INTRA-MOOT COURT COMPETITION, 2016

IN THE HONBLE SUPREME COURT OF MEGOLIYANA

AT NEW DELHI

Writ Petition (Civil/Criminal) No. _____ / 2016

(Filed under Article 32 of the Constitution of Megoliyana, 1950)

Association for Citizens Welfare

Petitioner

Versus

Union of Megoliyan

Respondents

Written Submissions on behalf of the Petitioner,

TEAM M,
Counsel for the Petitioner

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TABLE OF CONTENTS

INDEX OF AUTHORITIES ................................................................................................. 3

STATEMENT OF JURISDICTION .................................................................................... 6
STATEMENT OF FACTS ................................................................................................... 7
QUESTIONS PRESENTED .............................................................................................. 9
SUMMARY OF PLEADINGS ........................................................................................... 10
PLEADINGS ......................................................................................................................... 11
PRAYER.....18

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INDEX OF AUTHORITIES

[A] Table of Cases

S. No

Name of Case and Citation

Page No.

01

Romesh Thapar v. State of Madras, AIR 1950 SC 124

11

02

Md. Yaqub v. State of Jammu & Kashmir, AIR 1968 SC 765

11

03

Jaichand Lal Sethia v. State of Bengal, AIR 1964 SC 483

12

04

Dariyao v. State of UP, AIR 1961 SC 1457

12

05

Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.

12

06

Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898.

13

07

Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295

13

08

Union of India v. Paul Manickam, AIR 2003 SC 4622.

13

09

Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159.

13

10

P. N. Kumar v. Municipal Corporation of Delhi, (1987) 4 SCC

609

13

11

State of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86.

15

12

Mohammed Ishaq v. S. Kazam Pasha, 2010 (1) SCC (Cri.) 721

15

13

Peoples Union for Civil Liberties v. Union of India (AIR 1991

SC207,211)

15

14

Amrit Singh v. State of Punjab, AIR 2006 SCW 5712

15

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15

Kartar Sing v. State of Punjab, (1994) 3 SCC 569

15

16

D.K Basu v. State of W.B, (1997) SCC 416

15

17

State of Maharashtra v. Christian Community Welfare Council

of India, (2003) 8 SCC 546.

15

18

Collector v. Erimmal (AIR 1957 SC 688)

15

19

Sr Bommai V. Union Of India (AIR 1994 SC 1918)

17

20

Rameshwar Prasad v. Union of India,

17

[B] Treaties, Books, Reports, Statute and Digest

S. No

Name of Treaties, Books, Reports and Digest

01

The Constitution of India, V.N Shukla

02

Constitutional Law 6th Edition M.P Jain

03

Our Constitution, Shubhash C Kashyap

04

The Constitutional law D.D Basu

05

The Code Of Criminal Procedure, R.V. Kelkar

06.

Shorter Constitution, D.D Basu

07

Indian Penal Code

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08

Criminal Procedure Code

09

Sarkaria Commission

10

International Covenant of Civil and Political Rights

11

Universal Declaration of Human Rights

12

Draft International Principles on Communications Surveillance and Human

Rights

13

Report of the Group of Experts on Privacy, Planning Commission (CIT&I

Division), Government of India

14

Electronic Frontier Foundation, Privacy International & Access,

International Principles on the Application of Human Rights to
Communications Surveillance,

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STATEMENT OF JURISDICTION

The Petitioner has approached the Hon'ble Supreme Court of India under Article 32(1) of the
Constitution of India, 1950.

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SUMMARY OF FACTS

Megoliyana, a colony of British Empire consisting of 510 princely states. It got

freedom on 14th August 1947 and the British government freed all the princely states
with the option of independent status or to join the UOM.

Initially many of the princely states were not willing to join the union but on a
promise by the then HM to surrender only law and order, army and security to
Megoliyana.

Gradually all the princely states agreed to be the part of the Union on the condition
that only three subjects will be transferred to union government and many if the
princely states have difference on personal laws and cultural freedom.

Megoliyana has adopted parliamentary system since its independence and provided
exemption for culture and minority and to protect its identity guaranteed this as
fundamental right and the constitution of Megoliyana is the last word for any issues
relating to subject of Law and Governance.

The literacy rate of the majority of the states is very low whereas literacy rate of PanGoa was comparatively high and it had influence of western culture and the people of
Pan- Goa believe in liberty, privacy and equality.

The people of Pan-Goa are very open minded towards each other. They constitute a
liberal society based on western thoughts. Cases relating to divorce have
tremendously increased, extra marital practices are prevailing and even some of them
are living in live- relationship.

In November 2010, a new government was formed by the Megoliyan Traditional

People Party by two-third majority. The new government was very conservative and
in the name of protection of moral degradation and culture of country issued various
guidelines.

In December 2010, a guideline was issued to authorities to install CCTV cameras on

all the streets and public places including near Churches, Temples, Mosques,
Gurudwaras, garden and beaches.

This decision caused an uproar and protest across the states and the chief minister of
Pan-Goa said that the decision can be implemented at the cost of my dead body.

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The union of Megoliyana made a new regulation authorizing states to monitor all the
celebration and state shall have right to get decryption password of any encrypted data
from any person across the union.

People of Pan-Goa marched against the leadership of their chief minister and broken
all the CCTV camera and uploaded an encrypted video and social networking sites
using slangs.

The union government deployed central para-military forces and ordered its central
investigation department to take necessary action and also dismiss the elected
government of Pan-Goa on the ground of failure to maintain Law and Order.

The DG central para-military forces arrested more than one individual and in flagrant
violation of criminal procedure without any court permission were confined in the
Headquarter and forced to give password to access the video.

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QUESTIONS PRESENTED

1. Whether the instant petition is maintainable?

2. Whether the right to privacy is infringed?
3. Whether arrest of individuals are made with due procedure?
4. Whether the due process was followed in dismissal of Pan-Goa elected state government?

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SUMMARY OF PLEADINGS

1. The instant petition is maintainable under Art. 32 of the Constitution since: first, the
fundamental right under Art. 32 is qualified by the existence of any other local or
alternative remedies; second, the cases that impose a rule of exhaustion of local
remedies are not binding upon this Court and finally, there is a Constitutional
obligation on this Court to protect fundamental rights. In any case, the alternative
remedies are not equally efficacious.

2. The right to privacy is infringed as the regulation with authorizes the State to get
password of encrypted data is in violation of privacy laws according to which, it
deemed necessary to ensure that data is not retained indefinitely, that data is not
shared and disclosed to unauthorized third parties and that unauthorized parties do not
have access to collected and intercepted data. In a democratic regime, surveillance
should be targeted and carried out under a judicial warrant and the absence of privacy
legislation deprives individuals from necessary safeguards

3. The arrest made by the Para-Military-force of many individuals is flagrant violation of

criminal procedure, as it was done without any court permission. It also forced to
individuals to give password of the video which is uploaded by the people of PanGoa. which is against the Art. 20(3) of the Constitution of Megoliyana.

4. In the dismissal of Pan-Goa elected state government by the Union government on the
ground of failure to maintain Law and Order, due process was not followed. And
dismissal is of gross misuse of Art. 356, as was stated in the Sarkaria Commission,
before the Supreme Court and before the inter-state council. The consensus was set
that we do need the Article but it should be used in the rarest of the rare cases and in
the present instance this was not taken in cognizance.

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PLEADINGS

1. INSTANT PETITION IS MAINTAINABLE

In the instant case, the State of Pan-Goa joins the Union of Megoliyana only on a condition to
surrender three subjects i.e. law and order, army and security. It is clearly mentioned in the
fact that the personal laws would be governed according to their States personal laws. Our
Constitution has guaranteed different communities to govern as per their personal laws. Like
Constitution of India where the constitution guaranties special status to Naga community.
Article 371A guarantees special status to Naga community to govern all the civil and criminal
laws as per customary Nags laws. It also says, no Act of Parliament will enforce for religious
or social practices and special status to Naga customary law and procedure. If such practice is
followed in India then why not such practices can be followed for Pan Goa, which had
western oriented culture, apart from above mentioned situation and its furtherance, the Union
Govt. by installing CCTV cameras, the Union Govt. has violated the Fundamental Right of
the people. According to the verdict of Romesh Thapar v. State of Madras1, this Court, is the
protector and guarantor of the Fundamental Rights, and it cannot consistently with the
responsibility led down upon it, refuse to entertain application seeking protection against
infringement of Fundamental Rights.

Further, by deploying the Para Military Forces to arrest individuals and to confine them in
head quarter and were forced to give password of encrypted video which uploaded by people
of Pan-Gao is in gross violation of criminal procedure as well as violation of Fundamental
Right enshrined under Article 22 and Article 20 (3) respectively.
In case Md. Yaqub v. State of Jammu & Kashmir2, SC held that, Even during the emergency
after the presidential order was issued under Art. 359, law and executive actin could still be
challenged on any ground. Such a challenge fill outside the preview of presidential order
hence, it was ruled that a person would not be deprived of his right to move a court for a writ
of Habeas Corpus on the ground that the order for his detention was mala-fide. The citizen

1
2

AIR 1950 SC 124

AIR 1968 SC 765

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could also challenge his detention on the ground that any ground mention in the order of
detention was irrelevant.3
In the case of Dariyao v. State of UP4, the Honble SC held that, the Fundametal Rights are
not intended only to protect individuals rights but they are based on high public policy.
Liberty of the individual and the protection of fundamental rights are the very essence of
democratic way of life adopted by constitution and it is a privilege and the duty of the Court
to uphold those rights this Court would naturally refuse to circumscribe them or to curtail
them as provided by the constitution himself.

It is submitted that the instant petition is maintainable as there is no requirement for the
Petitioner to exhaust local remedies [A] and in any case, the alternative local remedies
available to the Petitioner herein are not equally efficacious [B].

A. There is no requirement for the Petitioner to exhaust local remedies

a) The right under Art. 32 is not subject to the exhaustion of local remedies

The right to approach this Hon'ble Court in case of violation of fundamental rights is itself a
fundamental right enshrined in Art. 32.5 In Prem Chand Garg, it was held that this right is
absolute and may not be impaired on any ground.6 Further, unlike in Art. 226, the remedy
provided by Art. 32 is a fundamental right and not merely a discretionary power of the
Court.7 Moreover, this Honble Court has on multiple occasions expressly rejected an
argument that called for exhaustion of local remedies.8 Therefore, it submitted that it is not
open to this Court to carve out exceptions when there are none in the text.

Jaichand Lal Sethia v. State of Bengal, AIR 1964 SC 483, also see, Ananda Nambiyar v. Chief Secy.
Government of Maharashtra, AIR 1966 SC 657.
4
AIR 1961 SC 1457
5
Constitution of India Art. 32 (1950).
6
Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.
7
Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457; Tilokchand Motichand v. H.B. Munshi, AIR 1970
SC 898.
8
Kharak Singh v. State of Uttar Pradesh, AIR 1963 SC 1295; Romesh Thappar v. The State of Madras, AIR
1950 SC 124

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b) The rule of exhaustion of local remedies is not binding on this Hon'ble Court
Admittedly, cases such as Paul Manickam9, Kanubhai10 and PN Kumar11 require the
exhaustion of local remedies before approaching the Court under Art. 32. However, it is
submitted that this Hon'ble court must not be constrained by these decisions for the following
reasons: First, this self-imposed restraint is merely a rule of convenience and discretion12 and
does not oust the jurisdiction of this Court under Art. 32.13 Secondly, these cases are per
incuriam as they were rendered in ignorance of previous decisions by higher benches of this
Hon'ble Court that expressly rejected such a rule. Finally, Art. 32(4) specifically provides
that this right may not be suspended except by a constitutional provision.14 A rule of selfimposed restraint by the judiciary that requires exhaustion of local remedies constitutes an
extra-constitutional partial suspension and is therefore, unconstitutional.

2. The right to privacy of the individuals is infringed.

Right to privacy is a part of the right to life and personal liberty enshrined under Art.21
of the Constitution, the said right cannot be curtailed except according to procedure
established by Law.15 Thus, right to privacy is infringed as in the stated regulation which
authorizes the State to get password of encrypted data is in violation of privacy laws16 as no
such laws or judicial warrant is there to do so. Privacy law deem necessary to ensure that data
is not retained indefinitely, that data is not shared and disclosed to unauthorized third parties
and that unauthorized parties do not have access to collected and intercepted data. Even in a
democratic regime, surveillance should be targeted and carried out under a judicial warrant
and the absence of privacy legislation deprives individuals from necessary safeguards.

Union of India v. Paul Manickam, AIR 2003 SC 4622.

Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159.
11
P. N. Kumar v. Municipal Corporation of Delhi, (1987) 4 SCC 609
12
State of Uttar Pradesh v. Mohammad Nooh, AIR 1958 SC 86.
13
Mohammed Ishaq v. S. Kazam Pasha, 2010 (1) SCC (Cri.) 721.
14
Constitution of India Art. 32(4) (1950).
15
Peoples Union for Civil Liberties v. Union of India (AIR 1991 SC207,211)
16
Section 5(2) of The Telegraph Act, 1885
10

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2.1 The act of the Government is in violation of International Covenant.

Right of privacy is in conformity with Article 12 of the Universal Declaration on Human

Rights and Article 17 of the International Covenant on Civil and Political Right, 1996. Both
of these international documents provides for the right of privacy and in the instant case the
government by installing CCTV cameras and by encryption of the passwords violated
International Covenant.

Further, according to the goal of the principles set by International Principles on the
Application of Human Rights to Communications Surveillance17 where it provides civil
society groups, the industry and governments with a framework to evaluate whether current
or proposed surveillance laws and practices are consistent with human rights. Among the
thirteen principles18 on the application of human rights to communications surveillance
almost all are violated by the encryption of password by the Union government such in
limited or limitless form.

2.2 Decryption of Information

Mass surveillance in Megoliyana is a legally gray area. Though not specifically mandated, it
is not prohibited and the License Agreements for ISPs and TSPs include technical and legal
requirements that could allow for mass surveillance. The decryption of information should be
a last resort and should be strictly restricted to instances where law enforcement have
provided a court adequate documentary evidence to support the claim that the specific
encrypted information needs to be decrypted. Further Justice AP Principle of Purpose
Limitation19, it is recommended that surveillance should be regarded as a highly intrusive act
that interferes with the rights to privacy and freedom of opinion and expression, threatening
the foundations of a democratic society. Decisions about communications surveillance must
be made by weighing the benefit sought to be achieved against the harm that would be caused
17

Elonnai Hickok, Draft International Principles on Communications Surveillance and Human Rights, The
Centre for Internet and Society, 16 January 2013, http://cis-india.org/internet-governance/blog/draft-intlprinciples-on-communications-surveillance-and-human-rights
18
Electronic Frontier Foundation, Privacy International & Access, International Principles on the Application
of Human Rights to Communications Surveillance, Necessary & Proportionate, 10 July 2013,
https://www.eff.org/files/necessaryandproportionatefinal.pdf
19
Justice Ajit Prakash Shah, Former Chief Justice, High Court of Delhi, Report of the Group of Experts on
Privacy, Planning Commission (CIT&I Division), Government of India, 16 October 2012,
http://planningcommission.nic.in/reports/genrep/rep_privacy.pdf

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to the individuals rights and to other competing interests, and should involve a consideration
of the sensitivity of the information and the severity of the infringement on the right to
privacy. It is therefore recommended that Indian law is amended to specifically prohibit mass
surveillance.

3. Arrest of individual is in violation of due procedure:

In the Instant case, the Para Military force arrested many individuals in flagrant violation of
criminal procedure, without any court permission and also forced to give password of the
video which is uploaded by the people of Pan-Goa. So, the act of govt. to give password
forcefully is in violation of Art. 20(3) of the Constitution of India, as SC also stated in Amrit
Singh v. State of Punjab20, a person cannot be compelled to be made a witness by himself
against his will. Art 20(3) forbids testimonial compulsion. In Kartar Sing v. State of Punjab21,
the Honble SC held that, it is protection against compulsion resulting in the accused of any
offence giving evidence against him-self. No self-incrimination can be made while he is in
custody which could be used against such matter.
The arrest made by Govt. is in violation of the guidelines made in D.K Basu v. State of W.B.22
which are as follow:i) every arrested person must be conveyed with the reason for arrest.
ii) the police must prepare memorandum of arrest attested by at least one witness who is
member of his family accompanied with counter sign of arrested person
iii) the arresting must be conveyed to the relative of arrested person or any of his friend.
iv) in case of women arrest can be made only in the presence of female police, neither after
sunset nor before sunrise23

Further, the act is not preventive-detention as the SC contended that arrest not in connection
with any allegation/accusation cannot be preventive detention.24

20
21
22
23
24

AIR 2006 SCW 5712

(1994) 3 SCC 569
(1997) SCC 416
State of Maharashtra v. Christian Community Welfare Council of India, (2003) 8 SCC 546.
Collector v. Erimmal (AIR 1957 SC 688)

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4. Dismissal of state Government is in violation Constitution.

It is submitted to Honble Court that in the dismissal of Pan-Goa government by Union on the
ground of failure to maintain Law and Order [A] due process in accordance with the
provision of the constitution was not followed [B].
a) Failure to maintain Law and Order
In the instant case, there is no failure of constitutional machinery in the State of Pan-Goa, the
act of Union Govt. is prejudiced with political benefits, as the Union Govt. got no report from
governor of the State which it requires before dismissal of State Govt. on ground of failure to
maintain law and order. In words of Chief Justice P. N. Bhagwati, he conceded that the
inclusion of the word otherwise in Article 356 gave the President very drastic powers
which, if misused or abused can destroy the constitutional equilibrium between the Union and
the States. It is very difficult to dismiss a duly elected government which enjoys vote of
confidence on the floor of the house. As in the case of State of Bihar in October 1998, the
Central government of India recommended to the President for invocation of Art.356 in the
State on the basis of Governors report of the series of acts of commission and omission on
the part of State which constitute the breakdown of the constitutional machinery. The main
allegation against the State Government was the worsening of the law and order situation in
the State but against all efforts of the Cabinet the President didnt invoked the government in
State and relied on the Bommai Case25 i.e. the floor test of the government.
In an another instance of India where the then president K R Narayanan, returned United
Front Govt. recommendation to impose presidents rule in Uttar parades on the ground of
failure to maintain law and order, he recorded that, the condition precedent for the
invocation of article 356, wiz. That there has been failure of the constitutional machinery in
the stae, had not been adequately made out by the governor. In the former instance of Bihar,
he held, it would be imprudent to take action under Article 356 in Bihar when
preliminary steps such as warning, directives and eliciting explanation from the state has not
been taken by union.
The doctrine in Bomai Case was again applied by the SC in Bihar case of Rameshwar Prasad
v. Union of India where, the then governor Buta Singh, after an inconclusive election,
25

SR BOMMAI V. UNION OF INDIA (AIR 1994 SC 1918)

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recommended the dissolution of the State assembly, without it been conveyed even once. The
court struck down impostion unconstitutional. Subsequently, Buta Singh Resigned in the
wake of judgement.

b) Due process was not followed

Once, B R Ambedkar said about Art. 356 "they will never be brought into operation and they
will remain a dead letter." But he too lived to denounce, in the Rajya Sabha, the imposition of
Presidents rule in PEPSU in 1953 about Art.356 as "the most violent kind of rape on the
Constitution". Thus, the gross abuse of the Centres power to take over the administration of
state makes a mockery of the federal principle.
Later in the State of Rajasthan v. Union of India26, Chief Justice Beg, while interpreting
Article 356, observed: "Our difficulty is that the language of Article 356 is so wide and loose
that to circumscribe and confine it within a straitjacket will not be just interpreting or
construing it but will be Constitution making legislation which, again, does not, strictly
speaking, lie in our domain." It was held in the same case that the decision of dismissal of the
State government by Union must be within the ambit of judicial review and must be
commenced according to due process stated in the case of S R Bommai v. Union of India27.

In act of doing so, subversion of the constitution by the Union Govt. while processing to
work under the constitution or to create disunity or disaffection among the people to
disintegrate the democratic social fabric or to subvert its basic feature such as federation,
democracy and secularism.28

It is an act, political party seeking to subvert the principle of responsible govt.

26
27
28

AIR 1977 SC 1361

Ibid
Ibid

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PRAYER

In the light of issue raised, argument advanced and authorities cited it is most humbly and
respectfully submitted that this Honble Court may adjudge and declare that:
1. The present petition may be maintained.
2. The Honble SC may issue a writ of Mandamus to reconstitute the elected State Govt. of
Pan-Goa.
3. A committee may be constituted under the supervision of Honble court for the
investigation of detention of citizen made in the name of preventive detention for
maintenance of law and order.
4. A writ of Habeas Corpus may be issued to release the arrested people.
The court may also be pleased to pass any other order, which this Honble Court may deem
fit in the light of justice, equity and good conscience.

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