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NAME OF THE STUDENT : RUTVIK SHIRALKAR

CLASS : 5TH YEAR

COURSE :BALLB
DIVISION :B
NAME OF THE SUBJECT : MOOT COURT
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MOOT COURT SUBMISSION -1

SUBJECT : CONSTITUTION OF INDIA
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IN THE HON’BLE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION NO. 738 / 2016

IN THE MATTER OF

DR. ASHWINI KUMAR ……… PETITIONER

VERSUS

UNION OF INDIA AND ANOTHER. ………. RESPONDENT

MEMORIAL ON BEHALF OF PETITIONER

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INDEX OF AUTHORITIES

SR NO. CASE NAME CITATION

1 Dr. Ashwini kumar vs union of writ petition 736/2016

india

2 s.p Gupta cs. Union of india A.I.R. 1982

3 Kehwananda Bharti vs union of (1973) 4 SSC 225

india

4 Murli Deora vs union of india Writ petition civil 316 of 1999

5 s.b. Vohra vs union of india A.I.R. 2004 s.c 1402 (2004)

6 Maneka gandhi vs union of india A.I.R. 1978

BIBILIOGRAPHY

SR NO. NAME OF THE BOOK

1 H.M SEERWAI : CONSTITUTIONAL LAW OF

INDIA

2 D.D BASU : COMPARITVIE CONSTITUTION

3 THE CONSTITUTION OF INDIA : BARE ACT BY

professional book publishers
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STATEMENT OF JURISDICTION

The petitioner has approached the hon’ble court under article 321 of the constitution of India

132. 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

1) That the petitioner has led this writ petition under article 32 of the constitution of India for
seeking remedy against the evil of custodial torture which amounts to violation of article 21
of the constitution of India which ensures protection of life and liberty.
2) That The report of Asian centre of human rights which was based inter alia on the
information and data furnished by. The government of India in parliament , acknowledging
1674 custodial deaths including 1530 deaths in the judicial custody and 144 deaths in the
police custody during the period of 1st April 2017 to 28th February 2018
3) That the republic India has consistently and unequivocally condemned the deprecated
custodial torture at international forums .
4) That The republic of India has signed the ‘United Nations convention against torture and
other cruel ,inhuman or degrading treatment’ ( for further reference it is referred as UN
convention in this petition.)
5) That the republic of India has signed the UN convention on 14th October 1997.
6) That the republic of India has not rati ed the UN convention
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STATEMENT OF ISSUES

Issue no.1

1)Is there any ruling of this court deprecating custodial torture ?

Issue no.2

2) is it in the jurisdictional range of this court deal with the prison and police caprice and
cruelty

Issue no.3

3) is there any speci c enactment within India dealing with o ences relating to custodial
torture ?

Issue no.4

4) whether this court can and should issue the parliament the direction to enact a legislation
based on UN convention.

Under the issue no. 4 these are the sub - issues which are framed

1] why the direction needs to be given to parliament only ?

2] is the parliament sovereign when it comes to enacting a particular statute ?
3] what is the scope and when can the writ of mandamus be issued under article
32 of the constitution of India and whether the defendant has the locus stand
To le the current suit ?

4] is there any obligation on apex court to issue such direction under article 32 ?
5]is it the duty of parliament under article 21 to establish a procedure
Backed by law while taking away life and liberty of a person ?

6] will issuance of any such direction under article 32 amount to violation of

Theory of separation of power ?

7] can supreme court enforce such duty under article 32 of the constitution of
India ?
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STATEMENTS OF ARGUMENTS

ISSUE NO.1 AND ISSUE NO. 2

ARGUMENT NO.1

It is humbly submitted that this court in the case of D.K BASU VS STATE OF BENGAL 2
custodial torture as a wound in icted on the soul ,painful and paralysing that engenders fear ,
rage , hatred and despair and denigrates the individual .

ARGUMENT NO .2

In SUNIL BATRA VS DELHI ADMINISTRATION AND OTHERS3 this court has observed that
the prisoners have enforceable liberties though devalued but never demonetised and and,
therefore , it is within the jurisdictional range of this court’s writ to deal with prison ,police
caprice and cruelty.

In FRANCIS CORALIE MULLIN V ADMINISTRATOR , UNION TERRITORY OF DELHI AND

OTHERS4 this court has observed that torture in any form is inhuman degrading and o ensive
to human dignity and constitutes an inroad into the right to life and is prohibited by article 21 of
the constitution , for no law authorises and no procedure permits torture or cruelty , inhuman
or degrading treatment . Reference was also made to the article 5 of the universal declaration
of human rights and article 7 of international covenant on civil and political rights which
prohibits torture in all forms in absolute terms .

In K.S PUTTUSWAMY VS UNION OF INDIA5 this court has held that right to human dignity
which, rst and foremost means dignity of each human being as a human being . When human
dignity in persons life is infringed and physical or mental welfare is negated and harmed , the
court would intervene to protect and safeguard constitutional values .

2 (1997) 1 SCC 416

3 (1978) 2 SCC 494
4 (1981) 1 SCC 608
5 (2017) 10 SCC 1
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ISSUE NO. 3

ARGUMENT NO .3

There is no speci c enactment dealing with current issue which is on record I.e the cruelty and
custodial torture of the people but however article 21 of the constitution of India prohibits
taking away of life and liberty without established procedure of law and in this regard there is
present universal declaration of human rights and article 7 of the international covenant of on
civil and political rights which prohibits torture in all forms in absolute terms .

In the case of S.P. GUPTA VS UNION OF INDIA6 this court has held that

‘ It may therefore now be taken as well established that where a legal wrong or a legal injury is
caused to a person or to a determinate class of 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 illegal
burden is threatened and such person or determinate class of persons is by reason of poverty,
helplessness or disability or socially or economically disadvantaged position, unable to
approach the Court for relief, any member of the public 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 determinate class of persons, in this Court under
Article 32 seeking judicial redress for the legal wrong or injury caused’.

ISSUE NO. 4

1 why the directions needs to be issued to parliament only ?

This petitioner humbly submits that under the entry no. 1 of the concurrent list of the
constitution the parliament can enact any provisions relating to criminal law including all
matters included in Indian penal code and under clause 2 of article 246 of the constitution of
India that parliament can enact any provision relating to matter enumerated in the list 3 I.e
concurrent list
An enactment introduced by parliament will prevail over an enactment introduced by a state
legislature as per stated in the article 254 so in the future any inconsistencies which may arise
will get decided by virtue of the enactment proposed to be enacted by the parliament.
The constitution under article 245 clari es in clause 1 and 2 about the competence of
parliament and state legislature to enact the particular laws.

2 Is parliament sovereign under constitution when it comes to enactment of particular

statute ?

This petitioner humbly submits that under the article 367 of the constitution of India the
interpretation of any provision of constitution needs to be done with aid of general clause act
1897 as it applies for the interpretation of any other provisions of an act of legislature of the

6 A.I.R.1982
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dominion of India. The intention of the framers was to have uniform pattern of interpretation
and that is why they accepted to interpret the constitution of India with help of general clauses
act 1897 apart from adhering to any rules of interpretation.

The parliament and the state legislature are distributed with the powers to introduce enactment
under part 11 , chapter 1 which reads as LEGISLATIVE RELATIONS7 and under article 245 of
the constitution of India the parliament is subjected to the provisions of the constitution when it
comes to enacting a particular law on a subject mentioned in the lists at schedule 78

This court in the case of KESHVANADA BHARTI VS UNION OF INDIA9 has held that it’s not
the parliament but the constitution of India which is sovereign and all the other bodies which
are created under the constitution are subject to the limitation and duties laid down in the
constitution.

It was also held that the fundamental rights form the part of the basic structure of the
constitution and this court has enforced these fundamental rights10 through its numerous
judgements.

3 what is the scope and when can be the writ of mandamus be issued under the constitution
of India ? Is this case involves any situation where such issuance can be justi ed ?

Under article 32 person who is aggrieved because of the violation of any of the rights which
are guaranteed under article 32 of the constitution of India can move to the supreme court of
India

In UNION OF INDIA VS S.B. VOHRA11

It was held by this court MANDAMUS literally means command the essence of mandamus in
England was that it was a royal command issued by king’s bench directing a public legal duty.
A writ of mandamus is issued in favour of a person who establishes a legal right in himself .a
writ of mandamus is issued against a person who has legal duty to perform but has failed or
neglected to do so .such legal duty emanates from either in discharge of public duty or by
operation of law . The object of mandamus is to prevent the disorder from failure of justice and
is required to be granted in all cases where the law has established no speci c remedy and
justice despite demand has not been delivered.

The next question in the light of the fact of the case is the applicability of the mandamus when
issued to parliament and the same is answered as in a rmative

In relation to the persons bodies or tribunals having legal authority to determine questions
a ecting the rights of subjects and having the duty to act judicially12 these writs are issued to

7 constitution of India , part 11 , chapter 1

8 constitution of India schedule 7 , (union, state ,concurrent ) list
9 (1973) 4 SCC 225
10 fundamental rights _ article 14-30 _ constitution of India
11 A.I.R. 2004 s.c. 1402 (2004)
12 lord atkin R.vs electricity commerce (1924)
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the same end . A writ of mandamus can be issued to compel a tribunal to exercise the
jurisdiction which is vested in it and it refuses to exercise it .

In short if a particular body has any duty which is conferred on it by law and if it refuses to
perform it then this writ can be issued against that body which is very properly explained in
this case law by house of lords.

Mandamus is not restricted to the person charged with judicial or quasi judicial duty but
prohibition and certiorari can issue only if the person body or tribunal is charged with judicial or
quasi judicial13duty.
In the case of MURLI DEORA VS UNION OF INDIA14 this court has issued direction to the
government of India for prohibition of smoking at public place and also prescribed certain
locations where smoking shall be completely banned upholding the passive smokers right to
life under article 21 of the constitution of India
Which highlighted that whenever there is infringement of fundamental rights guaranteed under
the constitution of India this court can issue the writ of mandamus in the manner prescribed
under article 32 to government also.

The mandamus cannot be issued to the sovereign :

In the case of R VS POWELL15 it was held that there can be no mandamus against the
sovereign because it would be an incongruity in that the queen commanding herself to do an
act and also the disobedience to the writ of attachment is to be enforced by attachment.

In the light of above mentioned ruling it is clear that the writ of mandamus can not be issued to
the sovereign and parliament is not sovereign in this country it is the constitution which is
sovereign and it is crystal clear from the language of article 245 of the constitution of India and
the ruling of KESHVANANADA BHARTI VS UNION OF INDIA that it is not the parliament but
the constitution of India is sovereign and henceforth declined all the possibilities of parliament
being sovereign in the eld of legislating.

In ROCHESTER CORPORATION VS R16

The writ of mandamus is not writ of course or writ of right as in the sense while granting any
relief or enforcing any right through any writ the court is under obligation to check out that is
there any other equivalent remedy in any other law which can granted to the person who is
seeking the enforcement of that particular right and ultimately if the court nds that there is no
such alternative exists ,for eg. in England such alternative remedies include a petition of right
or an election petition an appeal to a court or tribunal and the court will take liberal view that
whether a writ shall issue or not .

In the words of Baron Martin ….

13 constitutional law of India by H.M. Seervai _ Halsubury volume 11 3rd edition page no. 54
14 writ petition civil 316 of 1999
15 (1841) 1QB 382 , 361 per lord denning j .
16 (1858) E.B. and E 1024, 1033 ( EX.ch.)
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Instead of being astute to discover reasons for not applying this great constitutional remedy for
error and mis government we think it our duty to be vigilant to apply it in every case to which ,
by any reasonable construction , it can be made applicable.

In the light of of above mentioned judgement since parliament has not enacted any law which
could have provided alternative remedy for custodial torture this case is perfect case where
government can issue a writ of mandamus under article 32 of this constitution .

The petitioner further humbly submits that this court in D.K BASU VS STATE OF WEST
BENGAL17 has issued guidelines / directions to the government and has held that custodial
torture amounts to violation of fundamental right guaranteed under article 21 of the
constitution of India and therefore while giving due consideration to all the details mentioned
above this court will nd that this case is an appropriate case for issuance of a writ of
mandamus to the parliament of India .

Therefore this case is t case for issuance of writ of mandamus to the parliament as laid down
in UNION OF INDIA VS S.B VOHRA as it has been 20 years from the said judgement but still
the parliament has enacted any legislation since then.

4 whether apex court is under any obligation to issue such writ to parliament ?

In the case of KESHVANADA BHARTI VS UNION OF INDIA the important aspect of our
constitution was brought into existence and that was the basic structure of our constitution
and fundamental rights were held to be integral part of this basic structure of constitution of
India and their infringement will amount to direct attack to the basic structure of our
constitution

Whenever any person who establishes in the court of law the violation of any fundamental
rights which this petitioner has established and even this court has recognised in its previous
judgements then he can very well seek the enforcement from the supreme court of India under
article 32 of the constitution of India of such rights .

Clause 2 article 32 also enable the supreme court to enforce any of such writs for enforcement
of fundamental rights.

In the case of ABL INTERNATIONAL LTD. VS EXPORT CREDIT GUARANTEE

CORPORATION OF INDIA 18 while entertaining an objection to the maintainability of the writ
petition under article 226 of the constitution the court said observed ,

The power to issue prerogative of writ under article 226 of the constitution is plenary in
nature and is not limited by any other provisions of the constitution . The high court having
regard to the facts of the case , has a discretion to entertain or not entertain a writ petition .the
high courts have imposed certain restrictions on themselves in the exercise of this power .this

17 (1997) 1 SCC 416

18 (2004) 3 SCC 553
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plenary right of the high court to issue a prerogative writ will not normally be exercised by the
high court to the exclusion of the other remedies unless the impugned action of the state or its
instrumentality is arbitrary or unreasonable so as to violate the constitutional mandate of article
14 or for other valid and legitimate reasons , for which the high courts thinks it necessary to
exercise the said jurisdiction .

The petitioner with reference to the above judgement also most respectfully submits that in the
language of the above mentioned judgement , this court has clearly held out that issuance of
writ is plenary power there is no express bar on the power to issue writ in the constitution
and this court can exercise this power where it thinks it necessary .

In the case of S.P GUPTA VS UNION OF INDIA it was held by this court ,

The nature and function of judiciary is to maintain the rule of law in this country and for the
maintenance of rule of law it is not only necessary that the each and every organ of the state
shall remain within the limits of the power but also they carry out whatever duty is conferred
upon them by the constitution . The observance of law can not be just left away to the sweet
will of the government and where there is any public injury or public wrong because of the
omission of the state or any other public authority this court can not countenance any such
situation.

5 Is it the duty of parliament to establish a procedure backed by law under article 21 of the
constitution of India ?

The text of article 21 of the constitution of India can be read as follows

Protection of life and liberty :

No person shall be deprived of his life or personal liberty except according to procedure
established by law .

It clearly states that in negative that only in the presence of established procedure of law there
can be imposed restrictions or to limit this fundamental right , establishing a procedure which
is backed by law is a mandate.
In the case of MANEKA GANDHI VS UNION OF INDIA19 this court has held that the
procedure which is established by law shall not only be just meeting with the criteria of
technical formalities but it shall be in conformity with justice , fairness, reasonableness.
The simple inference from the textual context which coupled with supreme courts judgement
in MANSUKHLAAL VITHALDAS CHAUHAN VS STATE OF GUJRAT20 where a issuance of
mandamus was requested inter alia , this court , observed that,
To compel performance of a public duty which may be the administrative , ministerial , or
statutory in nature , statutory duty may directory or mandatory in nature . statutory duty may be
of mandatory or directory in nature .statutory duty ,if they are intended to be mandatory in
character are indicated by the words shall or must but this is not conclusive as ‘shall' and

19 A.I.R. 1978
20 (1997) 7 s.c.c.622
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‘must’ have , sometimes interpreted as ‘may’ and what is the determinative of nature of the
duty ,whether it is obligatory ,mandatory or or directory ,is the scheme of the statute in which
duty has been set out even if the duty has been not set up clearly and speci cally in the statute
it may implied as correlative to a right .

The court also had some other observations but those are not material so as to decide the
issue which this court has framed in this case .
Therefore the simple conclusion which can be drawn from the supreme court’s judgement is
that a duty need not be crafted out in the language of a particular statute speci cally it may be
conferred on the particular body by virtue of conferring a right on some one else and in such
case when in the form of article 21 where a right has been created in favour of people then it
can not be taken away without an established procedure of law.

6 will an instance of issuing any direction amount to the violation of Theory of separation of
power ?

The petitioner most humbly submits that on this point ,the observation of the privy council still
holds good which was passed in 1878 , in R VS BURAH 21,lord selborne while speaking for the
board held that ,

In ascertaining the power and limitations of the legislature created by the written
constitution ,the court shall con ne it’s business to the interpretation of the text of constitution
and the established courts of justice ,when question comes whether the prescribed limits have
been exceeded ,must of necessity determine that question and the only way in which it can be
done , is by properly looking to the terms of instrument by which the legislative powers were
created and by which they were negatively restricted . If what has been done is legislation,,
within the general scope of a rmative words which give the power and if it violates no express
conditions or restrictions by which the power is limited , it is not for any court of justice to
inquire further , or to enlarge those conditions and restrictions constructively .

The petitioner here, submits that it is clear that whenever there are express wordings this court
need not to adhere any theories which in their absolute nature if accepted suggest something
else and that too deviating the actual meaning in the wordings . The theory of separation of
powers cannot be accepted as the article 21 and article 32 when read together suggest that
for the enforcement of the fundamental rights an order needs to be issued to parliament to
enact a law as parliament forms the part of the state along with judiciary and executive wing of
state .

Under article 32 it is permissible for this court to direct the parliament to enact a particular law
that too upon particular convention because the principles mentioned in the convention are are
just in the disguise and are very of same nature .

21 (1857) 51 AIR 178 (193-94)

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PRAYER

WHEREOF IN THE LIGHT OF

1) FACTUAL MATRIX
2) ARGUMENTS ADVANCED
3) ISSUES PRESENTED FOR ISSUING DIRECTIONS
4) AUTHORITIES CITED

THE COURT MAY PLEASED TO,

DIRECT THE PARLIAMENT TO ENACT A COMPREHENSIVE LEGISLATION AGAINST

CUSTODIAL TORTURE .

SD/-

COUNSEL FOR THE PETITIONER

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