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JUSTICE Y.K. SABHARWAL CONSTITUTIONAL LAW MOOT COURT COMPETITION, 2018

IN THE SUPREME COURT OF INDIA

Crl. Appeal No. ______of 2018

(Art. 136 of the Constitution of India, 1950)

Mr. Sandesh De….………………………………………………….………………Appellant

VERSUS

Union of India……………………………………………………………………...Respondent

Writ Petition No.______ of 2018

(Article 32 of the Constitution of India, 1950)

Mr. Sandesh De….……………………………………………………….…….…….Petitioner

VERSUS

Union of India……………………………………………………………………...Respondent

MOST RESPECTFULLY SUBMITTED,

COUNSELS APPEARING ON BEHALF OF THE APPELLANT/PETITIONER.

MEMORIAL FOR THE APPELLANT

 TABLE OF CONTENTS
LIST OF ABBREVIATIONS ............................................................................................................. 4

INDEX OF AUTHORITIES .............................................................................................................. 5

STATEMENT OF JURISDICTION ..................................................................................................... 8

STATEMENT OF FACTS ................................................................................................................ 9

ISSUES RAISED .......................................................................................................................... 11

SUMMARY OF ARGUMENTS ....................................................................................................... 12

ARGUMENTS ADVANCED ................................................................................................. 15

1. THE IMPUGNED CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS ULTRA VIRES THE

CONSTITUTION OF INDIA ........................................................................................................... 15

[A] THERE EXISTED NO NECESSARY CIRCUMSTANCES NECESSITATING IMMEDIATE ACTION

.............................................................................................................................................. 15

(i) Satisfaction subject to judicial review ............................................................... 17

(ii) The intent behind Article 123 of the Constitution was to enable the Executive
to meet extraordinary situations demanding immediate enactment of laws. ........... 18

[B] ACTIONS INITIATED UNDER AN ORDINANCE DO NOT SURVIVE THE END OF AN

ORDINANCE WHEN IT IS DISAPPROVED BY THE LEGISLATURE ........................................... 19

2. THE IMPUGNED CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 VIOLATES THE

APPELLANT’S FUNDAMENTAL RIGHTS...................................................................................... 21

THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS IN VIOLATION OF ARTICLE 14

OF THE CONSTITUTION OF INDIA ........................................................................................ 21

[A] THE CLASSIFICATION IS NOT BASED ON INTELLIGIBLE DIFFERENTIA. ....................... 22

(i) Irrational differentia on the basis of sex ............................................................ 22

(ii) Irrational differentia on the basis of age ........................................................... 23

[B] THE DIFFERENTIA HAS NO NEXUS WITH THE OBJECT SOUGHT TO BE ACHIEVED. ....... 24

[C] THE DIFFERENTIA IS ARBITRARY.................................................................................. 25

 THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS IN VIOLATION OF ARTICLE 21
OF THE CONSTITUTION OF INDIA ........................................................................................ 27

3. THE SENTENCE IMPOSED UPON THE APPELLANT UNDER THE IMPUGNED ORDINANCE IS

UNREASONABLE ....................................................................................................................... 28

[A] MANDATORY MINIMUM PUNISHMENT OF 20 YEARS IS DISPROPORTIONATE TO THE

GRAVITY OF THE OFFENCE IN THE PRESENT CASE.............................................................. 28

[B] THE PRESCRIBED PUNISHMENT IS NOT IN ACCORDANCE WITH THE PURPOSE OF

REFORMATION OF THE ACCUSED ........................................................................................ 29

[C] PRESCRIBING MANDATORY MINIMUM PUNISHMENT REDUCES THE JUDGE’S

DISCRETION TO TAKE INTO CONSIDERATION THE MITIGATING CIRCUMSTANCES OF THE

CASE ..................................................................................................................................... 30

[D] PRESCRIBING MANDATORY MINIMUM PUNISHMENT IS IN VIOLATION OF ARTICLE 14(5)

OF ICCPR ............................................................................................................................ 31

PRAYER..................................................................................................................................... 33
 LIST OF ABBREVIATIONS

¶ Paragraph

AIHC All India High Court

Cases

AIR All India Reporter

Art. Article

cl. Clause

Crl. Criminal

Code of Criminal Procedure, 1973 CrPC

ed. Edition

Hon’ble Honourable

Indian Penal Code, 1860 IPC

MANU Manupatra

No. Number

Protection of Children from Sexual Offences POCSO

Act, 2012

SC Supreme Court

SCC Supreme Court Cases

SCJ Supreme Court Journal

SCR Supreme Court

Reporter

Sec. Section

v. Versus
 INDEX OF AUTHORITIES
I. Cases

1. A.K. Roy v. Union of India, AIR 1982 SC 710

2. Air India v. Nargesh Meerza, (1981) (II) LLJ 314.

3. Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648.

4. Ameronissa v. Mehboob, AIR 1953 SC 7.

5. Anwar Ali Sarkar v. State of West Bengal, 1952 AIR SC 75.

6. Asha Sharma v. Chandigarh Admin 2011 10 SCC 86.

7. Bachan Singh v. State of Punjab, (1980) 2 SCC 684.

8. Budhan Chaudhary v. State of Bihar, AIR 1955 SC 191.

9. Chairman Railway Board v. Chandrima Das, (2000) 2 SCC 465.

10. D.C. Wadhwa v. State of Bihar, (1987) 1 SCC 378.

11. D.S. Nakara v. Union of India, AIR 1983 SC 130.

12. Deena @ Deena Dayal v. Union of India, 1984 SCR (1).

13. Deepak Sibal v. Punjab University (1989) 2 SCC 145.

14. Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220.

15. E.P. Royappa v. State of Tamil Nadu, AIR 1974 SC 555.

16. Faridabad CT Scan Centre v. D.G. Health Services, (1997) 7 SC 752.

17. Gauri Shankar v. Union of India, AIR 1995 SC 55.

18. Gopal Singh vs. State of Uttarakhand, JT 2013 (3) SC 444.

19. Hiral P. Harsora and Ors vs Kusum Narottamdas Harsora (2016) 10 SCC 165.

20. India Pharmaceutical Corporation Ltd. v. Sharamik Sena, AIR 1999 SC 2577.

21. Jaila Singh v. State of Rajasthan, AIR 1975 SC 1436.

22. Justice K.S. Puttaswamy v. Union of India, (2018) 1 SCC 809.

23. K. Nagraj v. State of Andhra Pradesh AIR 1985 SC 551.

24. K. Prema Rao v. Yadla Srinivas Rao, (2003) 1 SCC 217.

25. K. Thimmappa v. Chairman, Central Board of Directors, AIR 2001 SC 467.

26. K. Thimmappa v. Chairman, Central Board of Directors, SBI, AIR 2001 SC 467.

27. Kedar Nath Bajoria v. State of West Bengal, AIR 1953 SC 404.

28. Krishna Kumar Singh v. State of Bihar (1998) 5 SCC 643

29. Laxmi Khandsari v State of Uttar Pradesh, 1981 SCR (3) 92.

30. Luxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873.

31. Madhav Rao Scindia v. Union of India, AIR 1971 SC 530.

32. Madhu Limaye v. Supt Tihar Jail 1975 AIR SC 1505.

33. Maneka Gandhi v. Union of India, AIR 1978 SC 597.

34. Mithu v. State of Punjab, 1983 SCR (2) 690.

35. Nabam Rebia and Bamang Felix v. Deputy Speaker, Arunachal Pradesh Legislative

Assembly, (2016) 8 SCC 1.

36. Natural Resources Allocation, re Special Reference No. 1 of 2012, (2012) 10 SCC

1.

37. NHRC v. State of Arunachal Pradesh, AIR 1996 SC 1234.

38. Onkar Lal Bajaj v. U.O.I AIR 2003 SC 2562.

39. Pushpa Devi v. U.O.I 1986 SCC 535.

40. R.C. Cooper v. Union of India, AIR 1970 SC 587

41. Raghunath Rao, Ganpath Rao v. Union of India, AIR 1993 SC 1297.

42. Ramesh Chandubhai Rathod v. State of Gujarat, (2009) 5 SCC 740.

43. S Sechalam v. Bar Council, Tamil Nadu- 2014 16 SCC 72.

44. S.R. Bommai v. Union of India, AIR 1994 SC 1918.

45. S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126.

46. State of M.P. v. Bala alias Balaram, (2005) 8 SCC 1.

47. State of Orissa v. Bhupendra Kumar Bose, AIR 1962 SC 945 (955).
48. State of Rajasthan v. Union of India, AIR 1977 SC 1361.

49. Union of India v. International Trading Co. (2003) 5 SCC 437.

50. Union of India v. M.V. Valliappan, (1999) 6 SCC 259.

51. Venkata Reddy, T. v. State of Andhra Pradesh, AIR 1985 SC 724.

52. Calder v. Bull 3 US (3 Dallas) 386: 1 L Ed 648 (1798).

53. Michell v. Brown (1958) 120 ER 909, 912: 32 LTOS 146: 7 WR 80.

54. Regina v. Youle (1861) 158 ER 311, 315-16.

55. S v. Dodo 2001 (5) BCLR 423 (CC).

56. Smith v. Benabo (1937) 1 All ER 523.

II. Statutes

1. The Constitution of India, 1950.

2. The Criminal Law (Amendment) Ordinance, 2018.

3. Indian Penal Code, 1860.

4. The Code of Criminal Procedure, 1973.

5. The Protection of Children from Sexual Offences Act, 2012.

III. Books

1. Durga Das Basu, COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed. 2010).

2. M.P. Jain, INDIAN CONSTITUTIONAL LAW (7th ed., 2016).

3. BLACK’S LAW DICTIONARY (2nd ed., 1910).

4. P.K. Das, HANDBOOK ON NEW ANTI-RAPE LAW.

5. Nadim Khan, THE ABSURDITY OF MANDATORY MINIMUM SENTENCES, The

McGill Daily (2015).

 STATEMENT OF JURISDICTION

The counsels on behalf of the Appellant/ Petitioner humbly submits this memorandum for a

Special Leave Petition (Crl.) and a Writ Petition filed before this Hon’ble Court, clubbed

together by this Hon’ble Court.

I. Crl. Appeal No.______ of 2018

The Petitioner has approached this Hon’ble Court under Art. 136 of the Constitution of India,

1950, that reads:

“(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant

special leave to appeal from any judgment, decree, determination, sentence or order in any

cause or matter passed or made by any court or tribunal in the territory of India.”

challenging the sentence imposed by the Presiding Judge of the Special Court and the High

Court of Karnataka.

II. Writ Petition No.______ of 2018

The Petitioner has approached this Hon’ble Court under Art. 32 of the Constitution of India,

1950, that reads:

“(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.”
seeking appropriate remedy for violation of Fundamental Rights guaranteed under Art. 14 and

Art. 21 of the Constitution of India, 1950. The Hon’ble Supreme Court has the inherent

jurisdiction to try entertain and dispose of the present case by virtue of Art. 32.

STATEMENT OF FACTS

BACKGROUND

Sandesh De, the appellant, is a 35-year-old struggling painter who used to take drawing and

painting classes for school children in his house. Ms. X, a 13-year-old girl, was one of Mr. De’s

students. Mr. De recognizing Ms. X’s talent and took particular interest in her progress and

would often take her to his studio. On such visits to Mr. De’s studio, to which Ms. X always

reciprocated.

However, on 1st May 2018, as Ms. X told a counsellor later on, Mr. De while he was hugging

her goodbye in his usual manner, he slipped his fingers into her underwear and penetrated her

vagina. Ms. X further stated that she unclasped herself from Mr. De’s embrace, and left for

home. Mr. De, though tried to apologise to Ms. X, but seeing that she was distressed, did not

stop her from leaving. After getting to know about the incident Ms. X’s family filed a criminal

complaint against Mr. De. Mr. De was then arrested, and the investigation was completed in

seven (7) days. A chargesheet alleging commission of offences under s.376(3) of the IPC, as

introduced under the Criminal Law (Amendment) Ordinance, 2018, (hereinafter referred to as

“the Ordinance”) read with ss. 5 and 6 of the POCSO Act was filed six (6) days thereafter

before the Magistrate.

CONVICTION

The Magistrate committed the matter to a Special Court designated under s.28 of the POCSO

Act for trial. The trial was completed within fourteen (14) days from the time of committal,

and Mr. De was held guilty of commission of offences under s. 376(3) of the IPC read with ss.

5 and 6 of the POCSO Act. The Presiding Judge of the Special Court, giving due consideration
to applicable law, including the Ordinance, imposed the mandatory minimum sentence of

twenty (20) years imprisonment, in addition to a fine of Rs.50,000 to be paid to Ms. X.

APPEAL TO THE HIGH COURT OF KARNATAKA

Aggrieved by the special court’s judgment, Mr. De preferred an Appeal before the High Court

of Karnataka. The High Court dismissed the Appeal, and upheld the conclusions of the Trial

Court on the issues of conviction as well as sentence, including the finding that the Accused

had failed to discharge his burden to reverse the presumption of guilt under s.29 of the POCSO

Act. Aggrieved by the decision of the High Court, Mr. De has now filed an Appeal in the

Supreme Court, challenging the sentence imposed on him. Mr. De has additionally filed a Writ

Petition under Art. 32 of the Constitution of India challenging the vires of the Ordinance to the

extent it was applicable to his case.

THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018

In April 2018, the national media narrative was dominated by instances of child sexual. On 21

April 2018, when the Parliament was not in session, the President promulgated the Ordinance,

2018 amending relevant provisions of the IPC, CrPC, Indian Evidence Act and the POCSO

Act to inter alia increase the quantum of punishment for crimes involving sexual violence

against minor women.

The Ordinance, however, was subsequently disapproved by both the Houses of Parliament in

the Monsoon session as there was a strong opposition to the Ordinance from various child

rights organizations. Concerns were raised that it did not properly balance the rights of accused

persons to a fair trial with the objects of deterrence and speedy conclusion of proceedings.
 ISSUES RAISED

I.

WHETHER THE IMPUGNED CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 WAS ULTRA VIRES

THE ARTICLE 123?

II.

WHETHER THE IMPUGNED CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 VIOLATED

APPELLANT’S FUNDAMENTAL RIGHTS?

III.

WHETHER THE SENTENCE IMPOSED UPON THE APPELLANT UNDER THE IMPUGNED ORDINANCE

IS REASONABLE AND IN ACCORDANCE WITH THE LEGISLATIVE CHANGES PRESCRIBING IT?

 SUMMARY OF ARGUMENTS

I. THE IMPUGNED CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS ULTRA VIRES

THE ARTICLE 123 UNDER THE CONSTITUTION OF INDIA, 1950.

It is submitted that the Central Executive (through the President) passed the Criminal Law

(Amendment) Ordinance, 2018 on 21 April 2018, when Parliament was not in session,

amending relevant provisions of the Indian Penal Code, Criminal Procedure Code, Indian

Evidence Act and the POCSO Act to inter alia increase the quantum of punishment for crimes

involving sexual violence against minor women. However, the appellant in the present matter

contends that the ordinance promulgated by the President on 21 April 2018 is ultra vires, and

therefore conviction under the same needs to be struck down by this Court. This is because first

There existed no necessary circumstances necessitating immediate action [A]; secondly,

Actions initiated under an ordinance do not survive the end of an ordinance when it is

disapproved by the Legislature [B]. Therefore, it is submitted that though the Constitution of

India empowers the President under Art. 123 to promulgate Ordinance as and when the

circumstances appear and upon the his satisfaction. However, it is necessary to ensure that

such extraordinary power attributed to the President has to be used judiciously complying with

every condition before and after such promulgation is made. The issue before this court stresses

upon the by-pass method adopted by the Union of India overriding the primacy of the

legislature in framing laws of general character, thus exploiting the provision to achieve instant

appeasement.
 II. THE IMPUGNED CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS IN

VIOLATION OF FUNDAMENTAL RIGHTS UNDER PART III OF THE CONSTITUTION

OF INDIA, 1950.

The Criminal Law (Amendment) Ordinance, 2018 brought about significant changes in the

quantum of punishment for offences of sexual abuse against minor women. It is submitted that

the ordinance is in violation of Art. 14 of the Constitution of India, as, first, In the present case

the classification created is not based on intelligible differentia [A]; secondly, there is no nexus

between the differentia and the object sought to be achieved [B]; thirdly, the classification is

wholly arbitrary in nature [C]. In addition, the procedure established under the Ordinance is in

violation of the accused’s right to life and liberty under Art. 21 for unfair, arbitrary and

unreasonable.

III. THE MANDATORY MINIMUM SENTENCE OF 20 YEARS IMPOSED UPON THE

APPELLANT UNDER THE IMPUGNED ORDINANCE IS UNREASONABLE AND NOT IN

ACCORDANCE WITH THE LEGISLATIVE CHANGES PRESCRIBING IT

Mr. De, the appellant, has been sentenced to 20 years of imprisonment under Sec. 376(3) of

the Indian Penal Code, as introduced by the ordinance. However, the mandatory minimum

punishment of 20 years as stipulated by the Section is unconstitutional because it is not just,

fair and reasonable and thus, infringes upon the rights of the accused under Art. 21 of the

Constitution, as, first, mandatory minimum punishment of 20 years is disproportionate to the

gravity of the offence in the present case [A]; secondly, the prescribed punishment is not in

accordance with the purpose of reformation of the accused [B]; thirdly, prescribing mandatory

minimum punishment reduces the judge’s discretion to take into consideration the mitigating

circumstances of the case [C]; fourthly, prescribing mandatory minimum punishment violates

Art. 14(5) of the ICCPR to which India is a party [D]; [E] fifthly, the ordinance prescribing the

mandatory minimum punishment of 20 years has been disapproved by both the houses of the

Parliament, causing the ordinance to “cease to operate”. Art. 20(1) of the Constitution of India,

1950 does not prohibit applicability of ex post facto if for the same offence, the punishment is

reduced. It is a well settled law that if by beneficent construction, a benefit is forwarded to an

offender, it is not barred by Art. 20(1). Furthermore, there must be an inter-se gradation within

the definitions of rape as even a partial penetration may invite same punishment as a full

penetration, contravening the principle of proportionality in sentencing. Additionally, no

consideration was given to the economic conditions of the appellant when imposing a fine of

INR 50,000 which is against the well settled principles of law.

 ARGUMENTS ADVANCED

1. THE IMPUGNED CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS ULTRA VIRES THE

CONSTITUTION OF INDIA

1. In the present case the President of India passed the Criminal Law (Amendment) Ordinance,

2018 on 21 April 2018, when Parliament was not in session, amending relevant provisions of

the Indian Penal Code, Criminal Procedure Code, Indian Evidence Act and the POCSO Act to

inter alia increase the quantum of punishment for crimes involving sexual violence against

minor women. However, the appellant in the present matter contends that the ordinance

promulgated by the President on 21 April 2018 is ultra vires, and therefore conviction under

the same needs to be struck down by this Court. This is because, first, there existed no necessary

circumstances necessitating immediate action [A]; secondly, actions initiated under an

ordinance do not survive the end of an ordinance when it is disapproved by the Legislature [B].

[A] THERE EXISTED NO NECESSARY CIRCUMSTANCES NECESSITATING IMMEDIATE ACTION

2. Under Art. 123, the President is empowered to promulgate an ordinance provided he is

satisfied that (a) circumstances exist (b) rendering it necessary (c) to take immediate action. It

is submitted that these conditions are co-joint and cumulative and are necessary to be satisfied
before an ordinance can be promulgated.1 However, in the present case, there was no

demonstrable urgency or expediency which required the issuance of the Ordinance on such

vital aspects of criminal law without any research or material to rely upon for forming the

subjective opinion.2

3. The existence of objective material showing an emergency action is to be taken is a condition

precedent. In S.R. Bommai v. Union of India,3 The Supreme Court of India has held that where

an action is taken without any relevant material, the same cannot be termed as ‘debatable’ or

‘just conceivable’, but it would fall under the category of “obviously perverse” and the action

would be termed as one taken in bad faith or being based wholly on extraneous and/or

irrelevant grounds, thus open to challenge.4 As is patent from the undisputed facts of the present

case5 there was no objective material present for the President to form the subjective opinion

of promulgation the Criminal Law (Amendment) Ordinance, 2018. In A.K. Roy v. Union of

India,6 the Court observed that the power to issue ordinances is not meant to be used recklessly

or under an imaginary state of affairs or mala fide against the normal legislative process.

4. In the present matter, a prima facie case of non-existence of the circumstances necessary for

the promulgation of the ordinance is established because of the lack of any objective material

for the satisfaction of the President to take immediate action. It is submitted that in the present

case the material relied upon by the President is an extensive coverage of the incident of

1
Art. 123, The Constitution of India, 1950.
2
A.K. Roy v. Union of India, AIR 1982 SC 710 (¶ 8 and 16)
3
S.R. Bommai v. Union of India, AIR 1994 SC 1918.
4
State of Rajasthan v. Union of India, AIR 1977 SC 1361 (¶ 124-25)
5
Factsheet, ¶4 & 5, 12 & 13.
6
A.K. Roy v. Union of India, AIR 1982 SC 710.
abduction, rape and murder of an 8-year-old girl in Jammu and Kashmir.7 In that media

narrative, a number of editorials took the line that “radical” steps had to be taken to deter and

punish such crimes.8 Promulgation of the Ordinance, therefore, appears to be a knee-jerk

reaction to one particular incident which “shook the conscience of the nation” and not to

address any emergency challenges in securing justice to victims of child sexual abuse. The

offence of child sexual abuse is an occupied area i.e. the State and the Central legislature has

already enacted laws to extend protection ad secure justice for the victims of sexual abuse inter

alia provisions in IPC, CrPC, and the POCSO Act.

(i) Satisfaction subject to judicial review

5. The satisfaction of the President that ‘circumstances exist which render it necessary for him

to take immediate action’ is a condition precedent to the exercise this power. However, this

satisfaction under Art. 123(1) is not the personal satisfaction of the President, but by reason of

Art. 74 a satisfaction arrived at on the advice received from his Council of Ministers. 9 It is

submitted that the court can review the President’s satisfaction, and look into whether,

objectively, there was a need for taking ‘immediate action’. The court can scrutinise whether

the satisfaction of the President or the Governor, in a particular case, constitutes a fraud on

power or was actuated by oblique motive i.e. judicial review would enquire whether there was

no satisfaction at all.10

7
Factsheet, ¶4 & 5.
8
Factsheet, ¶5.
9
R.C. Cooper v. Union of India, AIR 1970 SC 587; Venkata Reddy, T. v. State of Andhra Pradesh, AIR 1985
SC 724.
10
Krishna Kumar Singh v. State of Bihar (1998) 5 SCC 643 ¶ 105; S.R. Bommai v. Union of India, AIR 1994

SC 1918.
6. It is submitted that ordinance making is not an executive but a legislative act,11 and therefore,

a law coming under Articles 13(2) and 21.12 For the same reason, on the ordinance is subject

to judicial review.

(ii) The intent behind Article 123 of the Constitution was to enable the Executive

to meet extraordinary situations demanding immediate enactment of laws.

7. Per Art. 123 of the Constitution,13 the President is empowered to issue ordinances and

promulgate laws for a short duration when the Parliament is not in session, and he is satisfied

that circumstances exist which render it necessary to take immediate action.

8. In S.R. Chaudhuri v. State of Punjab,14 the apex court underlined the importance of using

Constituent Assembly debates to understand the intention behind Constitutional provisions at

the time of interpretation. It is submitted that the intention behind vesting such a power in the

executive, as is clear from transcripts of the Constituent Assembly debates that ensued in this

regard, was to enable the Executive to meet any unforeseen or urgent situation arising in the

country when the Parliament is not in session, and which cannot be dealt with under the

ordinary law. It was not intended to make the President a repository of the legislative power of

the Union.15 The ordinance making power, even though plenary in its scope, is limited and

fettered under the Constitution.

9. In the present case, as stated above there was no demonstrable urgency or expediency which

required the promulgation of the Criminal Law (Amendment) Ordinance, 2018. It is submitted

11
A.K.Roy v. Union of India, AIR 1982 SC 710 (¶s 12, 15, 16, 22, 31).
12
A.K.Roy v. Union of India, AIR 1982 SC 710 (¶s 12, 15, 16, 22, 31).
13
Art. 14, The Constitution of India, 1950.
14
S.R. Chaudhuri v. State of Punjab, (2001) 7 SCC 126.
15
AMBEDKAR, VIII CAD, pg. 213. See also, M.P. Jain, INDIAN CONSTITUTIONAL LAW, 172 (7th ed., 2016).
that the Constitution of India envisages the promulgation of an ordinance in the rarest of rare

circumstances when the same cannot be dealt with under the ordinary law, and not as a knee-

jerk reaction to satisfy public outrage. In the present case, the offence of sexual abuse of minor

women was adequately dealt by the ordinary law under various legislations, and there was no

demonstrable need to make the stringent mandatory minimum sentences yet more stringent.

This is because of Art. 123 must necessarily be interpreted based on the intention of the framers

of the Constitution with respect to the ordinance making the power of the President under the

Constitution, and such an interpretation would restrict the power of the President to promulgate

an ordinance when the parliament is not in session in the present case.

[B] ACTIONS INITIATED UNDER AN ORDINANCE DO NOT SURVIVE THE END OF AN

ORDINANCE WHEN IT IS DISAPPROVED BY THE LEGISLATURE

10. It is submitted that acts were done under a disapproved or lapsed ordinance will not survive

its temporal limits except where a Court finds that this is required on account of grave elements

of public interest or constitutional necessity demonstrated by clear and cogent material, and

with impracticality and irreversibility being important relevant factors. In Krishna Kumar

Singh v. State of Bihar,16 a constitution bench of seven judges interpreted the phrase “cease to

operate” to overrule the judgements of the Supreme Court in State of Orissa v. Bhupendra

Kumar Bose,17 and Venkata Reddy, T. v. State of Andhra Pradesh,18 which had held that insofar

as the ordinance exhibited an intention to create permanent/enduring effect, acts done during

the pendency of the Ordinance would survive based on the analogy of temporary enactment.

The assumption that an Ordinance was equivalent to a temporary statute as, under the

16
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1.
17
State of Orissa v. Bhupendra Kumar Bose, AIR 1962 SC 945 (955).
18
Venkata Reddy, T. v. State of Andhra Pradesh, AIR 1985 SC 724.
Constitution, Ordinances had the same “force and effect” as law but were temporally limited,

is no longer a good law in view of the decision in S.R. Bommai v. Union of India.19 There is a

difference between an ordinance and temporary enactment/statute in the manner that, a

temporary statute was a law that existed for a temporary period because the legislature, which

had the plenary power to do so, had stipulated the time at which was to end. However, an

ordinance was temporally limited because of conditions imposed upon it by the Constitution.20

11. In Krishna Kumar Singh v. State of Bihar,21 the apex court also underlined that there are

no express provisions in Articles 123 and 213 of the Constitution, for saving of the rights,

privileges, obligations and liabilities which have risen under an ordinance which has ceased to

operate, unlike Articles 352, 359, 249 and 250 where a specific provision saving acts done after

the executive or legislative action in question ceased to operate. In S.R. Bommai v. Union of

India,22 it had been held that parliamentary disapproval of a Presidential proclamation meant a

revival of the status quo ante before the proclamation as any other reading would effectively

deprive Parliament of its constitutional position as supervising the Executive in such

circumstances.

12. It is submitted that in light of Krishna Kumar Singh v. State of Bihar,23 decision there is

good cause to hold that lapse or disapproval of an Ordinance makes it void ab initio, and all

acts are done, rights, privileges, obligations and liabilities created in the meantime, and

consequences which have taken place under such ordinance should cease to survive if the

19
S.R. Bommai v. Union of India, (1994) 3 SCC 1.
20
D.D. Basu, COMMENTARY ON THE CONSTITUTION OF INDIA, pg. 733 (8th ed., 2010).
21
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1.
22
S.R. Bommai v. Union of India, (1994) 3 SCC 1.
23
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1.
parliament fails to endorse the Ordinance. Parliament’s failure to endorse the ordinance through

a resolution signifying disapproval, as in the present case, then such action should count as

Parliament’s assessment that the condition precedent for passing the Ordinance was not

satisfied, and as a result, the Ordinance is void ab initio. The Ordinance is only conditionally

or presumptively valid i.e. it enjoys the ‘force’ and ‘effect’ of law but will remain legally

incomplete until the Parliament legislates upon it. Consequently, acts done under the Ordinance

should enjoy a constitutional validity, and any permanent/enduring effect should be subject to

the Ordinance itself being ratified or enacted into law.

13. It is submitted that the Ordinance was invalid because of the condition precedent

(emergency situation) and subsequent (endorsement of the Parliament) to the exercise of the

power under Art. 123 did not exist. Consequently, status quo ante before the promulgation of

the ordinance is revived including for the purposes of appellant’s conviction.

2. THE IMPUGNED CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 VIOLATES THE

APPELLANT’S FUNDAMENTAL RIGHTS

14. The Criminal Law (Amendment) Ordinance, 2018 brought about significant changes in the

quantum of punishment for offences of sexual abuse against minor women, however, in

violation of Articles 14 and 21 of the Constitution of India. It is submitted that the Ordinance

violates Art. 14 and Art. 21 of the Constitution of India and should, therefore, be struck down.

THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS IN VIOLATION OF ARTICLE 14 OF

THE CONSTITUTION OF INDIA

15. This ordinance creates an unjustified and arbitrary classification on the grounds of age and

sex. Art. 14 only permits classification based upon the twin criteria of intelligible differentia
and rational nexus with the object.24 It is submitted that the ordinance is in violation of Art. 14

of the Constitution of India, as, first, In the present case the classification created is not based

on intelligible differentia [A]; secondly, there is no nexus between the differentia and the object

sought to be achieved [B]; thirdly, the classification is wholly arbitrary in nature [C].

[A] THE CLASSIFICATION IS NOT BASED ON INTELLIGIBLE DIFFERENTIA.

16. Art. 14 of the Constitution of India ensures that each person shall have the equal protection

of the law and shall be treated equally by the law.25 The laws of the nation cannot be used to

unfairly discriminate against any person on the grounds of religion, race, caste, sex or place of

birth. The right to equality places a duty upon the state to treat similarly situated people in the

same manner.26 A departure from the right to equality requires the state to make a reasonable

classification. This classification must be based on an intelligible differentia.27 An intelligible

differentia is a differentia based upon identifiable and justifiable differences between groups.28

It is submitted that the differentia created by the ordinance has no rational basis and is prima

facie unequal. The differentia is created on the following basis and is flawed:

(i) Irrational differentia on the basis of sex

17. A differentia can be said to be irrational if there exists no difference between the persons

included in the classification and the ones not included in this classification.29 This is apparent

in the substantive and procedural effect of the ordinance. Substantively, the ordinance

drastically increases the punishment for the rape of a minor girl to a mandatory minimum of

24
K. Thimmappa v. Chairman, Central Board of Directors, AIR 2001 SC 467.
25
Art. 14, The Constitution of India, 1950.
26
Gauri Shankar v. Union of India, AIR 1995 SC 55.
27
Union of India v. M.V. Valliappan, (1999) 6 SCC 259.
28
State of U.P. v. Deoman Upadhyay- 1961 1 SCR 14.
29
Deepak Sibal v. Punjab University (1989) 2 SCC 145.
20 years. At the same time, it ignores the rape of a minor boy. Due to this reason, an act of a

similarly heinous nature will be punished under the Protection of Children from Sexual

Offences Act, 2012 with a term of 10 years.30 There is no reasonable basis for distinguishing

the harm caused due to the crime of rape to a minor girl and a minor boy. The offenders in both

situations have committed crimes of a similar nature. Thus, the ordinance fails to treat similarly

placed persons in the same fashion.

(ii) Irrational differentia on the basis of age

18. A differentia cannot be used to discriminate against persons who are similarly situated.31

This unintelligible differentia is observable in the substantive effect of the ordinance.

Substantively, the ordinance as per Sec. 376(3) prescribes a mandatory minimum punishment

of 20 years for the rape of a minor girl below the age of 16.32 As per Sec. 376AB, the mandatory

sentence for the rape of a minor girl below the age of 12 shall also be 20 years.33 However, this

offence may also be punishable with death. This differentiation is not logical because it is

substantively unfair. It creates a much more serious offence based upon unjustifiable criteria.

19. The classification based upon age is scientifically unsound. Based upon the latest reports

of the National Crime Record Bureau (Ministry of Home Affairs) victims in the age group of

14-18 are the most vulnerable group with over 8,800 cases.34 The classification of age in the

ordinance ignores rape of minors in the age group of 16-18 and prescribes the death penalty for

30
Sec. 6, Protection of Children from Sexual Offences Act, 2012.
31
Madhu Limaye v. Supt Tihar Jail 1975 AIR SC 1505.
32
Factsheet, amendment s. 376(3).
33
Factsheet, s. 376(3), 376AB.
34
National Crime Records Bureau, Victims of rape under different age groups-2013 available at
<https://data.gov.in/resources/state-ut-wise-victims-rape-cases-incest-other-and-total-under-different-age-
groups-during>. (Last visited on 10 August 2018).
rape of minors below the age of 12. These factors reflect that the differentia is not based upon

identifiable distinctions and hence is invalid.

[B] THE DIFFERENTIA HAS NO NEXUS WITH THE OBJECT SOUGHT TO BE ACHIEVED.

20. A classification made under Art. 14 is only permissible if it satisfies the twin criteria of

intelligible differentia and nexus with the object. It is submitted that the classification created

by the ordinance does not only violate the criteria of intelligible differentia but also the lack of

nexus with the object sought to be achieved.35 A differentia may have a scientific basis but

such a scientific classification cannot be intelligible if it is not fair and proper with the object

sought to be achieved.36 The purported object of the legislation is to deter crimes against minor

women. Only an increased stridency of penal provisions does not have a deterrent effect.37

Particularly, in rape cases wherein the perpetrator of the violence is often known to the victim,

due to an increased punishment and the threat of the death penalty, fewer victims will make

formal complaints.38 Thus, it is submitted that the ordinance does not have a reasonable nexus

with the object because it causes harm to the very class that it seeks to protect.

21. Furthermore, even if the differentia is based upon observable and scientifically verified

characteristics it must be made with the object in mind.39 The bench in Hiral P. Harsora v.

Kusum Narottamdas Harsora,40 observed that the object of the Domestic Violence Act was the

protection of women. In this regard the classification of the respondent as ‘adult male’ does

35
Laxmi Khandsari v State of Uttar Pradesh, 1981 SCR (3) 92.
36
Anwar Ali Sarkar v. State of West Bengal, 1952 AIR SC 75.
37
K. Prema Rao v. Yadla Srinivas Rao, (2003) 1 SCC 217.
38
ChildLine, Study on Child Abuse in India, vii (2007) <https://www.childlineindia.org.in/pdf/MWCD-Child-
Abuse-Report.pdf> (Last visited on Aug 10, 2018).
39
Anwar Ali Sarkar v. State of West Bengal, 1952 AIR SC 75.
40
Hiral P. Harsora and Ors v. Kusum Narottamdas Harsora (2016) 10 SCC 165.
not have a nexus with the object sought to be achieved as those excluded from the classification

may continue to perpetrate violence against the complainant. Though the distinction is

observable and verifiable, it is unconstitutional because it does not have a nexus with the object

of protecting women. In this case, the differentia created upon scientific characteristics is

identifiable and scientific. Yet, this has no bearing on the object sought to be achieved hence it

cannot be said that the differentia is valid.

[C] THE DIFFERENTIA IS ARBITRARY

22. It is submitted that the differentia created is of an arbitrary nature. A classification under

Art. 14 cannot be based upon artificial, evasive, or arbitrary characteristics.41 A lack of

rationality, reasonableness, and application of mind are manifestations of arbitrariness. 42 The

differentia in the present case is irrational because it does not have a nexus with the object

sought to be achieved.43 The differentia is unreasonable because it excludes persons from a

classification without an intelligible differentia.44 The differentia is based upon a non-

application of mind if it is incapable of being justified.45 The ordinance does not provide a

justification for the difference in punishment based on age and sex. There is nothing to show

that the harm caused by the rape of a minor girl is more severe as compared to the rape of minor

boy, yet the sentence for the crimes is vastly unequal. Non-application of mind also exists

where reliance has not been placed upon factual circumstances.46 Severe punishment exists for

the rape of minor girls yet, due to lack of enforcement and certainty of punishment such crimes

41
S. Sechalam v. Bar Council, Tamil Nadu- 2014 16 SCC 72.
42
Asha Sharma v. Chandigarh Admin 2011 10 SCC 86.
43
Section 2[B], Written Submission.
44
Section 2[A], Written Submission.
45
Onkar Lal Bajaj v. Union of India AIR 2003 SC 2562.
46
Pushpa Devi v. Union of India 1986 SCC 535.
continue to be committed. It is therefore submitted that as various child rights organizations

have also voiced their concerns about the ordinance, that it does not address the structural and

institutional challenges in securing justice to children who were victims of sexual abuse.47

23. The test of arbitrariness is also discernible from the facts and circumstances of the situation.

The question that arises is whether there exists a discernible principle in the impugned action.

If no principle is discernible the action must be labelled as arbitrary.48 In this case, arbitrariness

flows from the substantive as well as procedural changes brought about by the ordinance.

Substantively, as per Sec. 376(3) the offence of rape against a minor below the age of 16 is

punishable with a minimum sentence of 20 years.49 As per the Sections under 376(2),

aggravated offences such as repeatedly committing rape upon a woman and rape of a pregnant

woman are punishable with a term of 10 years.50 As per Sec. 376A rape resulting in death is

also punishable with a mandatory minimum term of 20 years.51 Therefore, the ordinance is

removing the gradation of offences as present in the IPC. This equates the offences of rape and

murder. The ordinance also differentiates minors based on sex and age. These substantive

changes do not account for instances of statutory rape. This unfair criminalization can also

cause harm to the minors involved. Procedurally, the ordinance has brought about amendments

in Sec. 173 of the Code of Criminal Procedure to reduce the period of inquiry to 2 months. 52

The discernible principle here is not that of protection of minors from sexual offences, but it is

that of a knee-jerk reaction to override the principles of equality. The principle of protection is

47
Factsheet, ¶12.
48
Union of India v. International Trading Co. (2003) 5 SCC 437.
49
Factsheet, Amendment Sec. 376AB, Indian Penal Code, 1860.
50
Sec. 376(2), Indian Penal Code, 1860.
51
Sec. 376A, Indian Penal Code, 1860.
52
Factsheet, Amendment Sec. 173, The Code of Criminal Procedure, 1973.
not discernible because the ordinance ignores other vulnerable groups and can cause harm to

minors. Therefore, the ordinance is arbitrary.

___________________________________________________________________________

THE CRIMINAL LAW (AMENDMENT) ORDINANCE, 2018 IS IN VIOLATION OF ARTICLE 21 OF

THE CONSTITUTION OF INDIA

24. In Maneka Gandhi v. Union of India,53 the court held that for a procedure to deprive a

person of his personal liberty, must satisfy certain requisites in the sense of being fair and

reasonable and not arbitrary, fanciful or oppressive. Subsequently, in Ramesh Chandubhai

Rathod v. State of Gujarat,54 underlined that the fairness, justice and reasonableness epitomized

in Art. 21 of the Constitution and also pervades the sentencing policy in Sec. 235(2), 354(3) of

the Criminal Procedure Code which virtually assimilates the concept of “procedure established

by law” within the meaning of the Art.

25. It is submitted that the mandatory minimum punishment of 20 years as stipulated by Sec.

367(3) IPC as introduced by the ordinance is disproportionate55 and violates the rights of the

accused to get a fair trial in the absence of safeguards ensuring proper and an impartial

investigation of the complaint, rigorous testing of the evidence etc. Therefore, in the present

53
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
54
Ramesh Chandubhai Rathod v. State of Gujarat, (2009) 5 SCC 740.
55
Section 3[A], Written Submission.
case, the procedure established by the impugned Ordinance is not just, fair, and reasonable and

thus is in violation of Art.21 of the Constitution of India.

3. THE SENTENCE IMPOSED UPON THE APPELLANT UNDER THE IMPUGNED ORDINANCE IS

UNREASONABLE

26. Mr. De has been sentenced to 20 years of imprisonment under Sec. 376(3) of the Indian

Penal Code, as introduced by the ordinance. It is submitted that the mandatory minimum

punishment of 20 years as stipulated by Sec. 367(3) IPC as introduced by the ordinance is

unconstitutional because it is not just, fair and reasonable and thus, infringes upon the rights of

the accused under Art. 21 of the Constitution, as, first, mandatory minimum punishment of 20

years is disproportionate to the gravity of the offence in the present case [A]; secondly, the

prescribed punishment is not in accordance with the purpose of reformation of the accused [B];

thirdly, prescribing mandatory minimum punishment reduces the judge’s discretion to take into

consideration the mitigating circumstances of the case [C]; fourthly, prescribing mandatory

minimum punishment violates Art. 14(5) of the ICCPR.

[A] MANDATORY MINIMUM PUNISHMENT OF 20 YEARS IS DISPROPORTIONATE TO THE

GRAVITY OF THE OFFENCE IN THE PRESENT CASE

27. The Supreme Court in the Justice K.S. Puttaswamy v. Union of India 56 observed that the

law that infringes upon the life and personal liberty has to be proportional to the object and

needs sought to be fulfilled by the law to guarantee protection against arbitrary state actions.

They further remarked that the encroachment upon the fundamental rights cannot be

56
Justice K.S. Puttaswamy v. Union of India, (2018) 1 SCC 809.
disproportionate to the purpose of the law.57 Although it is important to respond to the

collective mandate of the society, principle of proportionality between the crime and the

punishment is paramount to ensure the imposition of a just punishment.58

28. Therefore, the punishment has to be appropriate, just, adequate and proportionate to the

nature, motive, manner of performance, and gravity of the offence and after due consideration

to the social interest and consciousness of the society.59 It is submitted that the mandatory

minimum punishment of 20 years as stipulated by Sec. 367(3) of the IPC as introduced by the

ordinance is gravely disproportionate to the offence in question in the present case.

[B] THE PRESCRIBED PUNISHMENT IS NOT IN ACCORDANCE WITH THE PURPOSE OF

REFORMATION OF THE ACCUSED

29. The Supreme Court in the State of M.P. v. Bala alias Balaram has categorically asserted

that, “the rationale for advocating the award of a punishment commensurate with the gravity

of the offence and its impact on society, is to ensure that a civilized society does not revert to

the days of 'an eye for an eye and a tooth for a tooth'.”60 The court cannot deny justice to the

convicted person merely because the brutality of their crimes has resulted in grave injustice to

the victim.61 Judges have the obligation to dispassionately balance the aggravating and

mitigating circumstances of a case,62 and uphold the constitutional values regardless of the

nature of the crime they seek to prevent.63

57
Justice K.S. Puttaswamy v. Union of India, (2018) 1 SCC 809.
58
Gopal Singh vs. State of Uttarakhand, JT 2013 (3) SC 444.
59
Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648.
60
State of M.P. v. Bala alias Balaram, (2005) 8 SCC 1 ¶ 13.
61
Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220.
62
Alister Anthony Pareira v. State of Maharashtra, (2012) 2 SCC 648.
63
Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220.
30. It is submitted that in the present case, the commotion regarding the recent incidents of

child sexual abuse including the one in Jammu & Kashmir which was extensively covered by

the media, has coloured the judgement of the executive in promulgating the Criminal Law

(Amendment) Ordinance, 2018.64 The Ordinance, therefore, is a knee-jerk reaction to the

public outcry without objective reasons to prescribe a disproportionately higher mandatory

minimum punishment of 20 years in cases of sexual abuse against minor women below the age

of 16 years.

31. Therefore, the sole reason for imposing a punishment of 20 years to the appellant in the

present case is revenge and not reformation which per the Apex court in Deena v. Union of

India,65 cannot be the basis of punishment. In addition, the 262nd Law Commission has also

underlined that a wrong should be met by a sanction appropriate to the action, and deserved by

the offender taking into account the factors like the degree of intent, mitigating factors, etc.,66

and not upon the society’s conception of justice.67

[C] PRESCRIBING MANDATORY MINIMUM PUNISHMENT REDUCES THE JUDGE’S DISCRETION

TO TAKE INTO CONSIDERATION THE MITIGATING CIRCUMSTANCES OF THE CASE

32. The Supreme Court in Mithu v. State of Punjab,68 categorically opined that the court has

the ultimate authority to decide whether the punishment prescribed by the legislature to take

away the life or personal liberty of an individual is just, fair, and reasonable. They have to

64
Factsheet, ¶4 & 5.
65
Deena @ Deena Dayal v. Union of India, 1984 SCR (1).
66
The Death Penalty, Report No. 262, LAW COMMISSION OF INDIA, 91 (Aug., 2005).
67
Dhananjoy Chatterjee v. State of West Bengal, (1994) 2 SCC 220.
68
Mithu v. State of Punjab, 1983 SCR (2) 690.
ensure that the punishment imposed is not arbitrary and oppressive so as to violate fundamental

rights of the accused under Art. 21.69

33. The law commission of India has further opined in its 14th report opined that merely because

occasionally judges fail to award sentences proportional to the gravity of the crime, it cannot

be assumed that the entire judiciary has failed to award appropriate deterrent sentence.

Therefore, they strongly advocated against curtailing judge’s discretion to take into account the

particularities of the matter before them. The same position has been reiterated by the law

commission in the 42nd and 156th law commission reports as well.70

34. Therefore, it is submitted that in the present case, prescribing a mandatory minimum

punishment of 20 years by the ordinance does not allow the court to take into account the

mitigating circumstances of this particular case in order to determine whether the sentence

imposed upon the appellant is just, fair, and reasonable per the facts of the case. Therefore, the

ordinance unduly curtails the judicial discretion to do complete justice.71

[D] PRESCRIBING MANDATORY MINIMUM PUNISHMENT IS IN VIOLATION OF ARTICLE 14(5)

OF ICCPR

35. United Nations International Covenant on Civil and Political Rights (hereinafter referred

to as “ICCPR”) which came in force from 23rd March 1976 in accordance with the Art. 49 of

the covenant, to which India is a party. The right to a fair trial is contained in Art. 14 of the

ICCPR and includes the right to have a sentence reviewed by a higher court. Art. 14(5) of the

69
Mithu v. State of Punjab, 1983 SCR (2) 690.
70
Report No. 42, LAW COMMISSION OF INDIA, 60 (June, 1971).; Report No. 156, LAW COMMISSION OF INDIA, 39
(Aug, 1997).
71
Art. 142, The Constitution of India, 1949.
ICCPR provides: “Everyone convicted of a crime shall have the right to his conviction and

sentence being reviewed by a higher tribunal and according to law.”

36. It is therefore submitted that in the present case while there is a right to appeal the

conviction for an offence, mandatory sentences prevent substantial review of the penalty. The

appellate court has no discretion to impose a lesser sentence than the prescribed mandatory

minimum sentence where it is of the opinion that there are particular circumstances relating to

any offence or to the offender that make it reasonable to award a lesser sentence in those

particular circumstances.72 Therefore, the fair trial principle as contained in Art. 14(5) is

violated when the trial judge imposes the prescribed minimum sentence since there is nothing

in the sentencing process for an appellant court to review.

37. Arguendo, it is submitted that in the present case in light of Krishna Kumar Singh v. the

State of Bihar,73 decision there is good cause to hold that lapse or disapproval of an Ordinance

makes it void ab initio, and all acts are done, rights, privileges, obligations and liabilities

created in the meantime, and consequences which have taken place under such ordinance

should cease to survive if the parliament fails to endorse the Ordinance. Parliament’s failure to

endorse the ordinance through a resolution signifying disapproval, as in the present case, then

such action should count as Parliament’s assessment that the condition precedent for passing

the Ordinance was not satisfied, and as a result, the Ordinance is void ab initio. Consequently,

the Appellant is to be awarded the minimum punishment under Sec. 376 of the IPC before the

amendment.

72
Bachan Singh v. State of Punjab, (1980) 2 SCC 684.
73
Krishna Kumar Singh v. State of Bihar, (2017) 3 SCC 1.
 PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, it is humbly

prayed that this Honourable Court may be pleased to adjudge and declare that:

I. The promulgation of the Ordinance is not in line with the requisite procedure as laid

in the Constitution of India.

II. The ordinance concerned in the present case is in violation of Fundamental Rights

and was unconstitutional.

III. The quantum of punishment imposed upon the Appellant by the High Court in the

present case is not just, fair and reasonable.

And pass any other order that this Honourable Court deems fit in the interests of justice, equity

and good conscience.

All of which is humbly prayed,

28A,
Counsels for the Appellant/Petitioner.