Chennai Dr.
Ambedkar Government Law College, Pudupakkam
Clinical Paper IV– Final Year
LIST OF STUDENTS
Sl No Register Number Name of the Student
1 517A0225 Umar Mohamed A
2 517A0228 Venkatesh M
3 517A0229 Vignesh B
4 517A0231 Vishnu Jayaram R
5 517A0234 Yogee VS
6 517A0236 Yuvaraj Pandian G
7 517F0937 Prabhakaran s
8 517J1352 Ramanan R
9 517J1353 Ramesh S
INSTRUCTIONS
Students whose register number ends with an odd number will have to prepare
memorials for Petitioner and those with register number ending with even number
will have to prepare memorials for the Respondent side, for all the three cases
mentioned below.
E.g., 517XXXX2 – Respondent
517XXXX3 - Petitioner
The last date for submission of the Hard Copy of the Memorials is on or before 5th
April 2022. The date of presentation is on 13th April 2022.
The Memorials shall be typed on A4 size page in Font type: Times New Roman, Font
size: 12, 1.5 line spacing & 1inch margin on each side. The memorials shall not
exceed 40 pages.
The Cover Page of the Memorials must follow the following color scheme, Blue for
the Applicant/Petitioner/Appellant and Red for the Respondent. The hard copy of the
memorials must be spiral bound ONLY.
The Memorials must fulfill all the following specifications;
i.Cover page / Cause title
ii.Index
iii.Index of Authorities
iv.Statement of Jurisdiction
v.Synopsis of Facts
vi.Statement of Issues
vii.Summary of Arguments / Pleadings
viii.Arguments Advanced / Pleadings
ix.Conclusion / Prayer
MOOT PROPOSITION- CONSTITUTIONAL LAW
The Republic of Erewhon is a tiny speck of land located in the Ocean. Erewhon was
ruled by the British for over 200 years, but it became independent in 1947, when Britain’s
Parliament enacted the Erewhon Independence Act, 1947. In 1950, the founding fathers of
Erewhon enacted a constitution (“Constitution”) which was nearly identical to the
constitution which was enacted in India that same year. As on April 14, 2015, the
Constitution has undergone the same amendments as the constitution of India, and as on the
said date, the Constitution has also been interpreted by the Supreme Court of Erewhon in
exactly the same manner as the constitution of India has been interpreted by the Supreme
Court of India. For example, in the 1970s, the Supreme Court of Erewhon held that the
Constitution has a “basic structure” which cannot be altered or destroyed by a constitutional
amendment. Likewise, in the 1990s, the Supreme Court of Erewhon established a
“collegium” model of appointing judges, based on the model which also emerged in Indiain
that decade. In fact, judgments of the Supreme Court of India are routinely cited and followed
by the Supreme Court of Erewhon, and are almost considered binding there.
On April 15, 2015, the Parliament of Erewhon duly enacted a bill called the “Judicial
Appointments Commission (Constitution Amendment) Bill” (the “JAC Bill”) to amend the
Constitution. Within five days, the legislatures of twenty-three of Erewhon’s twenty-eight
states (each state representing one of Erewhon’s heterogeneous tribes) ratified the JAC Bill
by passing a resolution to that effect. On April 25, 2015, the President of Erewhon, assented
to the JAC Bill, after which it was immediately notified by the central government of
Erewhon in the official gazette. The JAC Bill now has the force of law in Erewhon.
The JAC Bill has five material provisions, which are set out below:
“
1. In article 124 of the Constitution, in clause (2),— (a) for the words "after consultation
with such of the Judges of the Supreme Court and of the High Courts in the States as the
President may deem necessary for the purpose", the words, figures and letter “on the
recommendation of the Judicial Appointments Commission as referred to in article 124A”
shall be substituted; (b) the first proviso shall be omitted; (c) in the second proviso, for the
words "Provided further that", the words "Provided that" shall be substituted.
2. After article 124 of the Constitution, the following article shall be inserted, namely:—
"124A. (1) There shall be a Commission to be known as the Judicial Appointments
Commission. (2) Parliament may, by law, provide for
— (a) the composition of the Commission; (b) the appointment, qualifications, conditions of
service and tenure of office of the Chairperson and other members of the Commission; (c) the
functions of the Commission; (d) the procedure to be followed by the Commission in
discharge of its functions; (e) the manner of selection of persons for appointment as Chief
Justice of Bhaarat and other Judges of the Supreme Court, Chief Justices and other Judges of
High Courts; and (f) such other matters as may be considered necessary.
3. After article 124A of the Constitution, the following article shall be inserted, namely:—
“124B. (1) When the office of the Chief Justice of the Supreme Court of Erewhon falls
vacant for any reason, that is if the Chief Justice of the Supreme Court of Erewhon retires,
resigns, or dies in harness, a new Chief Justice shall be appointed by the President of
Erewhon after consulting the Judicial Appointments Commission. For this purpose, the
Judicial Appointments Commission shall be free to recommend the name of a person other
than the senior -most judge of the Supreme Court of Erewhon for elevation to the post of
Chief Justice.(2) The Chief Justice of the Supreme Court of Erewhon shall be entitled to
serve in office for a guaranteed, minimum term of five years.(3) The Chief Justice of the
Supreme Court of Erewhon shall not be required to retire at the age of sixty-five if the said
guaranteed, minimum term of five years has not come to an end as on his/her sixty-fifth
birthday. In such event, the Chief Justice of the Supreme Court of Erewhon shall retire on the
date on which the said guaranteed, minimum term of five years comes to an end.”
4. After article 124B of the Constitution, the following article shall be inserted, namely:—
“124C. The Supreme Court of Erewhon shall only designate “Senior Advocates” on the
recommendation and advice of the Judicial Appointments Commission.”
5. After article 124C of the Constitution, the following article shall be inserted, namely:—
“124D. After duly retiring from office, or after resigning for any reason whatsoever, judges
of the Supreme Court of Erewhon, including the Chief Justice, shall not be appointed or
nominated by the government of Erewhon, or by any state government in Erewhon, to any
post, whether in India or overseas, for a period of five years from the date of the said
retirement or resignation.”
The JAC Bill also contained similar provisions which amended the chapter of the
Constitution of Erewhon that deals with the High Courts of Erewhon.
Appended to the JAC Bill was a “Statement of Objects and Reasons” which contained
the following four clauses:
“
1. The JAC Bill is designed to ensure equal participation of the judiciary and the
executive in the appointment of judges in the higher judiciary, to make the system of
judicial appointments more accountable, and to thereby increase the confidence of the
public in the institution of the judiciary.
2. The Chief Justiceship of the Supreme Court of Erewhon need not only devolve upon
the senior-most judge of the Supreme Court. There is no reason why eminent
advocates cannot directly be appointed to this post. The brightest and best judge in the
country, who may not necessarily be the senior -most judge in the country, should be
able to directly become the Chief Justice of the Supreme Court. Further, the Chief
Justice of the Supreme Court of Erewhon should get to serve a sufficiently long tenure
in office, so as to be able to carry out necessary judicial reforms. Erewhon needs a
long-term solution to tackle its judicial backlog problem, and the guaranteed,
minimum tenure for the Chief Justice is a step towards ensuring that the Chief Justice
has enough time to bring about reforms.
3. A “Senior Advocate” is not merely one of the leaders of the Bar, but also a role model
for society at large. As such, Senior Advocates must be men and women of the same
reputation and standing as higher court judges. Senior Advocates are therefore sought
to be appointed on the recommendation of the Judicial Appointments Commission.
4. Judges of the Supreme Court of Erewhon should be independent of the other branches
of government. However, post-retirement jobs offered by the government to retired
judges undermine their independence. A judge should not decide cases with a view to
getting a post-retirement job from the government. As such, judges have been barred
from getting employed by the government for five years after they retire from office.”
Erewhon’s Parliament has enacted a “Judicial Appointments Commission Act” (the
“Act”). Section 3 of the Act provides that the Judicial Appointments Commission is to
consist of the following persons: “(a) the Chief Justice of Erewhon, Chairperson, ex officio;
(b) two other Judges of the Supreme Court next to the Chief Justice of Erewhon in
seniority—Members, ex officio; (c) the Union Minister in charge of Law and Justice—
Member, ex officio; (d) two eminent persons, to be nominated by a group consisting of the
Prime Minister, the Chief Justice of Erewhon and the Leader of Opposition in the House of
the People—Members: Provided that the eminent 3 persons shall be nominated for a period
of three years and shall not be eligible for re-nomination.” The Act also provides that the
Secretary to the Government of Erewhon in the Department of Justice shall be the convener
of the Judicial Appointments Commission.
A group of eminent advocates practicing in various High Courts in Erewhon, led by a noted
lawyer, A.B. Gobiya (who practices in the High Court of the state of Nimroth in
Erewhon),filed a public interest petition under Article 32 of the Constitution, challenging the
validity of the JAC Bill.
For the purpose of this moot proposition, the laws of the Republic of Erewhon parimateria
with the laws and socio-economic situation of the Union of India.
MOOT PROPOSITION- CIVIL LAW
Maya an unmarried woman, aged 40 years was an employee of an enterprise “Sahara
Realty” earning Rs.950/-pm, visited the clinic of Dr.Gopika on 06-02-2021 for an ultrasound
test. The test was conducted and, on the basis of the ultrasound report, Dr.Gopika allegedly
informed her that she was suffering from fibroids and for further confirmation a laparoscopic
test was required to be conducted. On the next day, when she went to the clinic for a
diagnostic laparoscopy, allegedly her signatures on (i) admission and discharge card; (ii)
consent form for hospital admission and medical treatment; and (iii) consent form for
surgery. The Admission Card showed that admission was for diagnostic and operative
laparoscopy were obtained by an Assistant doctor of Dr.Gopika without giving her
opportunity to read the contents. When she was under general anesthesia, Dr.Gopika rushed
out of the operation theatre and told her aged mother that the patient had started bleeding
profusely and in order to save her life, extensive surgery need to be performed and her
signatures were obtained on some papers without waiting Maya to regain consciousness and
radical surgery (i.e, abdominal hysterectomy and bilateral salpingo-oopherectomy) was
performed on her, resulting in removal of her reproductive organs. When she protested,
Dr.Gopika rudely responded. According to Maya, she would have refused consent for
removal of her reproductive organs and would have opted for constructive treatment, had she
been informed about the surgery. Maya lodged a complaint in the Police Station against
Dr.Gopika for their negligence and unauthorizedly removing her reproductive organs. Maya
also filed a complaint on 01-03-2021 before the National Consumer Commission claiming a
compensation of Rs. 2 Crore from Dr.Gopika for negligently treating her resulting in loss of
her reproductive organs and consequential loss of opportunity to become a mother, for
diminished matrimonial prospects, for physical injury resulting in the loss of vital body
organs and irreversible permanent damage, for pain, suffering emotional stress and trauma,
and for decline in the health and increasing vulnerability to health hazards. The complaint
was dismissed by the Commission on 10-03-2022. Hence Maya filed an appeal before the
Hon’ble Supreme Court of India.
MOOT PROPOSITION- CRIMINAL LAW
Mr. Vipul Sen and Mrs. Divya Sen were married in 2017 and were residents of Pune
in the State of Maharashtra and they were working there in a US based Multi National
company. After 3 years of their happy marital life, Mrs. Divya Sen became aware that she
cannot give birth to a healthy child. She came to know about this fact by reading medical
reports kept secretly by her husband. As per that report Mr. Vipul suffered from some serious
congenital medical problem that may pass on to their child. Then they had quite a big fight in
this regard that he never told her about his health problem either prior to her marriage or
thereafter but kept the information secret. She remained in her in-laws house under their
care, as her husband went for employment training program to Pune for two months.
After some time Mr. Vipul learnt that his wife, desirous of having a healthy child,
developed an extra marital relationship with her office colleague, Mr. Vaidya. However, he
did not object to the same. Mr. Vaidya however, confessed to his wife that he had an illicit
relationship with Mrs. Divya. Mrs. Tara, wife of Mr. Vaidya, furious about the matter, filed a
complaint against her husband as ‘main accused,’ Mrs. Divya Sen as ‘second accused’ and
Mr. Vipul Sen as ‘an abettor’ as he, through his silence and acquiescence facilitated, rather,
to put it bluntly, encouraged Mrs. Divya Sen and Mr. Vaidya to indulge in ‘adultery’ thereby
ruining her marital life. She pleaded that she too shall be recognized as ‘aggrieved person’ as
her matrimonial life was disturbed with these developments.
Meanwhile, an NGO filed a Public Interest Limitation in the Supreme Court with a
plea that Section 497 of Indian Penal Code, 1860 shall be struck down as it violates Articles
14, 15 and 21 of Indian Constitution on the ground that the relevant section of Indian Penal
Code, 1860 gives ‘immunity only to adulteress but not to men’ when both are equally guilty.
As a matter of principle of ‘public policy’, gender neutrality shall be observed in criminal
law.
Mrs. Tara also impleaded herself challenging the constitutional validity of sec. 497 in
the Supreme Court as it violates different Articles of Indian Constitution. She also submits
that such ‘total immunity cannot be given to Mrs. Divya, the adulteress. She submits that S.
198 (2) of Code of Criminal Procedure, 1973 is also unconstitutional for it ‘discriminates on
the basis of sex’ which is prohibited under Article 15 (1) of Indian Constitution. Mrs. Tara
also filed a petition in the Family Court for ‘divorce’ from her husband under The Hindu
Marriage Act, 1955. Mr. Vipul also applied for divorce from his wife under The Hindu
Marriage Act, 1955. Mrs. Divya Sen objected that ‘it is strange that he, instead of she, filed
for divorce when ‘in reality non-disclosure of his serious health problem has brought forth
this state of affairs’. The High Court quashed the criminal proceedings against all the accused
persons ‘declaring that Sec. 497 does not violate any of the provisions of the Indian
Constitution. The Supreme Court, after hearing preliminary arguments, admitted and
clubbed all the SLPs for final disposal.
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