IN THE HONOURABLE HIGH COURT OF ESTANCIA

Case filed seeking an Order under Article 226 of the Constitution of Estancia

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

Mrs.Bhamini Fathima…………………Petitioner

v
Republic of Estancia …………………... Respondent

Mrs.Bhamini Fathima
vs.
Republic of Estancia

Most respectfully submitted before the Hon’ble Magistrate and companion

Judges of High court of Estancia

MEMORANDUM ON BEHALF OF THE PETITIONERS

DRAWN AND FILED BY THE COUNSELS FOR THE PETITIONERS
 TABLE OF CONTENTS
ABBREVIATION AND EXTENSIONS ………………………………………………. 3
INDEX OF AUTHORITIES ……………………………………………………. 4
STATEMENT OF JURISDICTION ……………………………………………….. 6
STATEMENT OF FACTS ………………………………………………………… 7
STATEMENT OF ISSUES ……………………………………………………….... 9
SUMMARY OF ARGUMENTS ……………………………………………...…… 10
ARGUMENTS ADVANCED ……………………………………………………… 11
PRAYER…………………………………………………………………………….. 17
 ABBREVIATIONS AND EXTENSIONS

ABBREVIATION EXTENSION

NO. Number

HC High court

Sec section

Hon’ble Honourable

& And

§ section

¶ Paragraph

Anr. Another

Art. Article

v. Versus

Vol. Volume

const Constitution

SC Supreme court

PIL Public interest litigation

 INDEX OF AUTHORITIES

BOOKS REFERRED:

i. JAIN M.P, INDIAN CONSTITUTIONAL LAW (6th​ed. 2010).

ii. BASU D.D, COMMENTARY ON CONSTITUTION OF INDIA (8th​ed. 2009).
iii. PANDEY J.N, THE CONSTITUTIONAL LAW OF INDIA(49th​ed. 2012).
iv. BAKSHI P.M, THE CONSTITUTION OF INDIA(11th​ed. 2011).
v. SHUKLA V.N, CONSTITUTION OF INDIA(11th​ed. 2012).

2. LAW OF EVIDENCE:

i. AVTAR SINGH, PRINCIPLES OF THE LAW OF EVIDENCE (19th​ed. 2011).

ii. PRASAD B.M& MANISH MOHAN, LAW OF EVIDENCE (19th​ed. 2010).
iii. DINKAR V.R, SCIENTIFIC EXPERT EVIDENCE (4th​ed. 2013).
iv. NANDI A.K, INDIAN EVIDENCE ACT, 1872 (6th​ed. 2010).
 STATEMENT OF JURISDICTION

It is most humbly and respectfully submitted that the Petitioner has approached this Hon’ble

High Court under Art. 226 of the Constitution of Estancia and accepts that this Hon’ble court

has the inherent jurisdiction, power, and authority to try, entertain and dispose off the present

petitions clubbed together by virtue of Art. 226 of The Constitution of Estancia.The petitioner

sets forth the facts and laws on which the claims are based.

Article 226, empowers the high courts to issue, to any person or authority, including the
government (in appropriate cases), directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto, certiorari or any of them.

The High Court is conferred with this power under Article 226 of the Constitution of Estancia
for enforcement of any of the fundamental rights conferred by part III of the Constitution or
for any other purpose
 STATEMENT OF FACTS

● Mrs. Bhamini Fathima is a full-time working wife who resides at “Sunshine

Apartments”, along with her husband Mr. Chandra who takes care of the house and
their daughter. Due to Mr.Chandra’s recent failure as an entrepreneur, Mrs. Bhamini
Fathima takes it upon herself to start full-time work to bring financial stability to
their lives.

● Mrs. Bhamini Fathima works with She-Taxi company as a driver. In the due course of
time, Mrs. Bhamini Fathima has gained a lot of attention in the histogram platform
(social media) where she has around 50k followers. She has moulded herself into a
woman influencer as a lady taxi driver, who inspires many young girls and women of
the present generation. Her fame and beauty attracted many followers and at the same
time she gained a lot of hatred.

● On 18/10/2022, At 10:00am she was assigned to pick up Mr. Lucky Singh from the
airport, who by surprise turns out to be one of the followers of Mrs. Bhamini’s
histogram social media account.

● Mr. Lucky Singh conveyed his wishes and stated that he has recently bought an
apartment in the neighbourhood, which coincidentally happened to be one of the
apartments in Bhamini’s gated community.

● On 18/10/2022, at 4:00pm celebration started at Bhamini’s apartment. Mr.Lucky

Singh visited her apartment without any prior invite. Bhamini, was highly annoyed at
Lucky's eagerness to barge into her home when all she wants is to celebrate her
anniversary with her husband and daughter.
● On 18/10/2022, around 6:00 pm Mr. Lucky asked Bhamini to help with carrying out
an errand for him. Mrs. Bhamini agreed to help and informed Mr. Lucky that she
will drop him at the airport after offering her evening prayers.

● Meanwhile Mr.Lucky Singh ends up killing Mr. Chandra and his daughter
cold-bloodedly while Mrs.Bhamini was offering her prayers. He hides their body in a
giant body bag and hides it in the trunk of Bhamini’s car.

● On 18/10/2022, at 6:30pm, Meanwhile Mr.Lucky Singh ends up killing Mr. Chandra

and his daughter cold-bloodedly while Mrs.Bhamini was offering her prayers. He
hides their body in a giant body bag and hides it in the trunk of Bhamini’s car.

● Bhamini comes back to find out that Chandra and her daughter are nowhere to be
seen. She files a missing person report, and soon The police found Chandra’s body in
Bhamini’s car trunk and suspected and arrested her.
 STATEMENT OF ISSUES

1. Whether the petition is maintainable or not ?

2. Whether the Criminal Procedure ( Identification ) Act 2022 is devoid of substantive

due process and ultra vires to the constitution?

3.Whether the rights of the accused person are infringed under this Act?
 SUMMARY OF ARGUMENTS

1.Whether the petition is maintainable or not ?

Yes, the petition filed by Mrs.Bhamini Fathima is maintainable in this instant case in the
Hon’ble high court ,where she has advanced for justice.There was gross violation of her
fundamental rights and act of false accusation against her.

2.Whether the Criminal Procedure ( Identification ) Act 2022 is devoid of substantive

due process and ultra vires to the constitution?

Yes, the Criminal Procedure ( Identification ) Act 2022 is devoid of substantive due process
and ultra vires to the constitution.The petition has prayed for the issuance of a writ of
mandamus or any other appropriate writ, direction or order declaring the aforesaid provisions
of the Act as unconstitutional and void.

3.Whether the rights of the accused person are infringed under this Act?

Yes,the rights of the petitioner are infringed in the substantive due process.The right to life
and personal liberty mentioned in Article.21 was infringed,The Article.20(3) where the
protection in respect of conviction for the offences mentioned is violated .Therefore there is
gross violation of her rights.
 ARGUMENTS ADVANCED

ISSUE:1.Whether the petition is maintainable or not ?

Yes, the petition filed by Mrs.Bhamini Fathima is maintainable in this instant case in the
Hon’ble high court ,where she has advanced for justice.There was gross violation of her
fundamental rights and act of false accusation against her.Because Mrs.Fathima in this instant
case does not have any ‘mens rea’ for the execution of the crime,it was her own husband and
daughter who were murdered for whom she worked day and night to satisfy the financial
needs.The Article 226 of the constitution is invoked into the

The Article 21 of the Estancia constitution is put on to challenge where the criminal
procedural code section 4 clearly infringes the right to privacy of the individual

4. (1) The National Crime Records Bureau shall, in the interest of prevention, detection,
investigation and prosecution of any offence under any law for the time being in force,—

a) collect the record of measurements from State Government or Union territory

Administration or any other law enforcement agencies;

(b) store, preserve and destroy the record of measurements at national level;

(c) process such record with relevant crime and criminal records; and

(d) share and disseminate such records with any law enforcement agency,
in such a manner as may be prescribed.

(2)The record of measurements shall be retained in digital or electronic form for a period of
seventy-five years from the date of collection of such measurement:
Provided that where any person, who has not been previously convicted of an offence
punishable under any law with imprisonment for any term, has had his measurements taken
according to the provisions of this Act, is released without trial or discharged or acquitted by
the court, after exhausting all legal remedies, all records of measurements so taken shall,
unless the court or Magistrate, for reasons to be recorded in writing otherwise directs, be
destroyed from records
(3) The State Government and Union territory Administration may notify an appropriate
agency to collect, preserve and share the measurements in their respective jurisdictions.

The samples so collected when proved acquitted , still remains in the records thus infringing
the privacy of the individual

The right to privacy is inextricably bound up with all exercises of human liberty and both as
it is specifically enumerated across Part III, and as it is guaranteed in the residue under
Article 21. It is distributed across the various articles in Part III and, mutatis mutandis, takes
the form of whichever of their enjoyment its violation curtails.

The Article 14 of the constitution of Estancia deals with "The State shall not deny to any
person equality before the law or the equal protection of the laws within the territory of
India.”In the instance of this scenario , the criminal procedure (identification)act ,2022 is a
provision is a direct contravention of Article 14 of the Constitution, which gives a person
right against arbitrary and unreasonable State action. This unreasonable action further
violates an individual’s right to fair trial, whether they are the main accused or not.The
section 5 of the Act deals with the resistance of the measurements, it is not advisable to
collect measurements without the assistance of a medical practitioner and moreover there are
high chances of medical complications to arise .

(Section 5)Where the Magistrate is satisfied that, for the purpose of any investigation or
proceeding under the Code of Criminal Procedure, 1973 or any other law for the time being
in force, it is expedient to direct any person to give measurements under this Act, the
Magistrate may make an order to that effect and in that case, the person to whom the order
relates shall allow the measurements to be taken in conformity with such directions.
Article 20(3) the self incrimination act under the prevention of conviction of offences is
clearly violated, the act of collection of the measurements under section 3 of the Criminal
procedural code ,1973 is forced upon the accused and are collected measurements from when
under the preventive detention act of 1950.The accused is forced to appear as a witness
against himself by giving the appropriate evidence .

Rajamuthukoil Pillai v. Periyasami Nadar, AIR 1956 Mad 632. There, on the strength of
the ruling, reported in AIR 1954 SC 300, a learned Judge of the Madras High Court held that:
"A direction by the Court asking the accused to give his thumb impression amounts to asking
him to furnish evidence which is prohibited under Article 20(3). The accused, therefore,
cannot be compelled to give his thumb impression as directed by the Magistrate."

In Nandini Satpathy v. P.L. Dani, the appellant, a former Chief Minister, was called to the
Vigilance Police Station for the purpose of examination for a case filed against her under the
Prevention of Corruption Act, 1947. During the investigation, she was served with a long list
of questions in writing which she denied to answer and claimed protection under Article
20(3). The Supreme Court held that the objective of Article 20(3) is to protect the accused
from unnecessary police harassment and the right against self-incrimination is available to
witness and the accused in the same manner, and it is applicable at every stage where
information is furnished. The privilege under Article 20(3) is applied at the stage of police
investigation when the information is extracted.

In Kharak Singh v. State of Uttar Pradesh, the apex court held that Right to Privacy is not
guaranteed under the Constitution. The courts have allowed DNA tests on certain occasions
to be used in an investigation for producing evidence.The courts are reluctant in accepting
evidence based on DNA Test because it challenges the Right to privacy and the Right against
self-incrimination of an individual. Right to privacy is a right inherent in Right to Life and
Personal Liberty under Article 21. However, in some cases, the Supreme Court held that the
Right to Life and Personal Liberty is not absolute and can be subject to certain restrictions.
(One case law pending)
ISSUE: 2.Whether the Criminal Procedure ( Identification ) Act 2022 is devoid of
substantive due process and ultra vires to the constitution?

Yes, the Criminal Procedure ( Identification ) Act 2022 is devoid of substantive due process
and ultra vires to the constitution.The petition has prayed for the issuance of a writ of
mandamus or any other appropriate writ, direction or order declaring the aforesaid provisions
of the Act as unconstitutional and void.

A) Under the criminal procedure (Identification ) Act 2022 , This Sect 2(I)(a) is violative of
Art 14.
Sect reads as follows
(a) "Magistrate" means,—
(i) in relation to a metropolitan area, the Metropolitan Magistrate;
(ii) in relation to any other area, the Judicial Magistrate of the first class; or
(iii) in relation to ordering someone to give security for his good behaviour or maintaining
peace, the Executive Magistrate;

While the ambit of ‘person from whom data may be collected’ has been increased without
providing adequate reasons for doing so, no effort has been made to create an internal
safeguard against the harmful practices that may be carried out by the police due to such an
‘increased ambit’.It is important to note here that investigation in all cases does not require
collection of personal data, except for extreme cases such as preventative detention.The
accused in this case was not held under preventative detention .Hence these grounds cannot
be considered a valid reason for measurements which includes collection of iris and retina
scans, photographs, finger impressions, palm-print impressions, footprint impressions,
physical and biological samples and their analysis, behavioural attributes including
signatures, handwriting or any other examination.
In the case of Magan Lal Chaggan Lal v Municipal Corporation of Greater Bombay. The
court made a distinction between the statute which themselves make a classification and
those which authorise the executive to make a classification. In the first case, the statute will
be invalid if it fails to meet the reasonable classification test. In the latter case, if the statute
provides guidelines, whether express or implied, to the executive to make classification, and
the executive fails to meet the test, only the action will be invalid and not the statute itself.

B) Under the criminal procedure (Identification ) Act 2022 , Sect 2(I)(b ) is violative of
Article 21 as well as Article 200 (3)

This section states :

(b) "measurements" includes finger-impressions, palm-print impressions, foot-print

impressions, photographs, iris and retina scan, physical, biological samples and their analysis,
behavioural attributes including signatures, handwriting or any other examination referred to
in section 53 or section 53A of the Code of Criminal Procedure,1973.

All of this data is extremely personal to each individual and collection of the same is a
violation of every individual’s right to privacy protected under Article 21 of the Constitution.
There also seems to be no nexus between collection of this data as evidence against the
accused persons and the proposed aim sought to be achieved.
The. The Act seeks to violate the accused person’s right to privacy without providing a
legitimate purpose. The same is in the judgement passed by the Supreme Court in K.S.
Puttaswamy and Ors. vs Union of India and Ors wherein the court held that privacy also
safeguards autonomy, personal integrity and dignity and can ‘only be restricted by a law
which is proportionate and serves a legitimate State aim’.

Terms like ‘measurements’, ‘biological samples’ and ‘behavioural attributes’ provide wide
room for interpretation that can be used by the state to collect self incriminating evidence
against any arrested, convicted or detained person and without their consent. This leads to
transgressing the right against self-incrimination provided under Article 20(3) of the
Constitution.

In Gobind Singh v. State of Madhya Pradesh, the Court held that the mental state of an
individual comes under the ambit of ‘Right to Privacy’. Later, developments in this area
observed that the authority of the State to compel an individual to expose the parts of his life
which he wishes to keep to himself is ultra vires the Constitution as it is in contravention of
the rights guaranteed under Article 20(3) and 21.

C) Under the criminal procedure (Identification ) Act 2022 , Sect 3 and 4 violates Article 21 .

This. Sect deals with Collection, storing, preservation of measurements and storing, sharing,
dissemination, destruction and disposal of records.

The Act allows retention of such personal data for 75 years and further allows the National
Crime Records Bureau to share this personal data with any law enforcement agency in the
interest of investigation and prosecution of any offence. This is against the principle of
purpose limitation. The principle of purpose limitation means that even if collection of data
from individuals is allowed, it needs to be used for the specific purpose for which it was
collected and nothing else.

The present Act allows collection of iris and retina scans, photographs, finger impressions,
palm-print impressions, footprint impressions, physical and biological samples and their
analysis, behavioural attributes including signatures, handwriting or any other examination.
All of this data is extremely personal to each individual and collection of the same is a
violation of every individual’s right to privacy protected under Article 21 of the Constitution.

D) Under the criminal procedure (Identification ) Act 2022 , Sect 5 is violative of. Article
20(3) .

This sect deals with the Power of Magistrate to direct a person to give measurements.

Specifically, these terms are open to interpretation to include ‘measurements’ of a testimonial

nature taken by way of a compelled psychiatric evaluation. Such evaluation, when it leads to
any incriminating admission, would constitute a ‘testimonial compulsion’. This coercive
provision therefore transgresses the right against self-incrimination, a well-established
principle of our criminal justice system and mandated under Article 20(3) of the Constitution.
E) Under the criminal procedure (Identification ) Act 2022 , Sect 8 is violative of Article 21 .

This sect deals with the power to make rules.

The petition also states that the fundamental right to life and personal liberty under Article 21
provides a shield to protect ‘bodily integrity and dignity’, and such protection extends to
prisoners, undertrials, arrested persons, detainees in the course of investigation and persons in
protection homes. Forcing an individual to part with his ‘measurements’ under the provisions
of Act violates the standard of `substantive due process’ which is required for restraining
personal liberty. It is submitted that Sections 3 and 5 of the Act, in flagrant violation of the
law laid down by the Supreme Court, allows excessive, coercive and arbitrary intrusion into
the dignity of a convict as well as of an individual who may be called in for simple
questioning, or who is involved in the pettiest of offences. These provisions constitute a clear
attack on ‘personal liberty’ and clearly fall foul of Article 21 of the Constitution and are thus
liable to be struck down.

The provisions are arbitrary, excessive, unreasonable, disproportionate, devoid of

substantive due process and in violation of fundamental rights of the citizens of India as well
as of the basic structure of the Constitution of India , and thus are liable to be struck down by
the court.

ISSUE:3. Whether the rights of the accused person are infringed under this Act?

Yes,the rights of the petitioner are infringed in the substantive due process.The right to life
and personal liberty mentioned in Article 21 was infringed,The Article 20(3) where the
protection in respect of conviction for the offences mentioned is violated. Therefore there is
gross violation of her fundamental rights and false accusations against her.In this scenario
there is violation .Her right to personal life and liberty as mentioned under Article 21 are
violated , the act of collection of measurements from the accused in section 3 of the criminal
procedural code must not be forced , therefore this invoked the constitutionality of the article
20(3) which describes about the act of self incrimination and in case of the false accusations
made there might be acquittal which is a violation of the privacy of the individual’s life.

(Section-3)of the Criminal procedural code ,1973 deals with taking measurements
Any person, who has been,—
(a)convicted of an offence punishable under any law for the time being in force; or

(b) ordered to give security for his good behaviour or maintaining peace under section 117 of
the Code of Criminal Procedure, 1973 for a proceeding under section 107 or section 108 or
section 109 or section 110 of the said Code; or

(c) arrested in connection with an offence punishable under any law for the time being in
force or detained under any preventive detention law,

shall, if so required, allow his measurement to be taken by a police officer or a prison officer
in such manner as may be prescribed by the Central Government or the State Government:
Provided that any person arrested for an offence committed under any law for the time being
in force (except for an offence committed against a woman or a child or for any offence
punishable with imprisonment for a period not less than seven years) may not be obliged to
allow taking of his biological samples under the provisions of this section.

There was significant contempt that Mrs.Bhamini Fathima was not witnessing or in the scene
of action of the crime and had no intention ,“mens rea ”,hence detaining her in legal custody
would not be appropriate as on
 PRAYER

In the light of facts stated, issues raised, arguments advanced and authorities cited, the
petitioner humbly submit that this Hon’ble Court may be pleased to declare the following:

1.The petition filed by Mrs.Bhamini Fathima is maintainable before this hon’ble court.
2.The Criminal Procedure ( Identification ) Act 2022 is devoid of substantive due process
and ultra vires to the constitution.
3.The rights of the petitioner are Infringed

AND /OR

Pass any other order as the Hon’ble Court deems fit in the interest of equity, justice, fair
play and good conscience.
All of which is humbly prayed.

(Counsel on behalf of Petitioner)