respondent

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